Two reporters from the New York TImes
along with the American Civil Liberties Union filed a request under the Freedom of Information Act to reveal any documents in which Department of Justice lawyers discussed the "targeted-killing" program.
The requests were made after a drone strike killed Anwar Al-Awlaki an alleged Al Qaeda operative, who was also an American citizen. Many legal scholars and human rights activists questioned the legality of the action and noted that except on the battlefield it was illegal to kill US citizens without a trial. As is so often the case, requests for information were turned down on the grounds that any details about the program, or even admitting (officially) that documents on the subject exist could harm national security. This reasoning is truly bizarre given that the Obama administration has boasted about the program, and the New York TImes wrote an extensive article that purports to describe the process that is used in selecting targets.
US District Judge Colleen McMahon criticized the Obama administration for not releasing the documents but said she had no authority to order that they be released to the public. She
“I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules — a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.”
There are two unclassified documents that may be released but the remainder she had to reject because of the national security rules governing secrecy.
In her ruling, Judge McMahon had noted that the program raised troubling questions. She noted that both Obama and officials in his administration had publicly acknowledged that the killings took place and that their legality had been discussed. The judge wrote that there should be fuller disclosure of the legal reasoning behind the policy to allow for intelligent discussion of the issue. She finished
:“However, this court is constrained by law, and under the law, I can only conclude that the government has not violated FOIA by refusing to turn over the documents, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States. The Alice-in-Wonderland nature of this pronouncement is not lost on me.”
The judge describes the situation rather well!
Jameel Jaffer, the deputy legal director of the ACLU, said that the ruling in effect give the green light to the government's "practice of making selective and self-serving disclosures." Jaffer
:"The public has a right to know more about the circumstances in which the government believes it can lawfully kill people, including US citizens, who are far from any battlefield and have never been charged with a crime."
Perhaps they have a moral right to have such information but so far there has been no success in establishing any legal right to it.