Yesterday a federal judge upheld the Obama administration’s refusal to disclose the detailed legal reasoning underlying its policy of using unmanned aircraft to kill people identified as members or allies of Al Qaeda. Two New York Times reporters and the American Civil Liberties Union asked for documents addressing that question, including a memo prepared by the Office of Legal Counsel, under the Freedom of Information Act (FOIA). While U.S. District Judge Colleen McMahon determined that withholding the material did not violate FOIA, she expressed frustration that ”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.” In her ruling, McMahon, a Clinton appointee, elaborates on the “legitimate reasons” why “some Americans question the power of the Executive to make a unilateral and unreviewable decision to kill an American citizen who is not actively engaged in armed combat operations against this country.”
The Fifth Amendment, for instance, says no person shall be “deprived of life…without due process of law.” Last March, in a speech at Northwestern University, Attorney General Eric Holder asserted that President Obama’s kill orders comply with the Due Process Clause, saying it does not necessarily demand judicial review. “The Constitution’s guarantee of due process is ironclad, and it is essential,” he said, “but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war—even if that individual happens to be a U.S. citizen.” McMahon notes that Holder “did not identify which recent court decisions so held” or “explain exactly what process was given to the victims of targeted killings at locations far trom ‘hot’ battlefields.” Those are among the details that the Obama administration continues to conceal.
CONTINUED at Reason. Written by Jacob Sullum.