If the White House is going to act as judge, jury and executioner in targeting individuals with airstrikes, the least it can do is divulge its legal rationale.
A federal judge in New York ruled this week that the Obama administration may withhold from the public a document providing the legal rationale for the targeted killing in Yemenof Anwar Awlaki, an Al Qaeda operative who was also a U.S. citizen. But even as she did so, U.S. District Judge Colleen McMahon eloquently expressed her concerns about the existence of a secretive government program that not only assassinates those deemed to be enemies of the United States, but does so without judicial oversight.
Awlaki was killed in a drone strike in September 2011 along with another U.S. citizen named Samir Khan. The administration insists that such airstrikes, in Yemen as well as Pakistan, are legal under a congressional resolution authorizing the use of force against “nations, organizations or persons” tied to the 9/11 attacks.
Atty. Gen. Eric H. Holder Jr. has said publicly that targeted killings take place only when there is “an imminent threat of violent attack against the United States” and when capturing the suspect is “not feasible.” But Holder included in his definition actions that would head off “future attacks,” a troublingly broad formulation. And the administration has refused to release the legal opinion by the Justice Department‘s Office of Legal Counsel providing a detailed justification for the policy.
In her ruling, McMahon rejected a request by two New York Times reporters that the document be released under the Freedom of Information Act. She also turned aside a broader request for information about the policy filed by the American Civil Liberties Union. Her legal conclusions were plausible: that the documents were covered by exemptions in the law that protect the secrecy of classified information pertaining to defense or intelligence activities, and that the administration hadn’t waived those exemptions by making general statements about the targeted-killings policy.
But McMahon had much more to say in her often anguished opinion. She lamented 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.” And she noted that fuller disclosure of the legal justifications for killing individuals far from the battlefield would allow for “intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated.”
This page has made the same point in urging the administration to release the Office of Legal Counsel memorandum. If it is going to act as judge, jury and executioner, the least it can do is divulge its legal reasoning.