Is the federal government required to disclose the whys and wherefores of its targeted killing program? According to U.S. District Judge Colleen McMahon, the answer is a reluctant no.
McMahon, a judge in Manhattan, dismissed all but a tiny portion of a lawsuit seeking records concerning the Obama administration’s targeted killing program, which has been used to assassinate various individuals in countries with which the United States is not formally at war. Among those killed were American citizens Anwar al-Awlaki, his 16-year-old son Abdulrahman al-Awlaki, and Samir Khan, all of whom perished in U.S. drone strikes in Yemen.
The case before the court was a combination of two separate lawsuits. The first, brought by the New York Times, sought a Justice Department memorandum providing the legal justification for the assassination of al-Awlaki. The second, brought by the American Civil Liberties Union (ACLU), was considerably broader, asking for a variety of records concerning the targeted killing program in general and the killings of the three American citizens in Yemen in particular. The plaintiffs had requested these records under the Freedom of Information Act (FOIA), but the government had refused to supply them, in most cases declining to state whether they existed or not.
McMahon, an appointee of President Bill Clinton, was clearly sympathetic to the plaintiffs’ case. “The FOIA requests here in issue implicate serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States, and about whether we are indeed a nation of laws, not of men,” she wrote.
The Administration has engaged in public discussion of the legality of targeted killing, even of citizens, but in cryptic and imprecise ways, generally without citing to any statute or court decision that justifies its conclusions. More fulsome disclosure of the legal reasoning on which the Administration relies to justify the targeted killing of individuals, including United States citizens, far from any recognizable “hot” field of battle, would allow for intelligent discussion and assessment of a tactic that … remains hotly debated.
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