First, Judge Colleen McMahon of the U.S. District Court for the Southern District of New York declared that the White House need not respond to Freedom of Information Act requests that it turn over its legal doctrine for the drone program. Then, after handing Obama that victory, she raised the possibility that he is a murderer.
The judge was technically correct, perhaps, on the first matter -- and very wrong on the second. Yet the White House should take heed: The tangled nature of McMahon’s criticisms reflects deep public confusion over the drone war. The administration would be well served to throw aside the cover McMahon provided, reveal the architecture of its legal approach to drone killings, and open a broader discussion of the rules under which the battle against Islamic terrorism will be fought.
McMahon was ruling on two requests -- one from the American Civil Liberties Union and another from the New York Times -- that the administration turn over a 2010 Justice Department memo that provided the legal justification for the 2011 targeted killing of U.S. citizen Anwar al-Awlaki. The government insisted that the memo and the other documents requested were classified, being related to a covert operation.
The plaintiffs argued that several officials, including Attorney General Eric Holder in a speech last March, had divulged much of the legal rationale in public and could therefore no longer claim classified privilege. McMahon sided with the government on the grounds that the public comments were “cryptic and imprecise” and that “it lies beyond the power of this court to conclude that a document has been improperly classified.”
Then the judge climbed on her soapbox. “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,” she wrote. She implied that, as a citizen, Awlaki should have faced treason charges in a U.S. court rather than death in a Yemeni desert, and also that his death constituted a breach of the U.S. criminal code, which forbids the killing of U.S. nationals abroad.
The problem here is that the treason-clause argument was already deemed irrelevant by the Supreme Court in 2004’s Hamdi v. Rumsfeld. Besides, as terrorism expert Robert Chesney of the University of Texas Law School puts it, “It simply is not clear why the possibility that a person could be tried for treason must foreclose resort to otherwise-lawful alternative measures.” As for the point about the criminal code, it refers not to killings in general but specifically to “murder.” Thus it applies only if there is agreement that the drone campaign is analogous to a murder spree.
McMahon’s reasoning aside, we are not convinced by the government’s argument that the drone memo needs to stay in a locked drawer. Between Holder’s speech and a front-page account in the New York Times after Awlaki’s death, we have a pretty good idea of the rules the administration has set for itself. At the same time, the administration has legitimate concerns about succumbing to FOIA requests for information on covert action. It could be a dangerous precedent.
The way out of the puzzle is clear: The administration should voluntarily release the memo. If there are national-security secrets involved, they can be redacted. Alternatively, the White House can issue a document to Congress that clearly delineates its legal thinking, just as the George W. Bush administration did with its warrantless wiretapping operation in 2005.
Questions about the drone campaign, which is being waged under the congressional authorization for the 2001 Afghan invasion, are piling up. What is the legality of killing people far from any battlefield? How do we decide to use a strike rather than a ground operation? What weight is given to the likelihood of civilian casualties? Does the authorization extend only to al-Qaeda members, to its loose network of affiliates, or to any Islamic militant? How much consideration is given to the possibility of so-called blowback attacks when drone technology becomes available to terrorists and other enemies?
These questions need to be answered. Problem is, the discussion that could lead to those answers can’t begin until Congress and the public hear from an administration that has been far too quiet on its drone war for far too long.
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