From the New York Times:
"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, ...The Alice-in-Wonderland nature of this pronouncement is not lost on me,"
So wrote Manhattan federal judge Colleen McMahon in a ruling that refused to require the Justice Department to disclose a memorandum providing the legal justification for targeted killing of U.S. citizen, Anwar al-Awlaki, who was killed in an administration-authorized drone strike in Yemen in 2011.
Such is the legal morass fashioned by the Obama administration that the judge, while handing down this ruling, also expressed frustration in her own role in keeping the justification for drone hits a state secret.
The lawsuit was filed by the New York Times and yesterday's decision also shot down a broader request for the memorandum by the ACLU. The Times said they would appeal the ruling.
"We began this litigation because we believed our readers deserved to know more about the U.S. government's legal position on the use of targeted killings against persons having ties to terrorism, including U.S. citizens," Mr. McCraw said. "Judge McMahon's decision speaks eloquently and at length to the serious legal questions raised by the targeted-killing program and to why in a democracy the government should be addressing those questions openly and fully."
Jameel Jaffer, a lawyer with the A.C.L.U., said his group also planned to appeal. "This ruling," he said, "denies the public access to crucial information about the government's extrajudicial killing of U.S. citizens and also effectively greenlights its practice of making selective and self-serving disclosures."
Judge McMahon's opinion included an overview of what she called "an extensive public relations campaign" by various government officials about the American role in the killing of Mr. Awlaki and the circumstances under which the government considers targeted killings, including of its citizens, to be lawful. The Times and the A.C.L.U. argued that the government had waived the right to withhold its legal rationale by discussing the program extensively in public.
Recall back in May, it was the very New York Times that did a lengthy and comprehensive piece on the Obama administration's drone strike program that was sufficiently nuanced to paint the President as at-once, an aggressive and stalwart counter-terrorist warrior while at the same time offering up no explicit criticisms other than some perfunctory "raises serious questions"-type chin stroking.
Here's what we had to say about the soft-pedaling throughout the article:
The tone of the article is starting to grate on us now. Read this:
The care that Mr. Obama and his counterterrorism chief take in choosing targets, and their reliance on a precision weapon, the drone, reflect his pledge at the outset of his presidency to reject what he called the Bush administration's "false choice between our safety and our ideals."
But he has found that war is a messy business, and his actions show that pursuing an enemy unbound by rules has required moral, legal and practical trade-offs that his speeches did not envision.
Oh for cryin' out loud. Even any implicit criticism of the President is pawned off on an abstraction related to the man.
We're running long so we'll try to wrap this up with some closing thoughts. The article touts Obama's professorial and lawyerly approach to the war on terror in order to preserve his principles but 3 years on, we are wondering just what his principles are. Remember, this is the man who wanted to try KSM in civilian court but when asked what would happen if KSM was actually acquitted, Obama assured us that, regardless, KSM would never see the light of freedom. Huh? We believe the term of art for that is "show trial".
Also, this is the same man who wants to confer the same legal rights enjoyed by U.S. citizens upon monsters like KSM but signed into law last November provisions that would give him the power to indefinetely detain U.S. citizens without cause and also the power to kill U.S. citizens overseas without traditionally recognized due process. How one goes about squaring these circles is beyond our comprehension.
While we do appreciate that the President realizes combating terrorism on a global scale is not for the dainty or meek of heart (somewhere, Dick Cheney is smiling and/or having a bemused chuckle), there are some glaring inconsistencies with respect to policy that lead us to believe that the President is playing politics with his tactics just as much as anything else.
Back to real time...
Of course any issues regarding lack of transparency and obfuscation with respect to this administration are naturally going to involve that hack that runs the Justice Department. McMahon zeroed in on a speech made by Holder last spring at Northwestern University:
When United States citizens are targeted for killing, Mr. Holder said, the Constitution's due process protections apply. But due process does not require "judicial process," he added.
Nope. It sure as hell doesn't appear that it does, now does it? This is Team O's way of saying they hold all the cards and in effect, have set up the executive branch as judge, jury and executioner of the assassination wing of the U.S. military.
Continuing to be vexed by the present set of legal circumstances thrown down by the Obama administration, McMahon allows herself to engage in some fanciful thinking:
"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 (like torture before it) remains hotly debated," she wrote.
Intelligent discussion..? Remains hotly debated..? By whom? Where is this debate of which she speaks? God bless the Times for pursuing this through legal channels but they have been an abject failure at using their bully pulpit to make this a front burner issue and, in fact, and unlike the issue of torture during the previous administration, have been entirely complicit in sweeping a monumentally important constitutional and moral issue under the carpet.
To close things out and to quote W.C. Varones, "When democracy dies, the press should be held as an accomplice to murder."