Obama ordered to divulge legal basis for killing Americans with drones | Ars Technica - 0 views
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war & peace drone attacks Obama FOIA litigation targeted-killing Due-Process
shared by Paul Merrell on 24 Apr 14
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The Obama administration must disclose the legal basis for targeting Americans with drones, a federal appeals court ruled Monday in overturning a lower court decision likened to "Alice in Wonderland." The Second US Circuit Court of Appeals, ruling in a Freedom of Information Act (FOIA) claim by The New York Times and the American Civil Liberties Union (ACLU), said the administration must disclose the legal rationale behind its claims that it may kill enemies who are Americans overseas.
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The Obama administration must disclose the legal basis for targeting Americans with drones, a federal appeals court ruled Monday in overturning a lower court decision likened to "Alice in Wonderland." The Second US Circuit Court of Appeals, ruling in a Freedom of Information Act (FOIA) claim by The New York Times and the American Civil Liberties Union (ACLU), said the administration must disclose the legal rationale behind its claims that it may kill enemies who are Americans overseas. "This is a resounding rejection of the government's effort to use secrecy and selective disclosure to manipulate public opinion about the targeted killing program," ACLU Legal Director Jameel Jaffer said in an e-mail. The so-called targeted-killing program—in which drones from afar shoot missiles at buildings, cars, and people overseas—began under the George W. Bush administration. The program, which sometimes kills innocent civilians, was broadened under Obama to include the killing of Americans.
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Government officials from Obama on down have publicly commented on the program, but they claimed the Office of Legal Counsel's memo outlining the legal rationale about it was a national security secret. The appeals court, however, said on Monday that officials' comments about overseas drone attacks means the government has waived its secrecy argument. "After senior Government officials have assured the public that targeted killings are 'lawful' and that OLC advice 'establishes the legal boundaries within which we can operate,'" the appeals court said, "waiver of secrecy and privilege as to the legal analysis in the Memorandum has occurred" (PDF). The Electronic Privacy Information Center (EPIC), which in a friend-of-the court brief urged the three-judge appeals court to rule as it did, said the decision was a boon for citizen FOIA requests. "It's very helpful. We have a number of cases, including one of our oldest FOIA cases, that involves the warrantless wiretapping memos. The basic premise is when OLC writes a legal memo and when that becomes the known basis for a program, that's the law of the executive branch and cannot be withheld," Alan Butler, EPIC's appellate counsel, said in a telephone interview.
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The appeals court said the memo may be redacted from revealing which government agencies are behind the attacks, although former CIA Director Leon Panetta has essentially acknowledged that agency's role. Last year, a federal judge blocked the disclosure of the memo. Judge Colleen McMahon of New York said she was ensnared in a "paradoxical situation" in which the law forbade her from ordering the memo's release: The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules—a veritable catch-22. 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.
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Unless the Feds successfully seek en banc review or review by the Supreme Court, we will apparently be able to read the infamous DoJ Office of Legal Counsel explaining the legal arguments why Obama may lawfully order drone strikes on U.S. citizens inside nations with which the U.S. is not at war. Let's keep in mind that DoJ claimed that Obama has the power to do that in the U.S. too. According to the Second Circuit's opinion, the ordered disclosure includes a somewhat lengthy section arguing that 18 U.S.C. 1119 and 956 do not apply to Obama. Section 1119 provides, inter alia: "(b) Offense.- A person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113." Section 956 provides in part: "(a)(1) Whoever, within the jurisdiction of the United States, conspires with one or more other persons, regardless of where such other person or persons are located, to commit at any place outside the United States an act that would constitute the offense of murder, kidnapping, or maiming if committed in the special maritime and territorial jurisdiction of the United States shall, if any of the conspirators commits an act within the jurisdiction of the United States to effect any object of the conspiracy, be punished as provided in subsection (a)(2). "(2) The punishment for an offense under subsection (a)(1) of this section is- (A) imprisonment for any term of years or for life if the offense is conspiracy to murder or kidnap; and (B) imprisonment for not more than 35 years if the offense is conspiracy to maim." There should also be a section explaining away the Constitution's Due Process Clause (protecting life, liberty, and property) and Right to Trial by Jury, as well as exempting the President from international law establishing human rights and l