Federal Judge Colleen McMahon has issued an important but puzzling decision regarding the Obama administration’s drone campaign against Islamic terrorists. After declaring that the White House need not respond to Freedom of Information Act requests to turn over its legal doctrine for the drone program, she raised the possibility that the president is a murderer.
The plaintiffs—the American Civil Liberties Union and the New York Times—asked the administration to turn over a 2010 Department of Justice memo that provided the legal justification for the 2011 targeted killing of U.S. citizen Anwar al-Awlaki. Their argument: Officials, including Attorney General Eric Holder, had divulged much of the legal rationale in public and could no longer claim classified privilege. McMahon sided with the government.
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 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 deemed irrelevant by the Supreme Court in 2004’s Hamdi v. Rumsfeld. As terrorism expert Robert Chesney of the University of Texas School of Law 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.”
McMahon’s reasoning aside, the government’s argument that the drone memo should stay in a locked drawer is not convincing. Between Holder’s speech and a front-page account in the New York Times after Awlaki’s death, the rules the administration has set for itself are extant.
Still, there’s legitimate concern about the precedent set by succumbing to FOIA requests for information on covert action. 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. The current administration has been far too quiet on its drone war for far too long.