Editorial in The New York Times
Published: January 3, 2013
For years, President Obama has been stretching executive power to claim that the authorization to use military force against Al Qaeda gives him the unilateral authority to order people killed away from any battlefield without judicial oversight or public accountability — even when the target is an American citizen.
On Wednesday, a federal judge in Manhattan came down on the side of preserving secrecy regarding how this dangerous view of executive power gets exercised. Judge Colleen McMahon refused to require the Justice Department to disclose a memorandum providing the legal justification for the targeted killing of a United States citizen, Anwar al-Awlaki, in a 2011 drone strike in Yemen.
The decision came in response to a lawsuit for the memorandum and related materials filed under the Freedom of Information Act by The New York Times and two of its reporters, Charlie Savage and Scott Shane, and also a broader request under the act from the American Civil Liberties Union. We strongly disagree with Judge McMahon’s conclusion that she was compelled by a “thicket of laws and precedents” to deny access to the legal memo — prepared by the Department of Justice’s Office of Legal Counsel — and other documents that provided the legal and factual basis for the killings.
For starters, various government officials have spoken publicly about the American role in killing Mr. Awlaki and the circumstances under which the government considers targeted killings, including of American citizens. At President Obama’s nominating convention last summer, a video prepared by his campaign listed the killing of Mr. Awlaki prominently among Mr. Obama’s national security achievements.
Such a selective and self-serving “public relations campaign,” as the judge termed it, should have been deemed a waiver of the government’s right to withhold its legal rationale from public scrutiny. Moreover, disclosing the document would not have jeopardized national security or revealed any properly classified operational details. The ruling, which is inconsistent with the purpose and history of the information disclosure law, richly deserves overturning on appeal.
However, we appreciate Judge McMahon’s honest recognition of the “Alice-in-Wonderland nature” of her decision, which allows the executive branch to publicly proclaim the legality of the targeted killing program while insisting that the public may not know the reasons for that conclusion. The administration has opposed all legal efforts by Mr. Awlaki’s father and others to compel a court review of the decision to have him killed.
Judge McMahon took pains to acknowledge the serious questions the targeted killing program raises about the appropriate limits on government authority in our constitutional system and expressed the view that, as a matter of policy, the administration’s legal analysis should be made public.
“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,” the judge wrote.
President Obama, who pledged more government transparency in his first campaign and early days in office, should heed those sentiments and order the legal memo released along with other information that would shed light on the government’s legal reasoning and the evidence leading to Mr. Awlaki’s killing.
It is past time he did so.