A federal judge issued a 75-page ruling on Wednesday that declares that the US Justice Department does not have a legal obligation to explain the rationale behind killing Americans with targeted drone strikes.
United States District Court Judge Colleen McMahon wrote in her finding this week that the Obama administration was largely in the right by rejecting Freedom of Information Act (FOIA) requests filed by the American Civil Liberties Union and The New York Times for materials pertaining to the use of unmanned aerial vehicles to execute three US citizens abroad in late 2011 [pdf].
Anwar al-Awlaki and Samir Khan, both US nationals with alleged ties to al-Qaeda, were killed on September 30th of that year using drone aircraft; days later, al-Awlaki’s teenage son, Abdulrahman al-Awlaki, was executed in the same manner. Although the Obama administration has remained largely quiet about the killings in the year since, a handful of statements made from senior White House officials, including President Barack Obama himself, have provided some but little insight into the Executive Branch’s insistence that the killings were all justified and constitutionally-sound. Attempts from the ACLU and the Times via FOIA requests to find out more have been unfruitful, though, which spawned a federal lawsuit that has only now been decided in court.
Siding with the defendants in what can easily be considered as cloaked in skepticism, Judge McMahon writes that the Obama White House has been correct in refusing the FOIA requests filed by the plaintiffs.
“There are indeed legitimate reasons, historical and legal, to question the legality of killings unilaterally authorized by the Executive that take place otherwise than on a ‘hot’ field of battle,” McMahon writes in her ruling. Because her decision must only weigh whether or not the Obama administration has been right in rejecting the FOIA requests, though, her ruling cannot take into consideration what sort of questions — be it historical, legal, ethical or moral — are raised by the ongoing practice of using remote-controlled drones to kill insurgents and, in these instances, US citizens.
“The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful 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,” she writes. “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 reason for their conclusion a secret.”
Throughout her ruling, Judge McMahon cites speeches from both President Obama and Attorney General Eric Holder in which the al-Awlaki killings are vaguely discussed, but appear to do little more than excuse the administration’s behavior with their own secretive explanations.
“The Constitution’s guarantee of due process is ironclad, and it is essential — but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war — even if that individual happens to be a US citizen,” McMahon quotes Mr. Holder as saying during a March 2012 address at Chicago’s Northwestern University. “Holder did not identify which recent court decisions so held,” the judge replies, “Nor did he explain exactly what process was given to the victims of targeted killings at locations far from ‘hot’ battlefields… ”
And while both Mr. Holder and President Obama have discussed the killings in public, including one appearance by the president on the Tonight Show with Jay Leno, the Justice Department insists that going further by releasing any legal evidence that supports the executions would be detrimental to national security.
While Judge McMahon ends up agreeing with the White House, she does so by making known her own weariness over how the Obama administration has forced the court to rely on their own insistence that information about the attacks simply cannot be discussed.
“As they gathered to draft a Constitution for their newly liberated country, the Founders — fresh from a war of independence from the rule of a King they styled a tyrant — were fearful of concentrating power in the hands of any single person or institution, and most particular in the executive,” McMahon writes.
Responding to the decision on Wednesday, ACLU Deputy Legal Director Jameel Jaffer issued a statement condemning the White House’s just-won ability to relieve itself from any fair and honest explanation as to the justification of Americans.
“This ruling denies the public access to crucial information about the government’s extrajudicial killing of US citizens and also effectively green-lights its practice of making selective and self-serving disclosures,” Jameel writes. “As the judge acknowledges, the targeted killing program raises profound questions about the appropriate limits on government power in our constitutional democracy. The public has a right to know more about the circumstances in which the government believes it can lawfully kill people, including US citizens, who are far from any battlefield and have never been charged with a crime.”
The ACLU says they plan to appeal Judge McMahon’s decision and are currently awaiting news regarding a separate lawsuit filed alongside the Center for Constitutional Rights that directly challenges the constitutionality of the targeted kills.
“The government has argued that case should also be dismissed,” the ACLU notes.
In a Wednesday afternoon statement from the Times, assistant general counsel David McCraw says the paper will appeal the ruling as well.
“We began this litigation because we believed our readers deserved to know more about the US government’s legal position on the use of targeted killings against persons having ties to terrorism, including US citizens,” McCraw says.
Although she ruled against the plaintiffs, Judge McMahon, says McCraw, explained “eloquently … why in a democracy the government should be addressing those questions openly and fully.”
- VIDEO: On CNN, Nasser Al-Awlaki Demands “Accountability” for U.S. Drone Strike That Killed His Grandson (alethonews.wordpress.com)
Nearly every major post-9/11 terrorism-related prosecution has involved a sting operation at the center of which is a government informant, The Nation magazine reports.
The publication cites the findings of the Center on National Security at Fordham Law School. The Center has tracked 138 terrorism or national security prosecutions involving informants since 2001.
As the informants work for money or a reduction of their own criminal charges, their testimony may well be tainted. What’s particularly distressing, writes Petra Bartosiewicz, a New York City journalist in the July 2nd issue of the magazine, is that the FBI informants “have crossed the line from merely observing potential criminal behavior to encouraging and assisting people to participate in plots that are largely scripted by the FBI itself.”
The reporter explains that “Under the FBI’s guiding hand, the informants provide the weapons, suggest the targets and even initiate the inflammatory political rhetoric that later elevates the charges to the level of terrorism.”
One judge hearing a “terrorism” case, Colleen McMahon, of the U.S. District Court for the Southern District of New York, said it was “beyond question that the government created the crime here” and criticized the FBI for sending informants “trolling along the citizens of a troubled community, offering very poor people money if they will play some role—any role—in criminal activity.”
Adds Amna Akbar, a supervising attorney at CLEAR, the Creating Law Enforcement Accountability & Responsibility project of the City University of New York Law School: “The FBI approaches the vast majority of our clients as potential informants to partake in mass surveillance of Muslim communities, unconnected to any real criminal investigation.”
Within a year of the 9/11 attacks, Bartosiewicz writes, the FBI reassigned nearly half of its field office positions formerly devoted to the ‘War on Drugs’ to the new ‘War on Terror.” It also launched 3,000 new counterterrorism investigations. Today, of an $8.1 billion budget, the FBI allocates $4.9 billion to intelligence and counterterrorism, “approximately $1.7 billion more than all other federal crimes combined,” the journalist reports.
The author says the FBI is operating in a post-9/11 environment of relaxed guidelines that allow the FBI “to engage in lengthy and extensive surveillance of individuals and communities with little or no evidence of any wrongdoing afoot.”
If Americans are not shocked that real criminal prosecutions are being scrapped by FBI Director Robert Mueller in favor of “terrorism” probes which may be cooked up by the FBI to feed the nation’s Islamophobic paranoia, perhaps they should be.
A related article published in the same issue of the magazine quotes Andrew Shryock, a University of Michigan professor, having this to say about prosecutions using government informants: “It’s fabricated police work. And the disturbing thing is not that it produces arrests but that the public tolerates it.”
Sherwood Ross can be reached at firstname.lastname@example.org
- Egyptian President to expose FBI in 1993 WTC bombing? (alethonews.wordpress.com)
- GOP Congressman: Police Should Target Muslims Because They’re Responsible For 90 Percent Of Terrorism (thinkprogress.org)