What is a nation of laws?
On Wednesday, January 2, Federal District Judge Colleen McMahon filed her decision in two Freedom of Information Act cases brought by the New York Times and American Civil Liberties Union. The full decision is available from the Federal District Court website.
Below is a thousand word excerpt that I hope might motivate you to read — and perhaps comment here — on the full decision.
The issues which these cases and this decision highlight are fundamental to the American experiment in self-government. These issues are not and have never been easy to resolve. This is precisely why a vigorous and thoughtful dialogue on the issues is important.
In some contexts — marriage, parenting, worship and, I would argue, citizenship — it is often the honesty and quality of the dialogue (what is said and what is heard) that is much more helpful than agreement. It is possible to share a sensibility even when we continue in specific disagreement.
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Broadly speaking, [the plantiffs] seek disclosure of the precise legal justification of the Administrations’s conclusion that it is lawful for employees or contractors of the United States Government to target for killing persons, including specifically United States citizens, who are suspected of ties to Al-Qaeda or other terrorist groups…
The FOIA requests here in issue implicate serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States and if we are indeed a nation of laws, not of men. The Administration has engaged in public discussion of the legality of targeted killing, even of citizens, but in cryptic and imprecise ways, generally without citing to any statute or court decision that justifies its conclusions. 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 (like torture before it) remains hotly debated. It might also help the public understand the scope of the ill-defined yet vast and seemingly ever-growing exercise in which we have been engaged for well over a decade, at great cost in lives, treasure, and (at least in the minds of some) personal liberty…
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…
The United States has pursued members of Al-Qaeda and affiliated groups elsewhere in the world [outside Afghanistan], both in the adjacent country of Pakistan and far from any “hot” battlefield. In recent years, it has targeted a number of such individuals for death and killed them, using both armed forces and unpiloted remotely controlled precision aircraft known as “drones.” The Obama Administration has publicly admitted that the Government is engaged in such operations:
So let me say it as simply as I can. Yes, in full accordance with the law — and in order to prevent terrorist attacks on the United States and to save American lives — the United States Government conducts targeted strikes against specific al-Qa’ida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones.
John O. Brennan, Ethics and Efficacy Speech (Apr. 30, 2012).
Al-Qaeda operative Anwar al-Awlaki was killed in late 2011. speaking on September 30, 2011 the day of Al-Awlaki’s death, at the “Change of Office” Chairman of the Joint Chiefs of Staff Ceremony in Fort Myer, Virginia, President Obama described Al-Awlaki as follows:
Awlaki was the leader of external operations for al Qaeda in the Arabian Peninsula. In that role, he took the lead in planning and directing efforts to murder innocent Americans. He directed the failed attempt to blow up an airplane on Christmas Day in 2009. He directed the failed attempt to blow up US cargo planes in 2010. and he repeatedly called on individuals in the United States and around the globe to kill innocent men, women, and children to advance a murderous agenda.
At the time of his death, Al-Awlaki was not in or near the field of battle in Afghanistan, where active military operations were taking place. He was located about 1500 miles from Afghanistan, in Yemen, a country with which the United States is not at war (indeed, which the United States counts as an ally).
Killed with Al-Awlaki was an individual named Samir Khan. Al-Awlaki’s teenaged son, Abdulrahman Al-Awlaki, was killed in a separate strike in Yemen on October 14, 2011.
Al-Awlaki, his son, and Khan were all United States citizens…
The decision to target a United States citizen for death is made by the President on the recommendation of senior Government officials… According to the Attorney General of the United States and other senior Executive Branch officials, these decisions are made pursuant to a process that is constitutionally and statutorily compliant. In particular, Government officials insist that a United States citizen can be targeted by the Executive Branch and still be accorded due process of law.
The Government’s vociferous insistence that its decisions to kill United States citizens are lawful, and most especially its references to due process, may seem odd in the context of war — although there is and long has been robust debate about what to call the anti-Al-Qaeda operation, and whether anti-terrorist operations in countries other than Afghanistan and adjacent territory in Pakistan can fairly or legally be classified as a war… However, even if there were no such debate, it is not surprising that the Government feels somewhat defensive. Some Americans question the power of the Executive to make a unilateral and unreviewable decision to kill an American citizen who is not actively engaged in armed combat operations against this country. Their concern rests on the text of the Constitution and several federal statutes, and is of a piece with concerns harbored by the Framers of our unique form of Government…
The Framers took steps to address their fear in the document they drafted. In particular, the Fifth Amendment to the Constitution provides that no person shall be “deprived of life… without due process of law.” The words “due process of law” are not further defined in the the Constitution, or in the Bill of Rights. However, “The first, central, and largely uncontroversial meaning of “due process of law,” the meaning established in the Magna Charta and applied vigorously by Coke against the first two Stuart Kings, was that the executive may not… restrain the liberty of a person within the realm without legal authority arising either from established common law or from statute. In other words, executive decrees are not “law.”…
When a person is accused of committing a crime, and the Government has the power, upon conviction, to deprive him of life or liberty, the particular rights enumerated in the Fifth and Sixth Amendments (ranging from the right to indictment to the right to counsel) are recognized as setting the minimum guarantee of the Due Process Clause.
