In the latest sign that President Obama's targeted killing program may be forever shrouded in secrecy, U.S. District Judge Colleen McMahon has denied a Freedom of Information Request from the American Civil Liberties Union and The New York Times over the death of Abdulrahman al-Awlaki, the 16-year-old American-born son of former Al-Queda heavy Anwar al-Awlaki who was killed by a drone strike.
But, in this case, the administration withheld answering any of the ACLU's questions through a series of exemptions that lets the Executive bench protect confidential information. McMahon's decision seems pretty disappointed by the administration's actions:
However, this Court is constrained by law, and under the law, I can only conclude that the Government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court oflaw to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States. The Alice-inWonderland 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.
The ACLU and The New York Times were asking for the justification of not just this drone strike, but justification of the whole drone strike program:
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 about whether we are indeed a nation oflaws, 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.
Questions surrounding the killing of the 16-year-old have swirled for a while. Obama's senior adviser Robert Gibbs gave a particularly ugly answer justifying the younger al-Awlaki's death on the campaign trail.
The administration is clearly not ready to talk delicately about this. Just last week, the administration asked a federal court to dismiss lawsuits from the estates of three families of American citizens killed by drone strike in Yemen, one of which was the al-Awlaki estate. News came out at the end of November that the administration started to draft a rule book for the drone strike program, propelled by the prospect of having to hand off the program to a potential Romney administration. These are pretty big signs that Obama, his advisors, his lawyers, and the CIA aren't quite ready to jump into the grander debate over the ethics of drones just yet — or, you know, ever.