Details
of Obama 'Kill List' to Remain in the Shadows, Court Rules
Federal court rejects Freedom Of
Information request
- Jacob Chamberlain, staff writer
Published on Wednesday, January 2, 2013 by Common Dreams
Information surrounding the targeted
killing of three American citizens by US drones in Yemen will
remain secret for now, following a federal court decision to turn down
a Freedom of Information Act lawsuit filed by the ACLU.
The information, requested from the
Department of Justice by the ACLU, includes a legal memorandum which
allegedly gives legal and factual justification for the extrajudicial killings
of U.S. citizens Anwar Al-Awlaki and Samir Khan in September
2011, and Al-Awlaki’s 16-year-old son Abdulrahman in October 2011. Anwar
Al-Awlaki was placed on Obama's executive "Kill
List."
“This ruling denies the public access to
crucial information about the government’s extrajudicial killing of U.S.
citizens and also effectively green-lights its practice of making selective
and self-serving disclosures,” said
Jameel Jaffer, ACLU deputy legal director. “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 U.S. citizens, who are far from any battlefield
and have never been charged with a crime.”
The ruling, made in the Southern District
of New York court, also included the denial of a similar FOIA request made
by the New York Times.
The ACLU plans to appeal the decision;
however, the D.C. Circuit Court of Appeals is also considering a separate ACLU
FOIA lawsuit for other information surrounding the Obama administration's
targeted killing program in general, "including its legal basis, scope,
and number of civilian casualties caused by drone strikes."
On the killings, the Center for
Constitutional Rights explains:
On September 30, 2011, U.S. strikes killed
Anwar Al-Aulaqi, along with Samir Khan and three others. Two weeks later, the
U.S. launched another drone strike at an open-air restaurant in Yemen, killing
Anwar Al-Aulaqi’s son, Abdulrahman, and six other civilian bystanders,
including another teenager. These killings, undertaken without due process, in
circumstances where lethal force was not a last resort to address a specific,
concrete and imminent threat, and where the government failed to take required
measures to protect bystanders, rises to a violation of the most elementary
constitutional right afforded to all U.S. citizens – deprivation of life without
due process of law.
Treason, Murder, and Dicta: Judge McMahon
on Drone Strikes
By Robert Chesney
Wednesday, January 2, 2013 at 6:44 PM
As Raffaela posted
earlier, the government has won a substantial victory in the FOIA
litigation in which the Times and the ACLU sought disclosure
of information about CIA drone strikes, including the legal justification
underlying the use of lethal force against U.S. citizens. What I’d like
to focus on here is a remarkable section in the opinion in
which Judge McMahon makes two problematic suggestions, indicta: First,
that killing Anwar al-Awlaki may have violated the Treason Clause, and
second that President Obama and others in the chain of command
associated with the killing of Anwar al-Awlaki may have committed murder.
Judge McMahon’s treason argument is unpersuasive.
She points out that the conduct attributed to Anwar al-Awlaki might have
supported a treason charge, and then, observing that the Treason Clause is
located in Article III of the Constitution and that the Founders “were as leery
of accusations of treason as they were of concentrating power in the hands of
any single person or institution,” she concludes that “the Founders
contemplated that traitors would be dealt with by the courts of law, not by
unilateral action of the Executive.” (slip op. at 17-18) The same treason
argument, of course, was put forward unsuccessfully by Justice Scalia in
dissent in Hamdi v. Rumsfeld (Judge McMahon cites that
dissent, as such). Even setting aside the rejection of that theory in Hamdi,
however, it simply is not clear why the possibility that a person could be
tried for treason must foreclose resort to otherwise-lawful alternative
measures. Few seriously objected on treason clause grounds to the
widespread use of deadly force in combat against rebellious U.S. citizens in
the Civil War, for example, precisely because few seriously doubted that such
uses of force were independently lawful options in the circumstances.
Indeed, Judge McMahon herself concedes, earlier, that the use of deadly force
on the battlefield during the Civil War was compatible with the Fifth Amendment
Due Process Clause. (slip op. at 16) For this reason I think it is a red
herring to focus on the Treason Clause, as it simply begs the question whether
the use of force against Anwar al-Awlaki was lawful in the first instance.
In context, it appears that Judge McMahon would probably distinguish the
al-Awlaki scenario from the Civil War scenario on the ground that al-Awlaki was
“not actively engaged in armed combat against the United States” (slip op. at
18), but the applicability and relevance of that distinction is itself the
whole ball game and cannot simply be assumed en route to suggesting a violation
of the Treason Clause.
I think the same thing is true of Judge
McMahon’s suggestion (echoing Ben’s
long-ago exchange with Mary Ellen O’Connell) that President Obama (and
subordinates) likely committed a prosecutable murder in violation of 18 USC 1119 by
killing Anwar al-Awlaki. Section 1119 makes it a felony for a
U.S. national to kill or attempt to kill another U.S. national outside the
United States). Judge McMahon points out that the “statute contains
no exemption for the President…or anyone acting at his direction.” That
is true, and it is true as well that section 1119—unlike the federal murder
statute, 18 USC 1111, fails to use the word “unlawful” to qualify which
killings it encompasses. Yet it nonetheless seems to me that a proper
reading of 1119 would incorporate that same “unlawful” qualification (the title
of 1119, after all, refers to “murder” and not just killings in general).
And in that case, we are once more confronted with the question whether the use
of deadly force in the al-Awlaki scenario was lawful in the first instance,
either as part of an ongoing conflict with al Qaeda (or al Qaeda in the Arabian
Peninsula in particular) or otherwise as an exercise of national self-defense.
In summary, the dicta on the underlying
substantive issues advanced by Judge McMahon strikes me as unhelpful. But
perhaps this is intentional? Her opinion makes clear her discomfort
with having to render summary judgment against the Times and
the ACLU on these weighty matters, and that in her view the underlying
merits of the legal issues raised by the death of al-Awlaki deserve a complete
and full engagement in a public setting. Intentionally or not, one might
argue that the bracing but unsatisfying treatment that Judge McMahon gives
to the merits in her dicta underlines the need for such
disclosure
