Obama Allowed to Keep Drone Rationale Secret

The Obama administration’s efforts to keep every tiny detail of its actions in the war on terror secret continues to succeed in court and has now been extended even further. A federal judge has ruled that the administration doesn’t even have to reveal the legal basis for the drone strikes it uses so often. You can read the full ruling here. David Kravets has a report at Wired.

The President Barack Obama administration does not have to disclose the legal basis for its drone targeted killing program of Americans, according to a Wednesday decision a judge likened to “Alice in Wonderland”.

U.S. District Court Judge Colleen McMahon of New York, ruling in lawsuits brought by the American Civil Liberties Union and The New York Times, said she was caught in a “paradoxical situation” (.pdf) of allowing the administration to claim it was legal to kill enemies outside traditional combat zones while keeping the legal rational secret.

The judge essentially says her hands are tied:

… 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 of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States. The Alice-in-Wonderland 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 administration has acknowledged that there is an Office of Legal Counsel opinion that lays out the reasons the administration thinks it has legal authority to engage in drone strikes but they have made that document classified and refused to release even a redacted version of it. They admit they’re doing it and even praise the program publicly, but they will not say why they can legally do it. Andrew Sullivan, who has defended the use of drones, has it right here:

I’ve defended the drone program as the least worst way of fighting a real enemy, as long as it is restrained and takes extraordinary pains to avoid civilian casualties. But I can see no rationale for the citizenry to be forbidden from knowing the terms on which the president can assassinate one of them. One would think that is a pretty basic principle for the American polity. Was this country founded on resistance to a monarch only to give the power to assassinate an American citizen to one person – with no transparency at all?

Most transparent administration in history, indeed.

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intergalacticmedium

Not certain why people go on about the fact that the drones kill US citizens, are they somehow more deserving of legal protection and care than the lives of other humans living around the globe?
richardelguru

@ intergal: Under the basic super-human right of F-ing Foreign Devils, don’t most nations care less about non-citizens?
Marcus Ranum

@intergalacticmedium –

Not all of us do. Some of us feel that drone strikes are wrong regardless of who the target is.

There is the question of whether they are being flown by military or civilians. If CIA civilians are killing people using drones, they are “illegal combatants.” I’d also like our president to follow the War Powers Resolution which, after all, was enacted for exactly this reason. Then there is the question of whether it’s a violation of international law (hint: yes) to be assassinating citizens of another country. There’s enough wrong to go around, regarding the drones, that it’s ridiculous that there hasn’t been a massive public outcry.
Bronze Dog

Not certain why people go on about the fact that the drones kill US citizens, are they somehow more deserving of legal protection and care than the lives of other humans living around the globe?

I tend to think of it as a useful emphasis for cynicism. If the president can arbitrarily assassinate his fellow US citizens, people he supposedly has a duty to protect, what are the chances he’s going to respect the rights and lives of foreigners?

It’s kind of like one thing I think about fundie military leaders: If they won’t stand up for the religious freedoms of the soldiers under their command, who they supposedly have a duty to, how can we expect them to fight to protect those freedoms for civilians?
intergalacticmedium

I know I shouldn’t be surprised but it always saddens me to see nationalism rammed into something I care about and makes me lose respect for whoever is complaining about the drone strikes, on a slightly tangential point it has always interested me why people have been so caught up in the drone war when it has caused at least 2 orders of magnitude less death than the Iraq war. I guess it fits into the whole conspiracy mind set of super powerful agents able to kill anyone anywhere that disturbs most people.
intergalacticmedium

@Marcus: Wasn’t assuming the people here thought that way just something I have found a lot when reading about this subject.

@Bronze Dog: yeah I suppose though I will be happy when the world is no longer divided into tribes which all claim superior treatment for their own members, seems like a system guaranteed to cause massive friction in conception.
Buzz Saw

@intergalacticmedium

Well, a lot of people who comment here are likely not proud of the Iraq war, either. But, yes, the idea of “super powerful agents able to kill anyone anywhere” should be disturbing. Worse is that this is a real concern. When you talk about a “conspiracy mind set,” that gives me the impression of loons wearing tinfoil hats who have no evidence for their fears. We have evidence.
Marcus Ranum

on a slightly tangential point it has always interested me why people have been so caught up in the drone war when it has caused at least 2 orders of magnitude less death than the Iraq war

I don’t like the fact that the drone war is being done largely covertly. Unlike the Iraq war – which was also a crime – it’s been deliberately made harder to identify who the criminals are.
Michael Heath

Judge McMahon writes:

The Alice-in-Wonderland 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.

Her overt ridicule of this conundrum is welcomed. I’m increasingly learning that at some point, reasoned arguments alone don’t always suffice when one’s opponents are continually relying and succeeding on indefensibly hypocritical arguments. Let’s hope the media puts some pressure on politicians to defend this, which unfortunately those with access aren’t prone to do. Of course that same media enabled by a largely ignorant apathetic electorate coupled to a share of the electorate that actually enjoys this type of authoritarian approach.
slc1

Well, using drones firing precision munitions is better then dropping 15 megaton bombs.
brianwood

As always, the lives of the children of littler, browner people and of the littler, browner people themselves are of NO consequence to right-thinking, patriotic Merkins.

And of course our holy elected Obama has the right to murder me, a U.S. citizen and veteran, because I’m whiney and obnoxious.
intergalacticmedium

Sorry if I seemed to be generalising about what people here think just an observation on the opinions I have met elsewhere around the net/meatspace
baal

In other news, drones are increasingly being used with in the U.S. I’m sure they’ll never arm those or be abused ever and that they have all kinds of oversight….
Suido

It’s events like this that I wish would get an entire episode of The Newsroom devoted to them. If the real media won’t apply adequate coverage and pressure to a particular issue, perhaps we need more media in the guise of entertainment.
Taz

Most transparent administration in history, indeed.

Assuming the judge is correct in her ruling, then it’s the congress that needs to fix this by reigning in executive power. I’m not willing to rely on any administration’s “good intentions”.

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Obama Allowed to Keep Drone Rationale Secret