The Des Moines Register
Critics of the Obama administration’s expanded use of pilotless drone aircraft to kill alleged terrorists abroad have been assured that the strikes are justified and legal. Yet, when the New York Times and the American Civil Liberties Union asked for detailed evidence of the government’s legal arguments, they were told that is a national security secret.
Last week, a federal judge ruled in the administration’s favor, though even she expressed exasperation: “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 conclusions a secret.”
This is hard to take from a president who, as a candidate, promised to do a better job than the previous occupant of the White House in making important government information available to the American people. It is also hard to take from a president who has kept in place many of the war-on-terror tactics he found troubling or offensive when they were practiced by President George W. Bush.
Among the anti-terrorism tactics President Obama has adopted, and expanded, is the use of drones to execute terrorist suspects in foreign countries, including countries we count as allies. Two such drone attacks in 2011 killed Anwar Al-Awlaki, his teenage son and a third man. All three were American citizens. All three were killed in Yemen, far from the field of battle in Afghanistan. There is no publicly available evidence that any of the three had the benefit of anything approaching the “due process of law” requirements of the U.S. Constitution before they were targeted for death.
The Obama administration has insisted that these drone strikes are legal and justified. So, the Times and the ACLU filed formal requests under the Freedom of Information Act seeking the administration’s legal opinions that make the case for the legality of drone strikes. They sued in federal court when access to that legal justification was denied by the Obama administration.
Wednesday’s ruling by U.S. District Judge Colleen McMahon dismissing the lawsuit was not particularly surprising. The federal FOI Act is shot through with loopholes, and the administration didn’t have to do much heavy lifting to slip through several of them in this case. Besides, federal courts are typically deferential to presidential claims of national security to justify keeping information from the public.
The question is why the administration insists on keeping secret legal opinions that spell out the arguments for the legality and constitutionality of these drone strikes. Administration officials, including Attorney General Eric Holder, have made that case in public speeches and comments. Why would they keep confidential the formal arguments in favor of drone killings? Government lawyers cited the standard national security arguments for protecting its sources and methods, but they just sound like so much legal boiler plate.
Serious questions have been raised about the legality and morality of the U.S. government arranging for the execution of American citizens abroad without trials, absent a formally declared war and outside the field of battle. It’s is hard to see how the Obama policy is any different from ruthless dictators killing their own citizens.
The president obviously believes the attacks are morally and legally justified. He should release all legal justifications produced by his administration or explain to the American people why that cannot be shared with them.