My friend, the late John Barry, lived well off the royalties of the James Bond theme, as well as the many other brilliant scores he wrote. They were an integral part of a fantasy loved by Americans about a British spy who bore the code numbers 007. The numbers meant he had a license to kill, yet no one refused to watch the movies or protested Cubby Broccoli’s productions or picketed Ian Fleming’s home.
In real life, the concept was so easily embraced. When it was learned that the government used drones to kill people suspected of terrorist ties, including American citizens, away from any battlefield, there was a demand to know what basis the government claimed to take such action. How could our government justify killing people this way?
The New York Times and the ACLU sought answers via the Freedom of Information Act. The government refused to provide them, and a suit followed. The consolidated actions ended up in the hands of Southern District of New York Judge Colleen McMahon, who issued a remarkable decision.
Plaintiffs in these consolidated actions have filed Freedom of Information Act (“FOIA”) requests with the federal Government in order to obtain disclosure of information relating to a particular tactic that is admittedly being employed in the so-called “War on Terror” – the targeted killing of persons deemed to have ties to terrorism, some of whom may be American citizens.
Broadly speaking, they seek disclosure of the precise legal justification for the Administration’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.
It wasn’t long ago when the American public learned how the government rationalized the torture of human beings, based upon the DOJ’s John Yoo memo to then Attorney General Alberto Gonzalez advising that the use of torture by the CIA was perfectly lawful under an expansive view of presidential authority. Few outside of government shared this expansive view or found Yoo’s explanation availing. But it served its purpose, despite its inability to withstand scrutiny.
Once the memo became public, however, nearly universal condemnation followed. Once burned, the government wasn’t about to let that happen again.
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 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 that (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.
Clearly, Judge McMahon appreciated the magnitude of the issue before her, the legality of the America government targeting and killing people, citizens included, because it decided to do so. Clearly, she appreciated that “intelligent discussion and assessment of a tactic” such as this demanded public understanding of the government’s claim of authority. Clearly, this conduct came at “great cost.” Judge McMahon got it.
And yet, she held there was nothing she could do.
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 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. But under the law as I understand it to have developed, the Government’s motion for summary judgment must be granted, and the cross-motions by the ACLU and the Times denied…
The opinion sends two messages, maybe more. The first is that the government has chosen to conceal from the American people its rationale for this monumental grab of power to kill at will. Project all you want. Complain all you want. Argue the legitimacy of a government of laws, not men. The invocation of executive privilege ends the discussion. The government of the United States of America has told it citizens that they cannot be trusted with the knowledge, and so it shall remain a secret. It’s enough that the government says it’s “perfectly lawful.” Now get back to work and mind your own business.
The second message is that to the extent the government revealed information to a United States District Court Judge, who may or may not be sufficiently patriotic to be trusted with government confidences, Judge McMahon was not overwhelmed by the merit of the government’s justification. The language she used to express the paradoxical situation in which she found herself, coupled with the clarity of her view of the importance of this issue, leaves little doubt that she was unimpressed.
Judge McMahon could have issued an opinion that, without spilling any beans, left us with the clear impression that firm grounds existed for the government’s assertion of power. She didn’t. She did just the opposite, leaving us with the clear impression that one of the most dubious claims of lawful justification ever employed by the government should have been made public but was instead concealed, thus precluding any intelligent debate over its propriety.
And that is where it will die. But what the heck, there’s a new James Bond movie out and I hear it’s doing gangbusters at the box office. Go enjoy.
H/T Brian Tannebaum