Judge rules that the Obama administration does not have to provide
The New York Times with materials on targeted killings of those it believes have
ties to terrorism.
U.S. District Judge Colleen McMahon in Manhattan said the Obama administration did not violate the law by refusing the Times' request for the legal justifications for targeted killings, a strategy the Times said was first contemplated by the Bush administration soon after the attacks of September 11, 2001.
McMahon appeared reluctant to rule as she did, noting in her decision that disclosure could help the public understand the "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."
Nonetheless, she said the government was not obligated to turn over materials the Times had sought under the federal Freedom of Information Act (FOIA), even though it had such materials in its possession.
"The Alice-in-Wonderland nature of this pronouncement is not lost on me," McMahon said in her 68-page decision.
The newspaper and two reporters, Charlie Savage and Scott Shane, had sued the government for details about the government's drone program, including the late 2011 killings of U.S. citizens Anwar al-Awlaki and his 16-year-old son Abdulrahman in separate strikes in Yemen.
Civil liberties groups have attacked the drone program, which deploys pilotless aircraft, as in effect a green light for the government to kill Americans without constitutionally required due process. U.S. Attorney General Eric Holder has rejected that contention.
Among the materials sought by the Times was a memorandum that the newspaper had in early October 2011 reported had been prepared by the U.S. Department of Justice's Office of Legal Counsel. The Times cited people who had read the document.
The Times said this memorandum had authorized the "legal targeting" of Anwar al-Awlaki, a U.S.-born Muslim cleric who joined al Qaeda's Yemen affiliate and directed many attacks.
APPEAL PLANNED
The Times said it plans to appeal McMahon's decision.
"We began this litigation because we believed our readers deserved to know more about the U.S. government's legal position on the use of targeted killings against persons having ties to terrorism, including U.S. citizens," New York Times assistant general counsel David McCraw said in a statement.
He said McMahon, despite ruling for the government, explained "eloquently ... why in a democracy the government should be addressing those questions openly and fully."
Dean Boyd, a spokesman for the U.S. Department of Justice, said that agency is reviewing the decision.
McMahon also rejected information requests in a parallel lawsuit by the American Civil Liberties Union. Its lawyers were not immediately available to comment.
PROGRAM ON "TIGHT LEASH"
Citing protections envisioned by the Constitution's framers, McMahon said there were "legitimate reasons, historical and legal" to question whether the administration could unilaterally authorize killings taking place outside a "hot" field of battle.
But she rejected the Times' argument that the administration could not rely on exemptions from having to disclose classified or privileged material by virtue of having made at least two dozen public statements about the targeted killing program.
Among these were Obama's statements in an online forum on January 30, 2012, that the government was "judicious" in its use of drones, and that the program was "kept on a very tight leash."
She also cited a speech on March 5, 2012, at Northwestern University School of Law in Chicago where Holder said the government could lawfully use lethal force in a foreign country against U.S. citizens who had senior operational roles in al-Qaeda and were "actively engaged" in efforts to kill Americans.
McMahon dismissed the entire case except for one small issue related to two unclassified memos.
The cases are New York Times Co et al v. U.S. Department of Justice, U.S. District Court, Southern District of New York, No. 11-09336; and American Civil Liberties Union et al v. U.S. Department of Justice in the same court, No. 12-00794.
