National security trumps the public’s right to know why the government says it can kill a U.S. citizen with a drone, a judge ruled on Wednesday. Even though the government has materials to back up its position that such extrajudicial killing is legal, it doesn’t have to make those materials public, the judge ruled. Federal Judge Colleen McMahon denied a lawsuit by The New York Times and two of its reporters demanding justification for the September 2011 Yemen killing of Al Qaeda mouthpiece and New Mexico native Anwar al-Awlaki under the Freedom of Information Act, a decision that clearly frustrated her. She said of her own ruling, “The Alice-in-Wonderland nature of this pronouncement is not lost on me.”
Reuters has the clearest summary of McMahon’s understandable frustration:
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.
In another part of the ruling, McMahon bemoaned what she called a “veritable catch-22” of a legal logic, according to The Times: “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 most the Justice Department has said publicly about how it justifies the drone strike that killed Al-Awlaki was in a speech Attorney General Eric Holder gave last March, which McMahon cited on Wednesday, in which he explained the DOJ’s position that “Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security.” The constitution, he said, “guarantees due process, not judicial process.”