For years, the Obama Administration has played a self-serving and duplicitous game over its power to kill people away from any battlefield and without judicial oversight or accountability.
It has trotted out successive officials and doled out tidbits of information attesting to the legality of Mr. Obama’s claim to unilateral authority to carry out such killings, while withholding information essential to evaluating that aggressive claim of executive power.
In an important unanimous decision this week, a three-judge panel of a federal appeals court refused to go along with that tactic. The ruling, written by Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit, reversed a 2013 decision by a federal district judge that upheld the government’s claim to secrecy on national security grounds.
The ruling ordered the release of parts of a classified Justice Department memorandum that provided the legal justification for the targeted killing of a U.S. citizen, Anwar al-Awlaki, who had joined al-Qaeda and died in a 2011 drone strike in Yemen. It came in response to lawsuits filed under the Freedom of Information Act by the New York Times and the American Civil Liberties Union (ACLU).
The appellate panel reviewed the government’s overwrought claims of national security and found them seriously wanting. It concluded that the government had waived its right to keep the analysis secret, citing numerous public statements by administration officials and the Justice Department’s release of a 16-page, single-spaced “white paper” that offered a detailed analysis of why targeted killings were legal.
“Whatever protection the legal analysis might once have had,” Judge Newman wrote, “has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the ... white paper.”
Still, there seems to be a good chance that the secret analysis will reveal critical aspects of the government’s justification for its actions, well beyond what the public has been told. Otherwise, why would the administration have refused to disclose the memo for years?
Jameel Jaffer, an ACLU lawyer, stresses the decision’s value in rejecting “the government’s effort to use secrecy, and selective disclosure, as a means of manipulating public opinion about the targeted killing program.”
The administration’s attempt to have it both ways — cherry-picking information to share, while keeping its underlying legal reasoning secret — recalls its response to the revelations of phone-data surveillance by the National Security Agency. In both instances, the administration has shown itself to be more interested with public relations than with being honest with Americans.
Instead of appealing the ruling to the full 2nd Circuit or the Supreme Court, President Obama should see the wisdom of allowing it to stand — and allowing the conversation the country needs to have.
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