State Of The Union

INTRODUCTION

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 killing of persons deemed to have ties to terrorism, some of whom may be American citizens. Most of what is sought was properly withheld pursuant to one or more properly-invoked exemptions that Congress wrote into the FOIA statute to guard against the disclosure of highly confidential and operational information -- if, indeed, the Government has acknowledged that any such documents exist. Thornier issues are raised by two much narrower requests, filed by reporters from The New York Times. Broadly speaking, they seek disclosure of the precise legal justification for the Administration's conclusion that it is lawful for the United States Government to kill United States citizens, who are suspected of ties to Al-Qaeda. 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 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 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.

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 its 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.

This opinion will deal only with matters that have been disclosed on the public record. The Government has submitted material to the Court ex parte and for in camera review. It is necessary to discuss certain issues relating to this classified material in order to complete the reasoning that underlies this opinion. That discussion is the subject of a separate, classified Appendix to this opinion, which is being filed under seal and is not available to Plaintiffs' counsel. In crafting that Appendix, the Court has done its best to anticipate the arguments that Plaintiffs would have made in response to the Government's classified arguments.²

HISTORY BEHIND THE FOIA REQUESTS AT ISSUE HERE

Following the destruction of the World Trade Center and the targeting of the Pentagon by a group of terrorists affiliated with the organization known as Al-Qaeda on September 11, 2001, Congress passed a resolution entitled "Authorization for the Use of Military Force" ("AUMF"), which empowers the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons," Pub. L. No. 107-40, 115 Stat. 224 (2001). Ever since, the United States has been engaged in an exercise known colloquially as the "War on Terror," which is dedicated principally to the eradication of Al-Qaeda.

The primary field of battle in that war has been Afghanistan, where Al-Qaeda was sheltered and nurtured for many years, and from which the group's now-dead leader, Osama Bin Laden, ordered and directed the 9/11 mission. The United States military has been engaged in that country since the fall of 2001 and continues its combat mission to this day.

 

However, as part of that same effort, the United States has pursued members of Al-Qaeda and affiliated groups elsewhere in the world, both in the adjacent country of Pakistan and far from any "hot" battlefield. In recent years, it has targeted a number of such individuals for death and killed them, using both armed forces and unpiloted, remotely controlled precision aircraft known as "drones." The Obama Administration has publicly admitted that the Government is engaged in such operations:

"So let me say it as simply as I can. Yes, in full accordance with the law -- and in order to prevent terrorist attacks on the United States and to save American lives -- the United States Government conducts targeted strikes against specific al-Qa'ida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones." (John O. Brennan, Ethics and Efficacy Speech (Apr. 30, 2012).)

Al-Qaeda operative Anwar Al-Awlaki was killed in late 2011. Speaking on September 30, 2011, the day of Al-Awlaki's death, at the "Change of Office" Chairman of the Joint Chiefs of Staff Ceremony in Fort Myer, Virginia, President Obama described Al-Awlaki  [*17] as follows:

"Awlaki was the leader of external operations for al Qaeda in the Arabian Peninsula. In that role, he took the lead in planning and directing efforts to murder innocent Americans. He directed the failed attempt to blow up an airplane on Christmas Day in 2009. He directed the failed attempt to blow up U.S. cargo planes in 2010. And he repeatedly called on individuals in the United States and around the globe to kill innocent men, women and children to advance a murderous agenda." ⁽Available at http://www.whitehouse.gov/the-press-office/2011/09/30/remarks-president-change-office-chairman-joint-chiefs-staff-ceremony)

At the time of his death, Al-Awlaki was not in or near the field of battle in Afghanistan, where active military operations were taking place. He was located about 1500 miles from Afghanistan, in Yemen, a country with which the United States is not at war (indeed, which the United States counts as an ally).

Killed with Al-Awlaki was an individual named Samir Khan. Al-Awlaki's teenaged son, Abdulrahman Al-Awlaki, was killed in a separate strike in Yemen, on October 14, 2011. Al-Awlaki, his son, and Khan were all United States citizens.

 Al-Awlaki and his son were born in the United States and held dual United States and Yemeni citizenship. Khan was of Pakistani origin and a naturalized United States citizen.

 

The President and Leon Panetta, Secretary of Defense (who was formerly the CIA Director), have publicly acknowledged that the United States in fact had a role in Al-Awlaki's death. Neither the President nor the Secretary of Defense has identified precisely who (other than the President) was involved in Al-Awlaki's death, including what agencies or departments may have participated in the operation that killed him or how they were involved; neither have they provided any operational details of the killings. The Court is unaware of any public statements by named, current executive branch officials that discuss or acknowledge responsibility for, or participation in, the killings of Khan or Al-Awlaki's son.

The various public statements that have been made about the Al-Awlaki killing, and about targeted killings generally, will be discussed in detail later. They reveal (or seem to reveal) that the decision to target a United States citizen for death is made by the President on the recommendation of senior Government officials -- although the identity of the officials  who made any such recommendation (if one was made) with respect to Al-Awlaki, Khan, or the child has not been publicly revealed. According to the Attorney General of the United States and other senior Executive Branch officials, these decisions are made pursuant to a process that is constitutionally and statutorily compliant. In particular, Government officials insist that a United States citizen can be targeted by the Executive Branch and still be accorded due process of law.

The Government's vociferous insistence that its decisions to kill United States citizens are lawful, and most especially its references to due process, may seem odd in the context of war -- although there is and long has been robust debate about what to call the anti-Al-Qaeda operation, and whether anti-terrorist operations in countries other than Afghanistan and adjacent territory in Pakistan can fairly or legally be classified as a war.

See, e.g., Mark V. Vlasic, Assassination and Targeted Killing -- A Historical and Post-Bin Laden Legal Analysis, 43 Geo. J. Int'l L. 259 (2012); Afsheen John Radsan & Richard Murphy, The Evolution of Law and Policy for CIA Targeted Killing, 5 J. NatT Security L. & Pol'y 439 (2012);  [*20] Laurie R. Blank, Defining the Battlefield in Contemporary Conflict and Counterterrorism:Understanding the Parameters of the Zone of Conflict, 39 Ga. J. Int'l & Comp. L. 1 (2010)

 However, even if there were no such debate, it is not surprising that the Government feels somewhat defensive. Some Americans question the power of the Executive to make a unilateral and unreviewable decision to kill an American citizen who is not actively engaged in armed combat operations against this country. Their concern rests on the text of the Constitution and several federal statutes, and is of a piece with concerns harbored by the Framers of our unique form of Government.

CONSTITUTIONAL AND STATUTORY CONCERNS ABOUT TARGETED KILLINGS

As they gathered to draft a Constitution for their newly liberated country, the Founders -- fresh from a war of independence from the rule of a King they styled a tyrant -- were fearful of concentrating power in the hands of any single person or institution, and most particularly in the executive. That concern was described by James Madison in Federalist No. 47 (1788);

"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one,  [*21] a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. . . .

The magistrate in whom the whole executive power resides cannot of himself. . . administer justice in person, though he has the appointment of those who do administer it."

 

Madison's statements echoed those of the great French philosopher Montesquieu, who wrote, in his seminal work The Spirit of the Laws (1748): "Were [the power of judging] joined to the executive power, the judge might behave with all the violence of an oppressor."

The Framers took steps to address their fear in the document they drafted. In particular, the Fifth Amendment to the Constitution provides that no person shall be "deprived of life . . . without due process of law." The words "due process of law" are not further defined in the Constitution, or in the Bill of Rights. However, "The first, central, and largely uncontroversial meaning of 'due process of law,' the meaning established in Magna Charta and applied vigorously by Coke against the first two Stuart Kings, was that the executive may not. . . restrain the liberty of a person within the realm without legal authority arising either  [*22] from established common law or from statute. In other words, executive decrees are not 'law.'" Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of Powers, 121 Yale L.J. 1672, 1782 (2012). In the early days of the Republic, the United States Supreme Court endorsed this understanding: "The words 'due process of law,' were undoubtedly intended to convey the same meaning as the words, 'by the law of the land,' in Magna Charta" Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272. 276 (1855).

Outside the criminal law context, the phrase has come to mean that no person can be aggrieved by action of the Government without first being given notice of the proposed action and an opportunity to be heard:

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of action and afford them an opportunity to present their objections. )Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).)

When a person is accused of committing a crime, and the Government has the power, upon conviction, to deprive him of  [*23] life or liberty, the particular rights enumerated in the Fifth and Sixth Amendments (ranging from the right to indictment to the right to counsel) are recognized as setting the minimum guarantee of the Due Process Clause.

The concept of due process of law has never been understood to apply to combatants on the battlefield actively engaged in armed combat against the United States. Cf. Hamdi v. Rumsfeld, 542 U.S. 507, 531 (2004) ("[T]he law  [*24] of war and the realities of combat may render [military detention of enemy combatants] both necessary and appropriate, and our due process analysis need not blink at those realities.") (O'Connor, J.). Indeed, during the American Civil War, hundreds of thousands of persons recognized by the United States Government as American citizens, who were engaged in armed rebellion against the country, were killed in battle without any suggestion that their due process rights were being violated.

The activities in which Al-Awlaki is alleged to have engaged violate United States law. Specifically, they constitute treason as defined in the Constitution (Art. 3, Section 3) and 18 U.S.C. § 2381, which provide:

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort with the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years, and fined under this title . . . .

 

Al-Awlaki's Alleged Actions Would Make Him A Traitor.

If the War on Terror is indeed a war declared by Congress pursuant to its constitutional power, and if Al-Awlaki was a combatant in that war, then he was a traitor. Even if he was not a combatant levying  [*25] war against his country, but instead gave aid and comfort to enemies of the United States (such as Al-Qaeda), he was a traitor. Indeed, Al-Awlaki could arguably have committed treason if all he did was encourage others to engage in attacks on the United States; it was settled during and after World War II that activities like broadcasting messages that gave aid and comfort to an enemy of the United States (by, for example, encouraging soldiers to desert, or telling them that their cause was lost) were treasonable. See, e.g., D'Aquino v. United States, 192 F.2d 338 (9th Cir. 1951); Gillars v. United States, 182 F.2d 962 (D.C. Cir. 1950); Chandler v. United States, 171 F.2d 921 (1st Cir. 1948). And if Al-Awlaki was actually planning some sort of attack on the United States or its facilities or citizens, he was a traitor.

The Constitution's Method of Dealing With Traitors

The Framers—who were themselves susceptible to being hanged as traitors by the King of England during the Revolutionary War—were as leery of accusations of treason as they were of concentrating power in the hands of a single person or institution. As a result, the Constitution accords special protections to those accused of this most heinous of capital crimes; Article 3, Sec. 3 sets the procedural safeguard that,

"No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."

Interestingly, the Treason Clause appears in the Article of the Constitution concerning the Judiciary -- not in Article 2, which defines the powers of the Executive Branch. This suggests that  [*27] the Founders contemplated that traitors would be dealt with by the courts of law, not by unilateral action of the Executive. As no less a constitutional authority than Justice Antonin Scalia noted, in his dissenting opinion in Hamdi, 542 U.S. at 554, "Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime."

Assuming arguendo that in certain circumstances the Executive power extends to killing without trial a citizen who, while not actively engaged in armed combat against the United States, has engaged or is engaging in treasonous acts, it is still subject to constraints legislated by Congress. One such constraint might be found in 18 U.S.C. § 1119, which is entitled "Foreign murder of United States nationals." This law, passed in 1994, makes it a crime for a "national of the United States" to "kill[] or attempt[] to kill a national of the United States while such national is outside the United States but within the jurisdiction of  [*28] another country." The statute contains no exemption for the President (who is, obviously, a national of the United States) or anyone acting at his direction. At least one commentator has suggested that the targeted killing of Al-Awlaki (assuming it was perpetrated by the Government) constituted a violation of the foreign murder statute. (Philip Dore, Greenlighting American Citizens: Proceed with Caution, 72 La. L. Rev. 255 (2011).)

There are even statutory constraints on the President's ability to authorize covert activity. 50 U.S.C. §413b, the post-World War II statute that allows the President to authorize covert operations after making certain findings, provides in no uncertain terms that such a finding "may not authorize any action that would violate the Constitution or any statute of the United States." 50 U.S.C. § 413b(a)(5). Presidential authorization does not and cannot legitimize covert action that violates the constitution and laws of this nation.

So there are indeed legitimate reasons, historical and legal, to question the legality of killings unilaterally authorized by the Executive that take place otherwise than on a "hot" field of battle. Which is not to say that the matter  [*29] is straightforward. It is not. The literal language of the Fifth Amendment, the Treason Clause, and the cited statutes notwithstanding, the Administration obviously believes that it acted lawfully in connection with the killing of Al-Awlaki (and, presumably, of Khan and the child). It has gone so far as to mount an extensive public relations campaign in order to convince the public that its conclusions are correct.

PUBLIC STATEMENTS BY SENIOR OFFICIALS ABOUT TARGETED KILLINGS

Plaintiffs have brought to the Court's attention at least two dozen public statements made by senior executive branch officials with respect to the Government's targeted killing program. Plaintiffs' vigilance is unsurprising. Because the records that Plaintiffs seek are largely classified, their case consists largely of the argument that, by making these statements, the Administration has waived the right to rely on FOIA exemptions for classified and privileged materials. Accordingly, the Court finds it fitting to discuss at some length the most significant of them.

I

State Department Legal Adviser Harold Koh

On March 25, 2010, State Department Legal Adviser Harold Koh addressed the Annual Meeting of the American Society of International Law in Washington, DC.With respect to the subject of targeted killings, Mr. Koh pledged the Obama Administration's commitment to carrying out such operations in accordance with "all applicable law, including the laws of war." He also emphasized that such operations do not constitute unlawful extrajudicial killings or assassinations because "a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before  [*31] the state may use lethal force."

Mr. Koh assured the audience that the Government's "procedures and practices for identifying lawful targets are extremely robust." He announced that the principles of distinction and proportionality enshrined in the law of war are not mere window dressing, but are "implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law."

II.

Department of Defense General Counsel Jeh Johnson:

The Yale Dean's Lecture

On February 22, 2012, DoD General Counsel Jeh Johnson delivered the Dean's Lecture at the Yale Law School. The purpose of the speech was to summarize "some of the basic legal principles that form the basis for the U.S. military's counterterrorism efforts against Al-Qaeda and its associated forces." The speech identified six such principles.

First, Mr. Johnson noted that "in the conflict against an unconventional enemy such as al Qaeda, we must consistently apply conventional legal principles" -- e.g., "the law of armed conflict, including applicable provisions of the Geneva Conventions and customary international law, core principles of distinction and proportionality, historic precedent, and traditional principles of [domestic] statutory construction."

Second, Mr. Johnson asserted that the "bedrock of the military's domestic legal authority" in the conflict against al-Qaeda and associated forces remains the AUMF, which was passed by Congress immediately following the attacks of September 11, 2001. Mr. Johnson emphasized that neither the AUMF nor the term "associated forces" is "open-ended." He insisted that the AUMF "does not authorize military force against anyone the Executive labels a 'terrorist.'"¹² Instead, "it encompasses only those groups or people with a link to the terrorist attacks on 9/11, or associated forces." He defined an associated force as an (1) "organized, armed group that has entered the fight alongside al Qaeda" who is (2) "a co-belligerent with al Qaeda in hostilities against the United States or its coalition partners."

Mr. Johnson recently reemphasized this point, in a speech given at the Oxford Union on November 30, 2012, when he said that "Our enemy does not include anyone solely in the category of activist, journalist, or propagandist. Nor does our enemy in this armed conflict include a 'lone wolf who, inspired by al Qaeda's ideology, self-radicalizes in the basement of his own home, without ever actually becoming part of al Qaeda, Such persons are dangerous, but are a matter for civilian law enforcement, not the military, because they are not part of the enemy force."

Third, Mr. Johnson noted that the AUMF does not restrict the use of force to the "hot" battlefields of Afghanistan. Rather, the "AUMF authorized the use of necessary and appropriate force against the organizations and persons connected to the September 11th attacks -- al Qaeda and the Taliban -- without a geographic limitation." However, "International legal principles, including respect for a state's sovereignty and the laws of war, impose important limits on our ability to act unilaterally, and on the way in which we can use force in foreign territories."

Fourth, explicitly echoing Mr. Koh's comments on targeted killing, Mr. Johnson stated that, under "well-settled legal principles, lethal force against a valid military objective, in an armed conflict, is consistent with the law of war and does not, by definition, constitute an 'assassination.'"

Fifth, citing Ex Parte Quirin, 317 U.S. 1 (1942) and Hamdi, Mr. Johnson posited that "belligerents who also happen to be U.S. citizens do not enjoy immunity where non-citizen belligerents are valid military objectives."¹³

Note: Both Quirin and Hamdi involved individuals who were in United States custody. Quirin remains the lone case upholding the right to try a United States citizen before a military commission; it said nothing at all about killing a United States citizen without any sort of trial. Hamdi addressed the right of a United States citizen detained in the United States as an enemy combatant to challenge his confinement via habeas corpus. Again, there was no suggestion that Mr. Hamdi was to be executed without some kind of trial.

Sixth, Mr. Johnson argued that "targeting decisions are not appropriate for submission to a court" because "they are core functions of the Executive Branch, and often require real-time decisions based on an evolving intelligence picture that only the Executive Branch may timely possess.

Note: Obviously the courts are in no position to decide who should or should not be targeted for any sort of action, military or judicial. In this country, courts are not investigative bodies and do not decide whom to prosecute; that is the prerogative of the Executive. Courts exist to afford due process of law to those who are accused by the Executive of violating the law.

III.

Attorney General Eric Holder;

 The Northwestern Speech

The most fulsome discussion to date of the legal basis for the Government's targeted killing program is Attorney General Holder's Northwestern Speech on March 5, 2012. The public statements that preceded this speech contain bits and pieces of the presentation that the Attorney General made at Northwestern, so in essence, the Northwestern Speech is Plaintiffs' case.

The relevant passages of the Northwestern Speech are dedicated to supporting the Government's conclusion that, under the appropriate conditions, it is lawful for the Government to "use lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans."

The Attorney General noted that "Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it's clear that United States citizenship alone does not make such individuals immune from being targeted." Nevertheless, where United States citizens are concerned, there are certain "constitutional considerations" in play, "the most relevant [of which] is the Fifth Amendment's Due Process Clause."

"The Supreme Court has made clear that the Due Process Clause . . . mandates procedural safeguards that depend on specific circumstances." The Attorney General then invoked the Supreme Court's "balancing approach, which weighs the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process," also noting that "Where national security operations are at stake, due process takes into account the realities of combat."

Without explicitly tying it to the concept of due process of law, the Attorney General then laid out the three part test that the Government employs in making the determination that a United States citizen may be targeted for death: First, the individual must pose an imminent threat of violent attack against the United States. Second, capture must not be feasible. Third, the operation to kill the individual must be conducted in a manner consistent with the law of war.

With respect to the imminence requirement, the Government's analysis "incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States."  Because terrorist organizations do not operate like conventional military forces, and tend to strike without warning, "the Constitution does not require the President to delay action until some theoretical end-stage of planning -- when the precise time, place, and manner of an attack become clear."¹⁹

Note: This appears to be an effort to distinguish the Executive's power to take action against a potential terrorist threat by al Qaeda or associated forces from, say, an effort to prosecute garden variety conspiracies, most of which -- according to the standard jury instruction -- must go past the "talking" stage and encompass the performance of some sort of overt act in order to become criminal. See United States v. Wallace, 85 F. 3d 1063, 1068 (2d Cir. 1996).

With respect to the requirement that capturing the plotter be unfeasible, the analysis is "fact-specific," and often "time-sensitive." "It may depend on, among other things, whether capture can be accomplished in the window of time available to prevent an attack and without undue risk to civilians or to U.S. personnel."

With respect to the law of war requirement, the Government ensures that any use of lethal force complies with four governing  principles: necessity, distinction, proportionality, and humanity. Under the principle of necessity, the target must have "definite military value." The principle of distinction dictates that only "lawful targets" (e.g., combatants, civilians directly participating in hostilities, and military objectives) may be "targeted intentionally." A military operation comports with the principle of proportionality if "the anticipated collateral damage [is] not . . . excessive in relation to the anticipated military advantage." Finally, in accordance with the principle of humanity, the Government may only use weapons that "will not inflict unnecessary suffering."

The Northwestern Speech also mentions that there are limitations imposed by international law that constrain the Government's ability to act unilaterally abroad, such as the principle of territorial sovereignty. However, "the use of force in foreign territory would be consistent with . . . international legal principles if conducted, for example, with the consent of the nation involved -- or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States."²⁰

The Northwestern Speech also summarizes the Government's argument for why targeted killings of US citizens do not constitute "assassinations." The argument boils down to a syllogism: assassinations are unlawful killings; the killings at issue here are not unlawful, therefore they cannot possibly be assassinations.

What makes it lawful to engage in the targeted killing of U.S. citizens abroad is apparently a combination of: (1) Congressional authorization "to use all necessary and appropriate force against [Al-Qaeda, the Taliban, and associated forces]" in the wake of the attacks of September 11, 2001; (2) the right under international law to "take action against enemy belligerents" in times of armed conflict; (3) the President's power under the Constitution "to protect the nation from any imminent threat of violent attack;" and (4) the inherent right of national self-defense enshrined in international law.

Note: Actually, the President's oath of office -- which appears in the text of the Constitution itself, at Art. 2, Sec. 1, Cl. 8 -- requires him to promise that he will faithfully execute his office and "preserve, protect and defend the Constitution of the United States" -- not the territory of the United States, and not the people of the United States. It seems that the Founders subscribed to the notion that, as long as the President looked out for the Constitution, the country would be safe.

Finally, the Northwestern Speech explains that the "due process" guaranteed by the Fifth Amendment does not equate to "judicial process." Mr. Holder admitted that, "The Constitution's guarantee of due process is ironclad, and it is essential—but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war -- even if that individual happens to be a U.S. citizen." Holder did not identify which recent court decisions so held.²² Nor did he explain exactly what process was given to the victims of targeted killings at locations far from "hot" battlefields, other than Executive consideration of the factors discussed above (i.e., the individual is believed to pose an "imminent threat" to the country and cannot feasibly be captured).

Note: Although  Mr. Holder did not identify any such decisions, one likely candidate is Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010), which is, ironically, the case in which Al-Awlaki's father sued in federal court in the District of Columbia to get Al-Awlaki taken off the Government's kill list. His case was dismissed for lack of standing. The passage upon which the Attorney General most likely relied is the following: "Here, plaintiff asks this Court to do exactly what the D.C. Circuit forbid in El-Shifa -- assess the merits of the President's (alleged) decision to launch an attack on a foreign target. Although the 'foreign target' happens to be a U.S. citizen, the same reasons that counseled against judicial resolution of the plaintiffs' claims in El-Shifa apply with equal force here." Id. at 47 (citing El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836 (D.C. Cir. 2010)).

IV.

Assistant to the President for Homeland Security

and Counterterrorism John O. Brennan: The Ethics and Efficacy Speech

On April 30, 2012, Assistant to the President for Homeland Security and Counterterrorism John O. Brennan delivered the Ethics and Efficacy Address at the Woodrow Wilson International Center for Scholars in Washington, DC.

Mr. Brennan began the relevant portion of his remarks by stating plainly that "Yes, in full accordance with the law -- and in order to prevent terrorist attacks on the United States and to save American lives -- the United States Government conducts targeted strikes against specific al-Qa'ida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones." Mr. Brennan identified the purpose of his speech as, per President Obama's instructions, "to be more open with the American people about these efforts."

Explicitly echoing the Attorney General, Mr. Koh, and Mr. Johnson, Mr. Brennan also asserted the legality of targeted strikes as a matter of both domestic and international law. He argued that Article II of the Constitution and the AUMF empowered the President to engage in targeted drone strikes against "those nations, organizations, and individuals responsible for 9/11." Under international law, such operations would be consistent with the "inherent right of national self-defense," including when conducted "outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat."

Mr. Brennan also argued that targeted strikes are ethical under the law of war. Like the Attorney General, Mr. Brennan emphasized that drone strikes comport with the fundamental law of war principles of necessity, distinction, proportionality, and humanity.

V.

President Barack Obama 

On January 30, 2012, President Obama took part in a so-called "Google+ Hangout," in which he fielded questions from online participants. In response to a question about the Government's killing program, President Obama, like Mr. Koh, did not deny that such a program existed. Instead, he emphasized that the Government is "very careful in terms of how it's been applied" and does not carry out such operations "willy-nilly." Instead, the program is a "targeted, focused effort at people who are on a list of active terrorists who are trying to go in and harm Americans, hit American  facilities, American bases, and so on."

 

Query: How do you get on the list?

President Obama urged that the program is "kept on a very tight leash" and is not "a bunch of folks in a room somewhere just making decisions."

Note: A law school student recently asked me, what his professor meant writing on his exam paper, "Huh?"We all know where there is a bunch of folks in a room somewhere with the constitutional duty of making such decisions.. It is an American trial court.

 

Oh, I see.  It's too important a matter for the American trial court. It's too important a matter to entrust to the people themselves to resolve.

Rather, it is "part and parcel of our overall authority when it comes to battling al-Qaeda. It is not something that is being used beyond that." He insisted that the Government was "judicious" in its use of drones.

Note: By "Our overall authority," our President means that in "wartime" he may use any force he preceives as consistent with the Nation's inherent right of self-defense. This is a view that trumps the constitution.

Iin essence, the President is sending drones into countries the United States is not at war with and killing so-called "enemies" on the basis of executive decision. The President's claim that this conduct is consistent with the law of war is ridiculous.

Finally, President Obama emphasized that the Government's "ability to respect the sovereignty of other countries and to limit our incursions into somebody else's territory is enhanced by the fact that we are able to pinpoint strike an al-Qaeda operative in a place where the capacities of that military and that country may not be able to get to them."

DISCUSSION

A. Legal Analysis May Appropriately Be Classified

All Plaintiffs argue that legal analysis is not the proper subject of classification. Indeed, they note that the Government cites not a single case which holds that legal analysis can properly be classified.

The Government counters that E.O. 13256 does not contain a specific carve-out for legal analysis; rather, E.O. 13526 applies to any information that "pertains to" the various items listed in Section 1.4. Therefore, legal analysis that "pertains to" military plans or intelligence activities (including covert action), sources or methods -- all of which are classified matters -- can indeed be classified.

Several cases support the proposition that legal analysis can be withheld as classified pursuant to Exemption 1. See, e.g., Patriot Act Case, 2012 WL 1869396, at *1, 6; ODNI, 2011 WL 5563520, at *8; Ctr. for Int'l Environ. Law v. Office of the US Trade Rep., 505 F. Supp. 2d 150, 154 (D.D.C. 2007) ("CIEL I"). I see no reason why legal analysis cannot be classified pursuant to E.O. 13526 if it pertains to matters that are themselves classified.

The only question, then, is whether the court needs to review the only classified document that has been publicly identified as containing legal advice responsive to the Times' FOIA requests -- the OLC-DoD Memo -- in order to insure that the Holder speech is less specific than the Memo,  [*69] and see whether the rubric it disclosed matches the advice that was given him by OLC.

In camera review of withheld documents may be appropriate to determine whether Exemption 1 has been waived. But such review is not necessary here. As the Second Circuit has noted, "A court should only consider information ex parte and in camera that the agency is unable to make public if questions remain after the relevant issues have been identified by the agency's public affidavits and have been tested by plaintiffs." Wilner, 592 F.3d at 75-76.

It is plain that the Attorney General's discussion of the legal underpinnings of the Government's targeted killing program in the Northwestern Speech, which cites almost no specific authority, could not possibly be the exact legal analysis purportedly contained in the OLC-DoD Memo (unless standards at OLC have slipped dramatically). I do not need to review the OLC-DoD Memo in camera to know that its legal analysis would be far more detailed and robust.

Furthermore, even if the Attorney General's speech could be said to include "self-serving partial disclosures of classified information," this complaint is more "properly addressed to Congress, not to this court." (Public Citizen, 11 F.3d at 204.) This Court, like the DC Circuit, is "unwilling to fashion a rule that would require an agency to release all related materials any time it elected to give the public [some] information about a classified matter. To do so would give the Government a strong disincentive ever to provide its citizenry with briefings of any kind on sensitive topics." Id. at 203.

Note: The District Court judge, Colleen McMahon, ruled that the Government is not required to produce the legal memorandum made by the Justice Department and upon which it relies for the legal justification for killing American citizens abroad who it deems, without due process of law, to be traitors to the United States.

 

 

 

 

Note: It is the rare federal district court judge who is not arrogant, quick-tempered, more interested in throwing your civil case out of court than resolving it through jury trial. But then there are some great trial judges on the bench you will be lucky to get. The ones I know are dead.

Joe Ryan