The U.S. Justice Department’s memorandum on the legal justification for the targeted killing programme will remain secret for the time being, after federal judge Colleen McMahon dismissed most of the case brought against the U.S. Department of Justice by the American Civil Liberties Union and the New York Times under the Freedom of Information Act (FOIA), concluding that the U.S. Government had not violated the FOIA by refusing to turn over the sought documents.
Judge McMahon acknowledged in her judgment that the Administration’s discussion of the legal justification for targeted killings has been ‘cryptic and imprecise’. This is going easy on the Administration, whose justification for the programme seems to consist almost solely of crying ‘self-defence’ and refusing to say much more than that. It is worth noting that Judge McMahon seemed uncomfortable with the decision, and wrote:
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.
So it seems that for the moment at least, the Administration is well-covered and can continue to play the Queen of Hearts, shouting ‘off with their heads!’ when it sees the need. The decision represents a substantial victory for them, as the targeted killing programme is likely to remain a central component of the U.S.’s anti-terror policies for some time to come. Without any legal necessity to detail their justification for the use of such policies against those suspected of Al Qaeda involvement, including U.S. citizens such as Anwar Al Awlaki, the CIA can continue to expand the programme and use it indiscriminately, without justification.
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