While President Obama ran on a pledge to be the most transparent presidency in history, critics have charged that — as with promises to protect civil liberties and international law — Obama has done precisely the opposite of what he promised. His Administration has radically expanded the national security state while fighting every effort in court to challenge unchecked executive powers, including his successful effort to get Congress to dismiss dozens of public interest lawsuits over surveillance, torture, etc. The latest effort of the Obama Administration was to refuse to release even redacted version of legal memoranda on Obama’s use of drones to kill U.S. citizens. I have previously written about Obama Kill list policy in columns and blog posts. What is interesting is that the Obama Administration shows utter contempt for the federal courts in first claiming that any release of redacted classified legal arguments would endanger national security and then, after the district court yielded to the government, proceeding to discuss the very same information in public when it suited the Administration. The United States Court of Appeals for the Second Circuit finally said enough. The problem is that the district court did not exercise its authority to reject the clearly excessive claims of the government. It is only because the government contradicted itself — not the facially overboard claims made before the district court. The case is New York Times v. United States Department of Justice, 2014 U.S. App. LEXIS 7387. The case highlights the extreme hostility shown by the Obama Administration to both transparency and the media.
The Obama Administration continues to be so extreme in its claims of national security powers that it refused to even confirm the existence of the number of documents related to the subject matter of the use of drones in such targeted killings — even though both the policy is public and the attacks are obviously public. It got away with it before U.S. District Court Judge Colleen McMahon who expressed skepticism of the claims but then refused to order the release of redacted documents. Yet, the Freedom of Information Act (FOIA) was carefully crafted to just ask for legal arguments or policy memoranda on a program that Attorney General Eric Holder himself discussed in public. Here is the request:
1. All records created after September 11, 2001, pertaining to the legal basis in domestic, foreign, and international law upon which U.S. citizens can be subjected to targeted killings, whether using unmanned aerial vehicles (“UAVs” or “drones) or by other means.
2. All records created after September 11, 2001, pertaining to the process by which U.S. citizens can be designated for targeted killings, including who is authorized to make such determinations and what evidence is needed to support them.
3. All memoranda, opinions, drafts, correspondence, and other records produced by the OLC after September 11, 2001, pertaining to the legal basis in domestic, foreign, and international law upon which the targeted killing of Anwar al-Awlaki was authorized and upon which he was killed, including discussions of:
A. The reasons [*13] why domestic-law prohibitions on murder, assassination, and excessive use of force did not preclude the targeted killing of al-Awlaki;
B. The protection and requirements imposed by the Fifth Amendment Due Process Clause;
C. The reasons why International-law prohibitions on extrajudicial killing did not preclude the targeted killing of al-Awlaki;
D. The applicability (or non-applicability) of the Treason Clause to the decision whether to target al-Awlaki;
E. The legal basis authorizing the CIA, JSOC, or other U.S. Government entities to carry out the targeted killing of Anwar Al-Awlaki;
F. Any requirement for proving that al-Awlaki posed an imminent risk of harm to others, including an explanation of how to define imminence in this context; and
G. Any requirement that the U.S. Government first attempt to capture Al-Awlaki before killing him.
4. All documents and records pertaining to the factual basis for the targeted killing of Al-Awlaki, including:
A. Facts supporting a belief that al-Awlaki posed an imminent threat to the United States or United States interests;
B. Facts supporting a belief that al-Awlaki could not be captured or brought to justice using nonlethal means;
C. Facts indicating that there was a legal justification for killings persons other than al-Awlaki, including other U.S. citizens, while attempting to kill al-Awlaki himself;
D. Facts supporting the assertion that al-Awlaki was operationally involved in al Qaeda, rather than being involved merely in propaganda activities; and
E. Any other facts relevant to the decision to authorize and execute the targeted killings of al-Awlaki.
5. All documents and records pertaining to the factual basis for the killing of Samir Khan, including whether he was intentionally targeted, whether U.S. Government personnel were aware of his proximity to al-Awlaki at the time the missiles were launched at al-Awlaki’s vehicle, whether the United States took measures to avoid Khan’s death, and any other facts relevant to the decision to kill Khan or the failure to avoid causing his death.
6. All documents and records pertaining to the factual basis for the killing of Abdulrahman al-Awlaki, including whether he was intentionally targeted, whether U.S. Government personnel were aware of his presence when they launched a missile or missiles at his location, whether he was targeted on the basis of his kinship with Anwar al-Awlaki, whether the United States took measures to avoid his death, and any other factors relevant to the decision to kill him or the failure to avoid causing his death.
The Obama Administration classified the bulk of the memoranda and only released non-classified material that did little to answer these questions. It then made the facially absurd argument that the release of redacted legal memoranda (or even the number of such documents) would put the nation at risk. However, Obama officials continued to speak publicly on those very subjects when it suited them in courting public opinion.
The Second Circuit basically found that Judge MacMahon turned a blind eye to the contradictions, releases of the same information, and exaggerated claims of the Obama Administration:
Although we are not required to consider such evidence, the circumstances of this case support taking judicial notice of the statements here. See Fed. R. Evid. 201(b)(2). The Government’s post-request disclosures “go to the heart of the contested issue,” Powell v. U.S. Bureau of Prisons, 927 F.2d 1239, 1243 (D.C. Cir. 1991) (internal quotation marks omitted), and, as discussed below, are inconsistent with some of its prior claims [redacted]. Taking judicial notice of such statements is the same course taken by the Court of Appeals for the D.C. Circuit in its recent ACLU v. C.I.A. decision. 710 F.3d at 431. We conclude that it is the most sensible approach to ongoing disclosures by the Government made in the midst of FOIA litigation.
Moreover, the Government’s request for an opportunity to submit new material concerning public disclosures made after the District Court’s decision was honored by affording the Government an opportunity, after oral argument, to submit such material ex parte for in camera inspection, which the Government has done.
. . .
The Government offers no explanation as to why the identical text of the DOJ White Paper, not marked “draft,” obtained by Isikoff, was not disclosed to ACLU, nor explain the discrepancy between the description of document number 60 and the title of the DOJ White Paper.
While MacMahon insisted (as is often the case with federal judges yielding to such sweeping government claims) that she lacked authority to order release of the material, the Second Circuit held that she did. Moreover, the Second Circuit ruled against a clearly opportunistic argument by the Obama Administration that, even when it released the very same information claimed to be withheld to protect the nation, the courts could not consider its conflicting actions if they occurred after McMahon’s ruling. Thus, as soon as they have the ruling in the bag, the Administration tried to argue that it could openly contradict its earlier position and discuss previously claimed classified material. Once again, virtually no Democratic members of Congress has denounced the extreme position of the Administration in this case — a silence that will likely undermine any effort of the party to eventually try to regain the values and principles lost during this Administration.
The opinion is a great victory for the media and civil liberties. It was written by Circuit Judge Jon Newman.
The opinion offers another insight in the continuing disconnect between what President Obama is telling the public and what his Administration is actually doing in court. That disconnect appears to be driving polls showing that a large percentage of the public simply does not believe Obama is telling the truth on many issues — a key loss of credibility going into the next round of elections.
Here is the opinion.