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Change We Can Believe In, XXXV


Change We Can Believe In: Constitution-in-Wonderland

Should I be retiring this series? I haven’t had a new installment in three months. Obama’s second term starts in two weeks. With the madness that has taken control of the Republican Party, I don’t want to give the false impression that all the problems besetting this country are Obama’s fault. On the other hand, some are. Like this one. Sure, his predecessors put anti-constitutional secrecy in place. But he’s the one who promised to change it and instead has chosen to entrench it.

This was never more in evidence than last week, when federal district court judge Colleen McMahon ruled on Freedom of Information Act requests by the New York Times and the ACLU. Adam Liptak explains:

A federal judge in Manhattan refused on Wednesday to require the Justice Department to disclose a memorandum providing the legal justification for the targeted killing of a United States citizen, Anwar al-Awlaki, who died in a drone strike in Yemen in 2011.

The ruling, by Judge Colleen McMahon, was marked by skepticism about the antiterrorist program that targeted him, and frustration with her own role in keeping the legal rationale for it secret.

“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,” she wrote.

“The Alice-in-Wonderland nature of this pronouncement is not lost on me,” Judge McMahon wrote, adding that she was operating in a legal environment that amounted to “a veritable Catch-22.”


Even as she ruled against the plaintiffs, the judge wrote that the public should be allowed to judge whether the administration’s analysis holds water.

“More fulsome disclosure of the legal reasoning on which the administration relies to justify the targeted 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,” she wrote.

Here is Judge McMahon’s full decision.

Categories: Law, Politics
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