Judge Acknowledges Catch-22, But Says Legal Memos on Drone Killing Are Protected

A federal judge has ruled that exceptions to the Freedom of Information Act protect government memos justifying the targeted killing of U.S. citizen Anwar al-Awlaki and others suspected of terrorism ties.

U.S. District Judge Colleen McMahon ruled on Wednesday, according to the New York Times, the New York Law Journal and a press release by the American Civil Liberties Union. She wrote (PDF) that she could “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.”

The New York Times had sought Justice Department documents offering the legal rationale for targeted strikes, while the American Civil Liberties Union had sought information from the DOJ as well as the Defense Department and the Central Intelligence Agency. Both organizations had argued that public discussions of the drone strike program had amounted to a waiver of the right to withhold the legal rationale.

McMahon wrote that she was constrained by FOIA precedent. “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,” she wrote.

The Times and the ACLU both plan to appeal.

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