Secrecy: FOIA

Summary Judgment for the Government in Targeted Killing FOIA Request

By Raffaela Wakeman
Wednesday, January 2, 2013, 4:26 PM

Judge Colleen McMahon of the District Court of the Southern District of New York has granted summary judgment to the government in the consolidated FOIA cases brought by the New York Times and the ACLU. The plaintiffs were seeking information about the government's targeted killing program in the War on Terror. Judge McMahon summarizes the requests as follows:

Broadly speaking, they seek disclosure of the precise legal justification for the Administration's conclusion that it is lawful for employees or contractors of the United States government to target for killing persons, including specifically United States citizens, who are suspected of ties to Al-Qaeda or other terrorists groups.

Read the full 75-page decision here. Others will no doubt have commentary on this decision, but here's the gist of Judge McMahon's ruling:

...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 their 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, except in one limited respect.

The one exception to the grant of summary judgment is that the DoD must "submit a supplemental and more fulsome justification for why the deliberative process privilege applies to the two Unclassified Memos on its Vaughn Index."

Read our previous posts on this case here, here, and here.