Unconstitutional but legal

You now that we have reached a bizarre stage in the so-called war on terror when a court rules that the government is doing something that is likely unconstitutional but legal.

One of the most shameful and appalling actions of the Obama administration is its claim that it has the right to target and kill anyone in the world using whatever means at its disposal, but in practice using mostly drones. Of course the US government, through the CIA, has routinely murdered people for decades but it was done covertly and not acknowledged, which implied that the government knew it was wrong but did it anyway.

The Obama administration has done away with that pretense. Of course, since the US government still has to maintain the pretense that it occupies the moral high ground in world affairs and is not like any other despotic regime that operates hit squads, it claims that it has strict guidelines for whom it deems deserving of being target and killed. But it refuses to disclose those guidelines and often claims that anyone who is killed, even if they just happened to be in the vicinity of a target, is a terrorist. They seem to follow the logic of the Queen of Hearts in Alice in Wonderland of “Sentence first–verdict afterwards.”

In fact, it was only the possibility that Mitt Romney might be the next president and have this power that spurred at least some action towards actually codifying these rules because unlike Obama who could be trusted with these god-like powers because he has the god-like wisdom to use them judiciously, Romney was thought to be just a hack politician who needed to be constrained. Or so ardent Obama supporters would like us to believe. So just two weeks before the election, a news report stated that the administration “accelerated work in the weeks before the election to develop explicit rules for the targeted killing of terrorists by unmanned drones, so that a new president would inherit clear standards and procedures, according to two administration officials.” It is likely that those plans have been shelved now that Obama has been re-elected.

The Obama administration was taken to court to force them to reveal the memorandum that the government claims it uses to make these determinations but as is increasingly the practice, the Obama administration invoked the terrorist threat and the state secrets argument to argue that they did not have to reveal it. A federal judge reluctantly said that while she thought that the policy of targeted killings was likely unconstitutional, the government’s invocation of secrecy was probably legal.

The bizarre nature of her ruling, and its parallels in fiction, was not lost on her.

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.

The decision will be appealed but I am not too optimistic. The courts show excessive deference to the government whenever it claims to be doing something in the name of national security.


  1. left0ver1under says

    And these are the people arguing that Bradley Manning committed the greater crime, that Manning poses the greater danger?

  2. sqlrob says

    I really don’t know how he said this argument with a straight face. The Constitution itself says it’s the “Supreme Law of the land”, so anything unconstitutional is necessarily illegal.

  3. kevinalexander says

    Truly a bizarre ruling. To say that it’s legal for the President to kill without justification means that he can kill ANYONE without offering an excuse. He could just declare that his political enemies were fair game.

  4. richardrobinson says

    The judge did not actually rule on the constitutionality of the program. Rather, she ruled the governments refusal to provide documents necessary to make that determination was legal.

    In other words, it is constitutionally sound for the government to deliberately prevent an investigation into one of its programs. Even if that program may not, itself, be consistent with the constitution.

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