McMahon outlined some of the objections that have been raised against the targeted killing of U.S. citizens, including the apparent violation of the Constitution's due process clause and of a 1994 federal law prohibiting a U.S. national from killing another U.S. national abroad, a law which, McMahon noted, "contains no exemption for the President."
Nonetheless, she said the documents requested by the ACLU and the Times are protected because they are either classified, or because they are part of government agencies' deliberative process.
"It lies beyond the power of this Court to conclude that a document has been improperly classified," McMahon said.
She rejected the plaintiff's argument that the government had waived its right to keep the requested information secret by speaking about the targeted killing program in public, pointing to speeches given by Obama and by Attorney General Eric Holder.
The judge said that the speeches contained "no official disclosure of sufficient exactitude to waive the Government's right to assert their classification as a justification for not providing them to the ACLU."
McMahon did reserve judgment as to two documents requested from the Department of Defense, ruling that the agency must produce a more detailed justification for why it would not turn them over.
Except for those documents, however, she granted summary judgment to the government.
The ACLU said in a press release that it would appeal the decision.
"This ruling denies the public access to crucial information about the government's extrajudicial killing of U.S. citizens and also effectively green-lights its practice of making selective and self-serving disclosures," Jameel Jaffer, the ACLU's deputy legal director, said in a statement. "As the judge acknowledges, the targeted killing program raises profound questions about the appropriate limits on government power in our constitutional democracy. The public has a right to know more about the circumstances in which the government believes it can lawfully kill people, including U.S. citizens, who are far from any battlefield and have never been charged with a crime."
The ACLU is represented by its own attorneys and by Eric Ruzicka, Colin Wicker and Joshua Colangelo-Bryan of Dorsey & Whitney.
Subscribe to The National Law Journal
