In a 75-page decision issued on January 2, Judge Colleen McMahon of the Southern District of New York denied plaintiffs access to legal memos that support the Obama administration’s conduct of targeted attacks on suspected terrorists. Individuals killed in drone strikes include U.S. citizens. One set of plaintiffs, New York Times reporters Scott Shane and Charlie Savage, filed a Freedom of Information Act (FOIA) request. They sought copies of all Office of Legal Counsel opinions or memoranda since 2001 that address the legal status of targeted killing of people suspected of ties to terrorist groups. The other plaintiff, the American Civil Liberties Union, directed a FOIA request to the Justice Department but also to the Defense Department and the Central Intelligence Agency. It requested copies of all records pertaining to the targeted killings of U.S. citizens.
McMahon writes: “Outside the criminal law context, the phrase [due process] has come to mean that no person can be aggrieved by action of the Government without being given notice of the proposed action and an opportunity to be heard.” Outside the criminal law context, why should the government be permitted to take the life of a U.S. citizen without giving notice and an opportunity to be heard in federal court? During the American Civil War, McMahon says, hundreds of thousands of U.S. citizens were killed in battle “without any suggestion that their due process rights were being violated.” How does that precedent apply to conditions after the attacks of September 11, 2001? In the Civil War, U.S. citizens were not specifically targeted, any more than they were targeted in the bombing raids during World War II or any other U.S. military operation.
