Obama Is Still Hiding the Legal Cover He Used to Kill an American

But a new court ruling could force him to reveal it.
Reuters

The Obama Administration has fought for years to hide its legal rationale for killing an American citizen, Anwar al-Awlaki, after putting him on a secret kill list. Citizens have an interest in knowing whether the White House follows the law, especially when the stakes are as high as ending a life without due process. President Obama has fought to ensure his legal reasoning would never be revealed, a precedent that would help future presidents to kill without accountability.

His shortsightedness is breathtaking. 

Last year, U.S. District Court Judge Colleen McMahon expressed frustration that, according to her legal analysis, the Freedom of Information Act couldn't force a disclosure. "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," she wrote, "while keeping the reasons for their conclusions a secret."

Americans ought to have been alarmed that, according to a federal judge, we're living in an "Alice in Wonderland" reality where leaders use the law to put themselves beyond the law. But no one paid much attention as The New York Times and the ACLU appealed the decision. On Monday, they won an important victory:

A federal appeals panel in Manhattan ordered the release... of key portions of a classified Justice Department memorandum that provided the legal justification for the targeted killing of a United States citizen, Anwar al-Awlaki, who intelligence officials contend had joined Al Qaeda and died in a 2011 drone strike in Yemen.

The unanimous three-judge panel, reversing a lower court decision, said the government had waived its right to keep the analysis secret in light of numerous public statements by administration officials and the Justice Department’s release of a “white paper” offering a detailed analysis of why targeted killings were legal.

"Throughout its treatment of the Awlaki killing, the Obama Administration has attempted to justify its killing of an American citizen publicly without bearing the risk of defending that justification legally," Marcy Wheeler writes. "And they almost got away with it. Until they got a little too loosey goosey with the selective leaks."

There's reason to celebrate a ruling that gets Americans one step closer to examining the logic Team Obama used to put U.S. citizens on a kill list despite the Fifth Amendment to the Constitution, which unambiguously declares that "no person shall ... be deprived of life, liberty, or property, without due process of law." Perhaps we'll come to learn that Obama disgraced himself in the eyes of history with an unlawful killing, violating his solemn oath to "protect and defend the Constitution." After the innocent women and children who've died as a consequence of his drone war, unlawfully killing a higher-ranking member of al-Qaeda than many of those killed on his watch wouldn't be his worst sin.

It's still troubling that a court case is required to force clarity on the subject of who the president can kill, and that the outcome turns on the fact that Team Obama leaked to defend itself, as if the public's right to know the legal reasoning for a due process free killing ought to turn on whether the White House keeps mum about it.

It is lunacy to empower a president to kill American citizens in secret without any requirement that he explain his actions to anyone outside the executive branch. Anyone who tried to insert a provision like that into a country's constitution would be a villain of history. It is illiberal, unconservative, and unlibertarian, so in theory it shouldn't have much support. The fact that it's accepted without complaint by so many Americans, and actively defended by the Beltway establishment of both major political parties, shows the alarming degree to which we're willing to give fallible presidents dictatorial powers to fight terrorism.

As yet, however, no one has repealed the Fifth Amendment. Soon we may get a chance to see the legal shenanigans the Obama Administration used to subvert it.

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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