The Paradox That Prevents Courts From Enforcing the Constitution

A federal judge says contradictory laws permit Obama "to proclaim as perfectly lawful" actions that seem unconstitutional "on their face."

Permitted to run CNN for a day, I'd amuse myself by arranging for a Crossfire-style debate between English professors who disagree intensely about how best to characterize President Obama's national security policies. "They're Orwellian," one would insist. "They're actually better described as Kafkaesque," the other would counter. They'd go back and forth, citing his transgressions against basic norms of justice and comparing them to plot points from dystopian novels. Poor Wolf Blitzer. He'd be horrified by a segment that afforded so little deference to a sitting president.

And yet. Even federal judges presiding over real cases now find themselves drawing on dark fiction to adequately convey reality in the Obama era. Take U.S. District Court Judge Colleen McMahon. 

In her courtroom, The New York Times argued that the Obama Administration should be forced to release the legal justification it relies on when it engages in secret, extrajudicial killings. To be clear, the legal fight isn't about whether Obama can kill American citizens in secret without presenting any charges or evidence of guilt or conducting a trial. At issue is whether Americans are entitled to know what he regards as the legal justification for that power.

So far, President Obama has refused to release that legal reasoning, as prepared by the Office of Legal Counsel. He is effectively denying us the ability to know what laws we live under, and stifling an informed debate about whether the powers he is exercising are in fact proper.

Judge McMahon seems to think it is technically legal for Obama to keep mum. She nevertheless delivered a scathing rebuke. Characterizing his national security policy as an "ill-defined yet vast and seemingly ever-growing exercise," she began by explaining that in this case he hasn't actually run afoul of freedom of information laws, and thus cannot be compelled to explain why his controversial actions are permitted by the Constitution and do not violate the law.

"The Alice in Wonderland nature of this pronouncement is not lost on me," she continues. "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 conclusions a secret." I say George Orwell, you say Franz Kafka, she says Lewis Carroll and Joseph Heller. 

In the next paragraph, McMahon offers a stark reminder of how ruinous government secrets are to the normal functioning of the legal system. "This opinion will deal only with matters that have been disclosed on the public record," she notes. "The Government has submitted material to the Court ex parte for an in camera review. Certain issues requiring discussion in order to make this opinion complete relate to this classified material. That discussion is the subject of a separate, classified appendix to this opinion, which is being filed under seal and is not available to Plaintiff's counsel." There's a secret opinion explaining why the government's secret argument for being able to keep secret the argument for why it can kill in secret is valid! This during the tenure of a man who pledged his administration would be the most transparent ever.

I'll cite just one more passage from the decision:

Some Americans question the power of the Executive to make a unilateral and unreviewable decision to kill an American citizen who is not actively engaged in armed combat operations against this country.

What's remarkable is that many more Americans don't question it.