Explain Why It’s OK To Rain Death From the Sky, Court Tells Obama Administration

Last year, in
response to a lawsuit over death-by-drone assassinations of
American citizens overseas, including Anwar Al-Awlaki, his teenaged
son Abdulrahman Al-Awlaki, and Samir Khan, the Obama administration
admitted it had done the deed, and claimed that it did so
completely legally.

Howzzat? asked the plaintiffs and a curious judge.

We can’t tell you, it’s a secret, the administration replied.
And—nyah nyah—the
courts have no say in this anyway.

The Second U.S. Circuit Court of Appeals disagrees, and says the
Obama administration must turn over its legal rationale for
snuffing Americans with flying killer robots.
Writes Judge Jon O. Newman for the court:

We emphasize at the outset that the Plaintiffs’ lawsuits do not
challenge the lawfulness of drone attacks or targeted killings.
Instead, they seek information concerning those attacks, notably,
documents prepared by DOJ’s Office of Legal Counsel (“OLC”) setting
forth the Government’s reaso ning as to the lawfulness of the
attacks.

Note that the the plaintiffs, including
The New York Times and the American Civil
Liberties Union, don’t challenge the legality of the assassinations
because they have no idea what the government’s argument for their
legality might be. It’s a secret, remember, unknown, and therefore
unimpeachable.

But the Obama administration has pushed the limits of the legal
protections it claims for its arguments in Lois Lerner style, by
publicly discussing the drone killings, boasting legal
authorization for its actions, and then coyly refusing to say
anything more. The
leak of a Justice Department white paper revealing part of the
legal argument and hinting at more also undermined the
administration’s insistence on secrecy.

Too cute by half, says the court. “Voluntary disclosures of all
or part of a document may waive an otherwise valid FOIA
exemption.”

As a result:

With the redactions and public disclosures discussed above, it
is no longer either “logical” or “plausible” to maintain that
disclosure of the legal analysis in the OLC-D OD Memorandum risks
disclosing any aspect of “military plans, intelligence activities,
sources and methods, and foreign relations.”

So cough it up, says the court. Tell us why you think it’s legal
to send drones to kill Americans.