The Obama administration is not required to disclose any further information its drone program to the pesky NY Times or the ACLU, U.S. District Judge Colleen McMahon ruled today. "The Alice-in-Wonderland nature of this pronouncement is not lost on me," McMahon said in her 68-page decision against the Times, which took pains to acknowledge the "vast and seemingly ever-growing exercise in which we have been engaged for well over a decade, at great cost in lives, treasure, and (at least in the minds of some) personal liberty."
But setting aside little niceties like life and liberty, McMahon decided that the administration is exempt from the Times' FOIA filing in part because officials have spoken publicly about the program in the past. Reuters reports:
Citing protections envisioned by the Constitution's framers, McMahon said there were "legitimate reasons, historical and legal" to question whether the administration could unilaterally authorize killings taking place outside a "hot" field of battle.
But she rejected the Times' argument that the administration could not rely on exemptions from having to disclose classified or privileged material by virtue of having made at least two dozen public statements about the targeted killing program.
Among these were Obama's statements in an online forum on January 30, 2012, that the government was "judicious" in its use of drones, and that the program was "kept on a very tight leash."
The NY Times says it plans to appeal the decision. "We began this litigation because we believed our readers deserved to know more about the U.S. government's legal position on the use of targeted killings against persons having ties to terrorism, including U.S. citizens," New York Times assistant general counsel David McCraw said in a statement.
The ACLU filed a parallel lawsuit, which McMahon ruled on separately today [pdf]. Like the Timers, the ACLU also sought records about the government’s targeted killing of three American citizens in Yemen in 2011: Anwar Al-Awlaki and Samir Khan in September, and Al-Awlaki’s 16-year-old son Abdulrahman in October. The Times claims the Obama administration is holding onto a memorandum that justifies the "legal targeting" of al-Awlaki.
“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,” said Jameel Jaffer, ACLU deputy legal director. “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.”
According to data compiled by the New America Foundation from reliable news reports, 337 CIA drone strikes in Pakistan have killed an estimated 1,932 to 3,176 people since 2004, of which 1,487 - 2,595 were reported to be militants. In 2012, approximately 10 percent of the casualties were civilians, which is down from a 60 percent civilian casualty rate in 2006, not that that's anything to brag about.