Constitution Check: Can the public get access to the legal reasons for targeted killing?

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today’s topic: secret legal memos on the U.S. use of military drones to kill terrorist suspects abroad.

The statement at issue:

“If the attorney general can discuss the targeted killing program at a law school, then the administration can surely release the legal memos it uses to justify its claimed killing authority, and also to defend its legal justifications in court.”

–Hina Shamsi, director of the American Civil Liberties Union’s National Security Project, in a public statement March 5, commenting on a speech that day by U.S. Attorney General Eric Holder, Jr., to the Northwestern University School of Law in Chicago.

We checked the Constitution, and…

The simple fact is that, under the Constitution, the government cannot be forced to disclose internal documents of a kind that have not traditionally been made public. The Obama Administration has already won one constitutional case seeking to force it to go into court to justify its use of a targeted military drone in September to kill suspected terrorist leader Anwar Al-Awlaki, a U.S. citizens, in Yemen. The ACLU’s Shamsi, therefore, probably was making a policy argument, not a constitutional one.

It is now widely assumed, within the media and among national security experts, that there is at least one legal memo written by a Justice Department lawyer that spells out the case for targeted killing without any review by a U.S. court. Administration officials have never acknowledged in public that there is such a document, and have steadfastly refused demands that–if it does exist–it be made public.

Attorney General Holder’s Chicago speech went to some lengths to justify the targeted killing program, referring to it only as the use of “lethal force” and avoiding the mention of any specific instance of such a killing. Those remarks, and a similar public speech at Yale Law School last month by Pentagon General Counsel Jeh C. Johnson, apparently were attempts to relieve some of the pressure for public disclosure of any legal document on the subject.

Unless the administration later changes its mind, there appears to be only one legal avenue open to try to force such a disclosure. That alternative is, in fact, being attempted now in a lawsuit filed last month by the ACLU and, in a separate case, by The New York Times. Both lawsuits are based on a federal law, the Freedom of Information Act. Those cases were filed after the Justice Department, relying on exceptions under that Act to compelled disclosure of government files, refused to release any papers dealing with the issue.

Replying to the ACLU lawsuit, on the same day that Holder made his Chicago speech, the Justice Department refused to admit or to deny that there are any “legal or evidentiary bases” for the killing of Awlaki or any other suspected terrorist.

So, the debate over access to any legal rationale goes on both in court and in the political realm. But that, of course, is a debate separate from whether the targeted killings policy itself is constitutional.

Attorney General Holder’s much-anticipated speech made a sweeping constitutional argument for “the appropriate and lawful use of lethal force,” and his remarks extended to U.S. citizens as well as foreign nationals as legal targets. He found congressional approval for the policy in the resolution passed by Congress shortly after the 9/11 terrorist attacks (the Authorization for the Use of Military Force), and constitutional authority in the Due Process Clause.

If one means by “due process” that the target of a planned killing must have a day in court, Holder has expressly rejected that, arguing that the “process” that is due in this context will be provided in the care with which government officials handling national security policy make the decision.

“It does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war–even if that individual happens to be a U.S. citizen,” Holder said. That statement, he indicated, was based upon the federal judge’s ruling last December declaring that the Constitution does not give the courts a role in judging such a policy.

The ACLU has insisted that it is not attempting to gain a veto power, before the fact, over any specific use of targeted killing, but only a legal accounting for the policy itself. Its chances of getting such an accounting remain in considerable doubt, however.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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