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On Wednesday, Judge Colleen McMahon of the Manhattan federal court rejected an effort by the New York Times and the ACLU to use the Freedom of Information Act to compel the Obama administration to fork over its classified legal opinion justifying the 2011 lethal drone strike against al-Qaeda imam and U.S. citizen Anwar al-Awlaki. However, in dismissing their suit, Judge McMahon made it clear that she was extremely uncomfortable in doing so: “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 conclusion a secret,” she noted. She then went on to suggest that the president and his administration might well be in violation of both the Constitution’s Treason Clause and 18 USC 1119, which makes it illegal for a US national to kill another US national outside the United States. Now, ignoring for the moment the important issue of whether the administration should make public more of its case for killing al-Awlaki—and there is a case for doing so—the Judge’s preening about the laws and the Constitution are little more than liberal moral indignation hiding behind judicial garb. Her dicta in this instance are not supported either by constitutional history or common sense. First, a US person who engages “in armed combat against the United States” is indeed engaged in an act of treason. But at no time in US history has it been the case that the US government is obligated to give such a person a trial. If the person happens to be in US custody or is readily secured, then, a trial is the appropriate remedy. But if not–and there is no reason to believe al-Awlaki could be easily and safely captured–the only remaining issue is whether his behavior amounted to engaging “in armed combat against the United States.” And on that front, there is, according to the Justice Department, plenty of evidence, such as al-Awlaki’s personal hand in directing the Christmas Day plot in 2009 to bring down a passenger airline over Detroit, to indicate that he was. As for the suggestion that the president and his advisors might be in violation of the US Code and, hence, murderers, it’s really unfathomable that Judge McMahon would even hint as such. Putting aside the question of whether the 2001 Authorization for the Use of Military Force (AUMF) is applicable to al-Qaeda aligned terrorist organizations outside of Afghanistan and Pakistan, such as al-Awlaki’s al-Qaeda in the Arabian Peninsula (and two successive administrations, with Congress’ implicit blessing, believing it is), if Anwar al-Awlaki was involved in terrorist plots against the United States, then, the president not only has the constitutional discretion to defend the country by striking at al-Awlaki but, under his oath of office, he has a positive duty to do so. If there is any “justice” in the judge’s remarks, it’s that she is taking aim at a president who, while campaigning for the office in 2008, found it all too easy to claim his predecessor, George Bush, was undermining our constitutional system by his own actions in the “war on terror.” It wasn’t true then (see my “The Myth of the (Bush) Imperial Presidency”) and it isn’t true now.
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