The FOIA lawsuits were filed in federal court in New York City on behalf of the American Civil Liberties Union and two reporters with The New York Times. Among other documents, they requested a copy of a memorandum prepared by the Justice Department’s Office of Legal Counsel.
That’s the same office during the Bush administration that prepared a series of memos that offered legal justifications for harsh interrogation tactics. Critics denounced the documents as the torture memos.
President Obama announced at the beginning of his first term that his administration would no longer engage in controversial interrogation techniques, such as waterboarding. But the administration has significantly expanded the use of unmanned drone aircraft to carry out lethal attacks – including beyond the active war zone in Afghanistan.
The attacks are controversial because, critics say, it appears that the administration may have violated the Constitution’s requirement of separation of powers. The Founders sought to avoid a government where one branch could wield the authority to act as judge, jury, and executioner.
“Presidential authorization does not and cannot legitimize covert action that violates the Constitution and laws of this nation,” McMahon wrote.
“So there are indeed legitimate reasons, historical and legal, to question the legality of killings unilaterally authorized by the Executive that take place otherwise than on a ‘hot’ field of battle,” she said.
But the judge ultimately ruled that virtually all of the documents sought by the ACLU and the reporters could be withheld from public disclosure under exemptions to freedom of information law.