Judge Invokes Alice in Wonderland in Denying NYT and ACLU Targeted Killing FOIAs

“YOU’D better not talk!’ said Five. ‘I heard the Queen say only yesterday you deserved to be beheaded!’

‘What for?’ said the one who had spoken first.

‘That’s none of YOUR business, Two!’ said Seven.

[snip]

‘And who are THESE?’ said the Queen, pointing to the three gardeners who were lying round the rosetree; for, you see, as they were lying on their faces, and the pattern on their backs was the same as the rest of the pack, she could not tell whether they were gardeners, or soldiers, or courtiers, or three of her own children.

‘How should I know?’ said Alice, surprised at her own courage. ‘It’s no business of MINE.’

The Queen turned crimson with fury, and, after glaring at her for a moment like a wild beast, screamed ‘Off with her head! Off—’

Alice in Wonderland

 

The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules–a veritable Catch-22. 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 reasons for their conclusion a secret.

Judge Colleen McMahon’s decision denying ACLU and NYT FOIA for targeted killing rationale NYT already published and government repeatedly discussed

 

 

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

5 replies
  1. AdamColligan says:

    One of my big disappointments here is the bottom of page 39.

    McMahon, in most of this judgment, seems cognizant of its historical and philosophical context and shows a willingness to engage with that context.

    I really wish that she had applied that depth of explanation and perspective as part of a serious and nuanced discussion of the general principle of classifying legal analysis. Even when not siding with the civil libertarians, she should have outlined in much more detail how to balance the intensely vague “pertaining to” exception to disclosure with the need for courts not to countenance overly ridiculous or cheeky assertions of that exception by government agencies who can tie some legal opinion through ten steps to something classified.

    As it is, she made it a throwaway paragraph with a few case citations that the FOIA requesting parties clearly had disputed were real precedent for the classification of legal analaysis. It’s a sad missed opportunity.

  2. AdamColligan says:

    I do have to say that I find pages 42-44 to be completely hilarious, even if the legal conclusion that follows from them is depressing.

    Essentially, McMahon holds that the administration’s public speeches (particularly Holder’s) justifying the targeted killings program are so bad — so nonsensical, so much hot air, so much failures to establish principles and then show how they lead to conclusions — that they don’t qualify in even the basest way as “legal analysis”.

    Therefore, she must conclude that the government has not implicitly waived its right to keep classified its legal analysis, because the only thing it has given the public is legalese-sounding bullshit that has no logical quality.

    Where I disagree with her, though, is where she then says that she can hold this conclusion without resorting to in-camera analysis. I would say that she at least should have needed to check that the actual documents on file weren’t the same badly-written, disjointed bullshit that was in the speeches….

  3. Ben Franklin says:

    ‘I know what you’re thinking about,’ said Tweedledum; ‘but it isn’t so, nohow.’
    ‘Contrariwise,’ continued Tweedledee, ‘if it was so, it might be; and if it were so, it would be; but as it isn’t, it ain’t. That’s logic.’

  4. What Constitution? says:

    I have a slightly different take on this opinion, which leads me to a different incredibly famous literary line. I think this district court judge plainly recognizes the absurdity of being “instructed” by several years’ worth of insultingly obsequious appellate rulings which have deferred to an increasingly self-reinforcing expansion of government secrecy activities by the Executive and Legislative branches, and this district court judge would like to be freed from such “precedents” in order to actually compare what is being done to what the United States Constitution allows. But this judge feels constrained by precedent from higher courts.

    This would suggest that the real “literary analogy” here is to the line uttered by Sigorney Weaver in “Galaxy Quest”: “Listen! I have ONE job on this ship; it’s STUPID, but I’m going to do it!” Then she repeats what the computer just said.

    It is, however, the courts’ job to say “what the law is” in our system. The Supreme Court said so in Marbury v. Madison and the Supreme Court consistently has reaffirmed that on up through Boumediene v. Bush — an opinion in which the majority also confirmed that the Executive and the Legislature can’t team up to suspend constitutional rights at whim and without fear that the judiciary will step in to enforce the Constitution. Reading the first twenty or so pages of this district judge’s decision, it is plain the judge empathisizes with those who think maybe there’s something a tad ludicrous about the fundamental contentions of the government here when held up to the light of the Constitution, and this sentiment is further reflected in the idea that the “public statements” made by the likes of Holder, Johnson and even Obama concerning the programs in question do not constitute a cognizable “waiver” because they’re just too devoid of reason or intelligence to actually be taken seriously…..

    We have a Constitution for a reason. We also have stare decisis for a reason. If this isn’t the decision of a district court judge who would appreciate having a higher court pay attention to the absurdity of the results perceived to be dictated by existing appellate decisions — and begging for some clear statement that there’s still a place for reason and for deference to the Constitution in judicial practice — then I would have expected this opinion to read quite a bit differently than it does. The result of this decision is wrong. The decision itself demonstrates and explains why. A competent appellate tribunal should reverse it, for reasons to be found in the United States Constitution.

  5. Terry says:

    A competent appellate tribunal should reverse it, for reasons to be found in the United States Constitution.

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