As Raffaela posted earlier, the government has won a substantial victory in the FOIA litigation in which the Times and the ACLU sought disclosure of information about CIA drone strikes, including the legal justification underlying the use of lethal force against U.S. citizens. What I’d like to focus on here is a remarkable section in the opinion in which Judge McMahon makes two problematic suggestions, in dicta: First, that killing Anwar al-Awlaki may have violated the Treason Clause, and second that President Obama and others in the chain of command associated with the killing of Anwar al-Awlaki may have committed murder.

Judge McMahon’s treason argument is unpersuasive. She points out that the conduct attributed to Anwar al-Awlaki might have supported a treason charge, and then, observing that the Treason Clause is located in Article III of the Constitution and that the Founders “were as leery of accusations of treason as they were of concentrating power in the hands of any single person or institution,” she concludes that “the Founders contemplated that traitors would be dealt with by the courts of law, not by unilateral action of the Executive.” (slip op. at 17-18) The same treason argument, of course, was put forward unsuccessfully by Justice Scalia in dissent in Hamdi v. Rumsfeld (Judge McMahon cites that dissent, as such). Even setting aside the rejection of that theory in Hamdi, however, it simply is not clear why the possibility that a person could be tried for treason must foreclose resort to otherwise-lawful alternative measures. Few seriously objected on treason clause grounds to the widespread use of deadly force in combat against rebellious U.S. citizens in the Civil War, for example, precisely because few seriously doubted that such uses of force were independently lawful options in the circumstances. Indeed, Judge McMahon herself concedes, earlier, that the use of deadly force on the battlefield during the Civil War was compatible with the Fifth Amendment Due Process Clause. (slip op. at 16) For this reason I think it is a red herring to focus on the Treason Clause, as it simply begs the question whether the use of force against Anwar al-Awlaki was lawful in the first instance. In context, it appears that Judge McMahon would probably distinguish the al-Awlaki scenario from the Civil War scenario on the ground that al-Awlaki was “not actively engaged in armed combat against the United States” (slip op. at 18), but the applicability and relevance of that distinction is itself the whole ball game and cannot simply be assumed en route to suggesting a violation of the Treason Clause.

I think the same thing is true of Judge McMahon’s suggestion (echoing Ben’s long-ago exchange with Mary Ellen O’Connell) that President Obama (and subordinates) likely committed a prosecutable murder in violation of 18 USC 1119 by killing Anwar al-Awlaki. Section 1119 makes it a felony for a U.S. national to kill or attempt to kill another U.S. national outside the United States). Judge McMahon points out that the “statute contains no exemption for the President…or anyone acting at his direction.” That is true, and it is true as well that section 1119—unlike the federal murder statute, 18 USC 1111, fails to use the word “unlawful” to qualify which killings it encompasses. Yet it nonetheless seems to me that a proper reading of 1119 would incorporate that same “unlawful” qualification (the title of 1119, after all, refers to “murder” and not just killings in general). And in that case, we are once more confronted with the question whether the use of deadly force in the al-Awlaki scenario was lawful in the first instance, either as part of an ongoing conflict with al Qaeda (or al Qaeda in the Arabian Peninsula in particular) or otherwise as an exercise of national self-defense.

In summary, the dicta on the underlying substantive issues advanced by Judge McMahon strikes me as unhelpful. But perhaps this is intentional? Her opinion makes clear her discomfort with having to render summary judgment against the Times and the ACLU on these weighty matters, and that in her view the underlying merits of the legal issues raised by the death of al-Awlaki deserve a complete and full engagement in a public setting. Intentionally or not, one might argue that the bracing but unsatisfying treatment that Judge McMahon gives to the merits in her dicta underlines the need for such disclosure.