Under the law, I can only conclude

However, this court is constrained by law, and under the law, I can only conclude that the Government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and the laws of the United States. The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive 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 the reasons for their conclusion a secret.

U.S. District Judge Hon. Colleen McMahon

7 thoughts on “Under the law, I can only conclude”

  1. A prime example of the ability of a judge to “reason” their way into condoning whatever they wish to allow.

    For those who don’t know, this is an excerpt from the ruling that upheld the denial of a FOIA filing that sought to force the Obama Administration 1.0 to reveal their legal justification for executing US citizens that they alleged to be terrorists – without any sort of due process, even if only in absentia.

    A precedent that the Obama Administration 2.0 is undoubtedly quite familiar with, and ready to apply.

    • “Condoning”? Judge McMahon’s ruling outright condemns the government’s refusal to release the information.

      Claiming that a person is obligated to share certain information under FOIA does not cause them to be obligated to share that information under FOIA.

      FOIA only obligates the government to share most things, not everything. One such exemption from FOIA is information that’s in the interests of “national defense”. My understanding as a layperson is that terrorism is a national defense issue.

      You can read FOIA for yourself: https://www.justice.gov/oip/freedom-information-act-5-usc-552

      As for the specific situation of alleged terrorists being denied due process… That’s been a thing since the PATRIOT Act in the very least.

      https://www.aclu-nj.org/theissues/opengovernment/theusapatriotactacivillibe

      • …perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws.

        “Facially incompatible” with the Constitution requires, at a minimum, an honest and competent judge to force the Government to provide arguments and evidence that this is not the case.

        • Plucking an essential modifier apart from what it’s modifying is not honest to an original quote, itself. Thus why you don’t say you were invited to the road when someone invited you to the house down the road.

          Try the full sentence:

          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.

          In other words, the executive branch had the right to refuse to share the requested information about actions that seem unconstitutional, despite her efforts to find a loophole in the various laws and precedents giving them that right.

          • Were the efforts really conscientious and actuslly analyzed the government’s justification? Because plenty of other judges have summarily dismissed, questioned, analyzed, and demanded proof of government claims? Especially in recent times and particularly in FOIA cases.

            The claims, valid or not, aren’t about the judge’s written explanation but about whether the ruling accepted the government’s stonewalling uncritically. Isn’t that fair to question in today’s environment? Where some administrations seem to get a free pass while others get kneejerk injunctions to every initiative?

            Appearances matter and when judges appear to roll over for a rule-by-decree executive it undercuts the trust in separation of powers. Just as with the trend to federalize everything, the system is breaking down, in large part because of over-reaching, selectively non-critical judges. Which do exist and make the entire legal system suspect.

            Questioning judges is the result.

            • FWIW, this ruling reads to a lay person, moi, as somebody trying to have it both ways, saying “this is wrong but don’t blame me”.

              A strict constructionalist would simply say the law clearly allows the government to refuse, if they interpret it so, without editorializing. An ideologue activist would editorialize and rule against the government and be willing to be overruled by higher ups for standing up for their beliefs.

              This one did neither; it grandstanded like an ideologue but refused to act and be counted for their purported beliefs.

              Satisfies nobody.

              (Reminds me of the old Heinlein Aphorism: “Take sides! Always take sides! You will sometimes be wrong – but the man who refuses to take sides must always be wrong.” )

  2. I’d like to see Las Vegas make book on federal judges decisions. It would be great fun to watch the money follow judges political preferences.

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