The Great Debate

It’s rare for a judge to express regret over her own ruling.  But that’s what happened Wednesday, when Judge Colleen McMahon of the U.S. District Court for the Southern District of New York reluctantly ruled that the Obama administration does not need to provide public justification for its deadly drone war.

The memos requested by two New York Times reporters and the American Civil Liberties Union, McMahon wrote, “implicate serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States, and about whether we are indeed a nation of laws, not of men.” Still, the Freedom of Information Act allows the executive branch to keep many things secret.

In this case, McMahon ruled, the administration’s justifications for the killing of select individuals — including American citizens — without so much as a hearing, constitute an internal “deliberative process” by the government that need not be disclosed.

McMahon did not hide her disappointment. “The Alice-in-Wonderland nature of this pronouncement is not lost on me,” she wrote, “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.” She explained, “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.”

The judge’s lament may have, in part, been induced by the striking discord between the looking-glass world in which she found herself, and the hopes that President Barack Obama had first generated for a newly transparent government.

Politicians have always loved to keep the political process as shrouded in mystery as possible. But for a brief time, thanks to the increased use of computers, it seemed that technology would finally shine some needed sunlight on the political process. Due to the extensive virtual paper trails created by emails, and assisted by ever-improving search technology, what went on between government officials was opened up for public examination in new and unexpected ways.

But now, political figures are fighting back. As reports continually show, politicians are pushing to ensure that the people’s business is none of your business.

It was recently reported that New York Governor Andrew Cuomo refuses to use email. He sends and receives messages only by using a BlackBerry-to-BlackBerry messaging system that immediately deletes the message. No paper trail, no negative campaign ads based on anything he wrote in an email, which now even a Freedom of Information Request or an inopportune leak will not reveal. Cuomo has apparently also tried to “clean up” his records from his time as state attorney general, having aides remove key documents from view.