NEW YORK – For the first time, a federal appeals court has ordered the government to release a crucial legal memo relating to U.S. targeted killing operations, reversing a lower court decision that upheld the government’s secrecy claims despite characterizing them as the stuff of “Alice in Wonderland.”
The American Civil Liberties Union’s Freedom of Information Act lawsuit demands that the CIA and the Departments of Justice and Defense disclose records about the deaths of three U.S. citizens killed in Yemen in 2011: Anwar al-Awlaki, his 16-year-old son Abdulrahman, and Samir Khan. In addition to ordering the release of a legal memo from the Justice Department’s Office of Legal Counsel to the Defense Department, today’s 3-0 ruling by the Second Circuit Court of Appeals also ordered the government to describe other documents relating to the killings about which it has previously refused to release any information. The ruling permits the ACLU to challenge the government’s withholding of those documents in the lower court.
“This is a resounding rejection of the government’s effort to use secrecy and selective disclosure to manipulate public opinion about the targeted killing program,” said ACLU Deputy Legal Director Jameel Jaffer, who argued the case before the three-judge panel in October.
“The government can’t legitimately claim that everything about the targeted killing program is a classified secret while senior officials selectively disclose information meant to paint the program in the most favorable light. The public has a right to know why the administration believes it can carry out targeted killings of American citizens who are located far away from any conventional battlefield.”
The ACLU’s FOIA request seeks documents related to the legal and factual bases for the government’s killing of the three Americans, including memos written by the Justice Department’s Office of Legal Counsel concluding that the killing of American citizens would be constitutional in certain situations. The New York Times submitted a similar but narrower FOIA request, and the two resulting lawsuits were combined.
Senate Judiciary Committee Ranking Member Chuck Grassley made the following comment after the 2nd Circuit Court of Appeals ruled that the Obama administration must release a redacted version of its Office of Legal Counsel analysis giving the legal authority for the targeted killing of American citizens. Grassley first asked for the legal rationale in October 2011. Grassley and Judiciary Committee Chairman Patrick Leahy sent a subsequent letter on Feb. 8, 2013.
“The targeted killing of American citizens by their own government should be one of the most fundamental reasons to ensure checks and balances are in place. Up to this point, the Obama administration has been hiding behind a Cliff’s Notes version of the justification that gave no legal analysis for the killings. The 2nd Circuit’s ruling is a positive development. And, while the Justice Department is readying a redacted version of the memo to the American public, they should start preparing to provide access to the Judiciary Committee the unredacted copies of any and all legal opinions drafted by the Office of Legal Counsel that pertain to the targeted killing of U.S. citizens abroad.”
