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For Christmas, Your Government Will Tell You When It's Legal to Kill You. Just Kidding: It's Classified

In the wake of the assassination of Anwar al-Awlaki in Yemen, the DOJ has rejected a Freedom of Information Act request from the New York Times asking for the legal basis for the American program of targeted drone killings of U.S. citizens off the field of battle. A lay-person's look at that decision.

Plaintiffs The New York Times Company, Charlie Savage, and Scott Shane (jointly, "NYT"), by their undersigned attorney, allege for their Complaint:

1.  This is an action under the Freedom of Information Act ("FOIA") ... seeking the production of agency records improperly withheld by Defendant United States Department of Justice ("DOJ") in response to requests properly made by Plaintiffs.

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4.  Given the questions surrounding the legality of the practice [of "targeted killing"] under both U.S. and international law, notable legal scholars, human rights activists, and current and former government officials [i.e., Democrats and Republicans] have called for the government to disclose its legal analysis justifying the use of targeted lethal force, especially as it applies to American citizens.

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11.  Both before and after the death of [Anwar] al-Awlaki [who was blown up in Yemen], NYT duly filed FOIA requests seeking memoranda that detail the legal analysis behind [blowing people up]. To date, DOJ has refused to release any such memoranda or any segregable portions, claiming them to be properly classified and privileged and in respect to certain memoranda has declined to say whether they in fact exist.

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35.  On September 30, 2011, the Washington Post described a [DOJ] "secret memorandum authorizing the legal targeting" of al-Awlaki, an American citizen accused of coordinating the Al-Qaeda operations in the Arabian peninsula. The article said that officials refused to disclose the exact legal analysis" such as "how they considered any Fifth Amendment right to due process." It also quoted a "former senior intelligence official" as saying the C.I.A. "would not have killed an American without such a written opinion."

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44.  On October 7, 2011, Mr. Savage submitted a FOIA request [to] DOJ OLC seeking a copy of "all Office of Legal Counsel memorandums analyzing the circumstances under which it would be lawful for United States armed forces or intelligence community assets to target for killing a United States citizen who is deemed to be a terrorist."

45.  By letter dated October 27, 2011, [DOJ] denied Mr. Savage's request.

Summary:

  • The government dropped a bomb on a U.S. citizen,
  • who, though a total dick and probably a criminal, may have been engaged only in propaganda,
  • which, though despicable, is generally protected by the First Amendment;
  • it did so without a trial or even an indictment (that we know of),
  • based at least in part on evidence it says it has but won't show anyone,
  • and on a legal argument it has apparently made but won't show anyone,
  • and the very existence of which it will not confirm or deny;
  • although don't worry, because the C.I.A. would never kill an American without having somebody do a memo first;
  • and this is the "most transparent administration ever";
  • currently run by a Nobel Peace Prize winner.
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