ACLU Suit Demands Release of US Government's 'Assassination Memos'

The American Civil Liberties Union on Wednesday filed a lawsuit under the Freedom of Information Act to demand that the US government release basic -- and accurate -- information about the government's targeted killing program.

In a statement, the ACLUsaid:

Our government's deliberate and premeditated killing of American terrorism suspects raises profound questions that ought to be the subject of public debate. Unfortunately the Obama administration has released very little information about the practice -- its official position is that the targeted killing program is a state secret -- and some of the information it has released has been misleading.

Our suit overlaps with the one recently filed by The New York Times insofar as it seeks the legal memos on which the targeted killing program is based. But our suit is broader. We're seeking, in addition to the legal memos, the government's evidentiary basis for strikes that killed three Americans in Yemen in the fall of 2011. We're also seeking information about the process by which the administration adds Americans to secret government "kill lists." We think it's crucial that the administration release the legal memos, but we don't think the memos alone will allow the public to evaluate the lawfulness and wisdom of the program.

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Reutersreports:

The lawsuit asked a federal judge to order the agencies to produce any records that may have been generated in order to legally justify the targeted killing of U.S. citizens overseas.

"Despite requests from legal scholars, human rights organizations, members of the media, and elected officials, the U.S. government has not disclosed the process by which it adds names to so-called 'kill lists;' the standards under which it determines which Americans may be put to death; or the evidentiary bases on which it concludes that those standards were satisfied in any particular case," the lawsuit said.

A spokesman for the Justice Department declined to comment on the lawsuit.

The New York Times has filed a similar lawsuit. Both cases are before U.S. District Judge Colleen McMahon.

The case is ACLU v. U.S. Dept of Justice et al., U.S. District Court, Southern District of New York, No.12-0794.

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Agence France-Presse references the three specific incidents referred to in the ACLU's request, reporting:

Anwar al-Awlaqi, the first US citizen to be put on a US list of militants targeted for assassination, was killed September 30 in an air strike in Yemen.

US officials accused Anwar al-Awlaqi of being a leader of Al-Qaeda in the Arabian Peninsula, and linked him to two 2009 incidents: a US army major charged with shooting dead 13 people in Fort Hood, Texas, and a Nigerian student accused of trying to blow up a US airliner.

President Barack Obama said in September that Awlaqi's killing was a "major blow" to Al-Qaeda's Yemeni outfit, and marked "another significant milestone in the broader effort to defeat Al-Qaeda and its affiliates."

The lawsuit also mentions US citizen Samir Khan, killed in the same attack on Awlaqi, as well as Awlaqi's 16-year-old son, Denver-born Abderrahman al-Awlaqi, killed in October in a separate suspected US air strike in Yemen.

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Writing at Salon.com this morning, Glenn Greenwald says there's one main comment to be made on these developments:

"Truly: what more tyrannical power is there than for a government to target its own citizens for death -- in total secrecy and with no checks -- and then insist on the right to do so without even having to explain its legal and factual rationale for what it is doing?"

- Glenn Greenwald

...If you think about it, it is warped beyond belief that the ACLU has to sue the U.S. Government in order to force it to disclose its claimed legal and factual bases for assassinating U.S. citizens without charges, trial or due process of any kind. It's extraordinary enough that the Obama administration is secretly targeting citizens for execution-by-CIA; that they refuse even to account for what they are doing -- even to the point of refusing to disclose their legal reasoning as to why they think the President possesses this power -- is just mind-boggling. Truly: what more tyrannical power is there than for a government to target its own citizens for death -- in total secrecy and with no checks -- and then insist on the right to do so without even having to explain its legal and factual rationale for what it is doing? Could you even imagine what the U.S. Government and its media supporters would be saying about any other non-client-state country that asserted and exercised this power?

And, Greenwald argues, one of the most important aspects to observe is the way the Obama administration champions the assassination program in various public venues when it serves their political and foreign policy goals, but 'exploits its secrecy powers' when challenged over the legality of its program by human rights and civil liberties groups like the ACLU:

"The government's self-serving attitude toward transparency and disclosure is unacceptable. Officials cannot be allowed to release bits of information about the targeted killing program when they think it will bolster their position, but refuse even to confirm the existence of a targeted killing program when organizations like the ACLU or journalists file FOIA requests in the service of real transparency and accountability."

- ACLU

Obama can go on TV shows and trigger applause for himself by boasting of the Awlaki killing. He can publicly accuse Awlaki of all sorts of crimes for which there has been no evidence presented. He can dispatch his aides to anonymously brag in newspapers about all the secret evidence showing Awlaki's guilt and showing how resolute and tough the President is for ordering him executed. Justice Department and Pentagon officials scamper around in the dark flashing snippets of evidence about Awlaki to reporters like Temple-Raston so that they dutifully march forward to defend the government's assassination program. Obama officials will anonymous insist in public that they have legal authority to target citizens for killing without trial.

But when it comes time to account in a court or under the law for the legal authority and factual basis for what they have done -- in other words, when it comes time to demonstrate that they are actually acting legally when doing it -- then, suddenly, everything changes. When they face the rule of law, then the program is so profoundly classified that it cannot be spoken of at all -- indeed, the administration cannot even confirm or deny that it exists -- and it therefore cannot be scrutinized by courts at all.

And finally:

This selective, manipulative abuse of secrecy reveals its true purpose. It has nothing to do with protecting national security; that's proven by the Obama administration's eagerness to boast about the program publicly and to glorify it when it helps the President politically. The secrecy instead has everything to do with (1) preventing facts that would be politically harmful from being revealed to the American public, and (2) shielding the President's conduct from judicial review. And this cynical abuse of secrecy powers extends far beyond the Awlaki case; as the ACLU's Jameel Jaffer wrote in an excellent LA Times Op-Ed last year: "where the state's ostensible secrets are concerned, it has become common for government officials to tell courts one thing -- nothing -- and reporters another."

This line of critique directly mirrors the complaint by the ACLU in their statement yesterday:

The government's self-serving attitude toward transparency and disclosure is unacceptable. Officials cannot be allowed to release bits of information about the targeted killing program when they think it will bolster their position, but refuse even to confirm the existence of a targeted killing program when organizations like the ACLU or journalists file FOIA requests in the service of real transparency and accountability. One news report indicates that the Obama administration may be planning to release more information about the targeted killing program. Let's hope that's true. The public has a right to know the evidence and legal basis for the deliberate targeted killing of U.S. citizens. So chilling a power must be opened to public scrutiny and debate.

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