Appeals Court Orders Release of 'Targeted Killing' Memo

Panel sides with ACLU and New York Times in demanding legal rationale for al-Awlaki killing

A federal appeals court on Monday morning is demanding that the Obama administration disclose their legal justification for the targeted drone killing program.

Reversing a lower court ruling in The New York Times Company v. United States, a three-judge panel on the Second Circuit Court of Appeals has ordered the release of portions of a classified Justice Department memo that provided the legal justification for the targeted drone killing of United States citizen, Anwar al-Awlaki, who was killed a 2011 drone strike in Yemen.

"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 Jameel Jaffer, American Civil Liberties Union Deputy Legal Director, who argued the case before the 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," Jaffer continued. "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 issues in this ruling "assume added importance because the information sought concerns targeted killings of United States citizens carried out by drone aircraft," wrote Circuit Judge Jon O. Newman in the ruling.

The panel argued that the government had waived its right to keep their legal memo secret following public statements by officials and the Justice Department's release of a "white paper" to Congress explaining their legal rationale.

"Whatever protection the legal analysis might once have had," Newman continued, "has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the D.O.J. White Paper."

The ruling stemmed from lawsuits filed under the Freedom of Information Act (FOIA) by the Times and two of its reporters, Charlie Savage and Scott Shane, along with the ACLU. A ruling in January 2013 dismissed the FOIA request on the premise of national security.

"The public has a right to know the circumstances in which the U.S. government believes it can kill people, including American citizens, who are far from any battlefield and have never been charged with a crime," said Hina Shamsi, director of the ACLU National Security Project, in a previous statement about the FOIA suit.

Shamsi continued:

The targeted killing program raises serious questions about government power in a constitutional democracy. Our system of government requires transparency about what the executive branch is doing, especially in matters of life and death, not the selective and inadequate disclosures that we have seen so far. Obama administration officials repeatedly insist that the targeted killing program is lawful, effective, and closely supervised, while simultaneously telling courts that the records on which their claims are based must be kept secret from the public. The government cannot and should not have it both ways.


Our work is licensed under Creative Commons (CC BY-NC-ND 3.0). Feel free to republish and share widely.