According to the Associated Press, citing two White House officials speaking on condition of anonymity, the Obama administration will submit to a court order which says it must reveal portions of an internal legal memo it used to justify the extrajudicial killing of Americans overseas.
The decision to release the documents comes as the Senate is to vote Wednesday on advancing President Barack Obama's nomination of the memo's author, Harvard professor and former Justice Department official David Barron, to sit on the 1st U.S. Circuit Court of Appeals in Boston. Sen. Rand Paul, R-Ky., had vowed to fight Barron's confirmation, and some Democratic senators were calling for the memo's public release before a final vote.
The pending release of the document—which will be first be vetted and redacted by the White House—follows a protracted legal battle between the Obama administration, defended by the Justice Department, against a joint lawsuit filed by the ACLU and the New York Times, both of whom filed Freedom of Information Act requests to see the legal arguments under which lethal force was authorized against Anwar al-Awlaki, an American cleric living in Yemen, who was accused but never tried in a court of law of orchestrating terrorist attacks against targets in the U.S.
As part of what has become known as Obama's "targeted assassination program," al-Awlaki and another American, Samir Khan, were both killed in a U.S. drone strike in Yemen in 2011. Days later, al-Awlaki's 16-year-old son, Abdulrahman, was killed in a separate strike in the country.
“We hope this report signals a broader shift in the administration’s approach to the official secrecy surrounding its targeted killing program,” said ACLU's deputy legal director Jameel Jaffer, who argued the FOIA lawsuit before the Second Circuit Court of Appeals, in response to the news. “The release of this memo will allow the public to better understand the scope of the authority that the government is claiming."
However, as it remains unclear the level of redaction and what other associated documents fall outside of the disclosure, Jaffer promised that the ACLU "will continue to argue in court for the public release of the other targeted killing memos and related documents.”
According to AP:
Some senators, including those in Obama's own party, have called for the public release of the memo before the final confirmation vote. The White House agreed under the pressure to show senators unredacted copies of all written legal advice written by Barron regarding the potential use of lethal force against U.S. citizens in counterterrorism operations.
Until now, the administration has fought in court to keep the writings from public view. But administration officials said that Solicitor General Donald Verrilli Jr. decided this week not appeal an April 21 ruling requiring disclosure by the 2nd U.S. Circuit Court of Appeals in New York and that Attorney General Eric Holder concurred with his opinion.
Noting that the White House has only agreed to release the memo in the context of Barron's contentious nomination to the federal court, independent journalist Kevin Gosztola tweeted:
Honest journalism would involve noting anonymous officials are only talking about release of drone memo to influence Senate vote
— Kevin Gosztola (@kgosztola) May 21, 2014
Also skeptical of the developments, Jesselyn Raddack, a national security expert and human rights lawyer, added:
— Jesselyn Radack (@JesselynRadack) May 21, 2014
A procedural vote on Barron's nomination could take place Wednesday with a final vote as early as Thursday. As policy, the ACLU "does not endorse or oppose any judicial nominee," but it has urged lawmakers to postpone taking up the vote until all of the legal opinions on targeted killing that he wrote while in the Justice Department’s Office of Legal Counsel have been released.
“As important as this step is, we continue to believe that all Senators should have access to all targeted killing memos authored or signed by Mr. Barron,” said Christopher Anders, ACLU senior legislative counsel. “Senators’ access to memos about this unprecedented program is their constitutional role, and reading those memos is their constitutional obligation.”
Writing against Barron's nomination at Common Dreams last week, author and activist Medea Benjamin argued:
"How can Barron be a judge if he does not understand the deeply valued laws of our land, laws that include habeas corpus and the right to a fair trial?" —Medea Benjamin, human rights activist
Should someone who has done such immense damage to the rule of law and our moral sensibilities be awarded with a judgeship on the First Circuit Court?
The Attorney General has conceded that four Americans located outside the United States have been killed by drone strikes since 2011. One of those killed was Anwar Al-Awlaki, who was attacked while in a tribal region of Yemen in September 2011. Then Al-Awlaki’s 16-year-old son Abdulrahman, also an American citizen, was shamefully killed in a drone strike in rural Yemen two weeks later.
Call me old-fashioned, but I believe that Americans suspected of committing crimes deserve to have charges brought against them, to have a chance to surrender or be captured, and to be given a fair trial. If they cannot be captured and refuse to surrender, they could be tried in absentia. But Barron helped set a terrible precedent that American citizens have no right to a judicial process—something that human rights advocates around the world have been fighting for since the signing of the Magna Carta 800 years ago.
How can Barron be a judge if he does not understand the deeply valued laws of our land, laws that include habeas corpus and the right to a fair trial? As stated in the Bill of Rights: the Fourth Amendment guarantees that a person cannot be seized by the government unreasonably, and the Fifth Amendment guarantees that the government may not deprive a person of life without due process of law. A judge is supposed to uphold the Constitution, yet Barron has already torn it down.