Federal Judges Order Obama Administration to Release Memo Justifying Assassination of Americans

Wednesday, April 23, 2014
U.S. drone strike

The Obama administration has been ordered by a panel of federal judges to release its legal justification for assassinating Americans suspected of terrorist ties.


Critics of the controversial program have sought the legal memo in question since the 2011 killing of Anwar al-Awlaki, a U.S.-born cleric who died in Yemen following a drone strike.


The Obama White House has insisted that the government can lawfully assassinate Americans who join up with terrorist organizations. In the case of Awlaki, his purported ties to al Qaeda justified the decision to target the man from New Mexico.


But the administration had been unwilling to reveal the legal document that formed the basis for killing Awlaki and others like him.


This refusal prompted the American Civil Liberties Union, The New York Times and two of its reporters—Charlie Savage and Scott Shane—to sue the administration to force the memo’s release.


The panel’s decision reverses a 2013 lower court ruling. Federal Judge Colleen McMahon first heard the case, and though she questioned the legality of the targeted killings program and the administration’s efforts to keep it secret, she sided with the administration after determining it had not broken the law in refusing to turn over the document.


But a three-judge panel of the Second Circuit Court of Appeals, which agreed to hear the plaintiffs’ appeal, thought otherwise and ordered (pdf) the U.S. Department of Justice (DOJ) to release portions of the memo.


The unanimous decision also mandates that portions of both the document and the ruling be redacted.


The panel said the Obama administration had waived its right to keep the analysis secret following public remarks by administration officials—such as Attorney General Eric Holder and Obama’s then-counterterrorism adviser John O. Brennan—who discussed the assassination program. The court also rejected the government’s case because the Justice Department released a “white paper” that analyzed the legal grounds for targeted killings. That document was made public about a month after McMahon’s ruling.


“Whatever protection the legal analysis might once have had,” Judge Jon O. Newman wrote for the panel, “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.”


Government watchdog groups praised the ruling.


“What makes it particularly significant is that it applies not just to a single document but to a habitual practice of government officials,” Steven Aftergood, a government secrecy specialist at the Federation of American Scientists, told the Times, “which is to say, ‘I’m going to talk about something that’s classified, but I’m not going to give you the underlying records.’”


ACLU lawyer Jameel Jaffer called the decision “a resounding rejection of the government’s effort to use secrecy, and selective disclosure, as a means of manipulating public opinion about the targeted killing program.”


“The government can’t pretend that everything about its targeted killing program is a classified secret while senior officials selectively disclose information meant to paint the program in the most favorable light,” Jaffer added.


The ruling may not result in the memo’s release if the administration can succeed in getting the full appeals court to reconsider the panel’s conclusions, or it can get the U.S. Supreme Court to overturn the decision. The Justice Department has not said what it plans to do next.


The drone strike on al-Awlaki also killed another American citizen, Samir Khan, who had moved to Yemen from North Carolina to join al-Qaeda. Weeks later, a U.S. drone killed al-Awlaki’s son, 16-year-old Abdulrahman, also an American citizen.

-Noel Brinkerhoff


To Learn More:

U.S. Ordered to Release Memo in Awlaki Killing (by Benjamin Weiser, New York Times)

Court Orders Disclosure of Awlaki Killing Memo (by Adam Klasfeld, Courthouse News Service)

New York Times v. U.S. Department of Justice (Second Circuit Court of Appeals) (pdf)

Secret U.S. Government Memo Justifies Assassinations of American Citizens (by Noel Brinkerhoff, AllGov)

11 Secret Documents Americans Deserve to See (by David Wallechinsky, AllGov)


Jose79845 6 years ago
AG Holder will simply have another contempt charge brought up against him for not complying with the order. What good will it do?

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