Court Orders U.S. to Release Memo Justifying the Government's Targeted Killing of Americans Deemed to be 'Terrorists'
April 21, 2014
Reuters - A federal appeals court
ordered the U.S. Department of Justice to turn over key portions of a
memorandum justifying the government's targeted killing of people linked
to terrorism, including Americans.
In a case pitting executive
power against the public's right to know what its government does, the
2nd U.S. Circuit Court of Appeals reversed a lower court ruling
preserving the secrecy of the legal rationale for the killings, such as
the death of U.S. citizen Anwar al-Awlaki in a 2011 drone strike in
Yemen.
Ruling for the New York Times, a unanimous three-judge
panel said the government waived its right to secrecy by making repeated
public statements justifying targeted killings.
These included a Justice Department "white paper," as well as speeches
or statements by officials like Attorney General Eric Holder and former
Obama administration counterterrorism adviser John Brennan, endorsing
the practice.
The Times and
two reporters, Charlie Savage and Scott Shane, sought the memorandum
under the federal Freedom of Information Act, saying it authorized the
targeting of al-Awlaki, a cleric who joined al Qaeda's Yemen affiliate
and directed many attacks.
"Whatever protection the legal analysis might once have had has been
lost by virtue of public statements of public officials at the highest
levels and official disclosure of the DOJ White Paper," Circuit Judge
Jon Newman wrote for the appeals court panel in New York.
He said it was no longer logical or plausible to argue that disclosing
the legal analysis could jeopardize military plans, intelligence
activities or foreign relations.
The court redacted a portion of
the memorandum on intelligence gathering, as well as part of its own
decision. It is unclear when the memorandum or the full 2nd Circuit
decision might be made public, or whether the government will appeal.Allison Price, a Justice Department spokeswoman, said the department had no comment on the decision.
David McCraw, a lawyer for the Times, said the newspaper is
delighted with the decision, saying it encourages public debate on an
important foreign policy and national security issue.
"The court
reaffirmed a bedrock principle of democracy: The people do not have to
accept blindly the government's assurances that it is operating within
the bounds of the law; they get to see for themselves the legal
justification that the government is working from," McCraw said in a
statement.
Senators Patrick Leahy and Charles Grassley, the
Democratic chairman and ranking Republican on the Senate Judiciary
Committee, have also been seeking the legal rationale, and Grassley on
Monday urged the Justice Department to start preparing to turn it over.
ALICE IN WONDERLAND
Monday's decision largely reversed a January 2013 ruling by U.S. District Judge Colleen McMahon in Manhattan.
She ruled for the administration despite skepticism over its
antiterrorism program, including whether it could unilaterally authorize
killings outside a "hot" field of battle.
"The Alice-in-Wonderland nature of this pronouncement is not lost on me," she wrote.
Civil liberties groups have complained that the drone program, which
deploys pilotless aircraft, lets the government kill Americans without
constitutionally required due process.
FOIA requests at issue in the 2nd Circuit case also focused on drone
strikes that killed two other U.S. citizens: al-Awlaki's teenage son,
Abdulrahman al-Awlaki, and Samir Khan, who was an editor of Inspire, an
English-language al Qaeda magazine.
McMahon ruled one month before the Justice Department released the
white paper, which set out conditions before lethal force in foreign
countries against U.S. citizens could be used.
The conditions are that a top U.S. official must decide a target "poses
an imminent threat of violent attack" against the United States, the
target cannot be captured, and any operation would be "consistent with
applicable law of war principles."
In a March 5, 2012 speech at Northwestern University, Holder had said
it was "entirely lawful" to target people with senior operational roles
in al-Qaeda and associated forces.
The Times has said the strategy of targeted killings had first been
contemplated by the Bush administration, soon after the September 11,
2001 attacks.
On April 4,
U.S. District Judge Rosemary Collyer in Washington dismissed a lawsuit
against the government by the families of those killed in the drone
strikes, saying senior officials cannot be personally liable for money
damages "for conducting war.
The American Civil Liberties Union, which had filed its own lawsuit over
the government's disclosure practices, said it plans in light of
Monday's decision to return to the lower court to challenge the
withholding of other documents related to targeted killings.
"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," ACLU Deputy Legal Director Jameel Jaffer said
in a statement.
The case is
New York Times Co et al v. U.S. Department of Justice et al, 2nd U.S.
Circuit Court of Appeals, Nos. 13-422, 13-445.
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