June 23, 2014
A redacted legal memo produced to justify the "targeted killing" of Anwar al-Awlaki, who was killed by the CIA in a drone strike in Yemen in September 2011, was finally released after a federal appeals court ordered its disclosure.
The memo [PDF] had been the subject of Freedom of Information Act lawsuits by the American Civil Liberties Union (ACLU) and two New York Times reporters, Charlie Savage and Scott Shane. Requests had been filed in 2011 and 2012, and President Barack Obama’s administration had spent the last three years arguing in courts that the government did not have to disclose the legal analysis for whether the United States government has the authority to target and kill an American abroad. The administration also claimed it had not acknowledged the CIA was launching operations, such as drone strikes, on citizens and, furthermore, its officials had explained why it was legal.
The US District Court of the Southern District of New York ruled in favor of the government in January 2013. However, the court drew attention to the statements of senior government officials, which it characterized as "an extensive public relations campaign to convince the public that [the Administration's] conclusions [about the lawfulness of the killings of al-Awlaki] are correct."
These statements, along with a 16-page Justice Department "White Paper" played a key role in the Second Circuit Court of Appeals’ decision [PDF] to order the government to release a redacted version of an Office of Legal Counsel (OLC) memo dated July 16, 2010, and by David Barron, who was recently sworn into a position as a First Circuit Court of Appeals judge.
ACLU Deputy Legal Director Jameel Jaffer, who argued for the release of the memo before the Second Circuit, reacted, "The release of this memo represents an overdue but nonetheless crucial step towards transparency. There are few questions more important than the question of when the government has the authority to kill its own citizens."
Pardiss Kebriaei, a staff attorney for the Center for Constitutional Rights who was lead counsel on two lawsuits challenging the killing of al-Awlaki, said in a statement, "The DOJ memo confirms that the government’s drone killing program is built on gross distortions of law."
"This forced transparency comes years late, long after the memo was drafted and used to justify the premeditated killing of a U.S. citizen without trial and far from any battlefield. Although the American public may now finally start having a more complete debate about this program, the Obama administration’s stonewalling has delayed this conversation for far too long."
The first section of the memo containing "intelligence" that OLC "received concerning the relationship between Al-Qaida in the Arabian Peninsula (AQAP) and al-Qaida, the organization and operation of AQAP, and the role al-Awlaki performs with AQAP" as well as descriptions of the "manner in which government agencies would perform the targeted killing of al-Awlaki" was not disclosed.
The Obama administration has yet to put forward evidence that definitively confirms al-Awlaki’s role as a "senior operational leader," which based upon Barron’s analysis he had to be to legally justify his assassination.
The choice was made by the administration not to indict al-Awlaki and charge him with a crime. They never attempted to extradite him from Yemen to stand trial for the worst of the worst crimes they have alleged he committed as part of AQAP. His family has no idea what the secret evidence is that led the government to decide it had to kill him now—or else. The American people has no idea either.
This was an opportunity to release details on what role al-Awlaki played in AQAP but the government chose to keep such historical information classified. That means whether al-Awlaki was really a "senior operational leader" is still unclear.
Nonetheless, the court did determine, "The 16-page, single-spaced DOJ White Paper virtually parallels the OLC-DOD Memorandum in its analysis of the lawfulness of targeted killings." They both include legal arguments for why "targeted killings" do not violate a foreign murder statute or the Fourth and Fifth Amendments to the Constitution. They address how sometimes US government officials, who target and kill people, are covered by a "public authority justification."
"The substantial overlap in the legal analyses in the two documents fully establishes that the government may no longer validly claim that the legal analysis in the memorandum is a secret," the court added.
The court even rejected attempts by the government to argue that it had to redact mentions of the country where Awlaki was killed, Yemen, and the agency that killed him, the CIA.
"Numerous statements by senior government officials" have identified the country as Yemen. For example, President Obama said on "The Tonight Show" on October 25, 2011, "[I]t was important that, working with the [Yemenis,] we were able to remove him from the field."
Then-Secretary of Defense Leon Panetta was asked on January 29, 2012, by Scott Pelley on CBS’ "60 Minutes," "You killed al-Awlaki?" Panetta nodded yes.
This decision and release of a redacted memorandum paves the way for disclosure of more important records related to the government’s use of Predator drones and its claimed legal authority. The CIA can no longer claim in any courtroom that it is not involved in conducting drone operations. Plus, the Second Circuit ordered "other legal memoranda prepared by OLC" to be submitted to the district court for review.
Finally, the decision holds the government responsible for public statements by government officials. If officials want to keep records related to sensitive operations secret, they cannot talk about information in these records in order to defend the legality of those operations and at the same time expect the courts to consistently protect them from having to disclose records.