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 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.
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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.
(Additional reporting by Mark Hosenball in Washington and David
Ingram in New York; editing by Jonathan Oatis)
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