U.S. drone strikes in Yemen in September 2011 killed Anwar Al-Awlaki, below left, an al Qaida leader who had been born in the United States, and another U.S. citizen, Samir Khan, center. An October 2011 strike killed Abdulrahman al-Awlaki, al-Awlaki’s teenage son, right, also a U.S. citizen. (Wiki/AP/Facebook)
The U.S. Court of Appeals for the Second Circuit ordered the government on Monday to release a document on legal guidance for the targeted killing of American citizens by drone aircraft.
The circuit said a redacted version of a Justice Department Office of Legal Counsel/Department of Defense memo must be released under the Freedom of Information Act (FOIA) in part because of public statements made by government officials acknowledging lethal force in counterterrorism operations, and because the Justice Department opted to release part of a White Paper on the subject that had been leaked to the media.
The decision came in The New York Times Co. v. U.S. Department of Justice, 13-422, consolidated lawsuits brought by New York Times reporters Charlie Savage and Scott Shane and the American Civil Liberties Union over separate requests under 5 U.S.C. §552 for information about targeted killings from the Justice Department, the Department of Defense and the CIA.
Specifically, the plaintiffs wanted information on the legal and factual justifications for drone attacks that killed U.S. citizen and al Qaida loyalist Anwar al-Awlaki in Yemen in 2011 as well his 16-year-old son, Abdulrahman, and a third man, Samir Khan.
Judges Jon Newman (See Profile), Jose Cabranes (See Profile) and Rosemary Pooler (See Profile) reversed a 2013 decision by Judge Colleen McMahon (See Profile) granting summary judgment for the government, but only because the situation had changed after McMahon’s ruling.
“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,” Newman wrote for the court.
The 16-page white paper was titled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is A Senior Operation Leader of Al-Qa’ida or an Associated Force” and the Justice Department released it after part of it was leaked on Feb. 4, 2013 to a reporter at NBC News.
The first public statement at issue was made by John Brennan, who was then a nominee to be director of the CIA, testifying before the Senate Select Committee on Intelligence on Feb. 7. Brennan stated that “The Office of Legal Counsel advice establishes the legal boundaries within which we can operate.”
The second was a letter by U.S. Attorney General Eric Holder to Senate Judiciary Committee Chairman Patrick Leahy on May 22, 2013 in which he stated that “The United States … has specifically targeted and killed one U.S. citizen.”
The following day, President Barack Obama, delivering an address at the National Defense University, listed al-Awlaki’s terrorist activity and said he “authorized the strike that took him out.”
There had also been other statements made before McMahon ruled, including one by then-State Department Legal Advisor Harold Koh, who said “U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law.”
Newman said the court agreed with McMahon that the so-called OLC-DOD Memorandum, a 41-page document, was properly classified, and there was no waiver by the government of any operational details contained in the document.
But the court said there has been a waiver on the document’s legal analysis because of the voluntary disclosures.
“Even if these statements assuring the public of the lawfulness of targeted killings are not themselves sufficiently detailed to establish waiver of the secrecy of the legal analysis in the OLC-DOD Memorandum, they establish the context in which the most revealing document, disclosed after the District Court’s decision, should be evaluated,” Newman said.
The court was not persuaded by the government’s argument that making the document’s legal reasoning public would inhibit agencies from asking for advice from the Office of Legal Counsel.
“Agencies seeking OLC legal advice are surely sophisticated enough to know that, in these circumstances, attorney/client and deliberative process privileges can be waived, and the advice publicly disclosed,” he said. “We need not fear that OLC will lack for clients.”
Newman said the court recognized that, in some situations, “the very fact that legal analysis was given concerning a planned operation would risk disclosure of the likelihood of that operation, but that is not the situation here, where drone strikes and targeted killings have been publicly acknowledged at the highest levels of the government.”
The government had also argued that the Second Circuit could not consider officials’ disclosures made after McMahon’s opinion on the general rule that FOIA decisions are evaluated as of the time they was made.
“We disagree,” Newman said. “Although we are not required to consider such evidence, the circumstances of this case support taking judicial notice of the statements here.”
The court also ordered the government to describe other documents that were related to the drone attacks that it had previously refused to acknowledge.
David McCraw of The New York Times argued for the newspaper.
“This case is important not just because the disclosures today will allow the American people to participate more fully in the debate over an important issue of foreign policy and national security,” McCraw said in a statement. “It is also important because it is a clear reminder to all federal courts that they need to be independent arbiters of government’s claims about national security secrecy.”
Jameel Jaffer argued for the ACLU.
“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,” Jaffer said in a statement.
Appellate Staff Attorney Sharon Swingle argued for the government.