Court Orders Disclosure of Awlaki Killing Memo | Courthouse News Service
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Court Orders Disclosure of Awlaki Killing Memo

MANHATTAN (CN) - Federal agencies must reveal a memorandum that outlines the legal basis for assassinating Anwar al-Awlaki while the U.S. citizen was living Yemen, the 2nd Circuit unanimously ruled Monday.

An American Civil Liberties Union official called the decision a "resounding rejection of the government's effort to use secrecy and selective disclosure to manipulate public opinion about the targeted killing program."

"The government can't pretend that everything about the targeted killing program is a classified secret while senior officials selectively disclose information to paint the program in the most favorable light," Jameel Jaffer, who heads the ACLU Center for Democracy, said in an email. "The public has a right to know why the administration believes it can carry out targeted killings of American citizens who are located far away from any conventional battlefield."

For more than two years, the ACLU has supported efforts by New York Times reporters Scott Shane and Charlie Savage to have the U.S. Office of Legal Counsel (OLC), the Department of Defense and the CIA reveal when the government believed a citizen deemed to be a terrorist could be killed abroad without legal review back home.

Each time, the agencies rejected their requests under exceptions barring disclosure of classified information and internal deliberations between government agencies. The policies surrounding the controversial program have remained been shrouded in secrecy since the controversial drone strike on al-Awlaki nearly three years ago.

The New Mexico-born radical cleric was living in Yemen when the CIA and Joint Special Operations Command bombed him and another U.S. citizen, al-Qaida propagandist Samir Khan, on Sept. 30, 2011.

A separate strike killed al-Awlaki's U.S. citizen son, 16-year-old Abdulrahman, weeks later.

In throwing out the reporters' lawsuit last year, U.S. District Judge Colleen McMahon had said legal precedent tied her hands.

"The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules, a veritable Catch-22," McMahon wrote. "I can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly valid certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusions a secret."

That decision faced reversal Monday because a three-judge panel said the DOD's subsequent leak of a "white paper" outlining the targeted killing program undermined the government's basis for keeping the so-called "OLC memo" classified.

"We recognize that in some circumstances 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," Judge Jon Newman wrote for the panel.

The 52-page opinion cites statements about the program by President Barack Obama, Attorney General Eric Holder, ex-Pentagon legal chief Jeh Johnson and others.

"We also recognize that in some circumstances legal analysis could be so intertwined with facts entitled to protection that disclosure of the analysis would disclose such facts," Newman wrote. "Aware of that possibility, we have redacted, as explained above, the entire section of the OLC-DOD Memorandum that includes any mention of intelligence gathering activities."

The word "[redacted]" appears in brackets more than 40 times throughout the opinion to indicate lines that have been removed. It is unclear how long the opinion would have run in full if the excised lines had been blacked out instead.

Indeed, one of the six conclusions by the panel has been redacted in its entirety.

"With the redactions and public disclosures discussed above, it is no longer either 'logical' or 'plausible' to maintain that disclosure of the legal analysis in the OLC-DOD Memorandum risks disclosing any aspect of 'military plans, intelligence activities, sources and methods, and foreign relations,'" the opinion states. "The release of the DOJ White Paper, discussing why the targeted killing of al-Awlaki would not violate several statutes, makes this clear."

Later, Newman writes: "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."

The agencies also must provide information about why they refused to confirm or deny the existence of other documents. "Glomar responses," as they are known, take their name from the Hughes Glomar Explorer, a ship used in a classified CIA project to raise a sunken Soviet submarine from the Pacific Ocean.

On remand, Judge McMahon will review certain classified lists to determine whether further disclosure is necessary.

The Department of Justice declined to comment.

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