Drone Secrecy Returns|to Second Circuit

MANHATTAN (CN) — Refereeing the third round of the same transparency fight, the Second Circuit left court-watchers in suspense over whether it would shine a light on the government's reasons for targeting U.S. citizens abroad in drone strikes.

Two years ago, the American Civil Liberties Union scored a clean knock-out in the first round that revealed an important document about the government's so-called targeted-killing program, but the government had the civil-rights group on the ropes in the sequel, in which it protected the vast majority of its records.

After an hour-long Second Circuit match-up on Tuesday, the fate of the final chapter of the trilogy — which centers on the fight to disclose 59 more documents — is anybody's guess.

The legal drama began shortly after a drone strike killed two U.S. citizens — New Mexico-born radical cleric Anwar al-Awlaki and al-Qaida propagandist Samir Kahn — in Yemen on Sept. 30, 2011.

Weeks later, another bomb hit al-Awlaki's 16-year-old son, Abdulrahman, also a U.S. citizen living in Yemen.

Shortly after these strikes, the New York Times and the American Civil Liberties Union joined forces in a federal lawsuit seeking government documents justifying the operations.

Despite the government's resistance to transparency on the issue, a few documents have surfaced.

First, a leak of a so-called white paper to NBC News gave the public its first glimpse of the government's rationale for killing a U.S. citizen suspected of terrorism without a charge or trial — the government believed a "violent attack" was imminent, according to the document.

The Second Circuit ordered the disclosure of another such paper two years ago, this time written by the then-acting chief of the Justice Department's Office of Legal Counsel, David Barron.

The government has largely succeeded in protecting its secrets in court since that defeat, closing the lid on all but one of 11 documents late last year.

In July this year, U.S. District Judge Colleen McMahon set the stage for Tuesday's appellate battle in an opinion that she said would let "the Circuit ... decide in the first instance" whether the government's previous disclosures waived their right to withhold information concerning the factual basis for targeting al-Awlaki.

With dozens more documents at issue, the ACLU's attorney Brett Max Kaufman urged the court to issue clear rules detailing the government's disclosure obligations, but U.S. Circuit Judge Jon Newman replied that his ruling will be more limited.

"We're being asked to rule on those documents," Newman said. "We're not being asked to write a treatise on the law of [the Freedom of Information Act]."

Newman sharply questioned the ACLU attorney throughout oral arguments, and he appeared sympathetic to Assistant U.S. Attorney Sarah Normand's decision to keep the other records under wraps.

After Newman offered a reason why one document could be protected under a FOIA exemption shielding the government's deliberative process, Normand replied, "I appreciate the court helping me come up with an additional basis" to withhold disclosure.

U.S. Circuit Judge Rosemary Pooler gave the government a tougher time.

She pointed out that several of the documents being sought were dated after the drone strikes on al-Awlaki, undermining the government's argument that the documents were exempt from disclosure because they were "pre-decisional."

"How is it pre-decisional?" Pooler asked. "It's PR!"

The contents of the documents are unknown even to the ACLU, but Pooler's remark suggests that at least one of them discusses how the government planned to spin its rationalizations for the program to the public.

That distinction is crucial to the ACLU, whose attorney said that the law is on their side for public relations-style documents.

In another FOIA lawsuit in Manhattan Federal Court, a judge granted such records to National Day Laborer Organizing on that basis in 2011.

"Deliberations about how to present an already decided policy to the public, or documents designed to explain that policy to — or obscure it from — the public, including in draft form, are at the heart of what should be released under FOIA," the ruling said.

With two of the judges apparently split, it was impossible to predict the leanings of the third member of the panel: U.S. Circuit Judge Jose Cabranes, who did not attend the hearing.

His two colleagues sitting on the panel reserved decision, and Cabranes will review the hearing's transcript and audio recording before joining them in a ruling.

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