MANHATTAN (CN) – To redact more of the memorandum outlining the legal justification for assassinating radical U.S. citizen Anwar al-Awlaki, government lawyers must make their case in open court, the 2nd Circuit ruled.
“We’re pleased that the 2nd Circuit reaffirmed its commitment to openness and transparency,” New York Times general counsel David McCraw reacted in a phone interview.
In April, the same court supported a bid by the paper’s top national security reporters, Scott Shane and Charlie Savage, to seek the legal opinions revealing when the government believed a citizen alleged to be a terrorist could be killed abroad without legal review back home.
Until then, the U.S. Office of Legal Counsel (OLC), the Department of Defense and the CIA had rejected the reporters’ requests for more than two years under exceptions barring disclosure of classified information and internal deliberations between government agencies. The policies surrounding the program have remained shrouded in secrecy since the 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.
The legal opinion supposedly justifying these strikes has come under increased scrutiny after President Barack Obama tapped its author, former Assistant Attorney General David Barron, to serve as a federal appellate judge, presiding in the Boston-based 1st Circuit.
The Senate is reportedly expected to approve the nomination on Thursday, well before the document’s expected release, which the April ruling indicates already will be substantially redacted.
The word “[redacted]” appeared in brackets more than 40 times throughout last month’s 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 had been redacted in its entirety.
When they meet next month to push for more redactions, government lawyers requested that the hearing be held privately, leaving out attorneys for the New York Times.
Rejecting that bid Thursday, the three-judge panel wrote: “We see no reason why the government cannot prepare and serve its petition for rehearing in the normal course, redacting any particular portions that require secrecy and submitting only those redacted portions to the court ex parte and in camera,” using the Latin terms meaning without input from the opposing party and in chambers.
The government has until June 6 to file written arguments making its case for a rehearing.
If oral arguments are merited, the parties will meet again in court three days later.
Times attorney McCraw declined to speculate about when he believes the document ultimately will be released, noting that it depends on when the court rules and how the government responds.
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