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Tuesday, June 18, 2024 | Back issues
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Judge Vacates Order Hushing Up Drone Strike

SAN FRANCISCO (CN) - A federal judge vacated as moot an order that prevented government disclosure of information about the targeted drone strike that killed U.S. citizen Anwar al-Awlaki in 2011.

U.S. District Judge Claudia Wilken on Monday found the case moot, because the government has released information about the strike.

The First Amendment Coalition sued the Department of Justice under the Freedom of Information Act in 2012.

A drone strike in September 2011 killed Awlaki, a propagandist for al Qaeda, in an attack that President Obama called a "success" that was a "tribute to our intelligence community."

The San Rafael-based First Amendment Coalition sought a 2010 legal memo from the Office of Legal Counsel that allegedly "provided a legal analysis and justification for the U.S. government's targeted killing" of U.S. citizens.

The group sought "as much of the OLC memo as can be released without harm to legitimate U.S. national security interests."

"This would include, at minimum, those portions of the OLC memo discussing and analyzing legal and related issues concerning the selection of U.S. citizens abroad, for targeting with lethal force," the complaint states.

The public is entitled to know the government's legal reasons for targeting U.S. citizens abroad, the Coalition said.

The Justice Department responded to the Coalition's request in June 2013, "acknowledging the existence of one responsive OLC opinion ... and refusing to confirm or deny the existence of responsive records related to any other agency."

The American Civil Liberties Union and New York Times sued the Justice Department for similar information about drone strikes and other government-authorized killings of suspected al Qaeda affiliates.

In response to those complaints, the Justice Department released unclassified documents, the reasons why others were being withheld, and the CIA produced public speeches by Attorney General Eric Holder and CIA Director John Brennan defending the government's use of drones.

A federal judge in Manhattan found in favor of the Justice Department. The ACLU and the Times appealed.

The 2nd Circuit ordered the government defendants to submit the withheld documents for in-camera review, and heard oral arguments in October 2013.

In the California case, the government argued that it is exempt from disclosing a Defense Department memorandum under the deliberative process privilege.

Office of Legal Counsel Deputy Assistant Attorney General John Bies said in a court declaration that disclosing the memorandum would "chill the candid and frank communications necessary for effective governmental decision-making."

The government also claimed that the memorandum contained confidential communications protected by attorney-client privilege.

The Free Speech Coalition argued that because the government adopted the memorandum as policy by carrying out a drone strike on a U.S. citizen, it waived its privileges.

In April, Judge Wilken granted the government summary judgment on the disclosure of the memorandum.

Wilken disagreed with the Coalition's argument that the government adopted the memorandum as policy.

In its motion for summary judgment, the Coalition had referred to a leaked white paper that set out the government's legal justification for using drones against U.S. citizens, a document that has not been officially disclosed.

"Stating that the president has provided Congress with OLC advice 'related to the subject of' the white paper is far from an express adoption of the analysis in the DOD memorandum," Wilken wrote in granting summary judgment.

The Coalition moved to vacate Wilken's order, and Wilken granted vacatur, but denied the group's request for attorney fees.

The group argued that the government's prior decision to release a redacted version of the memorandum made the case moot while the court was still reviewing it.

"The court asked the parties to inform it whether they agreed that the Second Circuit's disclosure order mooted the instant case," Wilken wrote. "The parties responded by reporting that they agreed that no substantive issues remain in the case."

Therefore, Wilken said: "The court finds that the case is moot based on both parties' decision to abandon their right to review. Not only did the government abandon its right to seek en banc review in the Second Circuit or to file a petition for a writ of certioriari, it voluntarily disclosed the CIA memorandum to plaintiff in this case and, when asked to state its position on whether this case is moot, responded that there were no issues left for this court to consider."

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