(CN) – The Department of Justice must release a previously classified index of withheld records related to the government’s targeted-killing programs, the 2nd Circuit ruled.
New York Times reporter Charlie Savage and the American Civil Liberties Union were among those who filed separate lawsuits to access, among other records, a government memo approving the 2011 drone strikes that killed radical Muslim cleric Anwar al-Awlaki and two other U.S. citizens.
The 2nd Circuit released the memo in June. David Barron, then acting chief of the Justice Department’s Office of Legal Counsel, wrote the July 16, 2010, memo, which outlines the government’s broad authority to kill American terrorism suspects abroad and served as the basis for the strike against the New Mexico-born radical cleric.
Al-Awlaki was living in Yemen when unmanned drones operated by 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 weeks later killed al-Awlawki’s 16-year-old son Abdulrahman, also a U.S. citizen.
Barron says in the memo that he believes the Department of Defense’s “contemplated operation against al-Awlaki would comply with international law, including the laws of war applicable to this armed conflict, and would fall within Congress’s authorization to use ‘necessary and appropriate force’ against al-Qaida.”
The Senate confirmed Barron’s appointment to the U.S. Court of Appeals for the 1st Circuit in May.
Meanwhile the government has continued to oppose the release of documents responsive to the New York Times and ACLU’s requests.
The 2nd Circuit refused to rehear the issue in July and denied the request again Monday in a supplemental opinion.
That 12-page ruling also partly denies the government’s request for additional redactions from the Vaughn index – a document that agencies prepare in FOIA litigation to justify each withholding of information under a FOIA exemption.
“The government advances the new argument that there are two types of Vaughn indices,” Judge Jon Newman wrote for the three-judge panel in Manhattan. “The July 28 submissions distinguish the Vaughn index submitted in this case, which was classified, from a Vaughn index that the government says it would have prepared for disclosure.”
The government claimed that the index provided in July included additional information to help the court gain a “robust understanding” of the issues, information which should not be made public.
“Although we appreciate the government’s objective of giving the district court ‘a robust understanding’ of the issues, we would expect such a presentation to be made in supporting briefs and affidavits,” Newman said. “We have located no FOIA decision mentioning two types of such indices – one to assist a district court and another for public release – and the government has called none to our attention. We will therefore continue, as we have thus far, to base our disclosure rulings on the Vaughn index that OLC has already prepared, with such redactions as may be appropriate.”
The court permitted the government to redact a number of titles, but not the descriptions of documents. In some cases, the government may also redact the identity of the sending agency from the descriptions of the documents.
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