No Right to Information on Targeted Killing

SAN FRANCISCO (CN) - The Department of Justice does not have to disclose documents related to a targeted drone strike that killed U.S. citizen Anwar al-Awlaki in 2011, a federal judge ruled.

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

A drone strike in September 2011 killed U.S.-born Anwar al-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.

"Regardless of one's views about the Obama administration policy in the counterterrorism area, the assertion of the power to lethally target U.S. citizens, and to do so unilaterally, without judicial oversight of any kind, is an extreme step warranting as much scrutiny and public debate as are possible under the circumstances," the complaint states.

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 access to 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 and the reasons why they were being withheld, and the CIA produced public speeches by Eric Holder and 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.

OLC 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 that are 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.

U.S. District Judge Claudia Wilken agreed with the government, and granted 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 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 court also found the government's partial "Glomar response" - neither confirming nor denying the existence of requested documents - was justified because they dealt with classified CIA information.

The Coalition claimed, among other things, that the CIA acknowledged its involvement in killing Anwar al-Awlaki because former Defense Secretary Leon Panetta was quoted as saying: "Having moved from the CIA to the Pentagon, obviously I have a hell of a lot more weapons available to me in this job than I had in the CIA, although the Predators aren't bad."

Wilken disagreed that this is evidence of CIA involvement in the drone strike in question.

"The implication that Predators (drones) were 'available' to Mr. Panetta when he was director of the CIA is far from official confirmation that the CIA was involved in the targeted killing of al-Awlaki," Wilken wrote.

"Plaintiff is seeking information specifically related to the killing of al-Awlaki. The finding that the CIA has made public statements sufficient to disclose a general 'intelligence interest in drone strikes' is far from an official disclosure that the CIA received OLC advice regarding the decision to target al-Awlaki," Wilken wrote.

"Accordingly, to the extent that the Glomar response pertains to the CIA, the court finds that it is also justified by the CIA Act."

Finding the government is exempt from disclosure, Wilken found the court was not required to conduct an in camera review of the memorandum.

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