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Friday, March 1, 2024 | Back issues
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Second Circuit Closes Book on Drone Disclosures

The Second Circuit shut down a lawsuit Tuesday seeking information on drone killings, but the American Civil Liberties Union promises another case is on the horizon.

MANHATTAN (CN) — The American Civil Liberties Union promised Tuesday it will keep fighting after the Second Circuit shut the door on its case seeking information on drone killings.

“This is an extremely narrow opinion upholding the government’s claims of official secrecy over a small set of documents concerning its drone program,” ACLU attorney Brett Max Kaufman said in an email. “The fact remains that while the government has made some basic information about its lethal program available recently, many critical details about the government’s interpretation of limits on its killing authority remain shrouded in secrecy.”

The ACLU has been pursuing the government’s justifications for targeting U.S. citizens by predator drone without a trial at home ever since the reported bombing of suspected al-Qaida member Anwar al-Awlaki on Sept. 30, 2011.

Born in New Mexico, al-Awlaki had been living in Yemen when the CIA and Joint Special Operations Command killed him and Samir Khan. A U.S.-born radical like al-Awlaki, Khan reportedly wrote for the al-Qaida magazine Inspire.

Weeks later on Oct. 14, 2011, another bomb killed al-Awlaki’s teenage son Abdulrahman.

Seeking more information on the strikes, the ACLU and The New York Times have been fighting for records in the Southern District of New York since February 2012. Despite some early setbacks, the case has brought forth significant revelations.

The government’s attempts to keep its drone-warfare program secret proved quickly exasperating for U.S. District Judge Colleen McMahon, who would later rise to chief of the court.

In a Jan. 2, 2013, opinion, McMahon invoked the surreal world of “Alice in Wonderland” and Joseph Heller’s dystopian novel “Catch-22.” McMahon said: "I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our government to proclaim as perfectly valid certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusions a secret,” she wrote.

A year later the unexpected leak of a “white paper” prompted the Second Circuit to find that the government had undermined its claim to secrecy.

As the case continued, the ACLU and the Times forced the government to disclose at least some of their legal rationales for targeting a U.S. citizen who presents "an imminent threat of a violent attack" and "capture is infeasible.”

The open-records battle finally hit a wall Tuesday, however, with the Second Circuit clawing back seven remaining documents that McMahon had tried to make public.

Writing for the unanimous three-judge panel, U.S. Circuit Judge Jon Newman commended the judge for seeing the case to fruition.

“Chief Judge McMahon ably performed the burdensome task of examining scores of  documents in this protracted litigation, which now appears to be concluded,” Newman’s 17-page opinion states.

Undeterred by the reversal, the ACLU notes that it brought a suit in 2015 for records including the Presidential Policy Guidance and details about whom the government has killed and why.

As Donald Trump prepares to wield the drone program’s power, the ACLU’s Kaufman notes that this information remains urgent to the public.

“The ACLU continues to seek more details about the program’s rules and consequences to inform the public about the executive branch’s assertions of a far-reaching power to kill, and we will fight for transparency and accountability into and through the next administration,” Kaufman said.

The U.S. Attorney’s Office declined to comment.

Categories / Government, International

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