Second Circuit Closes Lid on Drone Strike Memos | Courthouse News Service
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Second Circuit Closes Lid on Drone Strike Memos

MANHATTAN (CN) - A New York Times reporter's four-year quest to shine light on the government's legal justifications for assassinating terrorism suspects may be at an end after the Second Circuit slammed the lid Monday on 10 remaining memos.

The controversy stems from armed drones that the CIA and Joint Special Operations Command sent into Yemen on Sept. 30, 2011, to bomb New Mexico-born radical cleric Anwar al-Awlaki and another U.S. citizen, al-Qaida propagandist Samir Khan.

Weeks later, another drone killed al-Awlaki's 16-year-old son Abdulrahman, also a U.S. citizen living in Yemen.

The Times and its ace national-security reporter Charlie Savage filed a lawsuit under the Freedom of Information Act that December, seeking access to the government's classified memoranda behind its so-called "targeted killing" program.

Though U.S. District Judge Colleen McMahon found that the memos were tangled in "Alice-in-Wonderland"-like rules protecting classified information, a reversal by the Second Circuit last year gave the public its first glimpse of a memorandum from the Office of Legal Counsel.

The Times, the American Civil Liberties Union and fellow challengers continued to clamor for 11 other OLC memos, but McMahon protected 10 of them as classified late last year.

The ensuing appeal proved unsuccessful Thursday with the Second Circuit emphasizing that no part of the case questions "the lawfulness of drone strikes."

"This appeal, like the prior one, primarily concerns whether documents considering such lawfulness must be disclosed," Judge Jon Newman wrote for a three-judge panel.

ACLU executive director Jameel Jaffer reacted with a warning for President Barack Obama about how his successor might wield the powers of enforcing "secret law."

"We strongly disagree that these crucial legal memos can lawfully be kept secret. In a democracy, there should be no room for 'secret law,' and the courts should not play a role in perpetuating it," Jaffer said in a statement.

"That said, the Obama administration should not need a court ruling in order to disclose more information about its policies," he added. "As President Obama considers his legacy and the certainty that the targeted-killing program will soon be in the hands of a new president, we urge the administration to disclose more information about the program and subject it to stronger oversight. The government should not be using lethal force based on standards that are explained only vaguely and on facts that are never published or independently reviewed."

The ACLU declined to reveal its next steps in the litigation, and a representative for the National Security Council declined to comment on the ruling.

The decision coincides roughly with a new federal FOIA complaint by the Times and reporter Savage on FBI shooting incidents.

Having studied the documents released after his 2010 lawsuit on FBI shooting-incident reports, Savage claims to have spotted an inconsistency.

Whereas the FBI previously told Savage that all of its shootings were justified in 150 cases dating back to 1993, Savage says these records omit a case that could be considered a "bad shoot."

Savage says the FBI has failed to produce the documents he needs on a July 18, 2012, shooting in Queens, N.Y., where an off-duty FBI agent fired his weapon out of the second-floor window of his house at an unarmed man he believed was breaking into his car, hitting the man in the back.

"The Queens Incident report proved to be both newsworthy and embarrassing to the FBI," Savage's Nov. 20 lawsuit says.

One document that the FBI produced this year "demonstrated that for the first time since at least 1993 FBI reviewers had concluded that an incident in which an agent shot someone failed to comply with the agency's use of force policy, known within the agency as a 'bad shoot,'" the lawsuit continues.

"Subsequent reporting showed that the FBI was taking the rare step of attempting to fire the agent for the incident," Savage continues.

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