MANHATTAN (CN) – The New York Times sued the Department of Justice for “at least one legal memorandum” government lawyers are believed to have written detailing “the scope of the circumstances in which it is lawful for government officials to employ targeted killing as a policy tool.”
Times reporters Charlie Savage and Scott Shane particularly want to see what the Washington Post reported on Sept. 30 as “a ‘secret memorandum authorizing the legal targeting’ of Anwar al-Awlaki, an American citizen who had been killed earlier that day in Yemen.”
“Questions surrounding the legality of targeted killing – especially the extrajudicial use of lethal force away from any so-called ‘hot’ battlefield where United States forces are engaged in active combat – have generated extensive public debate since October 2001, when the Bush Administration first contemplated whether covert lethal force could be used against people deemed to be al-Qaeda operatives,” the federal complaint states.
“Most recently, the death of an American citizen, Anwar al-Awlaki, who was killed in a drone strike in Yemen in September, has kindled widespread interest in – and controversy over – the scope of the circumstances in which it is lawful for government officials to employ targeted killing as a policy tool.
“Given the questions surrounding the legality of the practice under both U.S. and international law, notable legal scholars, human rights activists, and current and former government officials have called for the government to disclose its legal analysis justifying the use of targeted lethal force, especially as it applies to American citizens.”
NYT claims, “Both before and after the death of al-Awlaki, NYT duly filed FOIA [Freedom of Information Act] requests seeking memoranda that detail the legal analysis behind the government’s use of targeted lethal force. To date, DOJ has refused to release any such memoranda or any segregable portions, claiming them to be properly classified and privileged and in respect to certain memoranda has declined to say whether they in fact exist.”
The complaint adds: “Upon information and belief, there exists at least one legal memorandum detailing the legal analysis justifying the government’s use of targeted killing.”
A Feb. 11 Newsweek story about “targeted killing operations by the Central Intelligence Agency” quoted “an anonymous government official as saying such actions were ‘governed by legal guidance provided by the Department of Justice,'” the Times says.
Awlaki, born in the United States, was “perhaps the most prominent English-speaking advocate of violent jihad against the United States, with his message carried extensively over the Internet. His online lectures and sermons had been linked to more than a dozen terrorist investigations in the United States, Britain and Canada,” the Times reported on Oct. 10.
According to the FOIA complaint: “To date, the government has not offered a thorough and transparent legal analysis of the issue of targeted killing. Instead, several government officials have made statements broadly asserting the legality of such actions in a conc1usory fashion. …
“On February 3, 2010, Director of National Intelligence Dennis C. Blair testified to the House Permanent Select Committee on Intelligence that ‘we take direct actions against terrorists in the intelligence community. If we think that direct action will involve killing an American citizen, we get specific permission to do that.’
“A number of senators, representatives, and government officials – including both supporters and opponents of the practice – have since urged the Department of Justice to make public its legal justification for the targeted killing of individuals.
“For example, on October 2, 2011, Jane Harman, a former United States representative and a former ranking member of the House Intelligence Committee, argued that ‘targeted killing of anyone should give us pause, and there has to be a legal framework around doing that. Reports say there is a lengthy memo that the Office of Legal Counsel and the Department of Justice has prepared making the case. I believe there is a good case. But I think the Justice Department should release that memo.’
“Similarly, on October 7, 2011, Senator Dianne Feinstein, chairwoman of the Senate Select Committee on Intelligence, called on the administration to ‘make public its legal analysis on its counterterrorism authorities’ because ‘for transparency and to maintain public support of secret operations, it is important to explain the general framework for counterterrorism actions.’
“Senator Carl Levin, chairman of the Senate Armed Services Committee, has said: ‘I would urge them to release the memo. I don’t see any reason why they shouldn’t.’
“Other officials have complained that much of the publicly available information on targeted killing results from off-the-record comments by government officials reported in the media. As a former United States representative and a former chairman of the House Select Committee on Intelligence, Peter Hoekstra, has noted: ‘The targeting of Americans – it is a very sensitive issue, but again there’s been more information in the public domain than what has been shared with this committee. There is no clarity. Where is the legal framework?’
“Former attorneys for the OLC have also recommended the release of memoranda detailing the legality of targeted killing.
“Jack Goldsmith, a former assistant attorney general who headed the OLC, has argued that ‘a legal analysis of the U.S. ability to target and kill enemy combatants (including U.S. citizens) outside Afghanistan can be disclosed without revealing means or methods of intelligence-gathering or jeopardizing technical covertness. The public legal explanation need not say anything about the means of fire (e.g. drones or something else), or particular countries, or which agencies of the U.S. government are involved, or the intelligence basis for the attacks … A full legal analysis, as opposed to conclusory explanations in government speeches and leaks, would permit a robust debate about targeted killings – especially of U.S. citizens – that is troubling to many people.’
“Only extremely limited legal analysis has been made available by government officials with knowledge of the program.
“For example, in a speech on March 10, 2010, Harold Koh, legal adviser of the United States Department of State, assured members of the American Society of International Law that ‘it is the considered view of this administration – and it has certainly been in my experience during my time as legal adviser – that U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war.’
“On September 16, 2011, John O. Brennan, a senior adviser to President Obama on homeland security and counterterrorism, provided similar reassurance: ‘We will uphold the core values that define us as Americans, and that includes adhering to the rule of law. And when I say ‘all our actions,’ that includes covert actions, which we undertake under the authorities provided to us by Congress. President Obama has directed that all our actions – even when conducted out of public view – remain consistent with our laws and values.’
“Upon information and belief, there exists at least one official OLC memorandum that details the legal argument justifying targeted killing,” the complaint states. (Ellipsis and parentheses as in complaint.)
The Justice Department’s Office of Legal Counsel assists the attorney general as legal adviser to the president and all executive branch agencies.
The Justice Department refused to produce documents responsive to Shane’s and Savage’s FOIA requests, and appeals.
The Office of Legal Counsel wrote that it “neither confirms nor denies the existence of the documents described in your request,” according to the complaint.
The Times wants to see the memo.
It is represented by David McCraw.