A federal court ordered the Obama administration Monday to release parts of the legal basis for the killing of extremist Muslim preacher and American citizen Anwar al-Awlaki. That legal analysis has remained secret despite officials’ public defenses of al-Awlaki’s killing.
“We recognize that in some circumstances the very fact that legal analysis was given concerning a planned operation would risk disclosure of the likelihood of that operation,” wrote federal Judge Jon O. Newman, “but that is not the situation here where drone strikes and targeted killings have been publicly acknowledged at the highest levels of the government.”
The New York Times and the American Civil Liberties Union have been suing the Obama administration under the Freedom of Information Act, seeking to make public the legal rationale for the use of lethal force against suspected terrorists abroad, including American citizens. Those documents have not been made public, and were not disclosed to members of Congress charged with overseeing the intelligence community until 2013, after Senators threatened to block the confirmation of John Brennan to head the Central Intelligence Agency.
In May 2013, Attorney General Eric Holder acknowledged U.S. involvement in the killings of four American terror suspects overseas, including the 2011 drone strike that killed al-Awlaki, who U.S. officials have accused of being a member of Al Qaeda. Holder also acknowledged that three other American citizens, Samir Khan, Jude Kenan Mohammed, and al-Awlaki’s teenage son, Abdul Rahman Anwar al-Aulaqi, had been killed in “U.S. counter-terrorism operations” but wrote that they had not been “specifically targeted.” The court has ordered the government to disclose a Justice Department legal memo sent to the Pentagon related to the 2011 killing of the elder al-Awlaki.
The three judge panel of the Second Circuit Court of Appeals reversed a prior decision in favor of the government, based in part on public discussions of the targeted killing program by Obama administration officials and the leak of an administration “white paper” to NBC News’ Michael Isikoff, which outlined the legal arguments justifying the program.
“The government can’t pretend that everything about the targeted killing program is a classified secret while senior officials selectively disclose information to paint the program in the most favorable light,” Jameel Jaffer, the attorney of record for the ACLU, said in a statement after the ruling. “The public has a right to know why the administration believes it can carry out-targeted killings of American citizens who are located far away from any conventional battlefield.”
Adam Serwer