US appeals court orders release of legal memo on drone killings

By Patrick Martin
22 April 2014

A three-judge appeals court panel in New York City ordered the Obama administration to release the redacted text of the legal analysis prepared by the Justice Department purporting to demonstrate the president’s authority to order drone-missile assassination of US citizens.

The unanimous ruling, issued Monday by judges Jon O. Newman, Jose A. Cabranes and Rosemary S. Pooler, partially reversed a January 2013 decision by federal district court judge Colleen McMahon. That decision had allowed the Justice Department to withhold the legal memorandum and dismissed the lawsuit, brought under the Freedom of Information Act by the New York Times and the American Civil Liberties Union.

The appeals court decision, written by Newman, found that the government had effectively waived its right to keep the legal analysis secret by releasing a 16-page “white paper” reviewing the legal arguments in favor of a presidential power to order assassinations as part of the “war on terror,” and by issuing public statements detailing its legal reasoning, including speeches by Attorney General Eric Holder and then-White House counterterrorism chief John Brennan, now the director of the CIA.

One month after the lower-court judge issued her ruling that the government was not obliged to release the memorandum, the Justice Department declassified and released the “white paper,” whose text had already been made public in a leak to NBC News. The plaintiffs cited the “white paper,” as well as the Holder and Brennan speeches and other statements by Obama administration officials, in their appeal to the 2nd Circuit Court of Appeals.

The original document was drafted by the Office of Legal Counsel (OLC), the in-house attorney for the Justice Department, at the request of the White House. This is the same agency that drafted the notorious “torture memos” during the Bush administration, asserting that CIA interrogators could employ methods of torture like waterboarding without violating international law or the Geneva Conventions.

The Obama appointees in the OLC drafted memos in 2010, asserting that the president had the power as commander-in-chief to order the killing of anyone, American citizen or not, designated by US intelligence agencies as a “terrorist.”

The White House sought the legal ruling in order to justify in advance its decision to assassinate Anwar al-Awlaki, a US citizen, Muslim preacher and former religious adviser to the Pentagon, who became radicalized after the 9/11 attacks, went to Yemen, where his parents were born, and became a well-known advocate and spokesman for Islamic fundamentalism.

Al-Awlaki was targeted for his alleged connection to individuals like Major Nidal Hassan, the military psychiatrist who killed 14 people at Ft. Hood, Texas, in the fall of 2009, and the “underwear bomber,” Umar Farouk Abdulmutallab, who tried to blow up a Detroit-bound jetliner the same year. Both men allegedly watched al-Awlaki sermons on the Internet and communicated with him via e-mail.

The Obama administration has presented no evidence that al-Awlaki did anything more than express his opinions on religious and political issues and offer moral justification for attacks against US targets.

In the course of its drone warfare in Yemen, the CIA killed two other American citizens: Samir Khan, who died in the September 2011 attack that killed Anwar al-Awlaki; and Abdulrahman al-Awlaki, the Islamic preacher’s 16-year-old son, who was “collateral damage” in another drone missile strike in Yemen one month after his father’s death.

The appeals court panel rebuffed a series of Department of Justice attempts to withhold the legal memorandum: the agency first refused to acknowledge the memo’s existence; then, it acknowledged its existence but refused any information, such as the document number and description; and finally, the DOJ released the document number and description but declared the entire text secret as a matter of national security.

While the panel’s decision was a setback for the Obama administration, the three judges were careful to bow before the military-intelligence apparatus. Their decision is itself redacted (partially secret) in the sections where it identifies portions of the legal memorandum that the government wants withheld, in case the Justice Department decides to appeal.

The Obama administration can appeal the decision of the three-judge panel either to the full circuit court, or directly to the Supreme Court.

Circuit Judge Newman did not override the claims of national security, but rather pointed out the contradiction in the administration’s position that it could discuss the issues substantively in public without releasing the document itself.

“Whatever protection the legal analysis might once have had has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the DOJ White Paper,” he wrote.

The court ruling comes on the third day of the bloodiest US missile strikes in Yemen. Beginning Saturday, CIA-fired drone missiles have killed between 50 and 100 people in southern Yemen, hitting at least five separate target areas in the remote and mountainous region.

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