A federal appeals panel in Manhattan on Monday ordered the release of key portions of a classified US Department of Justice (DOJ) memorandum that provided the legal justification for the targeted killing of a US citizen, Anwar al-Awlaki, who intelligence officials contend had joined al-Qaeda and died in a 2011 drone strike in Yemen.
The unanimous three-judge panel, reversing a lower court decision, said the government had waived its right to keep the analysis secret in light of numerous public statements by administration officials and the justice department’s release of a “white paper” offering a detailed analysis of why targeted killings were legal.
“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,” Judge Jon Newman wrote for the panel of the 2nd US Court of Appeals.
The ruling stemmed from lawsuits filed under the Freedom of Information Act by the New York Times and two of its reporters, Charlie Savage and Scott Shane, and by the American Civil Liberties Union.
The decision reversed a ruling in January last year by US District Court Judge Colleen McMahon, who had expressed her own doubts about the legality of the targeted killings program and the secrecy cloaking it, but concluded that the government had not violated the law in refusing to turn over the materials sought in the requests.
However, McMahon issued her decision about a month before the justice department released its “white paper” after it was leaked to NBC News.
The 16-page, single-spaced document made a detailed legal justification for the killing of al-Awlaki, which the appellate panel took into account in its ruling.
The panel also cited public statements by officials like US Attorney General Eric Holder and John Brennan, when he was the president’s top counterterrorism adviser, discussing the lawfulness of the targeted killing of terrorists.
The panel, which also included Judges Jose Cabranes and Rosemary Pooler, did agree to a government request to redact certain portions of the legal analysis that it ordered released.
It was unclear how quickly the legal analysis might be made public. The government could ultimately seek review by the full appeals court or the Supreme Court.
Steven Aftergood, a government secrecy specialist at the Federation of American Scientists, said the ruling was “clearly a rebuff to the administration’s secrecy policy.”
“What makes it particularly significant is that it applies not just to a single document, but to a habitual practice of government officials, which is to say: ‘I’m going to talk about something that’s classified, but I’m not going to give you the underlying records,’” he said.
Lawyers for the plaintiffs praised the ruling.
“The court declined to accept at face value the government’s claims about national security and instead did a searching and independent review of the record,” said David McCraw, a lawyer for the Times.
Jameel Jaffer, a lawyer with the American Civil Liberties Union, added: “This is a resounding rejection of the government’s effort to use secrecy, and selective disclosure, as a means of manipulating public opinion about the targeted killing program. The government can’t pretend that everything about its targeted killing program is a classified secret, while senior officials selectively disclose information meant to paint the program in the most favorable light.”