April 21, 2014, 12:26 pm
DOJ ordered to release memo justifying strike on US citizen in Yemen
By Rebecca Shabad
A federal appeals court on Monday called for the release of parts of a memorandum providing the Obama administration's legal justification for the strike that killed Anwar al-Awlaki, a U.S. citizen who had joined al Qaeda.
A three-judge panel from the U.S. Court of Appeals for the Second Circuit voted unanimously for the Justice Department to release the memo, reversing a lower court’s decision.
“We conclude that a redacted version of the OLC-DOD Memorandum must be disclosed,” the court’s opinion said.
The court argued the government already gave up its right to keep the document classified because officials have already made public statements about the 2011 drone strike.
In February 2013, the Department of Justice (DOJ) also released a “white paper,” providing a general analysis of why targeted killings are constitutional.
“Whatever protection the legal analysis might once have had,” Judge Jon O. Newman wrote in the ruling, “has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the D.O.J. White Paper.”
The court case stemmed from lawsuits filed by The New York Times and two of its reporters, Scott Shane and Charlie Savage, and by the American Civil Liberties Union.
The government had denied Freedom of Information Act requests by the plaintiffs, and the case focuses on “intersection of the public's opportunity to obtain information about their government's activities and the legitimate interests of the executive branch in maintaining secrecy about matters of national security,” Newman wrote.
Newman added that the plaintiffs’ lawsuits do not challenge the legality of drone attacks, but rather they seek information about the targeted killings.
The decision on Monday reverses a January 2013 ruling by the Federal District Court in Manhattan. At the time, Judge Colleen McMahon questioned the legality of drone strikes, but said the government did not violate the Constitution by keeping those documents secret.
Her decision, however, came a month before the DOJ released its white paper, which outlined the legal justification for the strikes.
The government can try to appeal the ruling through the full appeals court or the Supreme Court.
The panel's decision came after multiple air strikes reportedly killed at least 40 al Qaeda militants in Yemen over the weekend. One Yemeni official told CNN it was a joint U.S.-Yemen operation.
In late September 2011, Awlaki was killed in a targeted drone strike authorized by the CIA. He was born in New Mexico in 1971 and eventually became a spokesman for al Qaeda in the Arabian Peninsula, considered the most dangerous wing of the terrorist group.
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