Back in September President Obama had U.S. citizen Anwar al-Awlaki assassinated. When pressed on the legality of using "targeted killing" against a U.S. citizen without first providing due process, the Most Transparent Administration in History™ clammed up. Eventually word leaked that White House and DOJ lawyers had written a memo justifying the assassination. The memo was "secret."
In October Charlie Savage of The New York Times convinced someone in the Obama administration to describe the memo to him:
The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki's case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.
The Obama administration has refused to acknowledge or discuss its role in the drone strike that killed Mr. Awlaki last month and that technically remains a covert operation. The government has also resisted growing calls that it provide a detailed public explanation of why officials deemed it lawful to kill an American citizen, setting a precedent that scholars, rights activists and others say has raised concerns about the rule of law and civil liberties.
But the document that laid out the administration's justification — a roughly 50-page memorandum by the Justice Department's Office of Legal Counsel, completed around June 2010 — was described on the condition of anonymity by people who have read it.
The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.
The memorandum, which was written more than a year before Mr. Awlaki was killed, does not independently analyze the quality of the evidence against him.
That story has become, in part, the basis for a lawsuit Savage and the Times have filed against the DOJ for not disclosing the memo that justifies al-Awlaki's assassination. The lawsuit, which Savage posted online today, "seek[s] the production of agency records improperly withheld by the United States Department of Justice in response to requests properly made by Plaintiffs." While Savage and the Times don't know how many documents exist, Savage's contact in the administration revealed to him that "there exists at least one legal memorandum detailing the legal analysis justifying the government's use of targeted killing."
More excerpts from the lawsuit:
4.) 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.
5.) For example, the former legal adviser to the United States Department of State in the Bush administration, John Bellinger, has argued that it is "important to domestic audiences and international audiences for the Administration to explain how the targeting and killing of an American complies with applicable constitutional standards."
6.) 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 conclusory fashion.
Even if The New York Times and Savage win their suit, there is a chance the Obama administration will not comply with the ruling. In spring 2009 Obama refused to comply with a U.S. Court of Appeals decision ordering the Pentagon to release photos of detainees captured in Iraq and Afghanistan. The fate of the photos had been in limbo since the American Civil Liberties Union filed a FOIA suit against the Bush administration in 2006. When the court ordered in April 2009 that the pictures had to be released, Obama initially said he would comply, but three weeks later he changed his mind, saying, "The most direct consequence of releasing them would be to further inflame anti-American opinion, and to put our troops in greater danger." In October of 2009, despite his promise not to withhold information based on "speculative or abstract fears," Obama signed hastily written, bipartisan legislation prohibiting the release of the photos. There's every reason for him to do it again with the al-Awlaki memo.