Last year, in response to a lawsuit over death-by-drone assassinations of American citizens overseas, including Anwar Al-Awlaki, his teenaged son Abdulrahman Al-Awlaki, and Samir Khan, the Obama administration admitted it had done the deed, and claimed that it did so completely legally.
Howzzat? asked the plaintiffs and a curious judge.
We can't tell you, it's a secret, the administration replied. And—nyah nyah—the courts have no say in this anyway.
The Second U.S. Circuit Court of Appeals disagrees, and says the Obama administration must turn over its legal rationale for snuffing Americans with flying killer robots. Writes Judge Jon O. Newman for the court:
We emphasize at the outset that the Plaintiffs' lawsuits do not challenge the lawfulness of drone attacks or targeted killings. Instead, they seek information concerning those attacks, notably, documents prepared by DOJ's Office of Legal Counsel ("OLC") setting forth the Government's reaso ning as to the lawfulness of the attacks.
Note that the the plaintiffs, including The New York Times and the American Civil Liberties Union, don't challenge the legality of the assassinations because they have no idea what the government's argument for their legality might be. It's a secret, remember, unknown, and therefore unimpeachable.
But the Obama administration has pushed the limits of the legal protections it claims for its arguments in Lois Lerner style, by publicly discussing the drone killings, boasting legal authorization for its actions, and then coyly refusing to say anything more. The leak of a Justice Department white paper revealing part of the legal argument and hinting at more also undermined the administration's insistence on secrecy.
Too cute by half, says the court. "Voluntary disclosures of all or part of a document may waive an otherwise valid FOIA exemption."
As a result:
With the redactions and public disclosures discussed above, it is no longer either "logical" or "plausible" to maintain that disclosure of the legal analysis in the OLC-D OD Memorandum risks disclosing any aspect of "military plans, intelligence activities, sources and methods, and foreign relations."
So cough it up, says the court. Tell us why you think it's legal to send drones to kill Americans.