Last year, in response to a lawsuit over death-by-drone assassinations of American citizens overseas, including Anwar Al-Awlaki, his teenage son Abdulrahman Al-Awlaki, and Samir Khan, the Obama administration admitted responsibility but claimed the killings were completely legal. It also asserted that the justification for the killings, as laid out in a memorandum from the Office of Legislative Counsel for the Department of Defense (OLC-DOD), is secret and that the courts have no jurisdiction over the matter.
Not so, replied the U.S. Court of Appeals for the 2nd Circuit, in a lawsuit brought by plaintiffs including The New York Times and the American Civil Liberties Union. In an April ruling, a three-judge panel said that the Obama administration must disclose its legal rationale for the assassinations.
Writing for the panel, Judge Jon O. Newman emphasized that the Obama administration pushed the limits of the legal protections it claims for its arguments by publicly discussing the drone killings, boasting legal authorization for its actions, but then refusing to say anything further. The administration's insistence on secrecy was also undermined by the leak of a Justice Department white paper that revealed part of the legal argument and hinted at more.
"With the redactions and public disclosuresâ€¦it is no longer either 'logical' or 'plausible' to maintain that disclosure of the legal analysis in the OLC-DOD Memorandum risks disclosing any aspect of 'military plans, intelligence activities, sources and methods, and foreign relations,'" wrote Judge Newman. "Voluntary disclosures of all or part of a document may waive an otherwise valid FOIA exemption," he added. Once the plaintiffs have the administration's reasoning in hand, they may finally be in a position to challenge the legality of the killings.