On Wednesday, the U.S. Department of Justice asked a federal court to dismiss a motion demanding disclosure of information related to the government's alleged targeted killing program. The ACLU had demanded the disclosure of a memorandum whose existence, according to the U.S. Attorney's Office's reply brief [PDF], has never been confirmed or denied by the government.
The ACLU alleges that the memorandum's existence has already been publicly disclosed, and that it contains important information related to the death of an American citizen, Anwar Al-Aulaqi. Last month, the ACLU filed a separate suit, alleging that the CIA had illegally killed Al-Aulaqi and two other American citizens (including Al-Aulaqi's teenage son) as part of a targeted killing program. The memorandum in question is alleged to contain the legal justifications for killing Al-Aulaqi.
The Justice Department's brief says that no government official has formally acknowledged either the existence of the memorandum, much less any government involvement in Al-Aulaqi's killing. Jameel Jaffer, the ACLU's Deputy Legal Director, called the claim that the targeted killing program is still a secret "unmoored from reality."
"Ultimately this brief is important for the larger argument it makes," Jaffer said, "and that is that the government should have the ability to kill American citizens in the broader service of counter-terrorism, without disclosing to the public even that they've done so."
"Senior officials have talked about the program both on the record and off the record, and taken credit," he said. "They claim that the program is legal. If they can make those claims to the media, there's no reason they can't answer a request under the Freedom of Information Act."
Indeed, the Obama administration has long claimed that launching targeted killings against suspected terrorists—even suspected terrorists who happen to be American citizens—would be legal. The ACLU maintains that various public officials have admitted, on the record, that such killings do occur. Their July 18 brief [PDF] to the Southern District Court of New York points to on the record statements from President Obama, Attorney General Eric Holder, Defense Secretary Leon Panetta, and Deputy National Security Adviser John Brennan, which they say amount to public disclosures of the targeted killing program's existence.
The Justice Department's reply brief denies that any of the cited quotations amount to official disclosures, calling them instead "multiple non-acknowledgements." One of the disputed remarks comes from Holder, who the ACLU claims publicly admitted the Al-Aulaqi OLC memo's existence when he said he would "certainly look at" a request to disclose it. The Justice Department replies that Holder's remark "was not an acknowledgement of anything."
The U.S. Attorney's Office in the Southern District of New York, which filed the reply brief, declined to comment.