In 2011, a U.S. drone strike targeted and killed a suspected al Qaeda leader, Anwar al-Awlaki, living in Yemen. There was one important detail, however, that made this strike unique: al-Awlaki was an American citizen who had left the United States to voluntarily join the terrorist network.
Almost immediately, a straightforward question arose: does the U.S. government have the legal authority to kill an American citizen without due process, even if that American has left the country to align himself with terrorists?
The Obama administration responded that it absolutely has the legal authority to use force under conditions like these. The tricky part came after – when the administration’s attorneys didn’t want to tell anyone how or why it had the authority. In effect, the argument was, “What we did was legal. Honest. Take our word for it. We can’t elaborate, but we looked into it and we’re sure.”
The 2nd Circuit this morning said that’s not good enough.
A federal appeals court ordered the Justice Department on Monday to release parts of a memorandum that provided the legal justification for the 2011 drone strike that killed Anwar al-Awlaki, a U.S. citizen who had joined al Qaeda.From the U.S. Court of Appeals for the Second Circuit, the three-judge panel voted unanimously for the memo’s release, which reversed a lower court’s decision.“We conclude that a redacted version of the OLC-DOD Memorandum must be disclosed,” the court’s opinion said.
Note, in February 2013, the Justice Department took a step towards disclosure, releasing a 16-page memo arguing that the U.S. government can order the killing of American citizens if they are believed to be “senior operational leaders” of al-Qaida or “an associated force.”
The document, however, was a white paper, not an official legal memo. Justice Department officials said it largely mirrored the arguments contained within the actual targeted-killing memos, but they also said those materials had to remain classified.
For litigants, the step wasn’t enough – the Office of Legal Counsel offers definitive legal analyses within administration on what’s legally permissible; the OLC had scrutinized the question; and it’s this analysis that warranted disclosure.
This morning’s ruling reverses a district court ruling that found the administration had the right to keep the classified materials under wraps.
An appeal seems all but certain under the circumstances.
The case was brought by the ACLU and two New York Times journalists who were denied access to the materials after filing a Freedom of Information Act request in 2011.