Federal appeals court orders the release of White House memo on targeted killings

In Yemen, at least 55 people died over the past three days, killed by airstrikes reportedly launched from drones. The Yemeni government says the dead were militants. According to a New York Times investigation published in May of 2012, the White House labels as suspected combatants, “all military-age males in a strike zone.”

Many of the details about the CIA’s drone operations abroad and the White House’s targeted killing program are classified, but – for the first time today – a federal appeals court ruled in favor of making some of that information public. For more on the ruling and its significance, FSRN spoke with Brett Kaufman, attorney with the ACLU’s National Security Project.


Brett Kaufman: Today, the Second Circuit Court of Appeals issued a strong ruling – and a unanimous one – ordering the government to release a 2010 legal memorandum by the Office of Legal Council analyzing the potential targeted killing of an American citizen. It also ordered other information about records the government has previously refused to describe, to be released. And the court became the first court to order the release of any document relating to the government’s targeted killing program.

FSRN: This isn’t the first time the ACLU has sued for information about the targeted killing program. What’s different this about case?

BK: Well, it’s really been a long haul here and we have two ongoing FOIA cases related to document’s about the government’s targeted killing program. This case is different because it seeks the legal and factual basis for the killings of three American citizens that were killed in Yemen in 2010. While the cases do overlap somewhat, this case does specifically seek the memorandum that was the basis for the white paper that was leaked at the beginning of last year. That white paper proved to be a crucial part of the public record that the Second Circuit ruled today forclosed any government argument that it need not release the underlying memo.

FSRN: What larger picture does the ACLU hope to uncover with these lawsuits?

BK: Well, we believe the government should not be able to selectively disclose information to the public that paints the targeted killing program in a positive light while then shielding the information and records in its possession that would give the public a full picture of that program. And that’s effectively what they government has been doing for several years now.

High-ranking administration officials in the Department of Justice and other agencies, plus government officials in the White House, have given a series of speeches defending the legality of the program and they have sought to paint a picture of the program as lawful and wise. Where public reporting indicates that not all of its claims match up with the public record it’s tried to create. So in court, we’ve been trying to argue that the government’s own public acknowledgements of certain facts and legal basis and legal arguments means that it can’t keep these records secret and the public should be able to inspect for itself exactly what these documents say.

FSRN: In news related to the use of drones in targeted killings abroad, Supreme Court Justice Stephen Breyer released a statement today regarding the high court’s refusal to hear a case brought on behalf of an inmate at Guantanamo Bay. How does this relate to judicial oversight of the executive powers known as the Authorization for the Use of Military Force?

BK: They are quite related. The government has relied on the Authorization for the Use of Military Force to back up its extreme claim that it’s engaged in a war without geographic limit at all, all across the world. And Justice Breyer’s statement is a reminder that the Supreme Court hasn’t blessed that view and that the Supreme Court and other courts may still have a role to play in putting limits on the government’s extreme theory.

FSRN: The targeted killing program was not officially acknowledged for a long time and even now much of it remains secret. What role have leaks and on the ground reporting played in perhaps swaying the judicial decision in favor of making this information public?

BK: Well, as a legal matter, the only kinds of public information that are relevant, is information that has been officially acknowledged by the government and there’s certainly some debate about the contours of that doctrine in the law. But certainly, all kinds of public reporting does widen the gap between what the government is able to talk about through sanctioned leaks and through selective leaking in public and then what it argues is official known in court. As that gaps gets wider, it certainly makes the government’s argument a lot less credible even inside of courts.

FSRN: Brett Kaufman is an attorney with the ACLU’s National Security Project. He spoke to us by phone from New York City.

(Photo credit: U.S. Air Force photo/Tech. Sgt. Efren Lopez. Used under a  Creative Commons Attribution-Non Commercial-NoDerivs 3.0 Unported License.)

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