The Obama administration must make public central portions of a Justice Department opinion that held that the government has the legal authority to launch drone strikes overseas against Americans it determines are plotting terrorist attacks on U.S. targets, a federal appeals court ruled on Monday.
The U.S. Court of Appeals for the 2nd Circuit ruling overturned a January 2013 lower court decision that upheld the goverment’s refusal to make public the opinion outlining the legal basis for targeted killing operations.
The appeals court found that since the lower court decision, Attorney General Eric Holder, CIA Director John Brennan and other senior administration officials had made public statements asserting that the targeted killings were legal.
The three-judge panel also noted that the Justice Department had released in November 2013 an internal White Paper outlining the legal basis for targeted killing operations following the leak of the document to a journalist.
“Whatever protection the legal analysis might once have had has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the DOJ (Department of Justice) White Paper,” said the ruling written by Judge Jon O. Newman.
The opinion, written by the department’s Office of Legal Counsel (OLC), contains the legal justification for a September 2011 drone strike in Yemen that killed Anwar al Awlaki, a U.S. citizen who became a leader of Al Qaida in the Arabian Peninsula, the terrorist network’s affiliate in Yemen and Saudi Arabia.
In addition to being a key recruiter and proselytizer for the group, U.S. officials charged that Awlaki planned and ordered attacks against Americans.
A second American, Samir Khan, also died in the drone strike on Awlaki’s vehicle, while Awlaki’s teen-aged son, was killed in a strike several weeks later. A fourth American, Jude Mohammad, was killed in a 2011 drone strike in Pakistan. The Obama administration admitted last year that it killed Awlaki, but it insisted that the three others “were not deliberately targeted.”
The appeals court appended to its ruling a redacted version of the OLC opinion that it said could be made public without revealing classified “intelligence gathering activities.”
It wasn’t known when the document would be released. But it was unlikely that it would be made public before the Justice Department decides whether to appeal the ruling to a full appeals court panel or to the Supreme Court.
The ruling overturned a 2013 lower court decision that denied Freedom of Information Act lawsuits - which were consolidated into a single case - brought by the New York Times and the American Civil Liberties Union seeking the release of the opinion and other documents related to the legal basis for targeted killings.
Most targeted killings of alleged terrorists have been conducted by missile-firing drones operated in Pakistan, Yemen and Somalia by the CIA and the U.S. military’s Special Joint Operations Command.
The appeals panel rejected the government’s argument that making the opinion public would discourage government agencies from seeking OLC legal advice.
“The argument proves too much,” the appeals panel said. “If this contention were upheld, waiver of privileges protecting legal advice could never occur.”
Sen. Chuck Grassley of Iowa, the top Republican on the Senate Judiciary Committee, praised the appeals court ruling as “a positive development.”
“The targeted killing of American citizens by their own government should be one of the most fundamental reasons to ensure checks and balances are in place. Up to this point, the Obama administration has been hiding behind a Cliff’s Notes version of the justification that gave no legal analysis for the killings,” Grassley said, referring to the White Paper.