A federal appeals court on Monday ordered the U.S. Department of Justice to turn over a redacted version of a memorandum providing a legal justification for the government to conduct targeted killings of people linked to terrorism, including Americans.
The 2nd U.S. Circuit Court of Appeals said the government waived the secrecy of the legal analysis by having publicly discussed the justification for such killings, including the 2011 death of a U.S. citizen, Muslim cleric Anwar al-Awlaki, in a drone strike in Yemen.
These included a Justice Department “white paper” defending the practice, and a March 5, 2012 speech where Attorney General Eric Holder said it was lawful to target people with senior operational roles in al-Qaeda who were actively engaged in efforts to kill Americans.
The New York Times and two reporters, Charlie Savage and Scott Shane, had sought the memorandum under the federal Freedom of Information Act.
“It is no longer either ‘logical' or ‘plausible' to maintain that disclosure of the legal analysis in the (memorandum) risks disclosing any aspect of ‘military plans, intelligence activities, sources and methods, and foreign relations,” Circuit Judge Jon Newman wrote for a three-judge 2nd Circuit panel.
“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 White Paper,” he added.
The Times did not immediately respond to requests for comment. The Justice Department had no immediate comment.
Monday's decision partially reversed a January 2013 decision by U.S. District Judge Colleen McMahon in Manhattan. The 2nd Circuit redacted the portion of the memorandum that included mentions of intelligence gathering activities.
Civil liberties groups have complained that the drone program, which deploys pilotless aircraft, give the government freedom to kill Americans without constitutionally required due process.
The Times has said the strategy of targeted killings had first been contemplated by the Bush administration soon after the Sept. 11, 2001 attacks.
The case is New York Times Co et al v. U.S. Department of Justice et al, 2nd U.S. Circuit Court of Appeals, Nos. 13-422, 13-445.