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Court: U.S. must release memo on targeted killings

Judge cited Obama, other top officials openly discussing targeted killings in public as key to ruling

A federal appeals court ordered the U.S. Department of Justice Monday to turn over key portions of a memorandum justifying the government's targeted killing of people, including Americans, who are linked to terrorism.

The order was issued by the 2nd U.S. Circuit Court of Appeals in New York in a Freedom of Information Act case brought by the American Civil Liberties Union and two reporters for The New York Times. In 2011, they sought any documents in which Department of Justice lawyers had discussed the highly classified "targeted-killing" program, such as the one which killed Anwar al-Awlaki, a U.S. citizen, in a 2011 drone strike in Yemen.

In January 2013, U.S. District Court Judge Colleen McMahon ruled that she had no authority to order the documents disclosed, although she chided the Obama administration for refusing to release them.

In Monday’s opinion, written by 2nd Circuit Judge Jon Newman, the three-judge panel ruled unanimously for The New York Times, noting that after McMahon ruled, the government waived its right to secrecy by making repeated public statements justifying targeted killings, including President Barack Obama acknowledging his role in the Awlaki killing, saying in May that he had "authorized the strike that took him out."

"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," Newman wrote for the appeals court panel in New York.

The Times and two reporters, Charlie Savage and Scott Shane, sought the memorandum under the federal Freedom of Information Act, saying it authorized the targeting of Awlaki, a cleric who joined Al-Qaeda's Yemen affiliate and directed many attacks.

The requests came after a September 2011 drone strike in Yemen killed Awlaki and another U.S. citizen, Samir Khan, who was an editor of Inspire, an English-language Al-Qaeda magazine, and after an October 2011 strike killed Awlaki's teenage son, who was also a U.S. citizen.

Some legal scholars and human rights activists complained that it was illegal for the United States to kill American citizens away from the battlefield without a trial.

Allison Price, a Justice Department spokeswoman, said the department had no comment on the decision.

David E. McCraw, vice president and assistant general counsel of The New York Times Co., said in an email that the 2nd Circuit "reaffirmed a bedrock principle of democracy: The people do not have to accept blindly the government's assurances that it is operating within the bounds of the law. They get to see for themselves the legal justification that the government is working from."

McCraw said it was no longer logical or plausible to argue that disclosing the legal analysis could jeopardize military plans, intelligence activities or foreign relations.

The court redacted a portion of the memorandum on intelligence gathering, as well as part of its own decision. It is unclear when the memorandum or the full 2nd Circuit decision might be made public, or whether the government will appeal.

Senators Patrick Leahy and Charles Grassley, the Democratic chairman and ranking Republican on the Senate Judiciary Committee, have also been seeking the legal rationale, and Grassley on Monday urged the Justice Department to start preparing to turn it over.

'Alice in Wonderland'

Monday's decision largely reversed McMahon's January 2013 ruling. She ruled for the administration despite skepticism over its antiterrorism program, including whether it could unilaterally authorize killings outside a "hot" field of battle.

"The Alice-in-Wonderland nature of this pronouncement is not lost on me," she wrote.

Civil liberties groups have complained that the drone program, which deploys pilotless aircraft, lets the government kill Americans without constitutionally required due process.

McMahon ruled one month before the Justice Department released the white paper, which set out the conditions required before lethal force could be used against U.S. citizens in foreign countries.

The conditions are that a top U.S. official must decide a target "poses an imminent threat of violent attack" against the United States, the target cannot be captured, and any operation would be "consistent with applicable law of war principles."

In a March 5, 2012 speech at Northwestern University, Attorney General Eric Holder had said it was "entirely lawful" to target people with senior operational roles in Al-Qaeda and associated forces.

Recently, on April 4, U.S. District Judge Rosemary Collyer in Washington dismissed a lawsuit against the government by the families of those killed in the drone strikes, saying senior officials cannot be personally liable for money damages "for conducting war."

The American Civil Liberties Union, which had filed its own lawsuit over the government's disclosure practices, said that in light of Monday's decision, it plans to return to the lower court to challenge the withholding of other documents related to targeted killings.

"This is a resounding rejection of the government's effort to use secrecy and selective disclosure to manipulate public opinion about the targeted killing program," ACLU Deputy Legal Director Jameel Jaffer said in a statement.

Al Jazeera and wire services

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