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Politics at play in release of secret drone memo, say rights experts

Briefing to media came ahead of Senate vote over nomination of man who penned controversial document

Civil rights groups have greeted with cautious optimism an apparent decision by the Obama administration to make public a secret legal memo authorizing the killing of American citizen Anwar al-Awlaki. To many it is a positive step toward a more transparent drone policy — but one that could be politically motivated, given that it came just hours before a Senate vote on the appointment of the author of the memo as a federal appeals court judge.

The U.S. government was ordered last month to release a redacted version of the document, following a Freedom of Information Act lawsuit filed by the American Civil Liberties Union (ACLU) and The New York Times. The ruling, by the Second U.S. Circuit Court of Appeals in New York, also called on the government to publicly describe many other documents relating to the targeted killing program, a subject about which it had previously refused to provide any information.

On Tuesday, officials told media outlets that the Department of Justice would not appeal the ruling — a decision that followed intense pressure from a group of lawmakers, with senators across party lines demanding the public release of the memo prior to the final confirmation vote.

The ACLU issued a statement lauding the decision. “We hope this report signals a broader shift in the administration’s approach to the official secrecy surrounding its targeted killing program,” said Deputy Legal Director Jameel Jaffer, who argued the lawsuit before the Second Circuit Court of Appeals.

Although many welcomed the move, some were also quick to point out the political circumstances of the move by the administration. Media were briefed of the decision by unnamed sources just a day before a procedural Senate vote on whether to advance President Barack Obama's nomination of the memo's author, Harvard professor and former Justice Department official David Barron, to sit on the First U.S. Circuit Court of Appeals in Boston.

Barron’s preliminary approval was passed 52 to 43 on Wednesday, setting the scene for a final vote Thursday. It made the timing of Tuesday’s briefing of the decision fortuitous, some have suggested.

The release of the memo could take some time, since the redactions are subject to court approval. Additionally, the administration is insisting that a classified ruling on the case be redacted to protect information classified for national security, an official told Al Jazeera.

‘Fight is still ahead’

Until now, the administration has fought hard in court to keep the writings from public view.

Some experts Al Jazeera spoke to described the decision to release the memo as a positive development.

Robert Naiman, policy director for the NGO Just Foreign Policy, said:  “They’ve never had to publicly disclose a single memo.”

But he cautioned that the move “is just one step in a long road,” adding, “We also don’t know what will be redacted. That fight is still ahead.”

Stephen Sonnenberg, a lecturer at Harvard Law School, said the memo called into question the ethics of Barron deciding civil rights cases, adding, “There are judges on other circuits besides Barron who have written fishy memos who were never scrutinized.”

But other experts Al Jazeera spoke to were more skeptical.

Sheila S. Carapico, professor of political science and international studies at the University of Richmond, said the decision to make the Awlaki document public “seems to have everything to do with domestic politics and one particular nominee rather than anything substantive or even legal.”

The decision does not appear to mark a genuine shift toward increased transparency, she said: “So far, all we have is a promise to release some information.”

Additionally, she said, although the White House has promised to release the memo, it still plans to redact more information. "So we still don’t know in what final form the memo will reach the public. Some see this decision as a minor victory or are trying to spin it as progress, but this limited disclosure is the least one could expect of their government," Carapico told Al Jazeera.

Similarly, Pardiss Kebriaei, senior attorney at the Center for Constitutional Rights, told Al Jazeera that a genuine commitment to transparency and accountability means providing this kind of information not just when the administration’s hand is “forced” by members of Congress.

Further, the memo is just one part of the picture, he said.

“There are other legal memos the public and Congress still need to see, including those that concern the authority to kill foreign citizens, who make up most of the thousands the United States has killed [through the targeted killing program] to date.”

Separate from its legal justifications, there’s also basic information on the targeted killing program the administration still won’t make public, Kebriaei added. “Virtually everything we know about how many people have been killed, where, and who they were comes from nongovernmental sources.”

For those reasons, human rights advocates say the decision to release the Awlaki memo falls short of satisfying U.S. obligations under international law

James Ross, legal and policy director of Human Rights Watch, told Al Jazeera that under international law, the legality of a particular drone strike does not depend on the nationality of the person targeted.

“We hope the release of the memo leads to the release of the legal memos discussing the legality of the program generally and specific information” on individual strikes concerning foreign citizens, Ross said.

Legal cover

Meanwhile, some hope that in releasing the memo, more will become known about the specific circumstances surrounding the death of Awlaki, an Al-Qaeda member born in the United States. He was killed by a drone strike in Yemen in September 2011, alongside another U.S. citizen, Samir Khan.

Some legal scholars and human rights activists believe it was illegal for the U.S. to have killed an American citizen away from the battlefield without a trial.

“I don’t think that any information has been released or discovered by third parties that proves beyond a reasonable doubt that he was engaged in warfare. We knew he was engaged in inflammatory rhetoric, but that’s a pretty low bar,” said Carapico, the University of Richmond professor. 

Part of the motivation for releasing the memo could be to provide legal cover for the targeted killing operations, according to Charles Schmitz, professor of geography at Towson University and a scholar at the Middle East Institute in Washington, D.C.

“The Obama administration's justifications have not been clear, if not shady,” he said. “They've received a lot of criticism for the killings, and this perhaps is an attempt to give the appearance of being in accordance with the law.”

Although the disclosure may clear up some questions surrounding the program, Schmitz says the legal basis for targeted killing operations remains highly dubious. "[They’re] trying to force a square into a round hole. The idea of Tuesday-morning sessions on kill lists strikes most people as unconstitutional and un-American, yet they insist on doing so.”

While the memo addresses the legal aspect of the program, Schmitz stressed that there is another important question that needs to be addressed — whether the drone program is effective or not.

“It’s been going on for several years now, and with the exception of Khan and al-Awlaki, we haven’t been able to hit key Al-Qaeda leadership,” he said. “Meanwhile, Al-Qaeda appears to be stronger than when the program first began.”

With wire services

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