On Monday, April 21, a federal appeals court ordered the release of key parts of a memorandum detailing the justification behind targeted drone strikes against people linked to terrorism, including U.S. citizen Anwar al-Awlaki. The 3-judge panel from the Second Circuit Court of Appeals unanimously agreed to reverse a lower court's decision by ordering the DOJ to release this information.
Since U.S. officials have already released statements on the 2011 drone strike against al-Awlaki and other strikes, the court ruled that the government has forfeited its right to keep certain portions of the memo classified.
“Whatever protection the legal analysis might once have had,” Judge Jon O. Newman wrote, “has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the D.O.J. White Paper.”The "White Paper" was released in February 2013 and offered a very general explanation from the Obama administration on why targeted drone strikes are constitutional and within the administration's authority to carry out.
The court said it is no longer logical or even plausible for the government to argue that disclosing legal analysis regarding drone strikes is a threat to future military operations, intelligence gathering, or efforts overseas after it has already disclosed similar information.
The plaintiffs, including the New York Times, two of its reporters, and the American Civil Liberties Union (ACLU), filed suit after the government denied Freedom of Information Act requests to release the documents. A January 2011 decision by Manhattan federal judge Colleen McMahon questioned the legality of drone strikes, but said the administration was not in violation of the U.S. Constitution by keeping the memo classified.
The Appeals Court ruling on Monday overturned this decision in a case that is essentially about the public's right to know what its government is up to versus executive power to decide what documents need to be kept secret for the sake of national security. The court did not order the full release of the memo, and redacted portions about intelligence gathering.
It is unclear, at this point, how the government will respond.
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