Second Circuit Targets “DOJ White Paper” in Sanctioned-Killings
A three-judge panel for Second Circuit Court of Appeals has recently ordered the United States Government to release portions of a Justice Department memorandum (“DOJ White Paper”) that purportedly contains classified information regarding the targeted killing of Anwar al-Awlaki. In 2011, Anwar al-Awlaki, a United States citizen alleged to have joined Al Qaeda forces, was killed during a targeted drone strike in Yemen. His killing, along with some other alleged terror suspects, were sanctioned by the United States targeted-killing program in the “War on Terror.”
In New York Times Co. v. Dep’t of Justice, the Court ruled that partial disclosure of the “DOJ White Paper,” sections setting forth the government’s reasoning as to lawfulness of its targeted killings of United States citizens carried out by drone aircraft, was justified given the government’s public statements discussing Awlaki’s death. The court observed that senior Government officials had undertaken
an extensive public relations campaign to convince the public that [the Administration’s] conclusions [about the lawfulness of the killing of al-Awlaki] are correct.
The court further concluded that such limited disclosure would not impinge upon any attorney-client privilege matters between the government and the DOJ’s Office of Legal Counsel, nor would disclosure risk “any aspect of military plans, intelligence activities, sources and methods or foreign relations.”
In a prior editorial, the New York Times noted that the “DOJ White Paper” was of monumental importance to help settle the significant legal debate that has transpired since the targeted-killing program was made public. Many legal scholars have long awaited the release of the “legal reasoning” that has been drummed up by government officials to justify the targeted-killing program. Many scholars have remained skeptical of the government’s analysis, and have wondered whether it is ever lawful for the government to conduct targeted killings of American citizens, observing that the targeted-killing of any United States citizen may inherently contravene
executive orders banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war.
Last year, U.S. District Court Judge Colleen McMahon denied the request of the New York Times and the American Civil Liberties Union to obtain an unredacted version of the Justice Department’s memorandum pursuant to the Freedom of Information Act. In response to the District Court’s ruling, the ACLU expressed that
[t]his ruling denies the public access to crucial information about the government’s extrajudicial killing of U.S. citizens and also effectively green-lights its practice of making selective and self-serving disclosures.
At the time, ACLU deputy legal director Jameel Jaffer also suggested that the “targeted killing program raises profound questions about the appropriate limits on government power in our constitutional democracy.” Jaffer advocated that the memorandum should be unsealed, because “[t]he public has a right to know more about the circumstances in which the government believes it can lawfully kill people, including U.S. citizens, who are far from any battlefield and have never been charged with a crime.”
- New York Times Co. v. Dep’t of Justice, 915 F.Supp.2d 508 (S.D.N.Y. 2013).
- New York Times Co. v. Dep’t of Justice, Docket Nos. 13–422(L), 13–445(Con), 2014 WL 1569514 (2d Cir. Apr. 21, 2014).
- Charlie Savage, Secret U.S. Memo Made Legal Case to Kill a Citizen, N.Y. Times, October 8, 2011.
- Benjamin Weiser, U.S. Ordered to Release Memo in Awlaki Killing, N.Y. Times April 21, 2014.
- Josh Gerstein, Court: Feds Can Keep Drone Legal Opinions Secret, Politico, January 2, 2013.