In the dark

Bay Area plaintiffs seek legal memo justifying drone strikes against US citizens


A battle for transparency that has dragged on for years is nearing a milestone, as Bay Area civil liberties advocates await a judge's ruling on whether the federal government will be forced to hand over memos outlining its legal justification for overseas drone strikes targeting US citizens.

The First Amendment Coalition, an Oakland-based civil liberties organization, submitted a Freedom of Information Act request in October 2011 seeking a legal memo prepared by the Office of Legal Counsel to the US Department of Justice.

Initially referenced in the New York Times and the Washington Post, the memo reportedly justifies the legal arguments underpinning the DOJ's decision to track down and execute Anwar al-Awlaki, an American-born Al Qaeda operative who was killed by a US drone strike in Yemen in September 2011.

In its request, FAC noted that it was not interested in factual information about intelligence sources, but rather "discussion of the legal issues posed by prospective military action against a dangerous terrorist who also happens to be a US citizen."

It's hard to see how releasing a legal memo would constitute a threat to national security, an exemption that allows government to classify much of its information about military operations, but nevertheless federal authorities refused to honor FAC's request.

In fact, the DOJ took its denial a step further, stating that it "neither confirms nor denies the existence of the document described in your request ... because the very existence or nonexistence of such a document is in fact classified."

After filing an appeal and getting nowhere, the civil liberties organization filed suit in Feb. 2012, demanding the release of the memo. Attorney Tom Burke, of Davis Wright Tremaine LLP, is representing FAC.

"We are not interested in how the US government found Al-Awlaki," he explained. "Our suit is to release that memo with all intelligence information redacted."

In Oakland on Jan. 23, US District Judge Claudia Wilken heard arguments from Burke and DOJ lawyers in motions for summary judgment, seeking a pretrial decision to settle the matter. By press time, Wilken still had not issued her ruling.

"It's hard to know the ruling," Burke said in a phone interview a week after the hearing. "The judge was being very short and blunt." He added, "We've been fighting for this for years. If the ruling doesn't go our way, I look forward to taking this to the Ninth Circuit [Court of Appeals]."

Meanwhile, the US District Court for the Southern District of New York heard two similar cases, brought against the DOJ by the New York Times and a New York chapter of the American Civil Liberties Union. In January of 2013, that court decided in favor of the DOJ, albeit with grave reservations.

"I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory restraints and rules — a veritable Catch-22," Judge Colleen McMahon wrote in her opinion. "I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret."

The New York Times and ACLU appealed the decision, and are currently awaiting further ruling from the Court of Appeals for the Second Circuit.

The American citizens at the heart of these convoluted proceedings are al-Awlaki, his teenage son, Abdulrahman al-Awlaki, and Samir Khan. Al-Awlaki and his son — who was 16 at the time of his death — were both born in the United States, while Khan was a naturalized citizen of Pakistani origin.


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