Today the ACLU filed a Freedom of Information Act (FOIA) request seeking information about the legal and factual basis for the targeted killings of three U.S. citizens in Yemen. Last month, Anwar al-Awlaki and Samir Khan were killed when unmanned drones operated by the CIA and the U.S. military fired missiles at the car in which they were traveling. Last week, al-Awlaki's 16-year-old son, Abdulrahman al-Awlaki, was killed in a similar drone strike.
The killing of three American citizens raises serious and troubling questions about whether the U.S. government was acting lawfully when it placed Anwar al-Awlaki's name on a "kill list" and when it ordered the deadly drone strikes. But the government is hiding behind a veil of secrecy and is refusing to publicly release information about its justifications for killing U.S. citizens far from any active battlefield. We know from reports in the press that the Department of Justice Office of Legal Counsel (OLC) produced a memorandum providing legal justifications for killing al-Awlaki and that he was placed on a so-called "kill list" by a secret group of government officials. The government refuses to release the OLC memo or any other information about the legal and factual bases for killing Anwar and Abdulrahman al-Awlaki and Samir Khan, however.
Before the public can determine whether the targeted killings of these U.S. citizens were lawful, the government must come clean and release the OLC memo and other records. Indeed, commentators and legal experts from across the political spectrum, from John Bellinger III, a former legal adviser to the State Department in the Bush administration, to Senate Intelligence Committee Chairman Dianne Feinstein and Senate Armed Services Committee Chairman Carl Levin, have made forceful appeals for the release of these documents. Jack Goldsmith, who ran the Office of Legal Counsel under President Bush in 2003 and 2004, wrote that the OLC memo must be released because "legal accountability for the practice of targeted killings depends on a thorough public legal explanation by the administration." Benjamin Wittes of the Brookings Institution echoed Goldsmith's call. Even John Yoo, author of the Bush administration's infamous "torture memos," has pointed out the hypocrisy of the Obama administration's refusal to release the targeted killing memo.
Editorial pages from around the country, including the Washington Post, Washington Times, and L.A. Times, have called for greater transparency, as has the Public Editor of the New York Times.
The government must tell the public why it thinks it can order the deaths of U.S. citizens without going to court or otherwise ensuring due process of law. It is unacceptable for the government to hide behind claims of official secrecy when its actions are challenged, but then to leak carefully selected information to the press when it wants to rally support for its actions. Our FOIA request joins the chorus of voices urging real transparency and a full public debate.