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Appeals Court Rules Government Can't Have It Both Ways on Targeted Killing

Brett Max Kaufman,
Senior Staff Attorney,
ACLU Center for Democracy
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April 21, 2014

In an important opinion issued today in the ACLU’s ongoing litigation surrounding the government’s targeted killing program, the U.S. Court of Appeals for the Second Circuit roundly rejected the government’s extreme claims of official secrecy over information about the program. In ordering the release of a 2010 legal memorandum by the Office of Legal Counsel analyzing the potential targeted killing of an American citizen, as well as other information about records the government has previously refused to describe at all, the Second Circuit became the first court to order the release of a document related to the government’s targeted killing program. It also became the second federal appeals court in the last 13 months to hold that the government has pushed its secrecy claims surrounding the targeted killing program past their breaking point.

In today’s opinion, the Second Circuit panel held that the government’s repeated public assurances that the targeted killing program is lawful, and its disclosure of a “white paper” that summarized its legal conclusions, had waived its right under the Freedom of Information Act to keep secret its legal analysis authorizing the killing of U.S. citizens. This is a victory for common sense, and a reminder that the courts have an important role to play in scrutinizing government claims about national security. As the ACLU’s Jameel Jaffer, who argued the case before the Second Circuit panel in October 2013, said today, “This is a resounding rejection of the government’s effort to use secrecy and selective disclosure to manipulate public opinion about the targeted killing program.”

In January 2013, the district court agreed with the government that it could keep secret all of its documents related to the targeted killing program. But even as it denied the ACLU’s claims, the district court expressed extreme misgivings about the result, referencing Alice in Wonderland before writing:

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.

Today’s ruling from the appeals court reversed that decision, ruling that the government itself had effectively made that thicket irrelevant by officially disclosing information about the program and its legal basis. The panel concluded that “[w]hatever protection the legal analysis might once have had has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the DOJ White Paper.” The panel sent the case back to the district court, where the government will have to defend its withholdings of many specific documents that it has thus far refused to publicly describe in any way. (The memorandum itself will remain under seal as the government contemplates its options to appeal the ruling to the entire Second Circuit or, perhaps, to seek review by the Supreme Court.)

In the bigger picture, it is clear that the ACLU’s efforts to remove the veil of secrecy surrounding the government’s targeted killing program are paying off. In March 2013, the D.C. Circuit Court of Appeals held that the CIA could no longer hide behind a so-called “Glomar” response to information requests about targeted killing by refusing to confirm or deny whether it held records about the program. In that opinion, the D.C. Circuit ruled that the courts would no longer “give their imprimatur to a fiction of deniability that no reasonable person would regard as plausible.” Today’s opinion from the Second Circuit is cut from the same cloth, affirming the public’s right to understand and evaluate the government’s defense of its killing program for itself.

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