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Federal Court Preserves Secrecy Over Targeted Killing Memos

Brett Max Kaufman,
Senior Staff Attorney,
ACLU Center for Democracy
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November 24, 2015

A disappointing ruling released yesterday will keep crucial details about the government’s targeted killing program shielded from public review.

It was just more than a year ago that a federal appeals court, in a widely hailed decision, ordered the government to — finally — release a July 2010 legal memorandum concerning the government’s legal basis for its targeted killing program. It had taken more than four years of litigation by the ACLU and The New York Times to pry the memorandum loose, but it marked an important first step towards transparency into a secrecy-shrouded program that has reportedly killed more than 5,000 people in 13 years.

When, a few months later, the government released an earlier (though heavily redacted) version of the memorandum, it seemed that the government’s virtual monopoly on official information about the program was beginning to erode — in no small part due to the federal courts.

It is unfortunate, then, that yesterday, the same federal appeals court — the Second Circuit Court of Appeals, in New York — that last year ordered the publication of the July 2010 memorandum agreed with the government that nine other legal memoranda authored by the Justice Department’s Office of Legal Counsel can remain secret, at least for now.

The last time around, the Second Circuit rigorously documented government officials’ many public statements concerning the program, including their extensive discussions about the program’s legality. The court concluded:

After senior Government officials have assured the public that targeted killings are “lawful” and that OLC advice “establishes the legal boundaries within which we can operate,” and the Government makes public a detailed analysis of nearly all the legal reasoning contained in the [July 2010] Memorandum, waiver of secrecy and privilege as to the legal analysis in the Memorandum has occurred.

This time, though, the appeals court reversed course. The ACLU and The New York Times had argued that the court should order the publication of the memoranda because they constitute the government’s “working law” — its final legal word on targeted killing. Irrespective of any public comments by government officials, the memoranda were issued by OLC, which, in its own words, provides “controlling legal advice to Executive Branch officials,” making them precisely the kind of documents that the Freedom of Information Act requires to be published.

The Second Circuit disagreed. Following the ruling of a federal appeals court in Washington, D.C., issued last year, the Second Circuit held that OLC’s legal memoranda provide legal advice to federal agencies, but they don’t bind agencies to follow it. That might come as news to OLC itself. Just two weeks ago, the acting head of OLC told a public audience that even emails sent by OLC lawyers that contain legal advice are “binding by custom and practice in the executive branch.”

While disappointing, yesterday’s decision will not be the last word in the ACLU’s quest for transparency surrounding the government’s targeted killing program. Today, we are publishing an infographic that makes the stakes of this quest clear.

Targeted Killing: What Aren’t They Telling Us? [Infographic]

After 13 years of drone killings outside of armed conflict zones, what do we know is with no thanks to the government. Of more than 500 credibly reported strikes, only nine have been acknowledged on the record. Of more than 4,800 credibly reported deaths, only 11 have been acknowledged by the government. We don’t know how many individuals are on a government “kill list.” We know far too little of the secret law governing the program.

We should all be grateful to independent researchers, like those from the Bureau for Investigative Journalism, for helping collect this information. But in a democracy that values transparency, it’s the government that should be keeping its citizens informed.

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