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FAC sues US for memo on “lethal targeting” of al Qaeda figure (& US citizen) al-Awlaki, killed in 2010 drone strike

SAN RAFAEL, CA—-The First Amendment Coalition (FAC) today filed suit to require the Obama Administration to make public its legal rationale for the “lethal targeting” of Anwar al-Awlaki, an American- born US citizen and al-Qaeda operative who was killed in a CIA drone strike in Yemen last September. The lawsuit seeks public access under the FOIA to portions of a 2010 Justice Department legal memo that reportedly analyzes legal issues raised by the killing of al-Awlaki.

The nonprofit group’s suit, filed in federal District Court in San Francisco, claims that, while the government may keep secret legitimately sensitive national security information contained in the memo, the public is entitled to see the portions of the document showing the Justice Department’s legal justification for the use of lethal force against al-Awlaki and potentially other US citizens who join forces with foreign terrorist organizations that threaten US interests.

“Whatever one’s views on this administration’s counter-terrorism policy, the use of lethal force by the US government against a US citizen is a situation that cries out for a public airing and debate,” said Peter Scheer, the executive director of FAC, whose offices are in San Rafael, CA. “Without a public discussion of the government’s authority in this legally murky area–including limits on the exercise of that authority–the American people will have grave doubts, and fears, about what their government is doing,” said Scheer.

“If the Justice Department has blessed the use of lethal force against US citizens abroad, the public have the right to know about this and this can certainly happen without compromising national security,” said Thomas R. Burke, a partner with Davis Wright Tremaine LLP in San Francisco, who is representing FAC in this matter.

The existence of the Justice Department legal memo was first reported by the New York Times, which said the 50-page document concluded, among other things, that al-Awlaki, as a US citizen, could be killed by US military force only if his capture in Yemen would be impractical.

In denying FAC’s FOIA request for the Justice Department memo, the government said that it could neither confirm nor deny that it had the document since the memo’s very “existence or nonexistence . . . is itself classified . . .” Although the Obama administration, in unofficial statements, has boasted about the success of drone strikes against terrorists, the use of drones in counter-terrorist operations remains classified.

One reason for classifying information about such actions in Yemen, where al-Awlaki was killed, has been to protect the secrecy surrounding the Yemeni government’s agreement to permit drone strikes on its soil, according to the New York Times’ account. However, that agreement was disclosed in diplomatic cables obtained by Wikileaks and made public through various media outlets.

Also, the Justice Department has recently revealed substantial details about al-Awlaki’s activities for al-Qaeda of the Arabian Peninsula that explain the US government’s eagerness to see him neutralized as a threat. These previously secret details were disclosed just two weeks ago in a sentencing memorandum filed in federal district court in New York in the trial of “underwear bomber” Umar Farouk Abdulmutallab.

The sentencing memorandum describes al-Awlaki’s role in recruiting and training Abdulmutallab, who has pleaded guilty to attempting to blow up a commercial airliner over Detroit in 2009. The Justice Department’s new al-Awlaki disclosures were filed not under seal, but in open court as an exhibit to the sentencing memorandum.

FAC is a section 501C(3) nonprofit organization dedicated to freedom of speech and government transparency. FAC provides legal information and consultations for journalists, bloggers and others; files friend- of-court briefs in important appeals; and initiates strategic litigation in its own name–as in this case. FAC’s website is:

Burke, FAC’s lawyer in this matter, successfully prosecuted FOIA lawsuits against the FBI and TSA to compel the first public release of documents about the use of the “no fly” and “selectee” lists to screen passengers after 9/11 and to reveal problems with the U.S. Treasury Department’s global terrorist watch list.

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First Amendment Coalition
415.886.7081 (direct)
534 4th Street, Suite B
San Rafael, CA 94901

Davis Wright Tremaine
505 Montgomery Street, Suite 800
San Francisco, California, 94111-6533


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