Federal Judge declines US request to freeze FAC’s FOIA suit for targeted killing memo

The US Justice Department has failed in its effort to derail the First Amendment Coalition’s FOIA suit for access to a government legal memo on the lethal targeting of US citizens engaged in terrorism against US interests.

US District Judge Claudia Wilken on Tuesday denied the Justice Department’s request to stay proceedings in the FAC suit until the conclusion of FOIA cases brought by the New York Times and the ACLU in federal court in Manhattan. Those two suits seek multiple documents related to US counter-terrorism programs that include the specific document sought in FAC’s case.

Judge Wilken ordered both FAC and the Justice Department to file motions for summary judgment, but explained the court would defer ruling on those until the federal court in Manhattan decides similar motions that are already pending and could be decided by the end of summer or early Fall.

FAC’s suit is unusual in that it does not seek the declassification of the Justice Department memo or ask the court to override government secrecy determinations. Rather, FAC seeks a redacted version of the memo, with classified portions expunged. The Justice Department declines to disclose even a redacted memo on the basis that the document’s very existence (or nonexistence) is itself classified.

FAC is represented in the litigation with the Justice Department by Tom Burke, a partner with the Davis Wright Tremaine  law firm (San Francisco office).

Since FAC filed its suit, the Obama administration has been more open in its statements defending the use of drone strikes, and describing the circumstances under which such strikes are used, although administration officials, in their public statements, generally have avoided referring to the disputed Justice Department memo directly.

FAC takes no position on the lawfulness of drone strikes against terrorist targets. “Most people would agree that a US citizen who joins an enemy force, who takes up weapons against the US, and who participates actively in plots to commit mass killings of American civilians, is not immunized against US preemptive action by his/her American citizenship,” said Peter Scheer, FAC executive director.

“On the other hand, most people would also agree that there is a legitimate public interest in knowing how sure the government is, in these targeted killings, that the US citizen-target has done the things the government suspects he has done; that the person they have in their sights is, in fact, the person they intend to kill; and that capture of the target, instead of killing him, is not feasible, ” said Scheer.

“These are the kinds of issues that, we believe, are addressed in the Justice Department memo and should be presented to the American people for their consideration,” Scheer continued. “At this juncture, the government’s refusal to acknowledge the existence of the legal memo has been overcome by events and is  just silly,” he said. –PS

Judge Wilken’s January 24  order