In a national security case brought by the First Amendment Coalition, a federal judge has ruled that the Obama administration does not have to disclose a Justice Department legal memo explaining the legal rationale for drone strikes and, in particular, drone strikes abroad against suspected terrorists who are also US citizens.
FAC’s suit, based on federal FOIA, was filed shortly after a September2011 drone strike in Yemen that killed Anwar al-Awlaki, a US-born Muslim cleric and Al-Qaeda operative whom authorities suspected of plotting strikes against US citizens. Another U.S. citizen was also killed in the drone attack.
FAC, represented by Davis Wright Tremain lawyer Thomas Burke, made clear that it sought only the Justice Department’s legal reasoning and analysis, not sensitive, legitimately-classified information about intelligence methods or military capabilities.
US District Judge Claudia Wilken, in Oakland, ruled Friday that the entire document–legal reasoning included–could be kept secret on national security grounds. She also reasoned that any specific contents that were not properly classified could nonetheless be withheld on grounds of attorney-client privilege.
“We continue to believe the public has a right to know, in detail, the government’s legal justification for tracking down a terrorist suspect, who is also a US citizen, and killing him,” said Peter Scheer, FAC’s executive director. “We’re not saying the government can’t do this, but we are saying that the legal rules and procedures used in these decisions have to be shared with the public so the public can have confidence that this awesome power is not being abused.”
Similar lawsuits seeking the same memo–plus other classified documents–have been filed by the New York Times and the ACLU in New York. Rulings in favor of the government in those cases are now on appeal.
“The administration claims and insists it is being transparent about this program,” Burke said, but “all that is happening now is the proverbial ‘Trust us,’ ” said Burke. -PS