Judge: Legal Justification for Killing Americans with Drones to Remain Secret

A federal court today dismissed most of the American Civil Liberties Union’s Freedom of Information Act lawsuit seeking records about the government’s targeted killing of three American citizens in Yemen in 2011: Anwar Al-Awlaki and Samir Khan in September, and Al-Awlaki’s 16-year-old son Abdulrahman in October.

The ACLU plans to appeal the decision.

“This ruling denies the public access to crucial information about the government’s extrajudicial killing of U.S. citizens and also effectively green-lights its practice of making selective and self-serving disclosures,” said Jameel Jaffer, ACLU deputy legal director. “As the judge acknowledges, the targeted killing program raises profound questions about the appropriate limits on government power in our constitutional democracy. The public has a right to know more about the circumstances in which the government believes it can lawfully kill people, including U.S. citizens, who are far from any battlefield and have never been charged with a crime.”

The ACLU’s FOIA request seeks disclosure of the legal memorandum written by the Department of Justice’s Office of Legal Counsel, which provided justifications for the targeted killing of Anwar al-Awlaki, as well as records describing the legal and factual basis for the killings. The New York Times submitted a similar but narrower FOIA request, and the two resulting lawsuits filed in the Southern District of New York were combined. The government argued that the requested documents cannot be released, despite the fact that government officials have talked publicly on numerous occasions about al-Awlaki’s killing and the targeted killing program in general.

The D.C. Circuit Court of Appeals is currently considering another ACLU FOIA lawsuit seeking other information on the targeted killing program, including its legal basis, scope, and number of civilian casualties caused by drone strikes. The court heard oral argument in September.

The ACLU, together with the Center for Constitutional Rights, has also filed a lawsuit directly challenging the constitutionality of these targeted killings. The government has argued that case should also be dismissed.