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Feds seek extra redactions in drone memo

The Justice Department plans to ask a federal appeals court to delete additional material from a drone-related legal opinion before it's made public—redactions that would go beyond those the court approved last month, a government lawyer said in a legal filing Tuesday night.

Last week, officials speaking on condititon of anonymity said the Obama Administration had decided not to appeal the pro-disclosure ruling from the U.S. Court of Appeals for the 2nd Circuit. Word of the decision to acquiesce in the the appeals court ruling and release the Office of Legal Counsel memo in redacted form came on the eve of a Senate vote on the confirmation of former DOJ official David Barron to the U.S. Court of Appeals for the 1st Circuit. Indeed, word of the decision to make some of the legal opinion public may have helped clear the way for Barron's confirmation by the Senate, 53-45.

At the time, officials said the administration would insist that the memo Barron authored about the legal authority to kill an American overseas be edited to protect sensitive security details. However, in a court filing Tuesday night, the Justice Department told the 2nd Circuit of plans to seek redactions not previously authorized by the court, as well as additional redactions to the court's own opinion on the matter.

"The government intends to seek rehearing to protect certain information in the Court’s opinion, the Court-redacted version of the OLC-DOD Memorandum, and the OLC classified Vaughn index ordered disclosed by the Court. In the government’s view, that information is properly classified, protected from disclosure by statute, and/or privileged," Assistant U.S. Attorney Sarah Normand wrote in the new filing (posted here). "Some of the information appears to have been ordered disclosed based on inadvertence or mistake, or is subject to distinct exemption claims or other legal protections that have never been judicially considered."

The government filing indicates that if the three judges who ruled against the administration last month don't expand the scope of what they're willing to protect in their opinion or the DOJ legal memo, government lawyers want the full bench of the 2nd Circuit to take up the issue.

The American Civil Liberties Union and the New York Times filed separate Freedom of Informatio Act lawsuits seeking a variety of documents about so-called targeted killings. The litigation came to focus on Barron's memo, which discusses the legal grounds for a potential drone strike against Anwar Al-Awlaki, an American citizen killed in Yemen in 2011 by an armed drone.

The ACLU said it would fight any additional redactions to the Barron memo.

"The court’s original decision was right, and the court should quickly reject the government’s petition for reconsideration," the group's Jameel Jaffer said in a comment e-mailed to POLITICO. "The government has unlawfully deprived the public of this information for more than two years. It shouldn’t be permitted to do so for any longer."

"It's deeply disappointing to see the latest effort by the Government to delay even further the release of this memo to the public," New York Times attorney David McCraw said via e-mail. "The Government reviewed the Second Circuit's opinion before it was released. The court made redactions in response to that review. The fact that the Government then waited five weeks to file a motion -- seeking yet another opportunity to review what it has already reviewed -- says volumes about the administration's position on transparency."

UPDATE (Wednesday, 8:08 A.M.): This post has been updated with comment from the ACLU.

UPDATE 2 (Wednesday, 10:28 A.M.): This post has been updated with comment from the Times.