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Court: release legal memo on drone killing

A federal appeals court has ordered the U.S. government to release a redacted copy of a Justice Department memo discussing the legal basis for using deadly drone strikes to kill an American citizen overseas.

Ruling on Freedom of Information Act lawsuits brought by The New York Times and the American Civil Liberties Union, the U.S. Court of Appeals for the 2nd Circuit held that legal analysis in the memo could no longer be withheld in light of public statements senior Obama Administration officials made about the legal basis for such strikes and the official release of a Justice Department "white paper" after it was leaked to a reporter.

"After senior Government officials have assured the public that targeted killings are 'lawful' and that [Office of Legal Counsel] advice 'establishes the legal boundaries within which we can operate,' and the Government makes public a detailed analysis [redacted], waiver of secrecy and privilege as to the legal analysis in the Memorandum has occurred," Judge Jon Newman wrote in a 52-page opinion posted here and joined by Judges Jose Cabranes and Rosemary Pooler.

"Whatever protection the legal analysis might once have had has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the DOJ White Paper," Newman wrote.

The appeals court discounted the government's suggestion that releasing the memo would make agencies reluctant to consult the Justice Department to seek legal advice.

"Agencies seeking OLC legal advice are surely sophisticated enough to know that in these circumstances attorney/client and deliberative process privileges can be waived and the advice publicly disclosed. We need not fear that OLC will lack for clients," he wrote. He also pointed to a 2005 case in which the 2nd Circuit ruled that the government could lose the right to keep legal advice secret when officials publicly invoke that advice to bless agency actions.

In Monday's ruling, the judges also specifically rejected government arguments for continued refusal to disclose the name of the U.S. government agency that worked with the Defense Department to target alleged Al Qaeda in the Arabian Peninsula leader Anwar Al-Awlaki in 2011, as well as the fact that he was killed in Yemen.

The Justice Department could ask the full bench of the 2nd Circuit to rehear the case or file a petition with the Supreme Court. A DOJ spokesman did not respond immediately to a request for comment Monday.

However, officials have known for some time the contents of the appeals court's ruling. A footnote at the end of the opinion says it was shown to the government privately to make sure no classified information was contained in the decision. Some portions of the opinion were deleted. In addition, the court said that portions of the DOJ memo discussing operational details of the planned strikes could be withheld.

New York Times attorney David McCraw said he was "delighted" with the ruling.

"While many things remain redacted, including parts of the opinion, the court declined to accept at face value the Government’s claims about national security and instead did a searching and independent review of the record," McCraw said in a statement. "In the end, the Court reaffirmed a bedrock principle of democracy: The people do not have to accept blindly the Government’s assurances that it is operating within the bounds of the law; they get to see for themselves the legal justification that the Government is working from."

An ACLU attorney, Jameel Jaffer, also hailed the decision.

"This is a resounding rejection of the government’s effort to use secrecy and selective disclosure to manipulate public opinion about the targeted killing program,” Jaffer said in a statement. “The government can’t legitimately claim that everything about the targeted killing program is a classified secret while senior officials selectively disclose information meant to paint the program in the most favorable light. The public has a right to know why the administration believes it can carry out targeted killings of American citizens who are located far away from any conventional battlefield.”

The 2nd Circuit ruling overturns the ruling a district court judge in New York issued last year and is at odds with a decision another district court judge issued earlier this month in a separate case in California. Newman said the latter decision did not take account of the fact that the DOJ "white paper" was officially disclosed after the leak to Michael Isikoff, then of NBC News.

UPDATE (Monday: 5:11 P.M.): This post has been updated with the comments from the Times and the ACLU.