Court To Government On Attempt To Bury Drone Memo: You'd Have A Case If You'd Bother To Shut Your Mouth Once In Awhile

from the government-loosens-lips,-sinks-own-ships dept

We've discussed the contents of the DOJ's memo detailing its justifications for the extrajudicial killing of American citizens (being mainly that the Authorization for Use of Military Force, which was rushed into existence three days after the 9/11 attacks, says it can). Now, let's take a look at the ruling that finally pushed this long-withheld document into public view.



The court's decision recounts the long history of the embattled document, including the many attempts made by government agencies to bury the memo. But it appears that most of the reasons why the court decided to clear the (somewhat redacted) memo for release were provided by the government itself, which mooted many of its exemption claims with various statements made to the public.

In considering waiver of the legal analysis in the OLC-DOD Memorandum, we note initially the numerous statements of senior Government officials discussing the lawfulness of targeted killing of suspected terrorists, which the District Court characterized as "an extensive public relations campaign to convince the public that [the Administration's] conclusions [about the lawfulness of the killing of al-Awlaki] are correct."

Even if these statements assuring the public of the lawfulness of targeted killings are not themselves sufficiently detailed to establish waiver of the secrecy of the legal analysis in the OLC-DOD Memorandum, they establish the context in which the most revealing document, disclosed after the District Court's decision, should be evaluated.

Even though the DOJ White Paper does not discuss 18 U.S.C. § 956(a), which the OLC-DOD Memorandum considers, the substantial overlap in the legal analyses in the two documents fully establishes that the Government may no longer validly claim that the legal analysis in the Memorandum is a secret...



After senior Government officials have assured the public that targeted killings are “lawful” and that OLC advice “establishes the legal boundaries within which we can operate,” and the Government makes public a detailed analysis of nearly all the legal reasoning contained in the OLC-DOD Memorandum, waiver of secrecy and privilege as to the legal analysis in the Memorandum has occurred.

In resisting disclosure of the OLC-DOD Memorandum, the Government contends that making public the legal reasoning in the document will inhibit agencies throughout the Government from seeking OLC’s legal advice. The argument proves too much. If this contention were upheld, waiver of privileges protecting legal advice could never occur…



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.

One is the identity of the country in which al-Awlaki was killed. However, numerous statements by senior Government officials identify that country as Yemen.

The other fact within the legal reasoning portion of the OLC-DOD Memorandum that the Government contends merits secrecy is the identity of the agency, in addition to DOD, that had an operational role in the drone strike that killed al-Awlaki. Both facts were deleted from the April 21 public opinion, but have been restored in this opinion. Apparently not disputing that this fact has been common knowledge for some time, the Government asserts the importance of concealing any official recognition of the agency’s identity. The argument comes too late.

We recognize that in some circumstances the very fact that legal analysis was given concerning a planned operation would risk disclosure of the likelihood of that operation, but that is not the situation here where drone strikes and targeted killings have been publicly acknowledged at the highest levels of the Government...

With the redactions and public disclosures discussed above, it is no longer either “logical” or “plausible” to maintain that disclosure of the legal analysis in the OLC-DOD Memorandum risks disclosing any aspect of “military plans, intelligence activities, sources and methods, and foreign relations.”

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What follows this paragraph is two pages of quotes by government officials, including Eric Holder, making public statements about how fully legal and justified the strike on al-Awlaki was. As the court notes, these assertions give a pretty good indication about the contents of the drone memo.The court also explains how the close relationship between a DOJ white paper on drone strikes and the still-unseen OLC-DOD memo further weakens its claimed FOIA exemptions.From there, the court takes a swipe at the paranoiac assertions of the Office of Legal Counsel, assertions that seem to infer its clientele is largely comprised of idiots who fail to understand the public records process.The government also claimed certain other information needed to be withheld, presumably because of the standard terrorism fears. But once again, the information it claims can't safely be made public was made public by government officials time and time again.Again, this is followed by more than a full page of statements by government officials, including the President himself, talking up the great help the Yemeni government was during the hunt for al-Awlaki. The second concern, again undercut by government officials' statements, was the identity of the agency that worked with the Defense Department to eliminate the target.Undercutting the government's own arguments here are people like (then) CIA director Leon Panetta and Mike Rogers, head of the House Select Committee on Intelligence. James Clapper himself also confirmed this fact during a televised hearing.As for the common "sources and methods" claims, the court doesn't think much of these either.The government desperately wanted to keep this memo a secret, but couldn't help repeatedly discussing aspects of it publicly. If these officials believed its extrajudicial killings were on firm legal ground, then they could only be helped by releasing the rationale behind them. And if other officials were so concerned about "sources and methods," why couldn't they restrain themselves from congratulating the Yemeni government and bragging about the CIA's role in drone strikes? Maybe this is the transparency so often touted by the administration, albeit one comprised mostly of inadvertent revelations and self-serving statements.

Filed Under: classification, doj, drones, eric holder, foia, freedom of information, secrecy