After failing to obtain documents under the Freedom of Information Act first sought in June 2010, The New York Times has sued the Department of Justice over the matter of targeted killings.

The newspaper seeks "at least one legal memorandum" that reporters have reason to believe were written by Obama administration lawyers to cover "the scope of the circumstances in which it is lawful for government officials to employ targeted killing as a policy tool." The lawsuit comes after months of controversy over the killing in Yemen Sept. 30 of Anwar al-Awlaki, an American citizen who encouraged violent attacks against other Americans. He and some other suspected members of al Qaeda were struck by missiles fired from a remotely controlled drone.

"Questions surrounding the legality of targeted killing—especially the extrajudicial use of lethal force away from any so-called 'hot' battlefield where United States forces are engaged in active combat—have generated extensive public debate since October 2001, when the Bush Administration first contemplated whether covert lethal force could be used against people deemed to be al-Qaeda operatives," the federal complaint states. "Most recently, the death of an American citizen, Anwar al-Awlaki, who was killed in a drone strike in Yemen in September, has kindled widespread interest in - and controversy over - the scope of the circumstances in which it is lawful for government officials to employ targeted killing as a policy tool. "Given the questions surrounding the legality of the practice under both U.S. and international law, notable legal scholars, human rights activists, and current and former government officials have called for the government to disclose its legal analysis justifying the use of targeted lethal force, especially as it applies to American citizens." NYT claims, "Both before and after the death of al-Awlaki, NYT duly filed FOIA [Freedom of Information Act] requests seeking memoranda that detail the legal analysis behind the government's use of targeted lethal force. To date, DOJ has refused to release any such memoranda or any segregable portions, claiming them to be properly classified and privileged and in respect to certain memoranda has declined to say whether they in fact exist." The complaint adds: "Upon information and belief, there exists at least one legal memorandum detailing the legal analysis justifying the government's use of targeted killing."

The administration has been close-mouthed about its policy of targeted killings, which is inextricably tied up with its use of drones even though these weapons are not the only means of carrying out the practice. At issue is not the specific use of these unmanned aerial vehicles, which are conventional weapons even if operated from thousands of miles away. Since they are under the control of human beings, it's no different in a legal sense than if a jet fighter with a pilot in the cockpit were firing its missiles.

But the administration has been unwilling to discuss matters such as how many civilians such targeted killings may be taking out. Estimates range from 10 civilians for every one militant to one civilian for every four militants. Getting an accurate count without access to CIA records in the matter is impossible given the remoteness of many of the targeted attacks, most of them in Pakistan near the Afghan border as well as in the back-country of Somalia and Yemen. That count could be relevant to a determination of whether the attacks are "proportionate," an issue of humanitarian concern within the laws of war.

One thing known for certain is that the CIA doesn't even know who it is killing in many of its attacks. Kind of hard to justify that outcome whatever the legal guidance may be.

More to the point of The New York Times lawsuit is the fact that the administration refuses to say what legal guidance it is employing to determine the appropriateness of its targeted attacks. Although the government will neither confirm nor deny, the Times believes there is guidance, based on a number of things, including a Sept. 30 Washington Post report on "a 'secret memorandum authorizing the legal targeting' of Anwar al-Awlaki, an American citizen who had been killed earlier that day in Yemen."

In a paper last March specifically addressing targeting operations of drones, but actually applying to the whole issue of targeted killings, the Human Rights Institute at Columbia Law School stated:

Ambiguity on these core issues exists despite the Administration’s efforts to establish the legality of targeting practices—most notably, State Department Legal Adviser Harold Koh’s address at the 2010 annual meeting of the American Society of International Law. Some scholars laud Koh’s speech as divorcing the Administration from an approach that invokes the privileges of the law of war while dismissing the relevance of it duties and restraints. Observers have recognized that Koh’s address reflects the Administration’s desire to legitimize its policy through forthrightness about the constraints imposed by law. However, scholars disagree about the functional difference between the paradigm of the “global war against terrorism” and the Administration’s articulation, in a variety of fora, of an armed conflict against al Qaeda, the Taliban and associated forces. Some observers have argued that without further explanation, the Administration’s position confirms the relevancy of humanitarian law but leaves unanswered questions fundamental to assessing the legality of U.S. practice. We agree that where significant ambiguity exists, it leaves the U.S. government vulnerable to challenges about the sincerity of its commitment to the rule of law. In the near future, ambiguity may also weaken the government’s ability to argue for constraints on the practice of less law-abiding states.