Appeals Court Ordered Memo’s Disclosure

June 23, 2014

FOR IMMEDIATE RELEASE

CONTACT: media@aclu.org

NEW YORK – In response to a court order in consolidated Freedom of Information Act lawsuits filed by the American Civil Liberties Union and The New York Times, the Obama administration has released a key Justice Department legal memo on U.S. targeted killing operations. The July 2010 memo was the basis for the government’s extrajudicial killing of an American citizen, Anwar al-Aulaqi, in 2011. In the memo, the government claims broad authority to kill American terrorism suspects without judicial process or geographic limitation.

“The release of this memo represents an overdue but nonetheless crucial step towards transparency. There are few questions more important than the question of when the government has the authority to kill its own citizens,” said ACLU Deputy Legal Director Jameel Jaffer, who argued the FOIA lawsuit before the Second Circuit Court of Appeals.

“This memo's release will allow the public to better understand the scope and implications of the authority the government is claiming.”

The memo is a 41-page classified document, dated July 16, 2010, captioned “memorandum for the attorney general” and authored by David Barron, who was then the acting chief of the Justice Department’s Office of Legal Counsel (OLC). In May, the Senate confirmed Barron's nomination to the U.S. Court of Appeals for the First Circuit.

The ACLU’s FOIA lawsuit seeks documents related to the legal and factual bases for the government’s killing of three Americans in Yemen in 2011: Anwar al-Aulaqi, his 16-year-old son Abdulrahman, and Samir Khan. The request specifically seeks memos written by the OLC that concluded that the killing of American citizens would be constitutional in certain situations. The New York Times submitted a similar but narrower FOIA request, and the two resulting lawsuits were combined.

In its April ruling, the appeals court ordered the government to release the July 2010 OLC memo with redactions to protect “intelligence sources and methods.” The government filed a motion asking the court for additional redactions, which are reflected in version of the memo released today.

With the memo today, the court also released a less-redacted version of the opinion it issued in April. The previously redacted text orders the government to submit other OLC memos to the district court for review (and possible release), and observes that neither the CIA’s role in al-Aulaqi’s killing nor the fact that the killing took place in Yemen is still a legitimate secret.

“We will continue to press for the release of other documents relating to the targeted-killing program, including other legal memos and documents relating to civilian casualties.” Jaffer said.

“The drone program has been responsible for the deaths of thousands of people, including countless innocent bystanders, but the American public knows scandalously little about who is being killed and why.”

The memo is at:

aclu.org/national-security/anwar-al-aulaqi-foia-request-olc-memo

The court’s opinion is at:

aclu.org/national-security/anwar-al-aulaqi-foia-request-opinion

An ACLU analysis of key sections of the memo will be online later at:

aclu.org/national-security/anwar-al-awlaki-foia-request

More background on the case is at:

aclu.org/blog/national-security/drone-memo-cometh