Court Says DOJ Must Release Memo That Justifies Drone Killing Of US Citizen

from the that's-fairly-big dept

Tue, Apr 22nd 2014 3:38am — Mike Masnick

As we've discussed, the administration has gone to incredible lengths to try to avoid any sort of public discussion concerning what legal authority it has to target American citizens with extrajudicial drone strikes. However, in a fairly big turn of events, a federal appeals court has overturned a lower court and ordered the DOJ to release "key portions" of the DOJ's classified memo that explains the legal justification for killing US citizen Anwar al-Awlaki via a drone in Yemen. What's interesting is that the panel came to this conclusion based on the administration's public discussion on drones:

The unanimous three-judge panel, reversing a lower court decision, said the government had waived its right to keep the analysis secret in light of numerous public statements by administration officials and the Justice Department’s release of a “white paper” offering a detailed analysis of why targeted killings were legal.

“Whatever protection the legal analysis might once have had,” Judge Jon O. Newman wrote for the panel of the United States Court of Appeals for the Second Circuit, “has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the D.O.J. White Paper.”

The ruling is good in that this sort of information should be public and should be discussed publicly. However, at the same time, it also will likely lead to the administration clamping down on any other such information that it hopes to keep entirely secret -- which could be a real problem. It will lead to even less transparency and fewer open discussion concerning issues of the US doing things under questionable legal authority.

As we've seen over the past few years, DOJ lawyers seem happy and willing to justify just about anything, twisting the law in all sorts of ways to make very questionable decisions deemed "legal" with little to no oversight or review -- and no public discourse whatsoever.

Of course, it seems likely the DOJ will protest this latest decision and seek a Supreme Court review first, so it's not like the justification is going to be revealed any time soon.

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Filed Under: anwar al awlaki, doj, drones, extrajudicial killing, foia, legal rationale

14 Comments

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Reader Comments

The First Word

“

What kind of cowards have we become?

Are we so frightened of the trifling and inconsequential threat of terrorism -- hyped and overblown at every turn -- that we're willing to abandon the fundamental principles on which the nation was founded?

Sadly, the answer appears to be "yes". Weak men and women in positions of power are unwilling to tell the public that we must investigate, charge, arrest, try and convict before imposing sentence -- instead they pander to the worst fears of a racist, xenophobic, paranoid public that sees terrorists in every alley and is willing to excuse these killings, because, after all, they happen somewhere else to some other people.

If the nation survives, one day it will look back on this with the same sense of horror and shame that it looks back on segregation and the WWII interment camps and slavery and the Salem witch trials and the fight against civil rights and every other assinine, stupid, short-sighted act of bigotry and injustice that was carried out because people in positions of power were unwilling to stand for principle over expediency.

—Rich Kulawiec

”

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Anonymous Coward, 22 Apr 2014 @ 3:57am

Prediction
A single page that says their favorite Constitution hack "National security."
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Rich Kulawiec, 22 Apr 2014 @ 4:27am

What kind of cowards have we become?
Are we so frightened of the trifling and inconsequential threat of terrorism -- hyped and overblown at every turn -- that we're willing to abandon the fundamental principles on which the nation was founded?

Sadly, the answer appears to be "yes". Weak men and women in positions of power are unwilling to tell the public that we must investigate, charge, arrest, try and convict before imposing sentence -- instead they pander to the worst fears of a racist, xenophobic, paranoid public that sees terrorists in every alley and is willing to excuse these killings, because, after all, they happen somewhere else to some other people.

If the nation survives, one day it will look back on this with the same sense of horror and shame that it looks back on segregation and the WWII interment camps and slavery and the Salem witch trials and the fight against civil rights and every other assinine, stupid, short-sighted act of bigotry and injustice that was carried out because people in positions of power were unwilling to stand for principle over expediency.
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Anonymous Coward, 22 Apr 2014 @ 4:32am

Why the destinction?

I would like to hear their legal justification for killing people in sovereign nations, they are not at war with, without a trial or any chance for the target to defend against those accusations. If that shit is legal, your laws are not worth the paper its printed on.
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Anonymous Coward, 22 Apr 2014 @ 5:08am

War is most certainly not civil society. It is quite the opposite. There are longstanding rules of conduct that have previously been agreed upon by some nations as norms, but agreement is not universal among nations. Moreover, many of the norms are observed in the breech, not necessarily because of the lack of humanity, but that in theaters of battle humanity falls by the wayside in the quest for survival.
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blaktron (profile), 22 Apr 2014 @ 5:36am

I wouldn't worry that politicians will stop bragging about their powers, so I suspect this decision will hold firm in the future, unless its overturned.
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Richard (profile), 22 Apr 2014 @ 5:47am

Re: What kind of cowards have we become?
Yes, in short politicians have to accept that sometimes the rule of law, due process and fairness mean that we simply have to take the hit of terrorism. If you think rationally it isn't a big hit. After all the entire history of international terrorism has claimed fewer lives (worldwide) than one year of road deaths in the US alone.
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Anonymous Coward, 22 Apr 2014 @ 6:27am

Re: What kind of cowards have we become?
I don't think cowardice is the main driving factor here. I believe is is the unwillingness of the people in power to accept, that there are things beyond their control. So they make up threats, rules and bogus explanations to create the illusion of total understanding and total control. But in truth, neither do they understand what is going on, nor do they have the power to control it.

And they are deathly afraid of the people finding this out, because without that illusion they have no justification to exert power over the people. However, the people will find out eventually, the truth always comes to light eventually.

And the irony here is, that their very contraptions of lies and deception which ensured their dominance will become their downfall.
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beltorak (profile), 22 Apr 2014 @ 6:29am

The judges should have said to the DoJ:

> "Whatever protection the legal analysis might once have had ... has been lost by virtue of [REDACTED]."
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mcinsand, 22 Apr 2014 @ 7:08am

Re: What kind of cowards have we become?
Has any terrorist group in past decades ever achieved so great of a victory as the passing of The Patriot Act? The terrorists we face object to our constitution, freedoms, and protections, and we flushed many of those down the toilet in response to their threats.
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That One Guy (profile), 22 Apr 2014 @ 9:59am

And of course the follow-up story:
"DOJ has a hearty laugh and replies with: 'Or you'll do what, exactly?'. "
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AnonFr334all, 22 Apr 2014 @ 7:34pm

Re: What 'war?'
They're talking about US citizens here. How is it the US government comes to the decision that they are at war with the very people that they are supposed to represent? There was no court, Congress, etc. ruling that granted the executive branch the right to assassinate a US citizen without giving him a trial, and therefore a chance to explain/defend himself.
Beyond who this guy was specifically people need to understand the ridiculous amount and type of power that setting this as a precedent will give 'them!' They've already started calling protest groups in the US 'domestic terrorists.' So give them this as a standard for operating and imagine the possibilities. And if you think that our government is there to help, protect, or represent you in any way, and so they wouldn't abuse a power like this, well you're either just waking up from a comma, one of them, or clueless sorry. Look around at the truth and tell me they are four us!
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Anonymous Coward, 23 Apr 2014 @ 7:56am

Im pretty sure every single drone kill was against international law.
But then who cares, noone talks about the firebombing of german cities in ww2 either.
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Within Reason, 24 Apr 2014 @ 8:11am

Re: Re: What kind of cowards have we become?
Uh, I've got a problem with the idea of "taking the hit" of anything. I'm for targeted surveillance of actual threats and paying attention to friendly warnings. The rule of law, due process, and fairness don't necessarily have to be an altar on which to sacrifice the innocent to notions of freedom.

It's common sense: target criminals, terrorists, and actual bad actors for surveillance via probable cause and a warrant. The rest of us can be left alone.

As others have said, the NSA deems all of us enemies or potential terrorists because it suits their contractors to tell them that. After all, a fair and balanced, law-abiding policy would hardly be lucrative for them, would it?
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Anonymous Coward, 25 Apr 2014 @ 6:44am

HELLO
Has any terrorist group in past decades ever achieved so great of a victory as the passing of The Patriot Act? The terrorists we face object to our constitution, freedoms, and protections, and we flushed many of those down the toilet in response to their threats.https://www.youtube.com/watch?v=aS63PI1SX3g
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