Court Rules for Disclosure on Targeted Killing Program

On April 21, in New York Times Co. v. United States, the Second Circuit ordered the Executive Branch to make public crucial information about the targeted killing program. OpenTheGovernment.org had signed an amicus brief spearheaded by the Electronic Information Privacy Center (EPIC) arguing for this outcome.

The court ordered:

  1. Disclosure of the legal analysis sections of a 41 page Office of Legal Counsel (OLC)memo to the Department of Defense explaining the justification for drone strikes targeting U.S. citizens, dated July 16, 2010 and written by David Barron.
  2. Disclosure of “the identity of the agency, in addition to DOD, that had an operational role in the drone strike that killed [Anwar] Al-Awlaki,” and the country where Al-Awlaki died.
  3. That the Department of Justice (DOJ) make public a redacted version of a classified Vaughn index by the OLC of documents responsive to an ACLU FOIA request about the targeted killing program.
  4. That the CIA and DOD must submit Vaughn indices to the district court in camera, for the lower court to redact and release.

The Vaughn index rulings, and the apparent ruling that concealing the CIA’s publicly known role in the targeted killing program is no longer justified, may be almost as significant as the release of the OLC memo itself. Currently the U.S. government refuses to acknowledge any individual strike in Yemen—even though the Yemeni President has acknowledged that he allows U.S. drone strikes—on the grounds that acknowledging even non-CIA strikes would disclose the obvious fact that the CIA is involved in targeted killing operations.

The Second Circuit’s reasoning is also significant. The court affirmed a prior ruling that “like the deliberative process privilege, the attorney-client privilege may not be invoked to protect a document adopted as, or incorporated by reference into, an agency’s policy,” and that by “publicly asserting that OLC advice ‘establishes the legal boundaries within which we can operate’” the government had waived its asserted privilege over that advice. The court held that the memo could not be withheld on national security grounds given that “in fact, legal analysis is not an ‘intelligence source or method,” and that many of the facts that gave rise to the memo had already been publicly disclosed.

The government is expected to appeal.

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