[Vision2020] Obama ordered to divulge legal basis for killing Americans with drones

[Paul Rumelhart]

  <http://arstechnica.com/tech-policy/>


I'm curious how this will turn out, but I'm not very hopeful.

Paul


From: 
http://arstechnica.com/tech-policy/2014/04/obama-ordered-to-divulge-legal-basis-for-killing-americans-with-drones/


  Obama ordered to divulge legal basis for killing Americans with drones

Appeals court will have the veil of secrecy lifted in targeted killing 
program.

by David Kravets <http://arstechnica.com/author/david-kravets/> - Apr 
21, 2014 5:37 pm UTC


The Obama administration must disclose the legal basis for targeting 
Americans with drones, a federal appeals court ruled Monday in 
overturning a lower court decision likened to "/Alice in Wonderlan/d."

The Second US Circuit Court of Appeals, ruling in a Freedom of 
Information Act (FOIA) claim by /The New York Times/ and the American 
Civil Liberties Union (ACLU), said the administration must disclose the 
legal rationale behind its claims that it may kill enemies who are 
Americans overseas.

"This is a resounding rejection of the government's effort to use 
secrecy and selective disclosure to manipulate public opinion about the 
targeted killing program," ACLU Legal Director Jameel Jaffer said in an 
e-mail.

The so-called targeted-killing program---in which drones from afar shoot 
missiles at buildings, cars, and people overseas---began under the 
George W. Bush administration. The program, which sometimes kills 
innocent civilians, was broadened under Obama to include the killing of 
Americans.

Government officials from Obama on down have publicly commented on the 
program, but they claimed the Office of Legal Counsel's memo outlining 
the legal rationale about it was a national security secret. The appeals 
court, however, said on Monday that officials' comments about overseas 
drone attacks means the government has waived its secrecy argument.

"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,'" the appeals court said, 
"waiver of secrecy and privilege as to the legal analysis in the 
Memorandum has occurred 
<http://www.ca2.uscourts.gov/decisions/isysquery/dbf7df5c-c4ac-49ca-8d90-66a86ce2b43a/1/doc/13-422_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/dbf7df5c-c4ac-49ca-8d90-66a86ce2b43a/1/hilite/>" 
(PDF).

The Electronic Privacy Information Center (EPIC), which in a 
friend-of-the court brief urged the three-judge appeals court to rule as 
it did, said the decision was a boon for citizen FOIA requests.

"It's very helpful. We have a number of cases, including one of our 
oldest FOIA cases, that involves the warrantless wiretapping memos. The 
basic premise is when OLC writes a legal memo and when that becomes the 
known basis for a program, that's the law of the executive branch and 
cannot be withheld," Alan Butler, EPIC's appellate counsel, said in a 
telephone interview.

The appeals court said the memo may be redacted from revealing which 
government agencies are behind the attacks, although former CIA Director 
Leon Panetta has essentially acknowledged that agency's role 
<http://www.washingtonpost.com/blogs/the-fix/wp/2013/02/03/panetta-defends-drone-strikes/>.

Last year, a federal judge blocked the disclosure of the memo. Judge 
Colleen McMahon of New York said she was ensnared in a "paradoxical 
situation 
<http://www.wired.com/images_blogs/threatlevel/2013/01/droneruling.pdf>" 
in which the law forbade her from ordering the memo's release:

    The Alice-in-Wonderland nature of this pronouncement is not lost on
    me; but after careful and extensive consideration, I find myself
    stuck in a paradoxical situation in which I cannot solve a problem
    because of contradictory constraints and rules---a veritable
    catch-22. I can find no way around the thicket of laws and
    precedents that effectively allow the Executive Branch of our
    government to proclaim as perfectly lawful certain actions that seem
    on their face incompatible with our Constitution and laws while
    keeping the reasons for their conclusion a secret.

Meanwhile, NBC news published a 16-page, so-called Justice Department 
"white paper 
<http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf>" 
(PDF) last year that summarized the administration's legal justification 
for killing Americans not on US soil. The memo, authenticated by the 
administration, said an "informed, high-level official" approves the 
kills, which is a "lawful act of national defense."

The appeals court decision, meanwhile, comes two weeks after a District 
of Columbia federal judge tossed a lawsuit against the Obama 
administration brought by survivors of drone strikes in Yemen more than 
two years ago in which three Americans---one a teenager---were killed.

US District Judge Rosemary Collyer, siding with the administration, 
ruled that allowing the human rights case to proceed "would 
impermissibly draw the court into the heart of executive and military 
planning deliberation 
<http://arstechnica.com/tech-policy/2014/04/suit-challenging-drone-strikes-that-killed-americans-16-year-old-boy-is-tossed/>."

The Department of Justice declined to comment.


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