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<h1 id="archive-head" class="subheading thick-divide-bottom"><a
href="http://arstechnica.com/tech-policy/"><span
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I'm curious how this will turn out, but I'm not very hopeful.<br>
<br>
Paul<br>
<br>
<br>
From:
http://arstechnica.com/tech-policy/2014/04/obama-ordered-to-divulge-legal-basis-for-killing-americans-with-drones/<br>
<br>
<h1 class="heading">Obama ordered to divulge legal basis for
killing Americans with drones</h1>
<p>Appeals court will have the veil of secrecy lifted in
targeted killing program.<br>
</p>
<p>by <a href="http://arstechnica.com/author/david-kravets/"
rel="author">David Kravets</a> - <span class="date"
data-time="1398101831">Apr 21, 2014 5:37 pm UTC<br>
</span></p>
<p><span class="date" data-time="1398101831"><br>
</span></p>
<p>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 "<em>Alice
in Wonderlan</em>d."</p>
<p>The Second US Circuit Court of Appeals, ruling in a Freedom
of Information Act (FOIA) claim by <em>The New York Times</em>
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.</p>
<p>"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.</p>
<p>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.</p>
<p>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.</p>
<p>"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, "<a
href="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/">waiver
of secrecy and privilege as to the legal analysis in the
Memorandum has occurred</a>" (PDF).</p>
<p>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.</p>
<p>"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.</p>
<p>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 <a
href="http://www.washingtonpost.com/blogs/the-fix/wp/2013/02/03/panetta-defends-drone-strikes/">essentially
acknowledged that agency's role</a>.</p>
<p>Last year, a federal judge blocked the disclosure of the
memo. Judge Colleen McMahon of New York said she was ensnared
in a "<a
href="http://www.wired.com/images_blogs/threatlevel/2013/01/droneruling.pdf">paradoxical
situation</a>" in which the law forbade her from ordering
the memo's release:</p>
<blockquote>
<p>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.</p>
</blockquote>
<p>Meanwhile, NBC news published a 16-page, so-called Justice
Department "<a
href="http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf">white
paper</a>" (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."</p>
<p>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.</p>
<p>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 <a
href="http://arstechnica.com/tech-policy/2014/04/suit-challenging-drone-strikes-that-killed-americans-16-year-old-boy-is-tossed/">heart
of executive and military planning deliberation</a>."</p>
<p>The Department of Justice declined to comment.</p>
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