FOIA win against government on drones

Will it lead to more or less disclosure in the future?

The enormous increase in public attention to the drone war in the past year arguably began with the leak of a Justice Department “white paper” laying out the legal rationale for killing a US citizen who’d joined Al Qaeda. A few months later, President Obama gave a major speech in which described the government’s criteria for going after suspected terrorists beyond the war in Afghanistan. The administration also released the names of four US citizens who had been killed in drone strikes. Among them was Anwar Al Awlaki, the New Mexico-born cleric who died in Yemen in September 2011.

All that talk means that there is no reason that the government can’t release the legal memorandum behind the decision to kill Awlaki, a panel of federal appeals court judges ruled on Monday.

The fight for the Awlaki memo began in 2010, when New York Times reporters Scott Shane and Charlie Savage filed Freedom of Information Act requests on targeted killing. They were joined in 2011 by the American Civil Liberties Union in asking for documents specifically related to Awlaki. For nearly four years, the government has maintained they could not confirm or deny the existence of such documents, and that discussion of targeted killing in the media and in speeches did not constitute acknowledgment of US involvement in any particular strike. In January 2013, a federal district court judge agreed - though she rued the “Alice-in-Wonderland nature” of having to maintain what seemed like an open secret.

In reaching their decision on Monday, the judges noted that since this case began, “senior government officials have assured the public that targeted killings are ‘lawful.’”
They also cited the white paper, leaked to NBC, and then officially disclosed, via FOIA, to reporter Jason Leopold four days later. Through those disclosures, the judges wrote, the government had waived its right to keep the underlying legal analysis secret.

“The real lynchpin was the white paper, and the effort to be sort of public, but not wholly public,” said Steve Vladeck, law professor at American University. “It’s now clear that FOIA doesn’t contemplate that sort of quasi-secrecy.”

The veil of classification around drone strikes has frustrated reporters and researchers for years. They tend to be met with a blanket refusal to comment on the record. As a result, much of what the public knows about drone war policy has been patched together by close-reading quotes from unnamed officials. Reporters are left attempting to square ongoing strikes - such as those that killed dozens of people in Yemen over the weekend - with the White House’s “fact-sheet” on targeted killing.

In contrast to the thousands of pages on National Security Agency spying made public by the government after Edward Snowden’s leaks began, for the drone war, the white paper was the rare hard document. In a separate ACLU lawsuit on drones, the government has so far successfully maintained that the CIA can’t even say what documents it might have, let alone release them.

Monday’s decision could have implications for that case, said Brett Kaufman, an attorney with the ACLU’s National Security Project. The argument is similar - that too much has already been made public to justify such extreme secrecy by the CIA. In ordering the release of the Awlaki memo, judges said the government should not redact
either the country where the strike took place (which everyone knows is Yemen) nor the “identity of the agency, in addition to [the Department of Defense] that had an operational role in the drone strike.”

“The government has maintained that the CIA has not acknowledged an operational role,” said Kaufman. “This seems to imply that the operational role is acknowledged, and if the memo is published and that’s in there, that could have consequences.”

But it’s not clear that these FOIA precedents will prompt officials to volunteer more information about drones or other secret programs.

“The ruling puts this and future presents into a more binary position,” said Vladeck. “Monday’s decision could dis-incentivize half disclosures, because they may require full disclosures.”

The government’s attorney suggested as much in arguing against the Awlaki memo’s release, the ACLU’s Jameel Jaffer noted on the blog Just Security. “Our complaint isn’t just that government officials are keeping too much information secret, though they are. It’s also that the government is releasing information selectively,” Jaffer wrote. [emphasis his.]

(The panel’s decision today coincided with a new directive by the Director of National Intelligence forbidding most employees in the government’s 16 intelligence organizations from having any unauthorized contact with the media.)

There’s no timeline on when the memo - which may be partially redacted — could be made public. The government could appeal the decision to the full appeals court or the Supreme Court. The Justice Department declined to comment.

Earlier this month, a judge threw out a lawsuit brought by family members of Awlaki and his teenage son, Abdulrahman, who was killed in a strike two weeks after his father. The Justice Department has said he was not “specifically targeted.”

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Cora Currier is a freelance journalist focusing on national security. Previously, she was a reporting fellow at ProPublica and on the editorial staff of The New Yorker Tags: , , , ,