Appeals Court Orders Release of Drone Strike Memo


A three-judge panel of the 2nd Circuit Court of Appeals has ruled unanimously that the Obama administration must release portions of the legal memo used to justify the drone strike that killed American citizens Anwar al-Awlaki in Yemen in 2011. The Obama administration has been fighting this tooth and nail, of course.

Ruling for the New York Times, a unanimous three-judge panel said the government waived its right to secrecy by making repeated public statements justifying targeted killings.

These included a Justice Department “white paper,” as well as speeches or statements by officials like Attorney General Eric Holder and former Obama administration counterterrorism adviser John Brennan, endorsing the practice.

The Times and two reporters, Charlie Savage and Scott Shane, sought the memorandum under the federal Freedom of Information Act, saying it authorized the targeting of al-Awlaki, a cleric who joined al Qaeda’s Yemen affiliate and directed many attacks.

“Whatever protection the legal analysis might once have had has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the DOJ White Paper,” Circuit Judge Jon Newman wrote for the appeals court panel in New York.

He said it was no longer logical or plausible to argue that disclosing the legal analysis in the memorandum jeopardizes military plans, intelligence activities or foreign relations. The court redacted a portion of the memorandum on intelligence gathering.

Just another day in the self-declared “most transparent administration in history,” which has been anything but that. The Bush administration tried to do the same thing in hiding the legal memos used to justify torture and liberals were furious about it. The consistent ones should be furious about this as well, as I have been from the start. The idea that the government has secret legal doctrines that justify behavior that is plainly illegal on its face is patently absurd.

You can read the full ruling here.

Comments

  1. D. C. Sessions says

    The consistent ones should be furious about this as well, as I have been from the start.

    Oh, they have been. It’s just that you and they have been consistent about different things.

  2. eric says

    To play devil’s advocate, the concern here is that drawing any bright line about what we will do or not do allows opponents to game the system. If, for example, the President makes a public policy statement that the US will drone-kill terrorists in Afghanistan but not in Pakistan, then a predictable response would be enemies moving in to Pakistan and then thumbing their noses at us. So instead of saying that, the President says nothing one way or the other. This is also why the US’ nuclear posture has always been “strategic ambiguity” – we don’t say when we will or will not use nukes. We don’t want to definitively say “we won’t nuke you if you do X,” because that might encourage our enemies to do X knowing they won’t be nuked. Ambiguity itself has value. Keeping opponents uncertain about what we will or will not do also has value. Open publication of policy removes that ambiguity.

    That’s the theoretical argument at least. In practice, our EU allies draw bright lines about their various war policies and it doesn’t seemed to have hurt them or encouraged their enemies to try and game their rules. So the US government concern is probably greatly overblown. The advantage that ambiguity gives and the cost of removing it is probably much smaller than the government argues them to be.

  3. D Carter says

    It’s not important to be furious. It’s important to get the policy changed or failing that the policymakers changed.

    And if possible the perpetrators punished. The Hague would be fine with me.

  4. Nick Gotts says

    pocketnerd@4,

    You appear to be suffering from the bizarre delusion that Obama is left-wing.

  5. pocketnerd says

    Thus Spake ZaraNick Gotts, #6:

    You appear to be suffering from the bizarre delusion that Obama is left-wing.

    I’m not referring to Mister Obama. And I know he’s not “left-wing” — unless of course one defines “left-wing” as “very slightly to the left of Reagan”. I’m referring to the liberals who were furious about human rights abuses, domestic surveillance, and extension of executive power under Bush, but give Obama a free pass because “he’s on our side” or “criticizing him hurts our cause.”

  6. dogmeat says

    The consistent ones should be furious about this as well, as I have been from the start.

    I have to say, I don’t know that I have the energy left to still be furious over these things. I knew Obama wasn’t liberal, but did see him as marginally better than Bush & Co. When it comes to foreign affairs, that margin is disturbingly slim and, initially I was furious, but now? Disgusted? Sure. Jaded? Most certainly. But furious? *sigh* Staying furious for more than a decade takes a lot of energy, I think my furious reserves ran out in ’11 or so. It’s probably why I moved from voting Democrat in ’08 (and ’04, ’00, ’96) to voting Green in ’12.

  7. outraged says

    While I feel the outrage, I guess one just gets tired. You just understand that no matter what, it just doesn’t matter. Even if the entire legal justification is “Because I said so!” there won’t be any outcry from the press, public or congress. Nobody goes to jail, nobody pays any price at all and all involved go on to make millions selling books, lobbying and speaking to insider groups for five and six figures.

    The next poor schmuck the government wants whacked gets whacked and lather, rinse, repeat.

  8. Nick Gotts says

    I’m referring to the liberals who were furious about human rights abuses, domestic surveillance, and extension of executive power under Bush, but give Obama a free pass because “he’s on our side” or “criticizing him hurts our cause.”

    OK – but how could one possibly consider them left-wing? Can you give some specific examples of “liberals” who say such things, and can also be shown to be left-wing by any reasonable standard, rather than just being members of the Democratic Party?

  9. pocketnerd says

    Thus Spake ZaraNick Gotts, #10:

    OK – but how could one possibly consider them left-wing? Can you give some specific examples of “liberals” who say such things, and can also be shown to be left-wing by any reasonable standard, rather than just being members of the Democratic Party?

    Make no mistake, I’m not repeating that tired old “liberals refuse to criticize Obama” meme we keep hearing from Townhall and other fever swamps.

    I’m mostly talking about people I know in real life and through social media. But I do meet Democrats who fall victim to tribalism; that’s human nature. In general can’t speak to their “left wing” cred… I’m not the sort of person who interrogates casual acquaintances to see if they’re ideologically pure enough. :)

    How about I modify my original statement to read “I was furious about Democrat tribalist hypocrisy before it was cool”?

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