Targeted Killing Drone Strikes: Secret or Not? The Government Wants It Both Ways

Today was the first court hearing in our Freedom of Information Act lawsuit demanding information about the government’s targeted killing program, including the legal rationale and evidentiary basis for the targeted killings of three U.S. citizens in Yemen last year. The government has told the ACLU—and the court—that its targeted killing program is so secret that it can’t even acknowledge that it exists. Today we explained to the judge that the government’s position is untenable because officials have repeatedly discussed the program in both attributed and anonymous statements to the press.

In response to the ACLU’s FOIA request, the government refused to confirm or deny whether it has any records about the CIA’s targeted killing program or about a Justice Department memo that provided legal justification for targeting and killing Anwar al-Awlaki, a U.S. citizen born in New Mexico. Yet the government has the chutzpah to sing the praises of the targeted killing program when it thinks doing so will advance its agenda, while insisting that it can’t talk about the program in front of a federal judge. To be clear, our complaint is not that the government is disclosing information to the press. Indeed, we wish it would disclose more. Our complaint is simply that the government should not be permitted to declare in court that discussing a program would jeopardize national security when it has disclosed the same program to the public.

The latest official comment about the targeted killing program came Wednesday in a speech by Defense Department general counsel Jeh Johnson at Yale Law School. Johnson’s remarks raised a number of questions about the expansive scope of the counterterrorism authorities claimed by the government. He asserted that the government can pursue suspected terrorists “without a geographic limitation,” that “U.S. citizens do not enjoy immunity” from targeted killing, and even that U.S. courts should have no role in assessing whether the targeted killings of U.S. citizens are legal.

The government thus continues to claim the authority to target and kill suspected terrorists, including U.S. citizens, far from any battlefield, without judicial oversight, and without disclosing the legal standards it uses or basic facts about who can be targeted and why. The ACLU will continue to press the government for greater transparency, and to urge courts to ensure that it is acting within the law.

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