ACLU Appeals Ruling in FOIA Lawsuit Seeking Targeted Killing Memos

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NEW YORK – The American Civil Liberties Union today asked the Second Circuit Court of Appeals to rule that the government must release records about its targeted killing program and the killing of three American citizens in Yemen in 2011. Today's filing appeals a January Manhattan federal district court decision in which the judge, citing "Alice in Wonderland," allowed the CIA and the Departments of Justice and Defense to refuse to provide documents in response to the ACLU's Freedom of Information Act request for records about the killings of Anwar Al-Awlaki and Samir Khan in September 2011, and Al-Awlaki's 16-year-old son Abdulrahman the following month.

"The public has a right to know the circumstances in which the U.S. government believes it can kill people, including American citizens, who are far from any battlefield and have never been charged with a crime," said Hina Shamsi, director of the ACLU National Security Project. "The targeted killing program raises serious questions about government power in a constitutional democracy. Our system of government requires transparency about what the executive branch is doing, especially in matters of life and death, not the selective and inadequate disclosures that we have seen so far. Obama administration officials repeatedly insist that the targeted killing program is lawful, effective, and closely supervised, while simultaneously telling courts that the records on which their claims are based must be kept secret from the public. The government cannot and should not have it both ways."

The ACLU's FOIA request seeks disclosure of legal memos written by the Justice Department's Office of Legal Counsel that provided justifications for the targeted killing of Anwar al-Awlaki, as well as records describing the legal and factual basis for the killings of all three Americans. The New York Times submitted a similar but narrower FOIA request, and the two resulting lawsuits, filed in the Southern District of New York, were combined.

After a "white paper" summarizing the contents of one of the Justice Department memos was leaked in February, the administration gave some members of Congress access to some of the OLC memos. However, the government has argued that it can keep the documents requested in the FOIA lawsuit secret, despite the fact that officials have talked publicly many times about the targeted killing program in general and al-Awlaki's killing in particular.

Last month, in another FOIA lawsuit filed by the ACLU, the D.C. Circuit Court of Appeals ruled that the CIA could no longer deny its intelligence interest in the targeted killing program given the numerous public statements made by CIA and administration officials. The FOIA request in that case seeks information on the use of drones in the killing program, including its legal basis, scope, and the number of civilian casualties caused by drone strikes. The appeals court sent the case back to the district court in Washington, where the CIA will have to release documents that respond to the ACLU's request or legally justify withholding them.

The ACLU, together with the Center for Constitutional Rights, has also filed a lawsuit directly challenging the constitutionality of the killing of the three U.S. citizens. In that suit, the government has argued that the courts have no role to play in assessing whether the killings were lawful and the case should be dismissed.

On Thursday, the ACLU and other human rights organizations sent a letter to President Obama expressing grave concerns over the targeted killing policy. The groups urged the administration to take essential steps to "publicly disclose targeted killing standards and criteria; ensure that U.S. lethal force operations abroad comply with international law; enable meaningful congressional oversight and judicial review; and ensure effective investigations, tracking and response to civilian harm."

Today's appeal brief is at: aclu.org/national-security/anwar-al-awlaki-foia-request-aclu-appeal-brief

More information on this case is at: aclu.org/national-security/anwar-al-awlaki-foia-request

The joint letter sent to President Obama last week is at: aclu.org/files/assets/letter_to_president_and_statement_on_targeted_killings.pdf

Information on other ACLU litigation on targeted killing is at: aclu.org/national-security/targeted-killings