Appeals Court to Hear Oral Argument Tuesday in ACLU FOIA Lawsuit Seeking Targeted Killing Memos

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NEW YORK – The American Civil Liberties Union and The New York Times will appear before a federal appeals court tomorrow afternoon asking that the government be ordered to release records about the targeted killing program and the killing of three American citizens in Yemen in 2011. The oral argument concerns the appeal of a federal district court decision from January. That ruling, which referenced "Alice in Wonderland," allowed the CIA and the Departments of Justice and Defense to withhold documents responding to the ACLU's Freedom of Information Act request 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 argument that releasing the legal memos would compromise national security is simply not plausible, nor is the government's claim that other records can't be described or even listed," said ACLU Deputy Legal Director Jameel Jaffer, who will argue Tuesday before a three-judge panel. "For several years now, senior officials have publicly claimed that the targeted killing program is effective, lawful, and closely supervised. If they can make these claims to the public, there is no reason why they should not be required to respond to requests under the Freedom of Information Act."

The ACLU's FOIA request seeks documents related to the legal and factual bases for the government's targeted killing program, including memos written by the Justice Department's Office of Legal Counsel concluding that the killing of American citizens would be constitutional in certain situations. The New York Times submitted a similar but narrower FOIA request, and the two resulting lawsuits were combined.

The Departments of Defense and Justice have listed certain relevant documents responsive to the FOIA requests, but both agencies, as well as the CIA, have said that other records cannot be listed or described in any way, citing risks to national security. The ACLU argues that the FOIA requires the agencies to list and describe the documents, and explain why they are being withheld. It also argues that public officials, including the president, have already disclosed much of the information that the agencies say is secret.

Earlier this month, in an unusual move, the appeals court ordered the government to make the legal memos in question available for private review by the judges, and also ordered the government to have ready at oral argument the information the government believes cannot be disclosed about the documents withheld by the CIA.

In a separate pending FOIA lawsuit filed by the ACLU, the D.C. Circuit Court of Appeals has ruled that the CIA can no longer deny its intelligence interest in maintaining the targeted killing program, but in recent court filings in district court the CIA maintained that it can still keep the documents secret.

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 Yemen. In that case, argued in July in Washington and awaiting decision, the government has said that the suit should be dismissed because the courts have no role to play in assessing whether the killings were legal.

Case information and documents are at: aclu.org/national-security/anwar-al-awlaki-foia-request

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