Senators From Both Parties Back ACLU, New York Times in FOIA Lawsuit for Drone Memos

NEW YORK – A bipartisan group of senators filed a brief late last night in federal appeals court in support of the American Civil Liberties Union and The New York Times’ lawsuits seeking Justice Department legal memos on U.S. targeted killing operations.

Sens. Ron Wyden (D-Ore.), Rand Paul (R-Ky.), Jeff Merkley (D-Ore.), and Martin Heinrich (D-N.M.) wrote in their friend-of-the-court brief that they supported the Freedom of Information Act lawsuits because they believe the government should not be creating a body of “secret law” concerning the extrajudicial killing of American citizens.

The senators wrote that they are “deeply concerned that the Executive Branch’s excessive secrecy is frustrating the purposes of FOIA and impeding a healthy debate on an issue of paramount importance: when the Government may use drone strikes to kill one of its own citizens without charge or trial.”

Last summer, as the result of an earlier appeal in the case, the U.S. Court of Appeals for the 2nd Circuit published a July 2010 memo from the Justice Department’s Office of Legal Counsel. Soon after that, the government released a February 2010 OLC memo and a May 2011 white paper. But many parts of these documents, including sections containing constitutional analysis and a long section discussing factual background, were redacted.

In this second appeal to the 2nd Circuit, the appeals court is considering the government’s refusal to release additional memos as well as the lawfulness of the redactions in the documents already released. Simultaneously, the district court is considering the withholding of other documents by the OLC, CIA, and Department of Defense.

“The drone memos should be public,” said ACLU Deputy Legal Director Jameel Jaffer, who argued the earlier appeal before the 2nd Circuit. “While the government has a legitimate interest in protecting intelligence sources and methods, it has no legitimate interest in creating a body of secret law. As the senators rightly point out, the secrecy surrounding the drone program makes it impossible for the public to assess the lawfulness of one of the government’s most controversial national security policies.”

The government carried out the killing of U.S. citizen Anwar al-Aulaqi in a strike that also killed U.S. citizen Sameer Khan. Two weeks later, the government carried out another strike that killed al-Aulaqi’s 16-year old son Abdulrahman, also an American.

The ACLU’s FOIA lawsuit seeks documents related to the legal and factual bases for the government’s killing of the three Americans. The New York Times submitted overlapping FOIA requests, and the two resulting lawsuits were combined.

The senators, who are represented by the law firm Gibbons PC, wrote that they were filing in the case “both to ensure that lawmakers are better able to monitor and check excesses and abuses by the Executive Branch and to ensure that the public has enough information to hold its Government accountable.”

Today's brief from the senators is at:
https://www.aclu.org/sites/default/files/assets/senators_amicus_tk_foia_brief_as_filed.pdf

More information and all case documents are at:
https://www.aclu.org/national-security/anwar-al-awlaki-foia-request