By Jonathan Stempel
NEW YORK (Reuters) – A federal appeals court ordered the U.S. Department of Justice to turn over key portions of a memorandum justifying the government’s targeted killing of people linked to terrorism, including Americans.
In a case pitting executive power against the public’s right to know what its government does, the 2nd U.S. Circuit Court of Appeals reversed a lower court ruling preserving the secrecy of the legal rationale for the killings, such as the death of U.S. citizen Anwar al-Awlaki in a 2011 drone strike in Yemen.
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.
It is unclear whether the government will appeal, or when the memorandum might be made public.
The Justice Department had no immediate comment.
David McCraw, a lawyer for the Times, said the newspaper is delighted with the decision, saying it encourages public debate on an important foreign policy and national security issue.
“The court reaffirmed a bedrock principle of democracy: The people do not have to accept blindly the government’s assurances that it is operating within the bounds of the law; they get to see for themselves the legal justification that the government is working from,” McCraw said in a statement.
ALICE IN WONDERLAND
Monday’s decision largely reversed a January 2013 ruling by U.S. District Judge Colleen McMahon in Manhattan.
She ruled for the administration despite skepticism over its antiterrorism program, including whether it could unilaterally authorize killings outside a “hot” field of battle.
“The Alice-in-Wonderland nature of this pronouncement is not lost on me,” she wrote.
Civil liberties groups have complained that the drone program, which deploys pilotless aircraft, lets the government kill Americans without constitutionally required due process.
McMahon ruled one month before the Justice Department released the white paper, which set out conditions to be met before lethal force in foreign countries against U.S. citizens could be used.
In a March 5, 2012 speech at Northwestern University, Holder had said it was “entirely lawful” to target people with senior operational roles in al-Qaeda and associated forces.
The Times has said the strategy of targeted killings had first been contemplated by the Bush administration, soon after the September 11, 2001 attacks.
The American Civil Liberties Union supported the Times’ appeal of McMahon’s ruling. Jameel Jaffer, a lawyer for the ACLU, did not immediately respond to a request for comment.
The case is New York Times Co et al v. U.S. Department of Justice et al, 2nd U.S. Circuit Court of Appeals, Nos. 13-422, 13-445.
(Additional reporting by Mark Hosenball in Washington; Editing by Jonathan Oatis)
[“Predator Type Rq1 Drones 3d Artwork” on Shutterstock]
‘Part of me wanted to leave’: Lone attendee of Steve King town hall turns out to be a ‘hungover’ Democrat
Rep. Steve King (R-IA) is being told to resign by members of his own party who are tired of his overt racism. While many Republicans might exhibit racist tendencies and make apologies for the president's racism, King says things out loud the GOP would just assume he keep quiet on. The true test, however, comes from King's own district and whether or not they're willing to reelect him in November.
The key revelation came at a recent townhall King held, where the only person who attended was a hungover Democrat. The Iowa Starting Line reported the pathetic event, where it seemed more members of the press were willing to show up than actual constituents.
‘I’m the one who calls the shots’: Trump rails against Fox News for giving him ‘his worst polls’
President Donald Trump explained why Fox News has drawn his ire and that they need to realize he's the one in control of them.
In a conversation on the tarmac in Morristown, New Jersey on his way back to Washington, Trump said that Fox News has not been good to him lately.
"Fox is a lot different than it used to be, I can tell you that," Trump said.
In an earlier Twitter rant, the president went off on Juan Williams for being "nasty and wrong."
Trump explains why he wants to buy Greenland to reporters: ‘It’s a large real estate deal — a lot can be done’
President Donald Trump reaffirmed his desire to buy Greenland in discussion with reporters Sunday.
The president was returning to Washington, D.C. when he stopped at the airport in Morristown, New Jersey. New York Times reporter Maggie Haberman asked the president about his desire to buy the country from Denmark.
"Greenland, I don't know. It got released somehow," Trump said of the news about his desire to buy the country. "It's something we talked about. Denmark essentially owns it. We're very good allies with Denmark. We protect Denmark like we protect large portions of the world. So the concept came up, and I said, strategically, it's interesting. And we'd be interested. We'll talk to them a little bit. It's not number one on the burner; I can tell you that."