Only weeks after a drone missile killed a U.S.-born terrorism suspect in Yemen, the American Civil Liberties Union sought the Obama administration's legal justification under the Freedom of Information Act. Nearly three years of court battles later, the government's memo became public Monday. Or "what's left of it" after the court allowed the government to blank out large portions, says Eric Ruzicka of Dorsey & Whitney's Minneapolis headquarters. Ruzicka was among the team of lawyers at Dorsey and other firms (Dorsey is the only firm - other lawyers are in-house counsel) representing the ACLU in its lawsuit against the Department of Justice.
Despite the redactions, Ruzicka considers the release of the memo a substantial victory for understanding how the administration can justify the killing of Anwar Al-Awlaki. Al-Awlaki, who once preached at a Virginia mosque before becoming a leader of Al-Qaida, was killed, along with another American Al-Qaidi member, in a drone strike in September 2011.
"These are memos that our government uses to support the fact that they can kill U.S. citizens without what most people view as full due process," Ruzicka told me. "That's a pretty significant issue."
Ruzicka said he was still "digesting" the memo Monday. According to the Associated Press, the memo asserts that the United States is at war with Al-Qaida, and that a surprise attack abroad does not violate the rules of war. The New York Times, which was also a party to the lawsuit, reported that the memo asserts that because Al-Awlaki was planning attacks against the United States and could not be captured, federal laws requiring due process and prohibiting the murder of Americans abroad did not apply.
Ruzicka said this "startling win" resulted from a combination of factors, including the administration's statements and leaks to the media about the issue. He said the fight for records continues. "It concerns me when our government has processes that are not open," he said. "We aren't a government of secret laws."
The memo, titled "Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Actions Against Shaykh Anwar al-Aulaqi," was written in July 2010 by Justice Department lawyer David Barron. It follows on page 67 of the document below:
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