Release of drone memo labeled "a win for transparency"

My Sunday column (linked here, and pasted below) expanded on my blog post about the U.S. Department of Justice's legal underpinning for the targeted killing of an American-born Al-Qaida operative in 2011. In the June 23 White House press briefing, Press Secretary Josh Earnest spoke as if the court's order was the result that Obama administration had in mind the whole time:

But what the administration did was we worked through the legal system and those who were most interested in seeing it to produce a redacted document that protected national security interests while at the same time trying to live up to our commitment to transparency that the President has talked about quite a bit.  So I think in this case, I think even the groups that sharply criticized us would call this a win for transparency.

Here's the column:

The death warrant for an American-born terrorist carried an innocuous title.

“Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Actions Against Shaykh Anwar al-Aulaqi.”

That memo, written in July 2010 by a U.S. Department of Justice lawyer, gave the Pentagon and the CIA legal backing for the drone-fired missile that killed al-Awlaki, also known as al-Aulaqi, in Yemen in September 2011. The fact that the public is finally reading it now shows both what’s good and what’s bad about the law that’s supposed to keep government from operating in secret.

Starting in 2010, news organizations and nonprofit groups filed Freedom of Information Act requests for the memo. In late June, a federal judge ordered the memo’s release, handing victory to the American Civil Liberties Union and the New York Times.

“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,” said Eric Ruzicka, a Minneapolis lawyer with Dorsey & Whitney and part of the team representing the ACLU. “It concerns me when our government has processes that are not open. We aren’t a government of secret laws.”

Born in New Mexico in 1971, al-Awlaki was a Muslim preacher seen as a moderate after the 9/11 attacks who turned against his native country and became a leader of Al-Qaida of the Arabian Peninsula. Before his death, al-Awlaki was already well-known from media reports for his role in the failed 2009 attack on a Northwest Airlines jet by the “underwear bomber,” as well as his communications with Fort Hood shooter Nidal Hasan, who killed 13 people in 2009, and the would-be Times Square car bomber in 2010.

Ruzicka estimated that his firm logged more than a thousand attorney hours pursuing the FOIA litigation. What emerged in June, on the order of the U.S. Court of Appeals for the Second Circuit, was a memo scrubbed of any details of the case against al-Awlaki, but still offering insight into how the Obama administration justified the assassination of an American citizen overseas.

Written by David Barron, then a lawyer with the Justice Department’s Office of Legal Counsel, the memo was tailored to al-Awlaki’s individual circumstances. An attack on him was allowed under Congress’ post-9/11 authorization of military force, and his capture was “infeasible at this time,” Barron wrote. The memo then describes how his killing would not amount to a war crime or be barred by the Fourth or Fifth Amendments.

One of the main questions was whether al-Awlaki was protected by a 1994 federal law that prohibits the murder of Americans overseas. Barron wrote that the history of the legislation and court rulings made it clear that the law doesn’t apply to those killed under the “lawful conduct of war.”

While much of the legal reasoning in Barron’s memo was already public, the memo’s release did bring some facts to light, according to Ruzicka. No judge reviewed the opinion before it was adopted as policy. It’s also the first acknowledgment that the CIA has an “operational role in the targeted killing program,” he said.

And it refers to additional documents that Ruzicka hopes will emerge in the weeks and months ahead.

“This is one of the first cases since 9/11 where the court pushed back against secrecy,” said Matt Ehling of Public Records Media, a St. Paul nonprofit involved in the FOIA fight. (I should say here, Ehling and I serve together on the board of the Minnesota Coalition on Government Information.)

Public Records Media wasn’t part of the big court decision in June, but it’s pursuing other drone records. From Federal Aviation Administration records, the group has learned that the Minnesota Army National Guard, the University of North Dakota and the U.S. Border Patrol all have approval to fly drones over Minnesota.

A FOIA lawsuit by Public Records Media revealed one important boundary of the war on terror. The Justice Department disclosed that it has no legal opinions that justify the killing of Americans by drones on American soil.