Yesterday, a federal appeals panel ordered the government to release a classified Justice Department memo outlining the legal justification for the 2011 drone strike that killed U.S. citizen Anwar Al-Awlaki. The Brennan Center for Justice at NYU School of Law joined an amicus brief in the case arguing that the government’s attempt to withhold the legal memo results in “secret law” and runs contrary to the Freedom of Information Act.
In yesterday’s ruling, the federal appeals panel held that the government waived any claim to secrecy of the memo due to public statements made by the administration about the lawfulness of drone strikes, including a “white paper” issued by the Justice Department. A judge on the appeals panel wrote that these disclosures preclude the government from claiming that the legal justification for drone strikes cannot be made public.
“The court’s ruling serves as a powerful statement that the government cannot cherry-pick what it chooses to reveal about the legal basis for its counterterrorism policies,” said Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center. “Too often, all the government needs to do is utter the words ‘national security’ and courts dutifully stand down. But the Second Circuit refused to let the government side-step its disclosure obligations so easily.”