Appeals court rules government must release drone memo

Emily Grannis | Freedom of Information | News | April 25, 2014

A federal appeals court has ruled that the Department of Justice must release a memo on the legal basis for using drone strikes to kill American citizens abroad.

The New York Times made Freedom of Information Act requests in 2010 for opinions or memos from the Office of Legal Counsel "that address the legal status of targeted killings" and those OLC memos analyzing when it would be legal for U.S. military or intelligence agencies to target a U.S. citizen deemed to be a terrorist.

The DOJ denied those requests, citing national security concerns (FOIA Exemption 1) and attorney-client privilege (FOIA Exemption 5), among other things. The Times and the American Civil Liberties Union, which had requested similar information, then sued the agency, arguing that much of the information at issue had been overclassifed or had already been voluntarily released to the public. The Reporters Committee filed a friend-of-the-court brief in the case.

In a decision this week, the U.S. Court of Appeals for the Second Circuit held that while the document were properly classified initially, any national security or attorney-client privilege that existed had been waived when government officials publicly cited the OLC memos at issue as justification for controversial drone strikes that killed four U.S. citizens abroad.

The court cited "an extensive public relations campaign to convince the public that" the administration had reached the correct conclusion about the legality of the targeted killings.

"After senior government officials have assured the public that targeted killings are 'lawful' and that OLC advice 'establishes the legal boundaries within which we can operate,' and the government makes public a detailed analysis . . . waiver of secrecy and privilege as to the legal analysis in the memorandum has occured," the court wrote.

The Second Circuit decision still allows DOJ to redact portions of the memos, and in fact, portions of the court's decision are redacted.