Open memo justifying drone strike on citizen, U.S. ordered

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NEW YORK -- A U.S. appeals panel in Manhattan ordered the release Monday of key portions of a classified Justice Department memorandum that provided the legal justification for the targeted killing of a U.S. citizen, Anwar al-Awlaki, who intelligence officials contend had joined al-Qaida and died in a 2011 drone strike in Yemen.

The unanimous three-judge panel, reversing a lower court decision, said the government had waived its right to keep the analysis secret in light of administration officials' numerous public statements and the Justice Department's release of a "white paper" offering a detailed analysis of why targeted killings were legal.

"Whatever protection the legal analysis might once have had," Judge Jon O. Newman wrote for the 2nd U.S. Circuit Court of Appeals panel, "has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the DOJ White Paper."

The ruling stemmed from lawsuits filed under the Freedom of Information Act by The New York Times and two of its reporters, Charlie Savage and Scott Shane, and by the American Civil Liberties Union.

The decision reversed a January 2013 ruling by U.S. District Judge Colleen McMahon, who had expressed her own doubts about the legality of the targeted killings program and the secrecy cloaking it, but concluded that the government had not violated the law in refusing to turn over the materials sought in the requests.

But Judge McMahon issued her decision about a month before the Justice Department released its "white paper," after it was originally leaked to NBC News; the 16-page, single-spaced document made a detailed legal justification for Awlaki's killing, which the appellate panel took into account in its ruling.

The panel also cited public statements by officials such as Attorney General Eric Holder and John O. Brennan, when he was the president's top counterterrorism adviser, discussing the lawfulness of targeted killings of terrorists.

The panel, which also included Judges Jos A. Cabranes and Rosemary S. Pooler, did agree to a government request to redact certain portions of the legal analysis that it ordered released. Portions of the panel's opinion were also redacted, with the possibility of restoration later, and the panel explained that it had filed its full opinion under seal, along with a redacted copy of the Justice Department memorandum that had been sought by the plaintiffs.


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