- The Washington Times - Monday, April 21, 2014

The Obama administration must release internal legal documents justifying the targeted killings worldwide of Americans and foreigners suspected of terrorism, a federal appeals court ruled Monday.

The decision in a case brought by The New York Times, two of its reporters and the American Civil Liberties Union likely will shed new light on the administration’s use of drones to target terrorists abroad. That program has resulted in the deaths of American citizens, such as leading al Qaeda figure Anwar al-Awlaki, killed by a drone strike in Yemen in 2011.

Administration officials had sought to keep internal memorandums regarding the killings secret, but the 2nd U.S. Circuit Court of Appeals said the federal government waived its claim to privacy by handpicking some documents to release and by speaking about the program publicly.

“We recognize that in some circumstances the very fact that legal analysis was given concerning a planned operation would risk disclosure of the likelihood of that operation, but that is not the situation here, where drone strikes and targeted killings have been publicly acknowledged at the highest levels of the government,” the ruling reads in part.

“Whatever protection the legal analysis might once have had has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the [Department of Justice] white paper” concerning the program, the three-judge federal panel said.

The Justice Department did not immediately return requests for comment. The administration could choose to appeal the decision, and it’s not clear when Justice will comply with the court’s ruling.

Monday’s ruling overturns a lower court decision in January 2013, which contended the government had violated no laws by not turning over documents sought by The New York Times and by other entities.

David E. McGraw, a New York Times lawyer, called the reversal of that decision a victory for democracy.

“The court declined to accept at face value the government’s claims about national security and instead did a searching and independent review of the record,” he told The New York Times. “In the end, the court reaffirmed a bedrock principle of democracy: The people do not have to accept blindly the government’s assurances that it is operating within the bounds of the law; they get to see for themselves the legal justification.”

Specifically, the court cited the fact that the Justice Department leaked to NBC News a white paper explaining the legal rationale for killing al-Awlaki.

The case also included the separate killings of Awlaki’s teenage son, Abdulrahman al-Awlaki, and other American citizens.

The court also said that, by speaking about the targeted killing program publicly, Attorney General Eric H. Holder Jr. and other administration officials have compromised their claim to absolute secrecy.

Portions of the decision were redacted to protect sensitive information.

• Ben Wolfgang can be reached at bwolfgang@washingtontimes.com.

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