As we’ve discussed, the administration has gone to incredible lengths to try to avoid any sort of public discussion concerning what legal authority it has to target American citizens with extrajudicial drone strikes. However, in a fairly big turn of events, a federal appeals court has overturned a lower court and ordered the DOJ to release “key portions” of the DOJ’s classified memo that explains the legal justification for killing US citizen Anwar al-Awlaki via a drone in Yemen. What’s interesting is that the panel came to this conclusion based on the administration’s public discussion on drones:
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 numerous public statements by administration officials 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 panel of the United States Court of Appeals for the Second Circuit, “has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the D.O.J. White Paper.”
The ruling is good in that this sort of information should be public and should be discussed publicly. However, at the same time, it also will likely lead to the administration clamping down on any other such information that it hopes to keep entirely secret — which could be a real problem. It will lead to even less transparency and fewer open discussion concerning issues of the US doing things under questionable legal authority.
As we’ve seen over the past few years, DOJ lawyers seem happy and willing to justify just about anything, twisting the law in all sorts of ways to make very questionable decisions deemed “legal” with little to no oversight or review — and no public discourse whatsoever.
Of course, it seems likely the DOJ will protest this latest decision and seek a Supreme Court review first, so it’s not like the justification is going to be revealed any time soon.