No More Secrecy for a Memo on Killing Americans


Amy Davidson
The New Yorker
April 23, 2014

U.S. citizen Anwar Al-Awlaki killed by U.S. drone strike on Sept. 30, 2011 absent of due process.

U.S. citizen Anwar Al-Awlaki killed by U.S. drone strike on Sept. 30, 2011 absent of due process.

The problem that the Obama Administration had, in trying to persuade a court to let it keep secret a memo explaining why it was legal to assassinate Americans abroad, was how proud it was of its work. Officials kept bragging about the memo. The President, Attorney General Eric Holder, and John Brennan, the director of the C.I.A., suggested that anyone who read it would be reassured by the care that the Administration had taken before sending a drone, in 2011, to kill Anwar al-Awlaki, who was born in New Mexico and was accused of working with Al Qaeda. But they refused to let the public see the memo, which was produced by the Office of Legal Counsel—its legal brilliance was supposed to be taken on trust.

On Monday, a three-judge panel of the Second Circuit Court of Appeals disagreed, saying that the government was wrong to turn down a Freedom of Information Act request for the memo from the American Civil Liberties Union and from two Times reporters, Charlie Savage and Scott Shane. Pending an appeal, we’ll all get to read the O.L.C.’s work, and to decide whether its reasoning is clever and persuasive, or not. The case is important: first, because it would be good to know under what circumstances the White House thinks it can kill Americans without a trial. More than that, the decision turns on what has become, especially after Edward Snowden’s leak of N.S.A. documents, the crucial point in the debate over civil liberties and security: the government gets to have secrets, but it doesn’t get to have secret laws.

“We emphasize at the outset that the Plaintiffs’ lawsuits do not challenge the lawfulness of drone attacks or targeted killings,” Judge Jon Newman wrote. (The other two judges were José Cabranes and Rosemary Pooler.) Instead, the plaintiffs wanted the documents “setting forth the Government’s reasoning as to the lawfulness of the attacks.” In a democracy, this should count as a pretty basic request. Any classified details could be redacted. That is different from keeping the whole thing secret, which, because of a possible appeal, means that for the moment the very description of the memo in the decision reads like this:

The OLC-DOD Memorandum has several parts. After two introductory paragraphs, Part I(A) reports [redacted]. Parts I(B) and I(C) describe [redacted]. Part II(A) considers [redacted]. Part II(B) explains [redacted]. Part III(A) explains [redacted], and Part III(B) explains [redacted]. Part IV explains [redacted]. Part V explains [redacted]. Part VI explains [redacted].

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