The New York Times Is Suing the DOJ Over the Assassination of Anwar al-Awlaki

Back in September
President Obama had U.S. citizen Anwar al-Awlaki assassinated. When
pressed on the legality of using “targeted killing” against a U.S.
citizen without first providing due process, the Most Transparent
Administration in Historyâ„¢ clammed up. Eventually word leaked that
White House and DOJ lawyers had written a memo justifying the
assassination. The memo was “secret.” 

In October Charlie Savage of The New York
Times
 convinced
someone
in the Obama administration to describe the memo to
him: 

The secret document provided the justification for acting
despite an executive order banning assassinations, a federal law
against murder, protections in the Bill of Rights and various
strictures of the international laws of war, according to people
familiar with the analysis. The memo, however, was narrowly drawn
to the specifics of Mr. Awlaki’s case and did not establish a broad
new legal doctrine to permit the targeted killing of any Americans
believed to pose a terrorist threat.

The Obama administration has refused to acknowledge or discuss
its role in the drone strike that killed Mr. Awlaki last month and
that technically remains a covert operation. The government has
also resisted growing calls that it provide a
detailed public explanation of why officials deemed it lawful to
kill an American citizen, setting a precedent that scholars, rights
activists and others say has raised concerns about the rule of law
and civil liberties.

But the document that laid out the administration’s
justification — a roughly 50-page memorandum by the Justice
Department’s Office of Legal Counsel, completed around June 2010 —
was described on the condition of anonymity by people who have read
it.

The legal analysis, in essence, concluded that Mr. Awlaki could
be legally killed, if it was not feasible to capture him, because
intelligence agencies said he was taking part in the war between
the United States and Al Qaeda and posed a significant threat to
Americans, as well as because Yemeni authorities were unable or
unwilling to stop him.

The memorandum, which was written more than a year before Mr.
Awlaki was killed, does not independently analyze the quality of
the evidence against him.

That story has become, in part, the basis for
a lawsuit Savage and the Times have filed against the
DOJ
 for not disclosing the memo that justifies al-Awlaki’s
assassination. The lawsuit, which Savage posted online today,
“seek[s] the production of agency records improperly withheld
by the United States Department of Justice in response to
requests properly made by Plaintiffs.” While Savage and the
Times don’t know how many documents exist, Savage’s
contact in the administration revealed to him that “there exists at
least one legal memorandum detailing the legal analysis
justifying the government’s use of targeted killing.”

More excerpts from the lawsuit: 

4.) Given the questions surrounding the legality of the practice
under both U.S. and international law, notable legal scholars,
human rights activists, and current and former government
officials have called for the government to disclose its legal
analysis justifying the use of targeted lethal force, especially as
it applies to American citizens.

5.) For example, the former legal adviser to the United States
Department of State in the Bush administration, John Bellinger, has
argued that it is “important to domestic audiences and
international audiences for the Administration to explain how the
targeting and killing of an American complies with applicable
constitutional standards.”

6.) To date, the government has not offered a thorough and
transparent legal analysis of the issue of targeted killing.
Instead, several government officials have made statements broadly
asserting the legality of such actions in a conclusory fashion.

Even if The New York Times and Savage win their suit,
there is a chance the Obama administration will not comply with the
ruling. In spring 2009 Obama refused to comply with a U.S. Court of
Appeals decision ordering the Pentagon to release photos of
detainees captured in Iraq and Afghanistan. The fate of the photos
had been in limbo since the American Civil Liberties Union filed a
FOIA suit against the Bush administration in 2006. When the court
ordered in April 2009 that the pictures had to be released, Obama
initially said he would comply, but three weeks later he changed
his mind, saying, “The most direct consequence of releasing them
would be to further inflame anti-American opinion, and to put our
troops in greater danger.” In October of 2009, despite his promise
not to withhold information based on “speculative or abstract
fears,” Obama signed hastily written, bipartisan legislation
prohibiting the release of the photos. There’s every reason for him
to do it again with the al-Awlaki memo.Â