Appeals court orders Obama administration to disclose the legal theory for assassination of Americans

The Obama administration has lost a high-stakes lawsuit brought against it by the New York Times and the ACLU over its refusal to divulge the legal basis for its extrajudicial assassination program against US citizens. The Obama administration declared that it had the right to assassinate Americans overseas, far from the field of battle, on the basis of a secret legal theory. When it refused to divulge that theory in response to Freedom of Information Act requests, the Times and the ACLU sued. The Second Circuit Court of Appeals has found in the Times's and ACLU's favor.

The Obama administration had insisted that the legal memo in question was protected as a national security secret. However, the court found that because the administration had made statements about the memo, assuring the public that the assassinations were legal, it had waived its right to keep the memo a secret. There's no work on whether the administration will appeal to the Supreme Court.

"After senior Government officials have assured the public that targeted killings are 'lawful' and that OLC advice 'establishes the legal boundaries within which we can operate,'" the appeals court said, "waiver of secrecy and privilege as to the legal analysis in the Memorandum has occurred" (PDF).

The Electronic Privacy Information Center (EPIC), which in a friend-of-the court brief urged the three-judge appeals court to rule as it did, said the decision was a boon for citizen FOIA requests.

"It's very helpful. We have a number of cases, including one of our oldest FOIA cases, that involves the warrantless wiretapping memos. The basic premise is when OLC writes a legal memo and when that becomes the known basis for a program, that's the law of the executive branch and cannot be withheld," Alan Butler, EPIC's appellate counsel, said in a telephone interview.

Obama ordered to divulge legal basis for killing Americans with drones [David Kravets/Ars Technica]

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  1. In general this sounds like a good thing, but I have to admit that...

    However, the court found that because the administration had made
    statements about the memo, assuring the public that the assassinations
    were legal, it had waived its right to keep the memo a secret.

    ... is a little worrying, in so far as it could be seen by the administration as yet another reason adopt more opacity.

  2. The legal basis is simple: People who are killed by a hip, urbane president like Obama are bad guys, while people who are killed by an ignorant Texas shitkicker like Dubya are innocent victims. Plus, the former suffer much less pain, and know they are dying in a good cause.

  3. I think the takeaway here is that American presidents always become monsters.

  4. What I don't understand is why the court would give even a moment's respect to the notion that a legal justification even could, much less does, have 'national security' need for secrecy.

    If the existence of a program is public knowledge, and the assertion that it is legal is public knowledge, of what possible harm could the justification for that assertion be?

    Is the Al Qaeda sleeper cell in the basement of the capitol building going to conduct a surgical strike against the USC in order to exise a crucial passage and scuttle the entire program? Is the argument even being hinted at that making it easier for congress to amend the laws presently justifying the program would be unacceptable?

    I can see that the existence of actual government programs(whether specific actions or broad categories of action) might be a 'national security' thing (although far less often in reality than that excuse is invoked); but applying the notion to legal justifications just seems like a category error, something that could not ever not be absurd even to consider.

    I, of course, approve of a decision that the 'national security' justification is inadequate; but it boggles my mind that it would even be considered any more relevant than just a series of nonsense syllables.

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