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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