Homeland Security Watch

News and analysis of critical issues in homeland security

April 23, 2014

Appeals panel orders release of kill memos

Filed under: Legal Issues,Terrorist Threats & Attacks — by Philip J. Palin on April 23, 2014

A three-judge Court of Appeals for the second circuit has ordered the US government to release a redacted version of documents, “relating to targeted killings of United States citizens carried out by drone aircraft.”

The decision is narrowly framed as a matter of FOIA procedures and does not address the legality of the actual killing of United States citizens.

From the finding and order:

In resisting disclosure of the OLC-DOD Memorandum, the Government contends that making public the legal reasoning in the document will inhibit agencies throughout the Government from seeking OLC’s legal advice. The argument proves too much.  If this contention were upheld, waiver of privileges protecting legal advice could never occur… Agencies seeking OLC legal advice are surely sophisticated enough to know that in these circumstances attorney/client and deliberative process privileges can be waived and the advice publicly disclosed. We need not fear that OLC will lack for clients.

Reading the decision, it is clear the 2013 leak and eventual release of a redacted Department of Justice White Paper (Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force) seriously complicated the government’s attempt to resist these FOIA requests.

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