Despite promise, US govt moves to classify justification for drone killing of American
In January 2013, a Federal District Court judge decided that the US Justice Department could keep the document classified entirely. That ruling stood until April 2014, when a panel of the US Court of Appeals for the Second Circuit in New York ordered the government to publicize key parts of the document that provided the legal rationale for the drone strike that killed Anwar al-Awlaki.
Awlaki was born in New Mexico before moving to Yemen with his family as a child. He returned to the US again to attend college but eventually became a prominent Al-Qaeda propagandist who American intelligence officials have claimed helped plot terrorist attacks. He was killed by a September 2011 drone strike in Yemen that was authorized based on the 41-page memo, dated July 16, 2010.
President Barack Obama praised the strike at the time, telling reporters that Awlaki’s death was a “major blow to Al-Qaeda’s most active operational affiliate.”
The New York Times and American Civil Liberties Union have sought the release of the memo under the Freedom of Information Act.
It has been an issue of contention of late because David Barron, the former Justice Department attorney who wrote the memo, was confirmed by the US Senate by a narrow vote last week as a judge on a US appeals court. A number of senators said they would only vote to confirm Barron if the administration agreed not to appeal the April decision and release a redacted version of the document.
“I rise today to oppose the nomination of anyone who would argue that the president has the power to kill an American citizen not involved in combat and without a trial,” Senator Rand Paul said last week. “It is hard to argue for the trials for traitors and people who would wish to harm our fellow Americans. But a mature freedom defends the defenseless, allows trials for the guilty, and protects even speech of the most despicable nature.”
In a new court filing obtained by The New York Times, however, assistant US attorney Sarah Normand now argues that some of the information the administration pledged to reveal should actually remain secret.
“Some of the information appears to have been ordered disclosed based on inadvertence or mistake, or is subject is distinct exemption claims or other legal protections that have never been judicially considered,” she wrote.
The Justice Department also asked that the court keep the request for parts of the memo to remain secret. That request was denied, with the judge ordering the government to unveil previously secret negotiations between the court and prosecutions deliberating which aspects of the Barron memo would remain in the dark.
“It’s deeply disappointing to see the latest effort by the government to delay even further the release of this memo to the public,” New York Times attorney David McCraw told Politico. “The government reviewed the Second Circuit’s opinion before it was released. The court made redactions in response to that review. The fact that the government then waited five weeks to file a motion – seeking yet another opportunity to review what it has already reviewed – says volumes about the administration’s position on transparency.”
Senator Mark Udall (D-Colorado) was one of the lawmakers who said he only voted to confirm Barron because of the administration’s promise that “redactions to the memo would focus on still-classified information – not the legal reasoning itself,” he told the Times.
“I intend to hold the White House to its word,” Udall added.