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Project on Government Oversight

Awlaki Memo: The Law Should Not Be Secret

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October 11, 2011

Whether or not you support the targeted killing of cleric Anwar al-Awlaki in Yemen, a U.S. citizen, you should support at least the redacted release of the Justice Department memo that laid out the legal justification for killing Awlaki. Americans deserve to know under what circumstances the Executive Branch believes it is justified in killing citizens without the normal Constitutional protection of due process.

This is why POGO filed both Freedom of Information Act and Mandatory Declassification Review requests for the memo this morning.

The OLC usually makes its memos interpreting law publicly available, but has classified this and several other memos related to national security.

Elizabeth Goitein, a co-director of the Brennan Center for Justice’s Liberty and National Security Program, laid out two key reasons why the memo should be released:

The withholding of the legal basis for targeting al-Awlaki is inappropriate for two reasons. First, the world already knows that the U.S. killed al-Awlaki; how could it possibly harm national security to disclose why the Justice Department believes the killing was legal? Second, unless rejected by the President or superseded by a court ruling, OLC’s [Office of Legal Counsel] legal interpretations are binding on the executive branch. Undisclosed OLC opinions are therefore a kind of “secret law,” something that has no place in a democracy.

Goitein was a staffer for former Senator Russ Feingold (D-WI) and co-wrote the Brennan Center’s new report, Reducing Overclassification Through Accountability.

Over the weekend, The New York Times’s Charlie Savage revealed many details about the Awlaki memo. According to Savage’s reporting, the roughly 50-page memo, completed last year, provided the justification for killing Awlaki “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.” Savage added that “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 Washington Post’s editorial page, while disagreeing that killing Awlaki was illegal, recently argued that the memo should be made public. According to the Post, “Releasing the OLC opinion would shed light on the issues that touch on such a strike, including how the administration balanced the due-process rights of U.S. citizens with Mr. Awlaki’s decision to become a belligerent.”

This isn’t the first time the Justice Department’s OLC has come under fire for keeping secret its interpretation of laws. For several years, Sen. Ron Wyden (D-OR) and other Senators have been calling for an end to secret interpretations of surveillance laws.

(h/t Fabius Maximus for quoting Goitein)

Founded in 1981, the Project On Government Oversight (POGO) is a nonpartisan independent watchdog that champions good government reforms. POGO’s investigations into corruption, misconduct, and conflicts of interest achieve a more effective, accountable, open, and ethical federal government.

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