Transparency advocates are celebrating a major victory after a Court of Appeals decision ordered the Department of Justice (DOJ) to release a classified document explaining the legal justifications for the targeted killing of an American citizen in 2011. This decision reverses the ruling of a federal district court in New York in January 2013.
Anwar Al-Awlaki was killed in a drone strike in Yemen on September 30, 2011. The Obama Administration believed Awlaki was a senior al Qaeda operative based in Yemen. The strike also killed Samir Khan, another American citizen who was not specifically targeted.
The New York Times and the American Civil Liberties Union each submitted Freedom of Information Act requests for the legal memoranda prepared by the DOJ’s Office of Legal Counsel. The memo explained the legal justification for ordering the drone strike against an American citizen. While the DOJ released a 16-page white paper, the requests for the Office of Legal Counsel (OLC) memo were denied.
When the federal district court ruled that the DOJ was within its authority to refuse releasing these documents, The New York Times and the ACLU appealed the decision. They argued that the OLC memos are not merely advisory opinions, but rather actual “working law,” binding on the DOJ. Furthermore, the appellants argued that any authority to keep the document a secret was relinquished when the Attorney General made public speeches on this topic and when the DOJ released the white paper describing the drone strike.
The Project On Government Oversight joined the Electronic Privacy Information Center and a number of other open government organizations in submitting an amicus brief explaining the importance of making all OLC memos available to the public. Specifically, the brief highlighted the problems created when government agencies are permitted to create binding legal authority that is not accessible to the American public.
This case provides yet another example of the current Administration allowing executive agencies to create “secret law.” The OLC and other Offices of General Counsel create secret law when they internally distribute an interpretation of a statute but refuse to share this interpretation externally. As POGO has argued in the past, executive agencies should be required to release these legal memos to allow the American public to know how these agencies interpret and enforce the laws of our land.
The Court of Appeals’ decision is a step in the right direction. The executive branch should be operating in a way that promotes transparency and openness, and the precedent established here provides a means to continue moving towards this goal.