January 14, 2013
Senator Asks to View Files on Killings of Americans
By SCOTT SHANE, NYTIMES
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WASHINGTON — A Democratic member of the Senate Intelligence Committee demanded Monday that he and other committee members be allowed to review secret Justice Department legal opinions justifying the killing of American citizens in counterterrorism operations.

In a letter to John O. Brennan, President Obama’s counterterrorism adviser and his nominee for C.I.A. director, Senator Ron Wyden of Oregon said he had asked repeatedly but unsuccessfully to see the legal opinions, though he added that he had been given “some relevant information on the topic.”

The administration has fought in court to keep such legal opinions secret, including one justifying the killing of Anwar al-Awlaki, an American-born cleric and Al Qaeda propagandist who was killed in a drone strike in Yemen in 2011. A federal judge in Manhattan ruled on Jan. 2 against the American Civil Liberties Union and The New York Times, which sought the opinions under the Freedom of Information Act and plan to appeal the ruling.

Mr. Wyden called the administration’s current stance “unacceptable.” He wrote that only by reviewing the exact language of the legal opinions could he know “whether the president’s power to deliberately kill American citizens is subject to appropriate limitations.”

The White House declined to comment. Administration officials, including Mr. Brennan, have given a series of public speeches discussing the legal basis for drone strikes, even as they have declined to release the actual legal opinions.

Mr. Wyden did not threaten to block Mr. Brennan’s confirmation, which is expected to get Senate approval. The Intelligence Committee has set a confirmation hearing for Feb. 7.

In his letter, Mr. Wyden told Mr. Brennan that he also wanted to discuss the committee’s still-classified 6,000-page report on the C.I.A.’s use of coercive interrogations under President George W. Bush. He said that the report revealed that “the C.I.A. repeatedly provided inaccurate information about its interrogation program to the White House, the Justice Department and Congress,” and that he wanted Mr. Brennan’s views on how to correct what he called past inaccurate statements about the interrogation program.

Mr. Wyden also requested several other documents he said he has sought without success, including a list of countries in which the intelligence agencies have carried out lethal operations.

While only Mr. Wyden signed the letter, the Democratic chairwoman of the Intelligence Committee, Senator Dianne Feinstein of California, has previously called on the administration to make public the legal opinion justifying the Awlaki strike and said that she, too, intends to question Mr. Brennan about the report on C.I.A. interrogations.

January 2, 2013
Secrecy of Memo on Drone Killing Is Upheld
By ADAM LIPTAK, NYTIMES
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WASHINGTON — A federal judge in Manhattan refused on Wednesday to require the Justice Department to disclose a memorandum providing the legal justification for the targeted killing of a United States citizen, Anwar al-Awlaki, who died in a drone strike in Yemen in 2011.

The ruling, by Judge Colleen McMahon, was marked by skepticism about the antiterrorist program that targeted him, and frustration with her own role in keeping the legal rationale for it secret.

“I can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for their conclusion a secret,” she wrote.

“The Alice-in-Wonderland nature of this pronouncement is not lost on me,” Judge McMahon wrote, adding that she was operating in a legal environment that amounted to “a veritable Catch-22.”

A lawsuit for the memorandum and related materials was filed under the Freedom of Information Act by The New York Times and two of its reporters, Charlie Savage and Scott Shane. Wednesday’s decision also rejected a broader request under the act from the American Civil Liberties Union.

David E. McCraw, a lawyer for The Times, said the paper would appeal.

“We began this litigation because we believed our readers deserved to know more about the U.S. government’s legal position on the use of targeted killings against persons having ties to terrorism, including U.S. citizens,” Mr. McCraw said. “Judge McMahon’s decision speaks eloquently and at length to the serious legal questions raised by the targeted-killing program and to why in a democracy the government should be addressing those questions openly and fully.”

Jameel Jaffer, a lawyer with the A.C.L.U., said his group also planned to appeal. “This ruling,” he said, “denies the public access to crucial information about the government’s extrajudicial killing of U.S. citizens and also effectively greenlights its practice of making selective and self-serving disclosures.”

A Justice Department spokesman said only that lawyers there were reviewing the decision.

Judge McMahon’s opinion included an overview of what she called “an extensive public relations campaign” by various government officials about the American role in the killing of Mr. Awlaki and the circumstances under which the government considers targeted killings, including of its citizens, to be lawful. The Times and the A.C.L.U. argued that the government had waived the right to withhold its legal rationale by discussing the program extensively in public.

(Samir Khan, a naturalized American citizen who lived at times on Long Island and in North Carolina, was also killed in the strike, on Sept. 30, 2011. Another strike two weeks later killed a group of people including Mr. Awlaki’s 16-year-old son, Abdulrahman al-Awlaki, who was born in Colorado.)

President Obama and Defense Secretary Leon E. Panetta both acknowledged that the United States played a role in the elder Mr. Awlaki’s death, Judge McMahon wrote. But she focused in particular on a March speech by Attorney General Eric H. Holder Jr. at Northwestern University.

When United States citizens are targeted for killing, Mr. Holder said, the Constitution’s due process protections apply. But due process does not require “judicial process,” he added.

On the one hand, Judge McMahon wrote, “the speech constitutes a sort of road map of the decision-making process that the government goes through before deciding to ‘exterminate’ someone ‘with extreme prejudice.’ ” On the other hand, the speech was “a far cry from a legal research memorandum.”

The government’s public comments were as a whole “cryptic and imprecise,” Judge McMahon said, and were thus insufficient to overcome exemptions in the freedom of information law for classified materials and internal government deliberations.

“It lies beyond the power of this court to conclude that a document has been improperly classified,” she wrote, rejecting the argument that legal analysis may not be classified.

Judge McMahon said she had not reviewed the withheld documents, including the one at the heart of the case, which was prepared by the Justice Department’s Office of Legal Counsel. She said the memorandum must contain more detailed legal analysis than the broad statements in Mr. Holder’s speech “unless standards at O.L.C. have slipped dramatically.”

The Times published an account of the Office of Legal Counsel memorandum in October 2011, citing people who had read it.

Even as she ruled against the plaintiffs, the judge wrote that the public should be allowed to judge whether the administration’s analysis holds water.

“More fulsome disclosure of the legal reasoning on which the administration relies to justify the targeted killing of individuals, including United States citizens, far from any recognizable ‘hot’ field of battle, would allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated,” she wrote.