U.S. must release memo on drones

NEW YORK - A federal appeals court ordered the Department of Justice to turn over key portions of a memorandum justifying the government's targeted killing of people linked to terrorism, including Americans.

In a case pitting executive power against the public's right to know what its government does, the U.S. Court of Appeals for the Second Circuit reversed a lower-court ruling preserving the secrecy of the legal rationale for the killings, such as the death of U.S. citizen Anwar al-Awlaki in a 2011 drone strike in Yemen.

Ruling for the New York Times, a unanimous three-judge panel said the government waived its right to secrecy by making repeated public statements justifying targeted killings.

These included a Justice Department "white paper," as well as speeches or statements by such officials as Attorney General Eric H. Holder and former presidential counterterrorism adviser John Brennan, endorsing the practice.

The Times and two reporters, Charlie Savage and Scott Shane, sought the memorandum under the federal Freedom of Information Act (FOIA), saying it authorized the targeting of Awlaki, a cleric who joined al-Qaeda's Yemen affiliate and directed many attacks.

"Whatever protection the legal analysis might once have had has been lost by virtue of public statements of public officials at the highest levels and official disclosure of" the white paper, Circuit Judge Jon Newman wrote for the appeals court panel in New York.

He said it was no longer logical or plausible to argue that disclosing the legal analysis could jeopardize military plans, intelligence activities, or foreign relations.

The court redacted a portion of the memo on intelligence gathering, as well as part of its own decision. It is unclear whether the government will appeal.

Civil liberties groups have complained that the drone program, which deploys pilotless aircraft, lets the government kill Americans without constitutionally required due process.

The FOIA requests at issue also focused on drone strikes that killed two other U.S. citizens: Awlaki's teenage son, Abdulrahman al-Awlaki, and Samir Khan, an editor of Inspire, an English-language al-Qaeda magazine.

Spokeswoman Allison Price said the Justic Department had no comment on the decision.

David McCraw, a Times lawyer, said the newspaper was delighted with the decision. "The court," he said in a statement, "reaffirmed a bedrock principle of democracy: The people do not have to accept blindly the government's assurances that it is operating within the bounds of the law; they get to see for themselves the legal justification that the government is working from."