Appeals Court Says Secret Drone Memos Can Stay Secret

from the for-the-good-of-the-uninformed-nation dept

The Second Circuit Court of Appeals has ruled that certain legal memos justifying the government's drone strikes can remain secret. The long-running FOIA lawsuit involving the New York Times and the ACLU has been covered previously here. At the center of this FOIA lawsuit are more than 100 legal opinions from the DOJ's Office of Legal Counsel (OLC) that provide the legal argument for the extrajudicial killing of suspected terrorists.

A few of these documents have made their way into the public's hands, thanks to the two plaintiffs, aided in no small part by government officials citing the memos in other documents and commenting publicly about the drone strike program.

But there are still a few memos being held back. The "most transparent administration" has been very active in ensuring the Freedom of Information Act doesn't live up to its stated ideals. Nine of these memos have been officially buried by the Appeals Court, which apparently believes the government when it says the legal guidance memos it uses to justify its drone strike program are nothing more than "discussions" with lawyers that are exempted from disclosure. Brett Max Kaufman at Just Security points out the flaws in the court's rationale.

In an OLC memorandum published, ironically or not, the same day (July 16, 2010) and over the same signature (David Barron’s) as the targeted killing memorandum released at the Second Circuit’s behest last year, the OLC explains that its “central function” is to provide “controlling legal advice to Executive Branch officials.” And not even two weeks ago, the acting head of the OLC told the public that even informally drafted legal advice emanating from his office is “binding by custom and practice in the executive branch,” that “[i]t’s the official view of the office, and that “[p]eople are supposed to and do follow it.”
Both sides of this "discussion" (OLC, Obama administration) continue to claim there's nothing binding in these memos when fighting to keep them secret, but both treat the secret documents as binding. The court, however, has resolved these contradictory statements in favor of the government.

On top of that -- via reasoning almost completely hampered by the court's inability to disclose almost anything about the disputed documents or the government's ex parte submissions and in camera discussions -- the court has chosen to allow one of the most controversial memos to remain in the government's possession.
[T]he Second Circuit’s new opinion endorses the continued official secrecy over any discussion of a document that has supplied a purported legal basis for the targeted killing program since almost immediately after the September 11 attacks. The document — a September 17, 2001 “Memorandum of Notification” — is not much of a secret. The government publicly identified it in litigation with the ACLU eight years ago; the Senate Intelligence Committee cited it numerous times in its recent torture report; and the press frequently makes reference to it. Not only that, but the Central Intelligence Agency’s former top lawyer, John Rizzo, freely discussed it in his recent memoir.

According to Rizzo, the September 17 MON is “the most comprehensive, most ambitious, most aggressive, and most risky” legal authorization of the last decade and a half — which is saying something.
This memo apparently contains the OLC's justification for the extrajudicial killing of targets "outside of recognized battlefields." According to Kaufman, the memo also likely contains the DOJ's "workaround" to bypass the restrictions on "assassinations" contained in Executive Order 12333. If so, these justifications would very much be of public interest, while simultaneously being something the administration (this one or the last one) would have no interest whatsoever in making public.

The Freedom of Information Act wasn't passed with the intention of making the government only as transparent as it wants to be. It was a forced change. The government didn't voluntarily decide to grant the public access to its inner workings. Siding with the administration by buying into its "discussions with counsel" arguments subverts the spirit of the law by using the letter of the law against the public.

Filed Under: doj, drone memo, drones, foia, olc, second circuit, secrets
Companies: aclu


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Anonymous Coward, 1 Dec 2015 @ 4:00pm

    There's one way to see their justifications

    Taking the OLC at their word that this is just legal advice given to the regime, then the way to see their arguments is to make them use the arguments. The way to do that is to bring charges against them. Get a family member of a droned person to take them to court (Not sure which charge to use - murder?/civil-rights violations?/war crimes?/ due process violation?)

    Assuming (cynically) the court rules in favor of the government, then whatever reason they successfully use in court is the only one that matters.

    reply to this | link to this | view in chronology ]

    • icon
      Boojum (profile), 1 Dec 2015 @ 4:24pm

      Re: There's one way to see their justifications

      All they would be able to do is bring a civil case since a criminal case has to be initiated by the government's judicial branch. Then the government needs to wave the National Security trump card to prevent the case from going forward (provided you can get an american citizen who is a relative to bring the civil case.) So I don't think that lawsuits would work to bring this information to light.

      reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 2 Dec 2015 @ 7:15am

        Re: Re: There's one way to see their justifications

        All they would be able to do is bring a civil case since a criminal case has to be initiated by the government's judicial branch.

        Even worse, it's the executive branch actually.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Anonymous Coward, 1 Dec 2015 @ 4:04pm

    Who works for whom?

    Somebody needs to sit our judicial branch down and explain separation of powers to them. We need someone with more than a passing knowledge of the Constitution for this. Any volunteers?

    OK, any suicidal volunteers?

    reply to this | link to this | view in chronology ]

  • identicon
    s2lim, 1 Dec 2015 @ 4:36pm

    I'm not volunteering for shit but any "memo" .. "authorizing" POTUS to commit, permit or otherwise authorize murder - as if it were some sort of "doing the right thing" thing, has exactly zero places to fit comfortably inside of any "government" and especially one calling itself an American institution.

    Fuck the memo, terrorism is what terrorism does - it doesn't matter fuck all who or what the target is or is not. Murder is murder - there is no such thing as a just one.

    reply to this | link to this | view in chronology ]

  • icon
    tqk (profile), 1 Dec 2015 @ 4:38pm

    What an astonishing level of BS.

    They're acting like four year olds trying to get out of getting busted for cookie theft. The lawyer and gov't says it's all perfectly legal. Okay, tell us why. No!!! We can't tell you! NatSec!!!

    What bullshit. We have to be thinking, if you have something to hide, you must have something to fear. Is it that Constitution thingamahooey? It sure appears to be that looking in. If so, this should be cleared up ASAP, or somebody ought to be on their way to jail just for trying to hide that.

    My guess is, this's the smoking gun that'd convict Bush and Cheney of War Crimes, and Obama's administration's just as complicit since taking over from them.

    Release the memos and prove me wrong. Every day they don't it'll only get worse. Soon, we'll be accusing Obama of assassinating the Kennedys.

    reply to this | link to this | view in chronology ]

    • icon
      orbitalinsertion (profile), 2 Dec 2015 @ 4:55am

      Re: What an astonishing level of BS.

      That's why we do things like retroactively make the telcos innocent, and make no investigations into the previous regime's - i mean, administration's - activities, under the claim of "moving on". Moving on to even more of the same, that is.

      Which I guess is why the opposition party never bothers accusing the party in power of the things they do actually do wrong, but make up batshit insane things instead.

      reply to this | link to this | view in chronology ]

  • identicon
    Justme, 1 Dec 2015 @ 5:55pm

    Re: What an astonishing level of BS.

    "Soon, we'll be accusing Obama of assassinating the Kennedys."

    I would think fox news already had it covered!

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 1 Dec 2015 @ 10:38pm

    Flawless logic

    So they can classify and hide from the public the 'legal' justification for killing people... well, I can't possibly see any problems with that, I mean just think of what could happen if they were forced to reveal the justifications for murder that they came up with.

    People could examine the justifications to check how sound and/or legal they were, but far, far worse... terrorist/criminal/communists might be able to find out what they can do to avoid being on the 'Kill whenever you can' list.

    reply to this | link to this | view in chronology ]

  • icon
    GEMont (profile), 2 Dec 2015 @ 10:38am

    The perfect definition of political progress.

    Man o man, you really cannot fault the USG for doing the surveillance thing on the US public.

    Absolutely nothing works better than blackmail to get those charged with dispensing justice, to instead dispense USG designed injustice on demand.

    Lets face it folks. If you received an unmarked plain brown envelope in the mail, filled with photo and transcript records of every single misdeed you ever got away with since you were 11 years old and a note telling you what you must do to prevent the contents of the envelope from becoming tomorrow's news, you would most likely follow the instructions to the letter, just like these judges do.

    There's no denying it. The Surveillance Program is the best tool the USG ever initiated for turning citizens into minions, instantly and cheaply.

    And the really cool part is that the citizens who get blackmailed by the USG actually paid for the surveillance program and collection of documents found in that unmarked brown envelope.

    ---

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Techdirt Gear
Shop Now: Techdirt Logo Gear
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.