Credit Khaled Abdullah/Reuters
WASHINGTON â A federal appeals court ruled in a decision unsealed on Monday that the Justice Department could continue to conceal internal documents related to targeted killings in the fight against Al Qaeda.
A Freedom of Information Act lawsuit forced the Obama administration last year to reveal a secret memo that authorized the killing of the American-born terrorist leader Anwar al-Awlaki. But the new ruling, handed down in October, makes it unlikely that the suit will yield much else in the way of public disclosures.
A three-judge panel of the Court of Appeals for the Second Circuit, in New York, ruled unanimously that the government could keep secret about 10 documents regarding targeted killing operations against noncitizens abroad because the details of American legal policy and standards on that issue remained classified.
âWe emphasize at the outset that the lawfulness of drone strikes is not at issue,â Judge Jon O. Newman wrote for the panel. âThis appeal, like the prior one, primarily concerns whether documents considering such lawfulness must be disclosed.â
Judge Newman was joined in the ruling by Judges JosÃ© A. Cabranes and Rosemary S. Pooler. The litigation was a consolidation of separate Freedom of Information Act lawsuits brought by The New York Times and the American Civil Liberties Union.
The Justice Department declined to comment, but Jameel Jaffer, an A.C.L.U. lawyer, deplored the ruling and urged the Obama administration to voluntarily disclose more information about its standards for when it believes that killing terrorism suspects is legally justified.
âWe strongly disagree that these crucial legal memos can lawfully be kept secret,â he said. âIn a democracy, there should be no room for âsecret law,â and the courts should not play a role in perpetuating it.â He added, âThe government should not be using lethal force based on standards that are explained only vaguely and on facts that are never published or independently reviewed.â
The same appeals court panel in 2014 forced the Obama administration to reveal a lengthy July 2010 memo from the Justice Departmentâs Office of Legal Counsel about killing Mr. Awlaki, a radical Muslim cleric working with Al Qaedaâs branch in Yemen who died in a drone strike in 2011. A Nigerian terrorist who tried to blow up a Detroit-bound airliner with a bomb in his underwear on Christmas in 2009 told the F.B.I. in early 2010 that Mr. Awlaki had helped orchestrate the plot.
The government also later made public a shorter legal memo about killing Mr. Awlaki, from February 2010, that the longer memo had replaced.
But Judge Newman wrote that there was a big difference between the Awlaki memos and other memos about targeted killing operations: Officials had revealed extensive details about the governmentâs legal analysis regarding the killing of a citizen. They did so both in speeches and in an unclassified âwhite paperâ that the Justice Department officially disclosed after a copy was leaked to NBC News.
As a result of those disclosures, the judge wrote, the government had waived its right to withhold the Awlaki memos. By contrast, the government has stayed relatively tight-lipped about the topics in its other Office of Legal Counsel memos.
A Federal District Court judge, Colleen McMahon, had previously ruled that the memos could be lawfully withheld from the public, while deploring what she termed the âAlice in Wonderlandâ logic of the law. After reversing her ruling and ordering the release of the Awlaki memo, the appeals court sent the case back to Judge McMahon to weigh whether the other memos on targeted killings should be disclosed.
Later, in October 2014, Judge McMahon ruled that the government could keep those other memos secret. The plaintiffs appealed again, but this time the appeals court upheld her ruling.
A redacted transcript of arguments that the government made in July to the appeals court, with lawyers for The Times and the A.C.L.U. not present so that classified information could be discussed, showed that the judges were considering ordering the government to reveal two and a half pages of a 2002 Office of Legal Counsel memo regarding targeted killings abroad.
But the panel decided not to take that step. In its ruling, it said that while government officials in the Obama era had discussed killing foreigners abroad in several speeches, there was insufficient connection between those public remarks and the memo written years earlier to warrant the same kind of waiver granted for the Awlaki memo.
If the parties do not appeal, there will be one small additional disclosure as a result of the appeals courtâs latest ruling. The court said that most of three paragraphs that were redacted when Judge McMahonâs October 2014 ruling was released should be uncovered. They address âhypothetical situations that might raise issues of waiver of attorney-client privilege with respect to a noncompete clause in an employment contract.â