The American Civil Liberties Union and the New York Times continued their fight in court Tuesday as they try to secure nine Department of Justice memos they believe outline the federal government’s legal justification for tactical drone strikes that have killed hundreds — including U.S. citizens — across the world.
Attorneys on both sides presented their arguments to the 2nd U.S. Circuit Court of Appeals in New York on Tuesday — the latest round of courtroom discussions that date back four years.
In 2011, the ACLU submitted a Freedom of Information Act request regarding the targeted killings of U.S. citizens Anwar Al-Awlaki, his 16-year-old son, Abdulrahman Al-Awlaki, and Sameer Khan earlier that year in September.
Under court order in July 2014, the Justice Department released several documents detailing the government’s targeting of Anwar Al-Awlaki, as well as its justification. But portions of the documents were heavily redacted, including paragraphs that appear to further explain the government's legal justifications for killing Al-Awlaki. (Al-Awlaki’s son and Sameer Khan were were killed in the drone strike, but were not targets.)
According to the memo, Al-Awlaki, a New Mexico-born Muslim cleric, had “operational and leadership roles” with al-Qaeda and continued “to plot attacks intended to kill Americans.”
The New York Times and ACLU argue that there is more information contained in the nine other memos that outline the legal basis the government uses in targeted killings and they believe the public has a right to know more.
ACLU attorney Jameel Jaffer said in court Tuesday that the central question in the case is whether the government is allowed to “keep secret” how and why drone strikes are carried out.
But the judges on the appellate panel pointed out that they had already ordered the release of multiple documents in the case. At one point, one judge asked the plaintiffs point blank, “Why are we here?”
While Jaffer acknowledged that, to some extent, "the clouds have parted," he pointed to the heavy redaction in the released memos for the reason the ACLU believes there is “considerable detail” yet to be disclosed.
And if the government has a policy that justifies the killing of hundreds, “the public has a right to know what the government’s legal analysis is,” Jaffer said.
But given how heavily redacted the previously released memos were, "I don't know what’s in those documents,” said David McCraw, an attorney for The Times who also addressed the court.
Besides, McCraw added, the burden is on the federal government to show that it's exempt under the Freedom of Information Act (FOIA), not those making the request.
Assistant U.S. Attorney Sarah Normand, however, argued that the information the ACLU and New York Times are seeking is confidential and falls under attorney-client privilege. FOIA laws, she said, does not “trump these provisions.
“These are advice documents,” Normand said.
The Times and ACLU do not dispute that what they are after is mostly legal analysis on drone strikes. But, they contend, because the government acted according to the analysis contained in the memos, that analysis becomes “working law” and should not be exempt under FOIA.
Normand disagreed with that argument, saying the memos “leave the ultimate determination up to the client,” which in this case refers to the president or other members of the executive branch.
It was unclear when the appellate court will make a final decision in the case.