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U.S. Department of Justice Memo: Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi

Published June 23, 2014

This U.S. Court of Appeal's Second Circuit ruled that a redacted version of a 2010 Justice Department memo that "signed off on the effort to target Anwar Al-Awlaki, an American citizen deemed a terrorist, for killing without a trial," had to be released, in response to FOIA requests filed by the New York Times and the American Civil Liberties Union.

Attached to the opinion is the redacted memo, page 67. Excerpt from the ruling:

This appeal of a judgment dismissing challenges to denials of requests under the Freedom of Information Act ("FOIA") presents important issues arising at the intersection of the public's opportunity to obtain information about their government's activities and the legitimate interests of the Executive Branch in maintaining secrecy about matters of national security. The issues assume added importance because the information sought concerns targeted killings of United States citizens carried out by drone aircraft....

We emphasize at the outset that the Plaintiffs' lawsuits do not challenge the lawfulness of drone attacks or targeted killings. Instead, they seek information concerning those attacks, notably, documents prepared by DOJ's Office of Legal Counsel ("OLC") setting forth the Government's reasoning as to the lawfulness of the attacks. The issues primarily concern the validity of FOIA responses that (a) decline to reveal even the existence of any documents responsive to particular requests (so-called "Glomar responses" (described below)), (b) acknowledge the existence of responsive documents but decline to reveal either the number or description of such documents (so-called "no number, no-list" responses (described below)), (c) assert various FOIA exemptions or privileges claimed to prohibit disclosure of various documents that have been publicly identified, notably the OLC-DOD Memorandum and other OLC legal opinions, and (d) challenge the adequacy of a FOIA search conducted by one office of DOJ. We conclude that (1) a redacted version of the OLC-DOD Memorandum must be disclosed, (2) a redacted version of the classified Vaughn index (described below) submitted by OLC must be disclosed, (3) other legal opinions prepared by OLC must be submitted to the District Court for in camera inspection and determination of waiver of privileges and appropriate redaction, (4) the Glomar and "no number, no list" responses are insufficiently justified, (5) DOD and CIA must submit Vaughn indices to the District Court for in camera inspection and determination of appropriate disclosure and appropriate redaction, and (6) the Office of Information Policy ("OIP") search was sufficient. We therefore affirm in part, reverse in part, and remand.

The FOIA requests at issue in this case focus primarily on the drone attacks in Yemen that killed Anwar al-Awlaki and Samir Khan in September 2011 and al-Awlaki's teenage son, Abdulrahman
al-Awlaki, in October 2011. All three victims were United States citizens either by birth or naturalization.

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