Yesterday, the federal government moved for summary judgment on two related lawsuits brought by the New York Times and the ACLU, in which the plaintiffs’ sought to compel the release of documents responsive to Freedom of Information Act (“FOIA”) requests. The FOIA requests at issue sought documents related to the targeted killing of individuals suspected to be associated with al Qaida or other terrorist cells, including the targeting of U.S. citizens and the use of unmanned “drones” to carry out attacks. Both the Times and ACLU made requests in October 2011, after the death of Anwar Al-Awlaki, a U.S. citizen who was accused of being an “operational” terrorist affiliated with al Qaida.

In responses in late October and November, the government refused to produce any documents related to the policy of targeted killings, and for the most part refused to either confirm or deny the existence of any such documents “because the very fact of the existence or nonexistence of such documents is itself classified, protected from disclosure by statute, and privileged.”  The Times and ACLU filed separate suits to compel production of documents, which were consolidated before Judge McMahon. After the filing of the lawsuits, news reports disclosed that the White House was deeply involved in a program of targeted killings of senior al-Qaida terrorists, including al-Awlaki.  Nonetheless, the government in its summary judgment brief stated that

whether or not the United States government conducted the particular operations that led to the deaths of Anwar al-Aulaki and the other individuals named in the FOIA requests remains classified.  Likewise, whether or not the CIA has the authority to be, or is in fact, directly involved in targeted lethal operations remains classified. And that is so notwithstanding the unsourced, unofficial statements and media reports that plaintiffs have identified

In addition, senior Administration officials gave public speeches about the legal basis for the use of lethal force against U.S. citizens “who are senior operational leaders of al-Qaida or associated forces.”  In light of these speeches, the government determined that it could acknowledge the existence of documents that concern the legal basis for the use of lethal force against U.S. citizens and the process by which U.S. citizens can be designated as targets, but it was not willing to produce any such documents.  Further, the only documents whose existence the government was willing to disclose were the speeches themselves:

Such records would include the Attorney General’s March 5, 2012, speech, in which he explained that under certain circumstances, the use of lethal force against U.S. citizens who are senior operational leaders of al-Qaida or associated forces would be lawful when, among other things, “the U.S. government . . . determined, after a thorough and careful review, that the individual pose[d] an imminent threat of violent attack.” They would also include the April 30, 2012, speech of Assistant to the President for Homeland Security and Counterterrorism John Brennan, in which he also discussed such matters and the U.S. government’s use of drones.  Because the CIA is a critical component of the national security apparatus of the United States, and because the speeches covered a wide variety of issues relating to U.S. counterterrorism efforts, it does not harm national security to reveal that copies of the Attorney General’s and Mr. Brennan’s speeches exist in the CIA’s files.  (emphasis added)

The government refused to produce or disclose any other information, and moved for summary judgment on the grounds that the documents sought are classified, privileged and/or cannot be disclosed under statute.  Further, the government argued that the court should give deference to the Executive Branch’s reasoned determination that it would harm national security to “provide public details regarding the classified documents that are withheld; even to describe the numbers and details of most of these documents would reveal information that could damage the government’s counterterrorism efforts.” The ACLU issued a press release in response to the government’s motion, in which Jameel Jaffer, Deputy Legal Director of the ACLU, called the Administration’s position “beyond absurd”:

The notion that the CIA’s targeted killing program is still a secret is beyond absurd.  Senior officials have discussed it, both on the record and off.  They have taken credit for its putative successes, professed it to be legal, and dismissed concerns about civilian casualties.  If they can make these claims to the media, they can answer requests under the Freedom of Information Act.  The public is entitled to know more about the legal authority the administration is claiming and the way that the administration is using it.  The administration should release the legal memos that purportedly justify the targeted killing program, and it should release more information about the process by which individuals, including American citizens, are added to government kill lists.  It should also release the evidence that led the administration to kill three Americans, including a 16-year-old boy, last year.