Federal judge denies request for information on targeted killings

[JURIST] A judge for the US District Court for the Southern District of New York [official website] on Wednesday denied [opinion, PDF] a Freedom of Information Act (FOIA) [text, PDF] request for disclosure of tactics used by the US to assassinate suspected terrorists. The request had been filed by American Civil Liberties Union (ACLU) [advocacy website] and the New York Times [media website] in 2010. They argued that because the government made public statements about target killings, it had waived the right of immunity under the FOIA's exemptions for classified and privileged materials. The judge declined to accept this argument reasoning that there has been no official disclosure pertaining to documents detailing target killing operations. Rather, the statements concerned the fact that those operations took place. In addition, the plaintiffs claimed that the government failed to conduct a reasonable search for documents requested under the FOIA. As with plaintiffs' first argument, Judge Colleen McMahon denied this argument also holding that the government satisfies the requirement by "demonstrating, through affidavits or declarations, that it has conducted 'a search ... reasonably calculated to discover the requested documents.'" In conclusion, McMahon stated:

However, this Court is constrained by law, and under the law, I can only conclude that the Government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States ... I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret. But under the law as I understand it to have developed, the Government's motion for summary judgment must be granted, and the cross-motions by the ACLU and the Times denied ...
The ACLU has announced plans to appeal [press release] the decision.

The court ruling came less than a month after the Department of Justice (DOJ) [official website] filed [JURIST report] a motion to dismiss [text, PDF] a separate lawsuit challenging drone strikes. Senior al Qaeda leader and US citizen Anwar al-Awlaki [BBC obituary; JURIST news archive] was killed by drone strike [JURIST report] last September along with another American, Samir Khan. Two weeks later drone strikes killed 16-year-old Abdulrahman Al-Awlaki, Anwar Al-Awlaki's son. Awlaki, a dual US-Yemeni citizen, had been approved for targeting killing by the Obama administration, an action that was challenged based on Awlaki's US citizenship. In December 2010 a judge for the US District Court for the District of Columbia [official website] dismissed a lawsuit [JURIST reports] challenging the Obama administration's ability to conduct "targeted killings" in al-Awlaki's case. Judge John Bates found that the court lacked jurisdiction over the case, filed by the ACLU and the CCR on behalf of Awlaki's father, dismissing it on procedural grounds and noting that important questions remain. Bates heard arguments [JURIST report] in the case in November 2010 on the same day Awlaki called for jihadist attacks on US citizens in a video posted on extremist websites. Earlier that month Yemeni prosecutors charged [JURIST report] Awlaki with incitement to kill foreigners, and he was later sentenced in absentia to 10 years in prison.

 

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