The Drone Memo Cometh

By Jameel Jaffer

In response to consolidated lawsuits filed by the ACLU and The New York Times, the Second Circuit recently ordered the Obama administration to disclose (with redactions) one of the legal memos authorizing the government’s premeditated killing of Anwar al-Aulaqi, an American citizen. The government has challenged certain aspects of the court’s decision, apparently with some degree of success (more on that below), and it has managed to defer the release of the memo by two months. To its credit, though, the court appears unwilling to allow the government to delay the release of the memo indefinitely. If the court holds to a plan it set forth ten days ago, it will publish the memo itself this coming week.

The publication of the memo won’t quiet the calls for transparency about the targeted-killing program—legal analysis isn’t the only thing that human rights groups have been calling on the government to release; legal analysis isn’t the only thing at issue in the ACLU’s litigation; and even with respect to legal analysis, the memo that the Second Circuit has ordered disclosed is only one of many related memos, and the government does not intend to release any of those related memos anytime soon, or even to identify them publicly.

But the publication of the one memo will be a significant milestone and certainly one of the most significant transparency-related developments since the administration’s release of the torture memos in 2009. It will begin to close the gap between the administration’s official narrative of the targeted-killing program and the actual facts about the program, and it will allow for a more informed debate about one of the government’s most controversial counterterrorism policies.

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