In the years-long conversation about President Barack Obama's incredible drone wars, we've heard opaque, albeit scintillating, references to threat matrices and kill lists. But there's one thing we've never heard: What is the president's legal rationale for extrajudicial killing of Americans with drones?
Finally, we can expect to find out soon. Today, US Second Circuit Court of Appealsruled in favor of the New York Times and the ACLU in a Freedom of Information Act case levied against the Department of Justice, Defense Department, and CIA. The case was initially filed after the above agencies refused to comply with a FOIA request "seeking documents relating to targeted killings of United States citizens carried out by drone aircraft."
The order from a three-judge panel requires the government to release a raft of documents regarding drone strikes, including the classified Department of Justice memo that initially authorized the killing of Anwar al-Awlaki, an American al-Qaeda imam, and Samir Khan, the Pakistani American publisher of the al-Qaeda affiliated Inspire magazine, who were killed by a drone strike in Yemen in 2011. (Al-Awlaki's 16-year-old son was killed two weeks later in another drone strike. Both strikes were just a part of the US's long drone war in the country.)
Crucially, the court ruled that all correspondence pertaining to both the legal and factual bases for the strikes must be released. Most importantly, this includes the rationale the Department of Justice, at the direction of the White House, approved for the killing of American citizens without due process, and especially the criteria used for classifying the two men and a teenager as enemy combatants.
The ruling is especially crucial as, just a month and a half ago, we learned of Abdullah al-Shami, the next American—and alleged militant—that the White House would like to execute by drone. It's unclear how the legal framework for al-Awlaki's killing might apply to al-Shami.
A White House memo released in May of last year explained that the "United States will use lethal force only against a target that poses a continuing, imminent threat to US persons. It is simply not the case that all terrorists pose a continuing, imminent threat to US persons; if a terrorist does not pose such a threat, the United States will not use lethal force."
With that in mind, the bar for killing an American abroad seems to have been lifted higher since 2011. But it's also important to note that the classification of the al-Awlakis and Khan as "imminent threats" is a key piece of evidence the NYT-ACLU suit is trying to uncover.
It's important to note, as Circuit Judge Jon. O. Newman does in the ruling, that the "lawsuits do not challenge the lawfulness of drone attacks or targeted killings." Instead, they simply seek information about how the government argued—in secret, mind you—that it could legally kill three Americans abroad without due process.
As the justices noted, it's vital information for the public, especially considering the conversion of the CIA into a drone-powered paramilitary organization, as well as the Obama Administration's continued reliance on targeted killings. And as Ars Technica notes, the ruling may also have key knock-on effects for other FOIA cases. But at its most simple, the ruling is monumental: Finally, the public will learn—barring more legal wrangling, of course—how the government approves its drone kills.
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