On the eve of a critical Senate vote, the Obama administration signaled it will publicly reveal a secret memo describing its legal justification for using drones to kill U.S. citizens suspected of terrorism overseas.
Two administration officials said the Justice Department has decided not to appeal a court order requiring disclosure of a redacted version of the memo under the Freedom of Information Act. The officials spoke on condition of anonymity because they were not authorized to speak publicly about the matter.
The decision to release the documents comes a day before the Senate is to vote on advancing President Barack Obama’s nomination of the memo’s author, Harvard professor and former Justice Department official David Barron, to sit on the 1st U.S. Circuit Court of Appeals in Boston.
Sen. Rand Paul, R-Ky., had vowed to attempt to block Barron’s confirmation with a filibuster if the documents were not made public. Paul issued a statement Tuesday saying he still opposes Barron’s nomination.
Today’s expected vote would allow the Senate to move ahead with a final vote on Barron on Thursday. “I think we’ll be OK,” Senate Majority Leader Harry Reid, D-Nev., said earlier Tuesday.
The release of the memo could take some time, since the redactions are subject to court approval. And the administration also is insisting that a classified ruling on the case also be redacted to protect information classified for national security, but not the legal reasoning, one of the officials said.
Anwar al-Awlaki, an al-Qaida leader born in the United States, was killed after being targeted by a drone strike in Yemen in September 2011. Some legal scholars and human rights activists complained that it was illegal for the U.S. to kill American citizens away from the battlefield without a trial.
Some senators, including those in Obama’s own party, have called for the public release of the memo before the final confirmation vote. The White House agreed under the pressure to show senators unredacted copies of all written legal advice written by Barron regarding the potential use of lethal force against U.S. citizens in counterterrorism operations.
Until now, the administration has fought in court to keep the writings from public view. But administration officials said that Solicitor General Donald Verrilli Jr. has decided not appeal an April 21 ruling requiring disclosure by the 2nd U.S. Circuit Court of Appeals in New York and that Attorney General Eric Holder concurred with his opinion.
The drone strike that killed al-Awlaki also killed another U.S. citizen, Samir Khan, an al-Qaida propagandist. Al-Awlaki’s 16-year-old son, Abdulrahman, was killed the following month in another drone attack.
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The American Civil Liberties Union and two reporters for The New York Times, Charlie Savage and Scott Shane, filed a FOIA suit. In January 2013, U.S. District Court Judge Colleen McMahon ruled that she had no authority to order the documents disclosed, although she chided the Obama administration for refusing to release them.
But a three-judge appeals court panel noted that after McMahon ruled, senior government officials spoke about the subject. The panel rejected the government’s claim that the court could not consider official disclosures made after McMahon’s ruling, including a 16-page Justice Department white paper on the subject and public comments by Obama in May in which he acknowledged his role in the al-Awlaki killing, saying he had “authorized the strike that took him out.”
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