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Category Archives: Targeted Killing: Litigation

A Clue About the Origins of “Imminence” in the OLC Memo?

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Wednesday, June 25, 2014 at 10:37 AM

There’s a lot to discuss about the OLC memo on the al-Aulaqi strike—including, as Ben mentioned yesterday, the origins and significance of “imminence.”  (There’s also excellent analysis over at Just Security, which I recommend to interested readers.) Throughout the OLC memo’s 41 pages, the much-scrutinized term appears several times, often as part of a phrase: “continued and . . .
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Second Circuit Releases Redacted OLC Drone Memo

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Monday, June 23, 2014 at 3:07 PM

The Second Circuit has just released a redacted version of the OLC Drone Memo–here is the memo; here is the panel’s full, revised April 21, 2014 decision with the memo appended at page 67. You’ll recall that back in April, a three-judge panel (comprising Judges Newman, Cabranes and Pooler) reversed a lower court decision dismissing the ACLU’s suit for release . . .
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The Al-Awlaki Decision: No Triumph for Transparency?

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Thursday, April 24, 2014 at 7:37 AM

On Monday, a three-judge Second Circuit panel ordered the Obama administration to disclose a redacted copy of the Office of Legal Counsel memorandum outlining its legal justification for the targeted killing of New Mexico-born Anwar al-Awlaki. The decision is being cast as a triumph for transparency, and a clear admonition of presidential secrecy with respect to . . .
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Order to Release the OLC Targeted Killing Memo: A Summary

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Monday, April 21, 2014 at 3:08 PM

As Ben noted this morning, the Second Circuit has ordered the release of a redacted version of the OLC memorandum that justified the targeted killing of U.S. citizen Anwar al-Awlaki. Specifically, the three-judge panel has ordered the government to disclose redacted versions of the requested memoranda on the legal status of targeted killings generally and of . . .
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Second Circuit Orders Release of Al Awlaki Memo

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Monday, April 21, 2014 at 11:35 AM

The U.S. Court of Appeals for the Second Circuit has reversed a lower court opinion and ordered the government to release key portions of the legal memos that lie behind the targeted killing of Anwar Al Awlaki. Here’s the opinion, which I have not yet read, by a unanimous three-judge panel. Here’s coverage from the . . .
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A Summary of Friday’s Decision in al-Aulaqi v. Panetta

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Monday, April 7, 2014 at 1:19 PM

As Ben mentioned on Friday, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia dismissed a Bivens suit brought by the families of Anwar al-Aulaqi, his son Abdulrahman, and Samir Khan—three U.S. citizens killed in U.S. drone strikes in 2011—seeking to hold various federal officials personally liable for their roles in . . .
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Judge Collyer Throws Out Al-Aulaqi Bivens Suit

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Friday, April 4, 2014 at 6:05 PM

Judge Rosemary Collyer of the U.S. District Court for the District of Columbia has thrown out the Bivens suit by the families of Anwar Al-Aulaqi and his son, and Samir Khan, all of whom were U.S. citizens killed in drone drikes in Yemen. Here’s the 41-page opinion. It opens: Because Anwar Al-Aulaqi was a terrorist leader of . . .
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The Clear and Convincing Standard and Citizen Drone Strikes

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Friday, February 28, 2014 at 3:14 PM

When last we debated the Government’s legal authority to kill an American terrorist overseas, some big-ticket questions had to do with proof: exactly how much evidence would be required before executive branch officials would approve a lethal drone strike against U.S. citizen?  And what sorts of proof would suffice, in establishing a target’s stature in . . .
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What is the Point of the New Drone Targeting Rules?

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Friday, February 28, 2014 at 8:33 AM

Another tidbit from the NYT story Ben just flagged: It is unclear what Mr. Obama’s position is on whether Mr. Shami should be targeted.  American officials said that as part of the new rules ordered by Mr. Obama, the Pentagon, rather than the C.I.A., is supposed to carry out any lethal strike against an American . . .
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Oral Argument Recap: NYT & ACLU v. United States

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Wednesday, October 2, 2013 at 6:18 AM

Tuesday’s oral argument in the New York Times and American Civil Liberties Union’s Freedom of Information Act cases before the Second Circuit Court of Appeals spent as much time clarifying the basic issues at play as it did digging into the substantive questions in the case. As noted in our preview post, the Times and . . .
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Oral Argument Preview: NYT & ACLU v. United States

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Monday, September 30, 2013 at 11:55 AM

A three-judge panel of the Second Circuit Court of Appeals will convene tomorrow afternoon to hear arguments in a case challenging the government’s ability to withhold records pertaining to its targeted killing program. The American Civil Liberties Union (ACLU) and the New York Times are challenging the District Court for the Southern District of New . . .
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E.D.N.Y. Grants Motion to Dismiss in Main Street Legal Services, Inc. v. National Security Council

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Sunday, August 11, 2013 at 7:32 PM

Last Tuesday, Judge Vitaliano of the Eastern District of New York dismissed a FOIA suit seeking access to NSC records about the drone program. Ritika already noted the court’s order in the news roundup; this post provides an overview of the opinion itself. In November 2012, Main Street Legal Services, a City University of New . . .
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A Recap of Friday’s Oral Arguments in Al-Aulaqi v. Panetta

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Friday, July 19, 2013 at 7:22 PM

Despite the day (TGIF!), the weather (95 degrees and rising), and other developing national security news, the E. Barrett Prettyman Courthouse security checkpoint was brimming with people primed to hear oral arguments on the defendants’ motion to dismiss in Al-Aulaqi v. Panetta. This being Washington in the summer, interns were predictably everywhere: at the defendants’ . . .
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Oral Argument Preview: Al-Aulaqi v. Panetta

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Thursday, July 18, 2013 at 4:49 PM

Tomorrow morning, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia will hear arguments on the government’s motion to dismiss in Al-Aulaqi v. Panetta. The lawsuit was filed last July by the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) on behalf of the family members of three . . .
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Jeff Powell on Targeted Killing and Due Process

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Friday, June 21, 2013 at 6:00 AM

The following is a guest post from Jeff Powell, a Professor of Law at Duke University School of Law.  He twice served in the Justice Department’s Office of Legal Counsel, as Deputy Assistant Attorney General in both the Clinton and Obama Administrations.  While at OLC, Jeff was not involved in providing any advice on targeted . . .
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USG Brief in CA2 Targeted Killing FOIA Case

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Monday, June 17, 2013 at 8:44 AM

Last Friday the government filed this brief in CA2  in the NYT’s and ACLU’s appeal in the case involving FOIA requests  on targeted killing. (Here is our account of the decision below, which the government largely won, and here is the ACLU brief on appeal).  I’m headed for vacation this morning and don’t have time . . .
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Disclaimer about CFR Essay [UPDATED]

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Saturday, May 25, 2013 at 2:40 PM

As I noted yesterday, I have an essay at CFR on the President’s speech.  I don’t write the headlines or the summaries of my pieces, and I was surprised and dismayed when someone at CFR summarized my piece by saying: “President Obama’s counterterrorism speech didn’t earn its hype. When it comes to the war on terror, the president’s top priority has . . .
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Ryan Goodman and Sarah Knuckey: Questions About New Targeting Rules

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Saturday, May 25, 2013 at 8:43 AM

Ryan Goodman and Sarah Knuckey maintain that the new targeting framework announced by the President “raises some troubling questions and leaves important older questions completely unanswered.”  Their list is long, but here are the first two: Where do the rules apply? The new rules apply only to operations conducted outside “areas of active hostilities.” A lot . . .
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Reactions to the President’s Speech

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Friday, May 24, 2013 at 2:14 PM

My reactions to the President’s speech can be found in this essay at the CFR page.  The headline writers gave it the title of Obama Passes the Buck: The President’s Empty Rhetoric on Counterterrorism.  The subtitle captures the basic thrust of the essay, which is a pretty cynical reaction to the President’s speech grounded mostly . . .
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The President’s Speech: A Quick and Dirty Reaction–Part 4 (Hedging on the Drone Court)

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Friday, May 24, 2013 at 7:11 AM

There are a number of areas in the president’s speech yesterday in which Obama publicly aligns himself with critics of his administration, while promising in hard terms very little. As I described yesterday, he spent a lot of time criticizing the idea of endless war under the AUMF—while not concretely committing himself to ending hostilities. . . .
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