Targeted Killing: Litigation

Yesterday, the ACLU filed a letter in the ongoing case ACLU v. CIA regarding the release of former CIA Director Gen. Michael Hayden's autobiography, which according to the book's description, covers Hayden's role in the CIA's targeted-killing program, the expansion of that program, and the campaign's effectiveness in countering terrorism.

The use of lethal force (whether via armed drone, manned aircraft, cruise missile, helicopter assault, etc.) has been a cornerstone of U.S. counterterrorism policy for many years, both in places where we have ground combat deployments and places where we do not. Throughout this period, the legality, efficacy, wisdom, and morality of this practice has been the subject of intense scrutiny and debate. Nonetheless, the kinetic option has proven remarkably durable over time (especially as compared to its sibling, the use of non-criminal detention).

The release last month of the Al-Aulaqi Office of Legal Counsel memo, it turns out, was not the end of the Second Circuit litigation regarding the New York Times and ACLU’s FOIA requests for information on the government’s targeted killing programs. A petition for rehearing en banc is still pending. And yesterday, the Justice Department, the Pentagon, and the CIA filed a motion for leave to submit ex parte classified and privileged supplemental declarations in support of their petition for rehearing.

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 l