Latest in Targeted Killing: Litigation
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.
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.
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 those strikes.
After laying out the facts, including the U.S.
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 al-Qa’ida in the Arabian Peninsula, the United States intentionally targeted and killed him with a drone strike in Yemen on September 30, 2011.
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 Al-Qaeda, his role in past attacks, his continuing involvement in planning future attacks, and so forth?
Answers have been hard to come by.
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.
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.
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.
Last Tuesday, Judge Vitaliano of the Eastern District of New York dismissed a FOIA suit seeking access to NSC records about the drone program.
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’ table, in the jury box, and in the audience. District Court Judge Rosemary Collyer’s reaction to the crammed courtroom: “Holy Cow.”