Summary: Appeal Court rejects US government’s claims that ‘targeted killing’ programme is protected by official secrecy

21st April 2014: the Court of Appeal for the Second Circuit has rejected the US government’s claim that it cannot release information about its so-called ‘targeted killing’ programme as it is protected by official secrecy. SRT grantee the American Civil Liberties Union (ACLU) argued the case before the Second Circuit panel in October 2013.

In ordering the release of a 2010 legal memorandum analysing the potential targeted killing of an American citizen, as well as other information about records that the government has previously refused to describe, the Second Circuit became the first court to order the release of a document related to the targeted killing programme. The court held that as the government had given repeated public assurances that the programme is lawful, and had disclosed a “white paper” summarising its legal conclusions, it had waived its right under the Freedom of Information Act to keep secret its legal analysis authorising the killing of US citizens.

In January 2013, the district court agreed with the government that it could keep secret all its documents related to the targeted killing programme. However the judge expressed serious misgivings about the result, writing, “I can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for their conclusion a secret.”

The case will now go back to the district court, where the government must defend its withholding of documents that it has thus far refused to publicly describe. Jamell Jaffer of the ACLU said, “This is a resounding rejection of the government’s effort to use secrecy and selective disclosure to manipulate public opinion about the targeted killing programme.”

Blog post about the case from the ACLU’s website: https://www.aclu.org/blog/national-security/appeals-court-rules-government-cant-have-it-both-ways-targeted-killing