(CN) - The 2nd Circuit on Monday released a government memo approving the 2011 drone strikes that killed radical Muslim cleric Anwar al-Awlaki and two other U.S. citizens, despite the Justice Department's efforts to further censor the document.
The memo, dated July 16, 2010 and written by David Barron, then acting chief of the Justice Department's Office of Legal Counsel, outlines the government's broad authority to kill American terrorism suspects abroad and served as the basis for the strike against al-Awlaki.
The New Mexico-born radical cleric was living in Yemen when unmanned drones operated by the CIA and Joint Special Operations Command bombed him and another U.S. citizen, al-Qaida propagandist Samir Khan, on Sept. 30, 2011.
A separate strike weeks later killed al-Awlawki's 16-year-old son Abdulrahman, also a U.S. citizen.
Barron says in the memo that he believes the Department of Defense's "contemplated operation against al-Awlaki would comply with international law, including the laws of war applicable to this armed conflict, and would fall within Congress's authorization to use 'necessary and appropriate force' against al-Qaida."
The New York Times
, the American Civil Liberties Union
and the First Amendment Coalition
had filed separate lawsuits seeking the disclosure of this and other documents discussing the government's rationale for killing American targets abroad.
The government initially refused to confirm or deny the existence of the material, citing national security concerns. Barron's legal analysis drew increased interest and scrutiny after he was nominated
and then confirmed to a seat on the 1st Circuit in Boston.
U.S. District Judge Colleen McMahon in Manhattan sided
with the Obama administration last January, saying she could "find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our government to proclaim as perfectly valid certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusions a secret."
She threw out the lawsuits filed by The Times and the ACLU, which had been combined. They appealed.
A federal judge in San Francisco similarly ruled
for the Obama administration in mid-April, rejecting the First Amendment Coalition's Freedom of Information Act request.
One week later, the 2nd Circuit ordered
the disclosure of the memo outlining the legal basis for al-Awlaki's assassination in Yemen. It said the Defense Department's leak of a "white paper" outlining the targeted killing program undermined the government's basis for keeping it classified.
The government nonetheless sought
to redact more of the memo, and the 2nd Circuit forced it to make its case in open court.
On Monday, the federal appeals court released a less redacted version of the 41-page classified memo, along with its ruling that the memo can no longer be shielded from public view.
"Whatever protection the legal analysis might once have had has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the DOJ white paper," the three-judge panel wrote.
ACLU Deputy Legal Director Jameel Jaffer called the memo's release "an overdue but nonetheless crucial step toward transparency."
"The drone program has been responsible for the deaths of thousands of people, including countless innocent bystanders, but the American public knows scandalously little about who is being killed and why," he said in a statement.
"We will continue to press for the release of other documents relating to the targeted-killing program, including other legal memos and documents relating to civilian casualties."