Killed under secret law: Anwar al-Awlaki (photo: Wikimedia)

The New York Times sued the Justice Department over their reticence to turn over a memo from the Office of Legal Counsel detailing the argument for how the US government can legally assassinate an American citizen.

The Times has previously reported on the memo, which justified the killing of Anwar al-Awlaki, but that report from Charlie Savage was based on “people who have read the document.” The news outlet filed a Freedom of Information Act request to view the memo from OLC, and the Justice Department denied this request.

“Questions surrounding the legality of targeted killing — especially the extrajudicial use of lethal force away from any so-called ‘hot’ battlefield where United States forces are engaged in active combat — have generated extensive public debate since October 2001, when the Bush administration first contemplated whether covert lethal force could be used against people deemed to be al Qaeda operatives,” the complaint by the Times says.

“Most recently, the death of an American citizen, Anwar al-Awlaki, who was killed in a drone strike in Yemen in September, has kindled widespread interest in — and controversy over — the scope of the circumstances in which it is lawful for government officials to employ targeted killing as a policy tool,” the paper added.

At the time, Savage reported that the OLC memo justified assassinating American citizens, though it was targeted toward the Awlaki case and, according to those who have seen the document, did not establish any new doctrine to allow for the killing of other citizens who the government fingers as posing a terrorist threat.

But we really don’t know until we see the document, and DoJ has resisted that consistently.

Courthouse News Service first reported the lawsuit. It’s completely reasonable that a legal analysis around the targeting for death of US citizens by its government should be subject to public review. This is one where the “right to know” is particularly acute.

This is made all the more necessary because the initial leak of the document to Savage was in all likeihood intentional, made by a senior official authorized to tell the Administration’s side of the story. This allows the White House to manage the news around the OLC memo, where we only hear about it filtered through Administration-friendly sources. In fact, the Administration counts the death of Awlaki as one of its foreign policy successes, so they would want to tout the legal process behind it while also circumscribing it, so that fears are calmed about whether the doctrine can apply broadly. Of course, the Administration has waged a war on leakers, though curiously, absolutely nobody has been sanctioned for leaking information about the OLC memo to Charlie Savage.

But as long as senior Administration officials don’t think that it threatens national security by talking about the OLC document, then the nation might as well get to see it for themselves.