Judge: CIA, Pentagon May Still Neither Confirm Nor Deny Records Exist on US Citizens Killed by Drones

A federal judge has ruled the CIA and Defense Department (DOD) do not have to confirm or deny whether they have records on the “factual basis for the killing” of either Samir Khan or Abdulrahman al-Awlaki, who were killed in two separate drone strikes in September and October of 2011.

In the same decision, which contained top secret information and was heavily redacted, Judge Colleen McMahon of the Southern District of New York also ordered the CIA, DOD and Office of Legal Counsel (OLC) to disclose portions of documents with facts about US drone operations already “officially acknowledged.”

These facts include:

(1) US government uses drones for “targeted killings” overseas;

(2) DOD and CIA have an “intelligence interest in the use of drones to carry out targeted killings”;

(3) DOD and CIA have an “operational role in conducting targeted killings”;

(4) information about the legal basis (constitutional, statutory, common law, international law, and treaty law) for engaging in the targeted killings abroad, including specifically the targeted killing of a US national;

(5) US government carried out the “targeted killing” of Anwar al-Awlaki

(6) FBI was investigating Samir Khan’s involvement in jihad

The development was the latest in a Freedom of Information Act (FOIA) lawsuit filed by the American Civil Liberties Union in October 2011, which sought documents on the “targeted killings” of Anwar Al-Awlaki, his 16-year-old son, Abdulrahman, and Samir Khan.

Anwar al-Awlaki and Samir Khan were killed in a drone strike in Yemen on September 30, 2011. Weeks later, Abdulrahman was killed in a drone strike in Yemen on October 14.

In April 2014, the Second Circuit Court of Appeals reversed a January 2013 decision by the district court. The government was ordered to release a memo related to the targeted killing of Anwar Al-Awlaki. The memo was released in June. The same appeals court ruling additionally ordered the government to list documents and make a case for why each document should remain secret.

McMahon examined over 100 documents and determined the CIA had to release parts of three documents. The OLC had to release the parts of three documents and one full document. None of the documents the DOD was required to submit for review had to be disclosed.

McMahon allowed the government agencies to invoke attorney-client privilege and the deliberative process privilege for a number of the documents, which advocates for reform of FOIA have referred to as the “withhold it because you want to” exemption.

The CIA and Defense Department were permitted to continue to “stand on its Glomar” with respect to information on the drone strikes, which killed Khan and Abdulrahman. This means neither agency has to acknowledge to the ACLU that it has documents related to any decision to target and kill these individuals. (more…)