The D.C. Circuit's recent ruling that the political question doctrine bars the adjudication of claims regarding a 2012 U.S. drone strike in Yemen improperly refuses to adjudicate a claim duly enacted by Congress under the Torture Victim Protection Act.
Latest in Targeted Killing: Litigation
Yesterday, the ACLU filed a letter in the ongoing case ACLU v. CIA regarding the release of former CIA Director Gen. Michael Hayden's autobiography.
[Update: Ryan Goodman has an excellent post here noting that a January 2013 WaPo article anticipated that CIA would get a waiver for Pakistan ops, albeit not necessarily a waiver specific only to the imminent-threat-to-US-persons rule.]
The use of lethal force (whether via armed drone, manned aircraft, cruise missile, helicopter assault, etc.) has been a cornerstone of U.S. counterterrorism policy for many years, both in places where we have ground combat deployments and places where we do not. Throughout this period, the legality, efficacy, wisdom, and morality of this practice has been the subject of intense scrutiny and debate. Nonetheless, the kinetic option has proven remarkably durable over time (especially as compared to its sibling, the use of non-criminal detention).
Here it is.
The seven-page, heavily redacted legal analysis was apparently released earlier today, as a consequence of the FOIA action brought by the New York Times and the ACLU.
The release last month of the Al-Aulaqi Office of Legal Counsel memo, it turns out, was not the end of the Second Circuit litigation regarding the New York Times and ACLU’s FOIA requests for information on the government’s targeted killing programs. A petition for rehearing en banc is still pending. And yesterday, the Justice Department, the Pentagon, and the CIA filed a motion for leave to submit ex parte classified and privileged supplemental declarations in support of their petition for rehearing.
There's a lot to discuss about the OLC memo on the al-Aulaqi strike---including, as Ben mentioned yesterday, the origins and significance of "imminence." (There's also excellent analysis over at Just Security, which I recommend to interested readers.)
The Second Circuit has just released a redacted version of the OLC Drone Memo--here is the memo; here is the panel's full, revised April 21, 2014 decision with the memo appended at page 67.
On Monday, a three-judge Second Circuit panel ordered the Obama administration to disclose a redacted copy of the Office of Legal Counsel memorandum outlining its legal justification for the targeted killing of New Mexico-born Anwar al-Awlaki.
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.