The US Court of Appeals for the Second Circuit [official website] on Monday released its ruling [opinion] that the US government may keep secret memoranda related to the legal justification for the use of drones for targeted killings of those in other countries believed to be involved in terrorism. Though the opinion was drafted last month, it was placed under temporary seal and not released until this week. The case was the result of Freedom of Information Act [official website] requests by the American Civil Liberties Union (ACLU) [advocacy website] and New York Times [media website] for documents prepared by the Office of Legal Counsel of the US Department of Justice [official websites] regarding the drone strikes. The court made a point of emphasizing that the legality of the strikes themselves was not the issue before the court, and that its review primarily concerned whether documents regarding their lawfulness must be disclosed. Those arguing for the release of the memos called the documents “working law,” but the courts denied this argument.
The use of drones [JURIST backgrounder] is controversial in both the international arena and in domestic circles. Last March the UN General Assembly passed a resolution [JURIST report] urging states to comply with international law in the use of armed drone strikes. UN Special Rapporteur on counter-terrorism Ben Emmerson called for transparency and accountability [JURIST report] in the use of drones in counterterrorism operations in his report in October 2013. A joint Human Rights Watch and International Human Rights Clinic report [text, PDF] also raised possible threats to human rights, such as the right to life, in law enforcement situations. The US has been involved in numerous lawsuits surrounding drone use. In June the families of two Yemeni men killed by US drone strikes filed a lawsuit [JURIST report] against the government, claiming they were wrongfully killed. In December 2010 a judge for the US District Court for the District of Columbia dismissed a lawsuit [JURIST report] challenging the Obama administration’s ability to conduct targeted killings [JURIST backgrounder], a challenge spurred because one subject of a targeted killing, al-Awlaki-Khan, was a dual US-Yemeni citizen.