On May 13, the Center for Effective Government joined other open government organizations in urging Attorney General Eric Holder not to appeal the decision of the U.S. Court of Appeals for the Second Circuit in New York Times Co. v. Department of Justice. In April, the Second Circuit ruled that the government must disclose the legal analysis justifying the government's drone-based targeted killing program, in response to a Freedom of Information Act (FOIA) request by the Times.
The Office of Legal Counsel (OLC) prepares opinions to advise agencies on whether proposed executive actions are lawful. As an office of the Department of Justice (DOJ), such opinions effectively become law, defining the government's view of its authority. Despite their importance for understanding government operations, disclosure of OLC opinions is piecemeal; at least 11 such memos remain secret.
The opinion in this case forms part of the legal basis for the government's targeted killing program. Under the program, the Central Intelligence Agency (CIA) and the Department of Defense (DOD) use remotely piloted aircraft, commonly called drones, to kill individuals that the government deems to be terrorists. At least four U.S. citizens have been killed by drone strikes.
Despite clear public interest in understanding the drone program, DOJ sought to withhold this opinion on national security grounds. Thankfully, the Second Circuit rejected that argument. Due to the administration's numerous public statements regarding the drone program, the court ruled, "Whatever protection the legal analysis might once have had has been lost."
Now the administration has a choice. It can accept the ruling and release the opinion, or it can fight all the way to the U.S. Supreme Court to keep the document secret. It is an important opportunity for the administration to correct its course: to turn away from aggressive FOIA litigation and secret law and instead turn toward President Obama's goals of unprecedented transparency. We hope the Justice Department will accept the court's ruling and promptly release this important information.
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