In a major development chipping away at the secrecy of the Obama administration’s drone wars, a federal appeals court has ordered the government to release a legal memo that provides the legal rationale for killing U.S. citizens overseas. The court ruled that the government had waived its right to keep the memo secret following public statements in defense of the killings by top officials, as well as the release of a Justice Department “white paper” on the subject. We speak with Hina Shamsi, director of the National Security Project at the American Civil Liberties Union, which filed the lawsuit to release the memo along with The New York Times.
This is a rush transcript. Copy may not be in its final form.
JUAN GONZÁLEZ: We turn now to new developments surrounding the secrecy of the Obama administration’s drone wars. On Monday, a federal appeals court in Manhattan ordered the government to release a legal memo that provides the rationale for targeted killing of U.S. citizens. The three-judge panel unanimously ruled the government had waived its right to keep the memo secret following public statements in defense of the killings by top officials as well as the release of a Justice Department “white paper” on the subject.
AMY GOODMAN: The Obama administration has admitted killing four U.S. citizens abroad, including Anwar al-Awlaki in Yemen in 2011; two weeks later, his 16-year-old, Denver-born son, Abdulrahman. Among the officials who have spoken at length about the government’s purported right to kill its own citizens are Attorney General Eric Holder and President Obama.
PRESIDENT BARACK OBAMA: But when a U.S. citizen goes abroad to wage war against America and is actively plotting to kill U.S. citizens, and when neither the United States nor our partners are in a position to capture him before he carries out a plot, his citizenship should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected from a SWAT team.
JUAN GONZÁLEZ: That was President Obama speaking last May about Anwar al-Awlaki.
Monday’s court ruling came in response to lawsuits filed by the American Civil Liberties Union and The New York Times. It also coincided with three days of U.S. drone attacks and Yemeni raids that killed scores of people in one of the deadliest chapters of the U.S. drone wars in Yemen. According to Yemeni government figures, at least 40 people and as many as 55 were killed in what the Bureau of Investigative Journalism called “the bloodiest spate of strikes since March 2012.” While the Yemeni government said the victims were militants, at least three civilians are among the dead. At the White House on Monday, Press Secretary Jay Carney refused to provide details, referring questions to Yemen.
PRESS SECRETARY JAY CARNEY: In statements to the press, the Yemeni government has confirmed that air strikes were carried out this weekend against al-Qaeda militants in remote training camps and in a convoy. According to the Yemenis, these individuals were planning to target civilian and military facilities in al-Bayda and elsewhere. Now, I can’t speak to specific operations, but we have a strong collaborative relationship, as you know, with the Yemeni government and work together on various initiatives to counter the shared threat we face from AQAP.
AMY GOODMAN: That’s White House Press Secretary Jay Carney.
For more on the latest strikes and the court’s order to release the memo on targeted killings, we’re joined here in New York by Hina Shamsi. She’s director of the National Security Project at the American Civil Liberties Union.
Welcome to Democracy Now! How significant is this federal court ruling, Hina?
HINA SHAMSI: Thank you, Amy. This is a very significant federal court ruling because it is the first time that a court has ordered the government to disclose a memo it has wanted to keep secret. The memo lays out the government’s legal justification, constitutional analysis, for killing a U.S. citizen even when he is far from a traditional battlefield.
AMY GOODMAN: How do you know it exists?
HINA SHAMSI: We know it exists for a couple of different reasons. First of all, there were leaks about the existence of the memo. And government officials launched what one court has called a public relations campaign, saying that they had done the legal analysis and concluded that the targeted killing program by the Obama administration and the killing of U.S. citizens would be lawful. And this is what is a big deal about the court’s decision. So, on the one hand, you have a PR campaign by some of the highest officials in our land saying targeted killing program, killing of U.S. citizens, lawful, effective, wise. On the other hand, in court, the government refuses to provide the basis for its conclusion so that the American public can judge for itself whether the government’s arguments are legitimate or not. And now the court has said that with this campaign and also with the government’s disclosure of a Cliff Notes version of its legal memo, that means the government now has to provide its actual legal arguments, and it has to describe to us the other documents in its possession, and we can seek to challenge their withholding.
JUAN GONZÁLEZ: Now, the court was responding to two separate suits, one by The New York Times and one by your organization. Is there any—can you explain the distinction between them, if there is any?
HINA SHAMSI: Sure. We at the ACLU had sought the legal and factual basis for the killings of three U.S. citizens: Abdulrahman al-Awlaki, the 16-year-old, as well as his father Anwar al-Awlaki and Samir Khan. The New York Times filed two similar requests that were somewhat narrower in scope.
AMY GOODMAN: This is for the reporters Scott Shane and Charlie Savage.
HINA SHAMSI: That is correct. And the suits were combined, and the decision was issued in both cases.
AMY GOODMAN: This is Attorney General Eric Holder in March of 2012 outlining the reasons why the U.S. would target a U.S. citizen.
ATTORNEY GENERAL ERIC HOLDER: So, though I cannot discuss or confirm any particular program or operation, I believe it is important to explain these legal principles publicly. Now, let me be clear. An operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al-Qaeda or associated forces and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances. First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States. Second, capture is not feasible. And third, the operation would be conducted in a manner consistent with applicable law of war principles.
AMY GOODMAN: That’s Eric Holder in 2012. During a major address in May of 2013, Obama explained his decision to publicly confirm the U.S. killing of Anwar al-Awlaki.
PRESIDENT BARACK OBAMA: This week I authorized the declassification of this action and the deaths of three other Americans in drone strikes, to facilitate transparency and debate on this issue and to dismiss some of the more outlandish claims that have been made.
AMY GOODMAN: That was President Obama about a year ago. Hina Shamsi?
HINA SHAMSI: So, some of the statements that were made by Attorney General Holder were statements that we cited in our briefs to the appeals court, saying that when the attorney general can make statements about legal conclusions, then we ought to be able to know what forms the basis of those conclusions.
And look at what the attorney general was talking about. He said, one, that the killing might be authorized in response to an imminent threat. Well, you look at what the Cliff Notes white paper says about imminent threat, and it turns out that they define “imminence” as not requiring evidence of an actual plot that’s about to happen. So, the English language is not—you know, we’ve gone beyond what the English language permits when you’re talking about imminence. They do something very similar with “feasible.”
And that’s why one of our main arguments to the court was that there’s not just a problem with respect to excessive secrecy around this program, including with respect to U.S. citizens, but also more broadly; there’s also a problem of selective disclosure. And our concern, and the concern of Congress when it passed the Freedom of Information Act, is that government officials may not be able to selectively disclose facts that make their side of the story look good while withholding facts and law that might call their reasoning into account. And so, what you have is claims that, for example, in Yemen, alleged militants have been killed. Well, that may well be true, but what about the civilians who have died? And there is a pattern of U.S. officials emphasizing success, without our ability to know how success is defined, what it means, who it’s carried out against, while minimizing the things that might cause us as a public to question the legality, the wisdom and the strategic effectiveness of this program, that is toxic, Amy, in many parts of the world.
JUAN GONZÁLEZ: And was it your sense from the—from the hearing before the court of appeals that the justices were concerned with what many Americans are concerned about, how our government is targeting and killing American citizens without any kind of due process? And especially, as you say, when the memos—this issue of the imminent threat is very elastic, as the government defines it.
HINA SHAMSI: You know, I think that the judges’ concern is really effectively put forward in their opinion and came out in the hearing itself, which is that when government officials selectively disclose information, the public has to be provided the full context, because when Congress was passing the FOIA, it said something very important, which is, you know, government officials always have an impetus to proclaim their successes and minimize the things that are not successes, that might call those successes into question. And that’s exactly what’s happening here. And so this is an important step in telling the full story.
AMY GOODMAN: I want to play a clip of Nasser al-Awlaki speaking about his grandson, Abdulrahman, who was killed by a U.S. drone strike in Yemen October 14, 2011, just weeks after the killing of his father, Anwar al-Awlaki. Abdulrahman was eating dinner with his teenage cousin when the drone struck. He was 16 years old. We interviewed Nasser. ACLU also made a video of him, along with the Center for Constitutional Rights.
NASSER AL-AWLAKI: I want Americans to know about my grandson, that he was very nice boy. He was very caring boy for his family, for his mother, for his brothers. He was born in August 1995 in the state of Colorado, city of Denver. He was raised in America, when he was a child until he was seven years old. And I never thought that one day this boy, this nice boy, will be killed by his own government.
AMY GOODMAN: Nasser al-Awlaki, talking about his grandson who was born in Denver, Abdulrahman. Well, in 2012, former White House press secretary, then-Obama campaign adviser, Robert Gibbs, was asked about the killing of Abdulrahman. Gibbs responded by blaming his father for his son’s assassination by U.S. drones. He was questioned by reporter Sierra Adamson.
SIERRA ADAMSON: Do you think that the killing of Anwar al-Awlaki’s 16-year-old son, who was an American citizen, is justifiable?
ROBERT GIBBS: I’m not going to get into Anwar al-Awlaki’s son. I know that Anwar al-Awlaki renounced his citizenship—
SIERRA ADAMSON: His son was still an American citizen.
ROBERT GIBBS: —did great harm to people in this country and was a regional al-Qaeda commander hoping to inflict harm and destruction on people that share his religion and others in this country. And—
SIERRA ADAMSON: That’s an American citizen that’s being targeted without due process of law, without trial.
ROBERT GIBBS: And again—
SIERRA ADAMSON: And he’s underage. He’s a minor.
ROBERT GIBBS: I would suggest that you should have a far more responsible father. If they’re truly concerned about the well-being of their children, I don’t think becoming an al-Qaeda jihadist terrorist is the best way to go about doing your business.
AMY GOODMAN: That was the former White House press secretary, Robert Gibbs, now a contributor at MSNBC. Hina Shamsi, his response?
HINA SHAMSI: You know, Amy, we brought a lawsuit seeking due process, accountability and answers for why Abdulrahman was killed, and the other two individuals, as well. And earlier this month, the district court in Washington, D.C., dismissed our lawsuit. And with respect to Abdulrahman, the judge did something that was a legal sleight of hand, in essence, saying that because he hadn’t been targeted, he didn’t have a Fifth Amendment claim to ask for answers in the court.
She also did something very interesting with respect to drones that I think is worth mentioning. She said that for Fourth Amendment purposes, the use of lethal force through a drone can’t count as a Fourth Amendment seizure, because drones are meant to kill, not capture. Now, that’s squarely contrary to Supreme Court precedent, but I think the important thing is that the court in that case has thus far decided that national security and secrecy concerns would prevent our lawsuit from going forward in order to find answers about why Abdulrahman and the others died.
AMY GOODMAN: Hina Shamsi, we want to thank you for being with us, director of the American Civil Liberties Union National Security Project.
When we come back, a new film has just premiered at the Tribeca Film Festival; it’s called Silenced, about whistleblowers. Stay with us.