WASHINGTON — The Justice Department will publicly release a secret 2011 memo that provided the legal justification for the killing of American terrorist suspects overseas, according to a U.S. official, following extensive pressure on the administration to do so.
The department had been weighing whether to appeal a court order to disclose the memo but informed the White House on Tuesday that it would not, the official said. The decision came on the eve of a Senate vote on President Barack Obama’s nomination of one of the memo’s authors, David Barron, to a federal appeals court judgeship.
A group of liberal and conservative senators had said they would fight the nomination unless the memo was made public, and others from both parties had called for its release. The White House allowed lawmakers to view copies of the memo last week in a secure Senate room.
The administration last year acknowledged that drones had killed four U.S. citizens in Yemen, including cleric Anwar al-Awlaki, who was targeted by a CIA drone attack in September 2011. Obama called Awlaki the head of foreign operations for Al-Qaida in the Arabian Peninsula.
A federal court ruled early this year that the CIA, the Defense Department and the Justice Department did not have to respond to Freedom of Information requests for documents related to drone killings in general, and more specifically the targeted killings of U.S. citizens. That decision was overturned April 21 by the 2nd Circuit Court of Appeals.
The government had 45 days in which to ask the appeals panel to review the case anew. The administration official said it covered all requested information, not just the al-Awlaki memo.
In addition to a court-approved, redacted version of the memo, the order covered listings of all classified documents — but not the documents themselves — responsive to the original FOIA requests, filed by reporters for The New York Times and the American Civil Liberties Union.
ACLU Deputy Legal Director Jameel Jaffer said they had not yet been notified of any decision by the Justice Department. “We’d welcome the public release of this document,” he said of the memo. “The government claims authority to carry out targeted killings of Americans deemed to threaten national security — the public surely has a right to know the breadth of the authority the government is claiming as well as the legal basis for it.”
Sen. Ron Wyden, D-Ore., a vocal critic of the administration’s drone policy, called news of the decision “very constructive.” Wyden, who said he would announce his decision on the Barron vote today, said the release was “very much in the public interest.”
When asked about the fate of Barron’s nomination Tuesday, Senate Majority Leader Harry Reid, D-Nev., told reporters: “I think we’ll be OK.”
The White House referred all questions on the Barron memo to the Justice Department, where officials declined to comment.
News of the Justice Department decision, which the administration official said was made last week by Solicitor General Donald Verrilli, Jr. with the concurrence of Attorney General Eric Holder, Jr. was first reported by the Associated Press.
The official said that the redacted memo would likely be released in a “matter of weeks.”
