In the world of secret information about powerful people, there are two sets of documents in especially high demand right now. First are Mitt Romney's undisclosed tax returns. You already know about those.
The other is a classified legal memorandum, prepared by the Justice Department, analyzing the government's legal authority to conduct targeted killings of terrorists abroad-including, specifically, terrorists who are U.S. citizens. Interest in this memo intensified following a 2011 drone strike in Yemen that killed Anwar al-Awlaki, an American citizen, who government officials say was involved in planning attacks against the U.S.
The targeted killings memo has been requested by no fewer than ten members of Congress (all of whom were denied access). The memo is also sought in three FOIA lawsuits filed separately by the First Amendment Coalition (the organization I work for) in federal court in San Francisco, and by the New York Times and the ACLU in federal court in Manhattan.
The Justice Department claims the very existence of its legal memo is classified, a position that logically (and oh so conveniently) precludes the government's having to explain why the substance of the memo is classified and why some portions-lawyerly discussions of legal authorities, for example-can't be released even if other portions, concerning intelligence sources, for example, are legitimately classified and must remain secret.
The government's position in court contrasts sharply with its conduct outside of court. Outside of court, high level government officials, including Attorney General Eric Holder and White House counter-terrorism adviser John O. Brennan, have openly and aggressively defended the government's legal authority, under both U.S. and international law, to engage in targeted killings by means of drone strikes, and to do so against U.S. citizens far away from the war zones of Iraq and Afghanistan.
The government's don't-give-an-inch posture in court, refusing even to acknowledge the existence of the Justice Department memo while simultaneously giving a full-throated defense of the memo's policy prescriptions, is legally untenable. Why is the government taking such an extreme legal position in these cases?
The answer, I believe, is that the government is intent on denying the courts any role in deciding legal issues surrounding its counter-terrorism operations. The government is doing this not because it believes disclosure of the Justice Department memo would harm national security, and not because it believes its targeted killing policy is legally vulnerable. Rather, the government fears that litigation in this area could lead to judicial review of the selection of targets, especially targets who are U.S. citizens, for the government's terrorist "kill list."
Peter Scheer, executive director of the First Amendment Coalition, is the author of the analysis. The First Amendment Coalition is a member of NFOIC. — eds.