NEW YORK — Saying the government cites “national security” too often to shield information from scrutiny, Martin Heinrich of New Mexico and three other U.S. senators urged a federal appeals court Wednesday to divulge more about rules it follows when it makes U.S. citizens the target of anti-terror drone strikes.
The filing with the 2nd U.S. Circuit Court of Appeals in Manhattan supported arguments made in a Freedom of Information Act lawsuit brought by the American Civil Liberties Union and The New York Times. The litigation already has forced the release of a heavily redacted, 41-page memo from July 2010 that said a targeted killing of a U.S. citizen is permissible under a law passed by Congress shortly after the Sept. 11, 2001, attacks.
But other memos are sought, and the appeals court is reviewing whether they must be turned over.
The filing, written by lawyers, was made on behalf of one Republican, Rand Paul of Kentucky, and three Democrats: Heinrich, as well as Ron Wyden and Jeff Merkley, both of Oregon.
In the court document, the senators said they were deeply concerned that the executive branch’s excessive secrecy was frustrating the purposes of the Freedom of Information Act and “impeding a healthy debate on an issue of paramount importance: when the government may use drone strikes to kill one of its own citizens without charge or trial.”
Jennifer Queliz, a spokeswoman for government lawyers, declined to comment.
The senators said the history of litigation over FOIA requests on national security matters is filled with examples of the executive branch “routinely and reflexively claiming that a particular disclosure of any information it prefers to keep secret will harm national security.”
They noted the executive branch frequently fails to identify any evidence of actual harm.
The senators urged the 2nd Circuit “to think carefully before sanctioning such behavior, especially in light of the historical excesses that have occurred when the executive has been allowed to keep certain information secret — including from members of the House and Senate — based on vague claims that disclosure would harm national security.”
They noted that the release of the 41-page memo — ordered by the 2nd Circuit last June — was fought with threats from the administration of President Barack Obama that it would compromise national security, though, “to this day, the executive has not identified a single harm of any kind that resulted from the disclosure of that memorandum.”
The 2010 memo provided legal justification for the September 2011 killing in Yemen of New Mexico-born Anwar Al-Awlaki, an al-Qaida leader and onetime cleric at a Virginia mosque, and another U.S. citizen, Samir Khan, who edited al-Qaida’s Internet magazine. An October 2011 strike also killed Abdulrahman al-Awlaki, Anwar al-Awlaki’s teenage son, a U.S. citizen who had lived in Denver.
Anwar al-Awlaki had been involved in an abortive attack against the U.S. and was planning other attacks from his base in Yemen, the memo said. It said the authority to use lethal force abroad may apply in certain circumstances to a U.S. citizen who is part of an enemy organization’s forces.