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3-judge panel orders release of key portions of memo on targeted killing of U.S. citizen

NEW YORK – A federal appeals panel in Manhattan ordered the release Monday of key portions of a classified Justice Department memorandum that provided the legal justification for the targeted killing of a U.S. citizen, Anwar al-Awlaki, who had joined al-Qaida and died in a 2011 drone strike in Yemen.

The unanimous three-judge panel, reversing a lower court decision, said the government had waived its right to keep the analysis secret in light of numerous public statements by Obama administration officials and the Justice Department’s release of a “white paper” offering a detailed analysis of why targeted killings were legal.

“Whatever protection the legal analysis might once have had,” Judge Jon O. Newman wrote for the panel of the U.S. Court of Appeals for the Second Circuit, “has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the DOJ White Paper.”

The ruling stemmed from lawsuits filed under the Freedom of Information Act by the New York Times and two of its reporters, Charlie Savage and Scott Shane, and by the American Civil Liberties Union.

The decision reversed a January 2013 ruling by Judge Colleen McMahon of U.S. District Court in Manhattan, who had expressed her own doubts about the legality of the targeted killings program and the secrecy cloaking it, but concluded that the government had not violated the law in refusing to turn over the materials sought in the requests. McMahon, however, issued her decision about a month before the Justice Department released its “white paper” after it was originally leaked to NBC News; the 16-page, single-spaced document made a detailed legal justification for the killing of al-Awlaki, which the appellate panel took into account in its ruling.

The panel also cited speeches and other public statements by officials such as Attorney General Eric H. Holder Jr. and John O. Brennan, when he was the president’s top counterterrorism adviser, discussing the lawfulness of the targeted killing of terrorists. Brennan became CIA director in March 2013.

The panel, which also included Judges José A. Cabranes and Rosemary S. Pooler, did agree to a government request to redact parts of the legal analysis that it ordered released.

It was unclear how quickly the legal analysis might be made public; the government could ultimately seek review of the ruling by the full appeals court or the Supreme Court.

A spokesman for the Justice Department had no immediate comment.

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