District Court Rejects Request For ‘Kill List’ Disclosure

The United States District Court for the Southern District of New York has rejected a Freedom of Information Act (FOIA) request to obtain disclosure of a set of memos that describe the use of targeted killings in combating terrorism.

The American Civil Liberties Union and the New York Times intended to secure the release of the criteria used to determine who is and is not eligible to be targeted in the Obama administration’s drone strike program after being rejected by the administration in June.

But in her ruling, Judge Colleen McMahon found that though she agrees that debate on the usage of drone strikes should be made in the open, she is unable to force the government to turn over the documents under FOIA:

However, this Court is constrained by law, and under the law, I can only conclude that the Government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and the laws of the United States. The Alice-in-Wonderland [sic] nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules — a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reason for their conclusion a secret.

White House top counterterrorism adviser John Brennan said the program, part of which was first revealed in May 2012, has a very strict set of limits on who is targeted for drone strikes. However, those limits have never been clearly put forward in public, as the CIA’s drone strikes program remains classified.


In putting forward their suits, the ACLU and New York Times were focused on determining the decision-making process behind the choice to target and kill American-born cleric Anwar al-Awlaki. Al-Awlaki, a leading figure in al Qaeda in the Arabian Peninsula, was killed in a drone strike in Yemen in 2011. Since then, policymakers and scholars have debated over the legality of the strike that killed al-Awlaki.