A federal court of appeals has ruled that the Department of Justice must release the legal analysis justifying the controversial "targeted killing" drone program. The government argued in New York Times v. Department of Justice that the analysis should be exempt from release as a privileged communication. But the ACLU and the New York Times, supported by EPIC and other open government organizations, argued that because the government relied on the legal reasoning to justify the drone program it cannot be kept secret. The Second Circuit agreed, ruling that the after "senior Government officials have assured the public" that the program is "lawful and that . . . advice establishes the legal boundaries," it can no longer claim that the document is exempt from FOIA. EPIC has pursued a similar case for more than seven years, seeking the disclosure of the OLC's legal analysis of the Warrantless Wiretapping program. And earlier this year EPIC wrote in the New York Times that if "the Justice Department expects others to follow its advice, the analysis that supports its conclusions should be made public." For more information, see EPIC: New York Times v. DOJ and EPIC: EPIC v. DOJ - Warrantless Wiretapping Program.
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Communications Law and Policy
Jerry Kang and Alan Butler