News & Politics

As Court Shields Drone War, Will Obama's 'Kill List' Ever See Daylight?

The drone war just got a major boost in federal court.

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A federal court just gave a major boost to the Obama administration’s efforts to keep key details of the U.S. drone war—including information about who exactly is being assassinated--hidden from the public.

The Second Circuit Court of Appeals on Tuesday rejected an appeal from Main Street Legal Services, affiliated with the City University of New York School of Law, aimed at gaining access to National Security Council records related to drone killings.

The case stems from a Freedom of Information Act (FOIA) request filed by Main Street in 2012, in which the nonprofit demanded “all records related to the killing and attempted killing by drone strike of U.S. citizens and foreign nationals” and “all National Security Council meeting minutes taken in the year 2011.”

The year 2011 marked the creation of the secret panel, housed under the NSC, that is largely responsible for the infamous drone “kill list” that can include both U.S. and foreign nationals. Itself a Cold War creation, the NSC has been central to the U.S. government’s shadowy drone war, which many argue violates the most basic principles of human rights, international, and domestic law.

The NSC rejected Main Street’s initial public records request, prompting the group to file a lawsuit that resulted in a years-long legal battle. That battle came to a head on Tuesday, when three judges agreed with a lower court that the NSC is not subject to FOIA laws because it merely advises the president and does not have independent authority.

“This structure confirms that the Council is more appropriately viewed as a forum attended by actors exercising independent authority within their respective spheres, not an actor itself, much less one exercising authority independent of the President,” wrote Judge Reena Raggi.

But Douglas Cox and Ramzi Kassem, the law professors would brought the case with a team of CUNY students, told AlterNet that such arguments are dangerous.

“The implications of this decision are far-reaching," they said in a joint email. "The National Security Council will continue to make important decisions, often over life-and-death matters. Because it is not considered an agency, it will not abide by federal laws requiring the creation, retention, and possible disclosure of records documenting how similarly powerful federal agencies wield their authority." 

"Without those records," the professors continued, "the prospects for public scrutiny, historical accountability, and reform are all quite dim." The two are reportedly weighing next steps in the wake of Tuesday’s ruling.

The Obama administration has aggressively fought numerous other lawsuits--and mounting public pressure--aimed at forcing the most basic transparency and accountability for the drone war. This includes the legal efforts of Yemeni man Faisal bin Ali Jaber, who sued the Obama administration in June demanding mere acknowledgement that a drone strike that killed two of his family members in 2012 was unlawful.

The vast majority what is publicly known about the covert operations was exposed by survivors, investigative journalists, and whistleblowers.

Despite the secrecy and controversy surrounding Obama’s drone war, both Democratic frontrunners in the 2016 presidential election—including self-described democratic socialist Bernie Sanders—say they would not end the program if elected.


Sarah Lazare is a staff writer for AlterNet. A former staff writer for Common Dreams, she coedited the book About Face: Military Resisters Turn Against War. Follow her on Twitter at @sarahlazare.

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