Today’s Important Deadline in the ACLU’s Targeted-Killing Transparency Case

Today, more than three years after President Obama announced that he had issued a classified “Presidential Policy Guidance,” commonly known as the PPG, meant to govern the United States’ use of lethal force against suspected terrorists outside of war zones, the public may finally get to see that document and several others as the result of an ACLU lawsuit. But whether the PPG and related documents will actually become public today is unclear.

On June 21, Judge Colleen McMahon of the Southern District of New York sent the government a draft of her opinion deciding key claims in the ACLU’s most recent Freedom of Information Act (FOIA) litigation over targeted-killing records. Judge McMahon has already indicated that she has decided those claims at least partially in the ACLU’s favor, and that she will order the release of the PPG and at least two other documents related to the government’s targeted-killing program. In the new order, she explained that she was now giving the government the opportunity to help ensure that still-classified information is not made public by the opinion. In response, the government filed—in secret, and with no notice to the ACLU—what the court described as, “in essence, a motion for reargument, couched in the form of calling to my attention material that it thought I might have overlooked in connection with two rulings.” Judge McMahon made “modest changes” to the opinion without altering her legal conclusions, and she returned the opinion to the government to complete its classification review. She then imposed a deadline of today for the government to return the opinion to her.

All of this is to say that we expect to have a declassified version of Judge McMahon’s opinion—which we expect to run as long, if not longer, than the 160-page opinion she issued in a separate ACLU FOIA case last year—as early as today. And we expect that the PPG and other documents will be released in conjunction with the publication of that opinion.

How much will the PPG tell us? That, too, is a bit hazy. The PPG purports to set out the law and policy that the government must follow when it carries out targeted killings outside of areas of active hostilities. As I’ve written, while its most basic contours have been summarized in a public “fact sheet,” the standards described there fail to answer basic questions about how they are applied in the real world: “When does an individual pose a ‘continuing and imminent threat’ to the United States? How does the government decide when capture of a target is ‘feasible’? What informs the government’s determination that there is a ‘near certainty that non-combatants will not be injured or killed’?

We may very soon find out. 

About the Author(s)

Brett Max Kaufman

Staff Attorney in the ACLU's Center for Democracy Follow him on Twitter (@brettmaxkaufman).