Updated Oct. 6 with current strike and death tallies.
NEW YORK — A federal judge has ordered the Justice Department and the Pentagon to identify, by name and title, every person who has seen the classified legal memo behind the U.S. military’s lethal strikes on suspected drug boats. U.S. District Judge Paul A. Engelmayer set the order in a 66-page opinion filed Sept. 30 in a Freedom of Information Act suit brought by the American Civil Liberties Union and the Center for Constitutional Rights.
The memo is a September 2025 opinion from the Justice Department’s Office of Legal Counsel (OLC) on the executive branch’s authority to order the strikes. The agencies have withheld it in full. Engelmayer rejected two of the three privileges they claimed, and gave them until Oct. 14 to file the sworn access list and make the memo available for his private review.
The strikes began on Sept. 2, 2025, in the Caribbean and later extended to the eastern Pacific. The plaintiffs count at least 54 lethal strikes and 185 deaths, the opinion records, citing a New York Times tracker. At a July 15, 2026, hearing, Sen. Chris Coons put the figure at 66 strikes and more than 220 dead.
Those counts predate the ruling. A strike in the Caribbean on Oct. 4 killed four people, bringing the toll to at least 235 people in 70 strikes by the Associated Press’s count. Just Security’s timeline, which counts some multi-boat attacks separately and includes 23 people missing and presumed dead, puts it at 71 strikes and 238 killed.
Four hard copies, one in a general counsel’s safe
The opinion draws on a declaration from Earl G. Matthews, the Pentagon’s general counsel, describing how the memo is held. He calls it “a highly classified document,” with portions marked Top Secret or sensitive compartmented information. According to Matthews, four hard copies exist, including the Pentagon’s. Its copy sits in a safe in his office, and access goes only to cleared senior Pentagon and military officials or their lawyers.
Engelmayer found the declaration “raises more questions than it answers.” It does not say which agencies hold the other three copies, who has read them or for what purpose. It speaks only in the present tense.
The judge listed what it leaves open, including whether other copies ever existed and whether the memo was ever available electronically.
A footnote adds that in earlier status reports on its search for records, the Pentagon did not disclose that it held the memo. The record does not show whether the search missed it or why the department did not tell the plaintiffs or the court, the opinion says.
Officials cited the memo as their “legal basis”
The government argued the memo was privileged legal advice. Engelmayer ruled that the deliberative process privilege does not apply because the memo has become the Pentagon’s “working law,” the binding rules an agency actually follows. Under that doctrine, an agency cannot keep secret a body of law it is applying.
The opinion rests that finding on officials’ own public statements. Gen. Dan Caine, chairman of the Joint Chiefs of Staff, testified on April 30, 2026, that commanders were “rigorously following that legal opinion,” and that it shaped the execution orders sent to combatant commands. Gen. Donovan of U.S. Southern Command testified in March that the memo was the “legal basis” for the strikes. Acting Attorney General Todd Blanche called it “our legal basis” at his July confirmation hearing. A Southern Command spokesman told the Intercept in September that every target meets “the legal criteria established by our Office of Legal Counsel.”
The judge found that officials “have relied exclusively on the OLC Memo” as defining their authority, and that neither agency had identified any other document setting out the legal basis for the strikes.
He rejected the attorney-client privilege claim as well.
The presidential privilege turns on who has read it
The third claim, presidential communications privilege, protects advice to the president and his close advisers. Engelmayer reserved judgment on it. The privilege can be waived if a document travels beyond that circle, he wrote, and a military commander’s “need to know” the limits of his authority “does not make him a presidential adviser.”
That is why the court wants the access list. The order requires a sworn declaration naming every person who has had access to the memo, in whole or in part, since its creation in September 2025, with the dates, the purpose and how the government established those facts. The government may redact the public version and file the full declaration under seal.
The classified parts and the 2014 drone memo
The ruling does not decide the government’s other two grounds for withholding, the exemptions for classified information and for intelligence sources and methods under the National Security Act. The parties agree some factual portions are likely to be withheld on those grounds. But the opinion says it is “all but certain” that the memo’s legal analysis will fall outside them, because the classification exemption does not cover legal reasoning that can be separated from classified facts.
The opinion leans on the Second Circuit’s 2014 ruling in New York Times v. Department of Justice, which applied the same working-law reasoning to the OLC memo authorizing the killing of Anwar al-Aulaqi, a U.S. citizen, in Yemen. The government released that 41-page memo, dated July 16, 2010, with redactions on June 23, 2014, after the appeals court ordered it disclosed.
What’s next: The government’s declaration and the memo are due to the court by Oct. 14. After reviewing them, Engelmayer will decide whether to order more briefing on the presidential privilege. The classification claims remain open, with the agencies to propose redactions for the court’s private review.
Primary source: ACLU v. U.S. Department of Justice, No. 25 Civ. 10189 (PAE), Opinion & Order (S.D.N.Y. Sept. 30, 2026), via CourtListener (PDF).
Judge Orders DOJ to Name Everyone Who Has Seen the Boat-Strike Memo
Sources
- Opinion & Order, ACLU v. DOJ, 25 Civ. 10189 (S.D.N.Y. Sept. 30, 2026). Used for: the rulings, the access order and deadline, the Matthews declaration, the undisclosed-copy footnote, officials’ statements, the strike counts, the classification discussion.
- U.S. Attorney’s Office letter to Judge Engelmayer (Sept. 9, 2026). Used for: the government’s response on the Southern Command statement.
- Case docket, ACLU v. DOJ, 1:25-cv-10189 (CourtListener).
- Associated Press, via ABC News, “US military says latest strike on alleged drug-smuggling boat in Caribbean kills 4” (Oct. 4, 2026). Used for: the Oct. 4 strike and the 70-strike, 235-death count.
- Just Security, “Timeline of Boat Strikes and Related Actions” (updated Oct. 4, 2026). Used for: the 71-strike, 238-death count and its method.
- ACLU, “U.S. Releases Targeted Killing Memo in Response to Long-Running ACLU Lawsuit” (June 23, 2014). Used for: the 2014 release of the al-Aulaqi memo.
Filed under: U.S. District Court, Southern District of New York