SDNY Orders the Boat-Strikes OLC Memo Turned Over for Review: DOD 'Treated the Memo as Its Effective Law'

SDNY Orders the Boat-Strikes OLC Memo Turned Over for Review: DOD 'Treated the Memo as Its Effective Law'

On Sept. 30, 2026, the U.S. District Court for the Southern District of New York rejected the bulk of the Trump administration's rationales for keeping secret the Office of Legal Counsel opinion used to justify the ongoing extrajudicial boat-strike campaign in the Caribbean and Eastern Pacific — which, per the ACLU, has killed 234 people. The court ordered the government to provide details about who has seen the memo and how it has been used, and to turn the memo over to the judge for in camera review to determine whether it should be released publicly. The government has until Oct. 14 to comply.

The core holding, per the ACLU's summary of the ruling: the court found the administration adopted the memo as its "working law," noting that "the assembled record compellingly supports the finding that DOD—the agency that asserts disclosure authority over the Memo—has treated the Memo as its effective law and policy governing the boat strikes¹.²" The court also rejected the government's claims that the memo could be withheld under the deliberative-process and attorney-client privileges.

The still-secret memo reportedly blesses the strikes as lawful acts in an alleged "armed conflict" with unspecified "drug cartels" and purports to immunize personnel who authorize or take part in the strikes from future criminal prosecution for what would otherwise be homicide.

"The public deserves to know how our government is justifying the cold-blooded murder of hundreds of civilians. Today's order is a huge step in the right direction of ensuring that the government does not get to summarily execute people based on secret law." — Jeffrey Stein, ACLU National Security Project

"No president can arbitrarily assassinate people from the sky based on their sole say-so." — Baher Azmy, Center for Constitutional Rights legal director

What it means

The ruling applies FOIA's "secret law" doctrine to the most consequential executive-power claim of the term — the asserted authority to kill based on a legal memo the government refuses to publish. It is the first judicial crack in the secrecy around the strikes' legal justification, and it sets up an Oct. 14 compliance deadline and a follow-on ruling on public release. It runs alongside the families' separate suit over the strikes and the broader pattern of courts contesting executive claims of unreviewable authority. The New York Times framed the same decision as a judge "questioning secrecy" around the memo — "a modest victory for legal groups" that filed the FOIA suit.