A federal judge ordered the Pentagon on Wednesday to submit a confidential September 2025 Justice Department memo for private review. U.S. District Judge Paul Engelmayer issued the 66-page ruling in the Southern District of New York, directing the Department of Defense and the Department of Justice to hand over the document within two weeks to determine if it should be made public.
Legal Battle Over Pentagon Boat Strikes Memo
The Trump administration used the Office of Legal Counsel memo to justify a series of lethal boat strikes targeting suspected drug smugglers in the Caribbean Sea and Pacific Ocean. The operation has resulted in at least 70 strikes and more than 200 deaths since last fall, according to available reports. The American Civil Liberties Union and the Center for Constitutional Rights filed a Freedom of Information Act lawsuit in December 2025 after federal agencies denied their requests to view the document.
Attorneys for the civil rights groups argue the public has a right to understand the legal rationale behind military actions resulting in civilian casualties. “The public deserves to know how our government is justifying the cold-blooded murder of hundreds of civilians,” Jeffrey Stein, staff attorney with the ACLU’s National Security Project, said in a statement.
Judge Rejects Most Government Privilege Claims
Judge Engelmayer rejected the government’s invocation of the deliberative process privilege, noting that executive branch officials have repeatedly and publicly cited the Office of Legal Counsel memo as the legal basis for the boat strikes. The Barack Obama appointee also dismissed the attorney-client privilege claim because the administration shared the document with individuals outside the protected circle, including members of Congress.
Senator Adam Schiff, a Democrat from California, reviewed the memo in November and criticized its broad interpretation of executive authority. “If that opinion were to be adopted, it would not constrain any use of force anywhere in the world,” Schiff said. “I mean, it is broad enough to authorize just about anything.”
Presidential Communications Privilege Review
The court left open one potential exception regarding the presidential communications privilege, which protects internal communications among the president’s inner circle. However, Judge Engelmayer emphasized that this privilege can be waived if an agency voluntarily discloses or distributes a document.
To resolve the question of waiver, the judge ordered the government to compile a complete list of everyone given access to the memo. He will read the document himself before deciding whether to order its public release. Representatives for the Department of Justice declined to comment on the ruling, while the Department of Defense did not immediately respond to requests for comment.
International Scrutiny and Recent Operations
Earlier in the month, the Pentagon reported killing four individuals in a Caribbean boat strike based on confirmed intelligence linking the vessel to drug trafficking.
Shortly after that operation, a United Nations report warned that the ongoing U.S. military strikes against these vessels could constitute crimes against humanity.