Freedom of information act (FOIA).
The following case concerns an information request based on the Freedom of Information Act (FOIA), asking for documents about the death of the U.S. citizens Anwar al-Awlaki, Samir Khan and Abdulrahman al-Awlaki (son of Anwar) in 2011. In particular, the Plaintiffs sought documents prepared by the Department of Justice (DOJ) Office of Legal Counsel (OLC) about the lawfulness of the drone strikes. The Plaintiffs do not challenge the lawfulness of the drone strikes.
The case requires the Second Circuit to address the conflicting issues of public access to Government records and the Executive's attempts to maintain secrecy about national security.
It all began with partially unsuccessful FOIA requests: First, in June 2010, two New York Times reporters, Charlie Savage and Scott Shane (jointly "N.Y. Times") submitted separate requests for OLC memos regarding the legality of targeting U.S. citizens abroad. The OLC refused to provide the requested information.
"With respect to the portion of his request that pertained to DOD, OLC initially submitted a so-called 'no number, no list' response instead of submitting the usual Vaughn index, numbering and identifying by title and description documents that are being withheld and specifying the FOIA exemptions asserted. A no number, no list response acknowledges the existence of documents responsive to the request, but neither numbers nor identifies them by title or description. OLC said that the requested documents pertaining to DOD were being withheld pursuant to FOIA exemptions 1, 3, and 5." [Slip op. 4]
"As to documents pertaining to agencies other than DOD, OLC submitted a so-called 'Glomar response.' This type of response neither confirms nor denies the existence of documents responsive to the request. See Wilner v. National Security Agency, 592 F.3d 60, 68 (2d Cir. 2009). OLC stated that the Glomar response was given 'because the very fact of the existence or nonexistence of such documents is itself classified, protected from disclosure by statute, and privileged' under 5 U.S.C. [section] 552(b)(1), (3), (5). CIA confirmed that it requested DOJ to submit a Glomar response on its behalf." [Slip op. 4]
"OLC also denied Savage's request. Declining to submit either a Vaughn index or even a no number, no list response, OLC submitted a Glomar response, stating that, pursuant to Exemptions 1, 3, and 5, it was neither confirming nor denying the existence of documents described in the request. Unlike its letter denying the Shane request, OLC's response to the Savage request did not identify any responsive documents relating to DOD." [Slip op. 4] (footnotes omitted)
Second, in October 2011, the American Civil Liberties Union Foundation (ACLU) submitted FOIA requests to the DOJ, the Department of Defense (DOD), and the Central Intelligence Agency (CIA) on the subject of targeted killings of U.S. citizens, and the killings of al-Awlaki, his son, and Khan.
DOJ and CIA initially submitted Glomar responses, refusing to confirm or deny the existence of responsive documents. DOD initially stated that it could not respond within the statutory time period because of the complexity of the request. The Government agencies modified their responses slightly during the course of the litigation.
The N.Y. Times and the ACLU filed separate lawsuits in 2011 and 2012, respectively, which were eventually consolidated.
In January 2013, the U.S. District Court for the Southern District of New York dismissed the consolidated FOIA lawsuits upon motions for summary judgment. The N.Y. Times and the ACLU appealed.
The U.S. Court of Appeals for the Second Circuit affirms in part, reverses in part, and remands.
While FOIA requires the Government to disclose information, there are exemptions:
"Exemption 1 exempts records that are '(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.' 5 U.S.C. [section] 552(b)(1) (2013). Executive Order 13526 allows an agency to withhold information that (1) 'pertains to' one of the categories of information specified in the Executive order, including 'intelligence activities (including covert action)," intelligence sources or methods,' or 'foreign relations or foreign activities of the United States' and (2) if 'unauthorized disclosure of the information could reasonably be expected to cause identifiable and describable damage to the national security.' Executive Order No. 13526 [section] 1.1(a)(3)-(4), 1.4(c)-(d), 75 Fed. Reg. 708, 709 (Dec. 29, 2009)." [Slip op. 3]
"Exemption 3 exempts records that are 'specifically exempted from disclosure by [another] statute' if the relevant statute either 'requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue' or 'establishes particular criteria for withholding or refers to particular types of matters to be withheld.' 5 U.S.C. [section] 552(b)(3)(A)(i), (ii) (2013). Two such statutes are potentially relevant here. The Central Intelligence Agency Act of 1949, as amended, provides that the Director of National Intelligence 'shall be responsible for protecting intelligence sources or methods,' and exempts CIA from 'any other law which require [s] the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency.' 50 U.S.C. [section] 3507 (2013). The National Security Act of 1947, 50 U.S.C. [section] 3024-1 (i)(1) (2013), exempts from disclosure 'intelligence sources and methods.'" [Slip op. 3]
"Exemption 5 exempts 'inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.' 5 U.S.C. [section] 552(b) (5) (2013). Exemption 5 encompasses traditional common law privileges against disclosure, including the attorney-client and deliberative process privileges. See National Council of La Raza v. Dep't of Justice, 411 F.3d 350, 356 (2d Cir. 2005)." [Slip op. 3]
The Court then focuses on the OLC-DOD Memorandum, which the U.S. Department of Defense marked "classified" because it contains confidential legal advice regarding a potential military operation in a foreign country. OLC withheld the Memorandum based on Exemption 5 "because it is protected by the deliberative process and attorney-client privileges." DOD withheld the Memorandum based on Exemptions 1 and 5 "because the content of the document contains information about military operations, intelligence sources and methods, foreign government information, foreign relations, and foreign activities."
The Court agrees with the District Court's conclusions that the OLC-DOD Memorandum was properly classified and that no waiver of any operational details in that document had occurred. As to the Memorandum's legal analysis, a waiver of Exemptions 1 and 5 has occurred. The Court notes that voluntary disclosures of all or part of a document may waive an otherwise valid FOIA exemption.
The Court then analyzes the lost exemptions 5 and 1.
"Exemption 5' 'properly construed, calls for disclosure of all opinions and interpretations which embody the agency's effective law and policy, and the withholding of all papers which reflect the agency's group thinking in the process of working out its policy and determining what its law shall be." ..." [Slip op. 11]
"In considering waiver of the legal analysis in the OLC-DOD Memorandum, we note initially the numerous statements of senior Government officials discussing the lawfulness of targeted killing of suspected terrorists, which the District Court characterized as 'an extensive public relations campaign to convince the public that [the Administration's] conclusions [about the lawfulness of the killing of al-Awlaki] are correct.' ... In a March 25, 2010, speech at the annual meeting of the American Society of International Law in Washington, D.C., then-Legal Adviser of the State Department Harold Hongju Koh said, 'U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war.' ... In a February 22, 2012, speech at the Yale Law School, Jeh Johnson, then-General Counsel of DOD, 'summarize [d] ... some of the basic legal principles that form the basis for the U.S. military's counterterrorism efforts against Al Qaeda and its associated forces,' ... and referring explicitly to 'targeted killing,' said, 'In an armed conflict, lethal force against known, individual members of the enemy is a long-standing and long-legal practice,' ... " [...] [Slip op. 11]
"In an April 30, 2012, speech at the Wilson Center in Washington D.C., John O. Brennan, then-Assistant to the President for Homeland Security and Counterterrorism, said, 'Yes, in full accordance with the law, and in order to prevent terrorist attacks on the United States and to save American lives, the United States Government conducts drone strikes against specific al-Qaida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones.'
... On Feb. 7, 2013, Brennan, testifying on his nomination to be director of CIA, said, 'The Office of Legal Counsel advice establishes the legal boundaries within which we can operate.' ...." [Slip op. 11]
"Even if these statements assuring the public of the lawfulness of targeted killings are not themselves sufficiently detailed to establish waiver of the secrecy of the legal analysis in the OLC-DOD Memorandum, they establish the context in which the most revealing document, disclosed after the District Court's decision, should be evaluated. That document is the DOJ White Paper, officially released on Feb. 4, 2013.... Before considering the relevance of the DOJ White Paper to the Government's claim to continued secrecy and privilege of the legal analysis in the OLC-DOD Memorandum, we describe that Memorandum, which we have examined in camera, in some detail." [Slip op. 12]
"The OLC-DOD Memorandum is a 41page classified document, dated July 16, 2010, captioned:" [Slip op. 12]
"MEMORANDUM FORTHE ATTORNEY GENERAL ... It was prepared on the letterhead of OLC and signed by David J. Barron, Acting Assistant Attorney General." [Slip op. 12]
"The OLC-DOD Memorandum has several parts. After two introductory paragraphs, Part I(A) reports [redacted]. Parts I(B) and I(C) describe [redacted]. Part II(A) considers [redacted]. Part II(B) explains [redacted]. Part III(A) explains [redacted], and Part III(B) explains [redacted]. Part IV explains [redacted]. Part V explains [redacted]. Part VI explains [redacted]." [Slip op. 13]
"The 16-page, single-spaced DOJ White Paper [redacted] in its analysis of the lawfulness of targeted killings. [redacted] The DOJ White Paper explains why targeted killings do not violate 18 U.S.C. [section][section] 1119 or 2441, or the Fourth and Fifth Amendments to the Constitution, and includes an analysis of why section 1119 encompasses the public authority justification....." [Slip op. 13]
"After senior Government officials have assured the public that targeted killings are 'lawful' and that OLC advice 'establishes the legal boundaries within which we can operate,' and the Government makes public a detailed analysis [redacted], waiver of secrecy and privilege as to the legal analysis in the Memorandum has occurred." [...] [Slip op. 13]
"In resisting disclosure of the OLC-DOD Memorandum, the Government contends that making public the legal reasoning in the document will inhibit agencies throughout the Government from seeking OLC's legal advice. The argument proves too much. If this contention were upheld, waiver of privileges protecting legal advice could never occur. In [National Council of La Raza v. Dep't of Justice, 411 F.3d 350, 356 (2d Cir. 2005)], we explained that '[l]ike the deliberative process privilege, the attorney-client privilege may not be invoked to protect a document adopted as, or incorporated by reference into, an agency's policy.' 411 F.3d at 360. Here, the Government has done so by publicly asserting that OLC advice 'establishes the legal boundaries within which we can operate'; it 'cannot invoke that relied-upon authority and then shield it from public view.' ... Agencies seeking OLC legal advice are surely sophisticated enough to know that in these circumstances attorney/client and deliberative process privileges can be waived and the advice publicly disclosed. We need not fear that OLC will lack for clients." [Slip op. 13]
"The Government also argues that because the OLC-DOD Memorandum refers to earlier OLC documents that remain classified, those assessing the legal reasoning in the OLC-DOD Memorandum might find the reasoning deficient without an opportunity to see the previous documents. However, the reasoning in the OLC-DOD Memorandum is rather elaborate, and readers should have no difficulty assessing the reasoning on its own terms. Moreover, the Government had no similar concern when it released the DOJ White Paper, the reasoning of which cannot be properly assessed, on the Government's argument, without seeing the OLC-DOD Memorandum. Finally, the Government always has the option of disclosing redacted versions of previous OLC advice." [Slip op. 13-14]
"The loss of protection for the legal analysis in the OLC-DOD Memorandum does not mean, however, that the entire document must be disclosed. FOIA provides that '[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.' 5 U.S.C. [section] 552b. The Government's waiver applies only to the portions of the OLC-DOD Memorandum that explain legal reasoning. These are Parts II, III, IV, V, and VI of the document, and only these portions will be disclosed. Even within those portions of the document, there are matters that the Government contends should remain secret for reasons set forth in the Government's classified ex parte submission, which we have reviewed in camera." [Slip op. 14]
"One of those reasons concerns [redacted] the Government persuasively argues warrants continued secrecy. [redacted] We will redact all references to that [redacted]." [...][Slip op. 14] (footnotes omitted)
As for exemption 1, the Court reasons:
"Much of the above discussion concerning loss of Exemption 5 is applicable to loss of Exemption 1. As the District of Columbia Circuit has noted, 'Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears 'logical' or 'plausible." ..." [...] [Slip op. 14]
"We recognize that in some circumstances the very fact that legal analysis was given concerning a planned operation would risk disclosure of the likelihood of that operation, but that is not the situation here where drone strikes and targeted killings have been publicly acknowledged at the highest levels of the Government. We also recognize that in some circumstances legal analysis could be so intertwined with facts entitled to protection that disclosure of the analysis would disclose such as explained above, the entire section of the OLCDOD Memorandum that includes any mention of intelligence gathering activities. [redacted]" [Slip op. 15]
"The three-part test for 'official' disclosure, relevant to Exemption 1, which the District Court took from [Wilson v. CIA, 586 F.3d 171 (2d Cir. 2009)], has been sufficiently satisfied. [redacted] is' 'as specific as the information previously released" [redacted], it "match[es] the information previously disclosed," and was "made public through an official and documented disclosure." Dist. Ct. Op., 915 F.3d at 536 ... In reaching this conclusion, we do not understand the 'matching' aspect of the Wilson test to require absolute identity. Indeed, such a requirement would make little sense. A FOIA requester would have little need for undisclosed information if it had to match precisely information previously disclosed." [Slip op. 15]
"With the redactions and public disclosures discussed above, it is no longer either 'logical' or 'plausible' to maintain that disclosure of the legal analysis in the OLC-DOD Memorandum risks disclosing any aspect of 'military plans, intelligence activities, sources and methods, and foreign relations.' The release of the DOJ White Paper, discussing why the targeted killing of al-Awlaki would not violate several statutes, makes this clear. [redacted] in the OLC-DOD Memorandum adds nothing to the risk. Whatever protection the legal analysis might once have had has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the DOJ White Paper." [Slip op. 12] (footnotes omitted) [Slip op. 15]
The Court concludes that:
(1) a redacted version of the OLC-DOD Memorandum must be disclosed, (2) a redacted version of the classified Vaughn index submitted by OLC must be disclosed, (3) the Glomar and "no number, no list" responses are insufficiently justified, (4) DOD and CIA must submit Vaughn indices to the District Court for in camera inspection and determination of appropriate disclosure and appropriate redaction, and (5) the Office of Information Policy ("OIP") search was sufficient.
NOTE: A second appeal involving this matter is currently pending in the Second Circuit. See The New York Times Company v. United States Department of Justice, Nos. 14-4432-cv(L), 14-4764(Con) (2d. Cir).
CITATION: The New York Times Company v. United States Department of Justice, Nos. 13-422(L), 13-445(Con.) (2d Cir. April 21, 2014).
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|Title Annotation:||The New York Times Company v. United States Department of Justice|
|Publication:||International Law Update|
|Article Type:||Case overview|
|Date:||Jul 1, 2014|
|Previous Article:||Foreign Corrupt Practices Act.|