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E.D.N.Y. Grants Motion to Dismiss in Main Street Legal Services, Inc. v. National Security Council

Zachary Eddington
Sunday, August 11, 2013, 7:32 PM
Last Tuesday, Judge Vitaliano of the Eastern District of New York dismissed a FOIA suit seeking access to NSC records about the drone program.

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Last Tuesday, Judge Vitaliano of the Eastern District of New York dismissed a FOIA suit seeking access to NSC records about the drone program. Ritika already noted the court’s order in the news roundup; this post provides an overview of the opinion itself. In November 2012, Main Street Legal Services, a City University of New York legal clinic, submitted a FOIA request to the NSC seeking all documents related to the drone program and minutes for NSC meetings in 2011. The NSC denied the request in December, asserting that it is not an “agency” within the meaning of the statute and therefore is not subject to FOIA’s disclosure requirements. Main Street filed suit in February, and the NSC moved to dismiss in May. The court began its analysis by noting that, although the Second Circuit has not considered when an entity qualifies as an agency for FOIA purposes, the D.C. Circuit has addressed the issue on several occasions. Citing Meyer v. Bush, Judge Vitaliano explained that the D.C. Circuit has laid out three factors for evaluating the FOIA status of an Executive Office of the President component: “(1) ‘how close operationally the group is to the President;’ (2) ‘what the nature of its delegation from the President is, and;’ (3) ‘whether it has a self-contained structure.’” Moreover, the D.C. Circuit specifically held in Armstrong v. Executive Office of the President that that the NSC is not an agency under the Meyer test. Judge Vitaliano then proceeded to review the Armstrong court’s application of the Meyer factors to the NSC and consider whether the NSC’s status had changed since Armstrong was decided in 1996. Beginning with the first and third factors, the Armstrong court noted that the NSC was a self-contained organization that could potentially function independently of the President. However, the Armstrong court found that, despite this organizational structure, the NSC did not operate independently in practice, since the President chaired the NSC, closely supervised its staff, and had unique responsibility for military and foreign affairs functions. According to Judge Vitaliano, the same holds true today:
Current events have changed little, except perhaps to heighten the American government’s concern over (and awareness of) threats to national security interests. The operational proximity between the President and the Council remains exceptionally close under the current administration. By statute, the President continues to preside over NSC meetings himself, receives advice from the Council “with respect to the integration of domestic, foreign, and military policies relating to the national security,” directs any additional functions the Council may carry out, receives recommendations and reports from the Council, appoints an executive secretary and non-statutory Council members, and oversees the composition of various committees. See generally 50 U.S.C. §402. Considering these realities and the reasons for them, “[i]t is rather hard to imagine that . . . any . . . head of a department or agency who reports directly to the President would acquiesce in a [Council] decision that was thought not to represent directly and precisely the President's opinion.” Armstrong, 90 F.3d at 561 (emphasis in original) (quoting Meyer, 981 F.2d at 1295). There can be little doubt regarding the unique operational proximity between the President and the NSC.
Turning to the only remaining factor of the Meyer analysis, the second factor, Judge Vitaliano explained that the Armstrong court concluded that the NSC’s delegated powers primarily involved advising the President on national security matters and that the NSC exercises the same type of powers today. Thus, he found “no reason to depart from Armstrong’s thoroughly persuasive and well-articulated reasoning” and granted the motion to dismiss, holding that the NSC is not an agency for FOIA purposes. Further analysis of the court’s order is available from Josh Gerstein at Politico and Douglas Cox and Ramzi Kassem at Jurist.

Zachary Eddington is a student at Harvard Law School, where he is an editor of the Harvard Law Review. He previously worked as an analyst at the Department of Defense and interned at the U.N. International Law Commission, the Department of Homeland Security, and the Middle East Institute. He graduated with a B.S. in international politics from Georgetown University in 2009.

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