Published by The Lawfare Institute
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Published by The Lawfare Institute
A three-judge panel of the Second Circuit Court of Appeals will convene tomorrow afternoon to hear arguments in a case challenging the government’s ability to withhold records pertaining to its targeted killing program. The American Civil Liberties Union (ACLU) and the New York Times are challenging the District Court for the Southern District of New York’s grant of summary judgment in favor of the government in their consolidated Freedom of Information Act (FOIA) requests. In the lower court, Judge Colleen McMahon rejected efforts by the ACLU and Times to unearth even the existence of legal analysis supporting the targeted killing program, upholding the government’s Glomar and “no number, no list” responses in which it respectively refused to confirm or deny the existence or nonexistence of some records to the Times and declined to provide a Vaughn index enumerating other records to the ACLU under FOIA exemptions 1, 3, and 5. It is noteworthy that Judge McMahon, although ultimately finding in favor of the government, spent most of her opinion expressing significant sympathy for the arguments urging greater disclosure. This tension within the opinion will be worth watching at oral argument on appeal. Judge McMahon held that the government had not waived its right to withhold classified legal analysis under FOIA Exemption 1 when numerous government officials, including President Barack Obama and Attorney General Eric Holder, disclosed the existence of the program and the Executive Branch’s legal considerations before launching a targeted strike. The public disclosures did not amount to “official disclosure” because specific documents had not been disclosed and the only acknowledged document responsive to the FOIA requests---a memo from the Justice Department’s Office of Legal Counsel to the Department of Defense---contained much more detailed legal analysis than what had been revealed publicly. The court also found that FOIA Exemption 3 allowed the government to withhold legal analysis under the protection of the NSA Act, which exempts “intelligence sources and methods” from FOIA disclosure. Exemption 3 also allowed the government to withhold information through the CIA Act. Finally, Judge McMahon upheld the nondisclosure of documents as privileged under FOIA Exemption 5, finding the legal analysis was not the government’s “working law,” but rather was protected by attorney-client privilege and the deliberative process privilege. The ACLU and Times Briefs The Times brief begins by arguing that the government’s Glomar response was improper because “[r]evealing the mere existence of legal memoranda would do no more than confirm what is already known – that CIA is interested or involved in the targeted killing program.” Rather than focusing on whether public disclosures have mentioned specific documents, as the lower court did, the Times urges the Second Circuit to follow the lead of the D.C. Circuit in finding that the CIA’s interest and involvement the targeted killing program is public information. In its own brief, the ACLU notes that such a “no number, no list” response is only appropriate where providing any information about responsive documents would “itself disclose information protected by on of FOIA’s exemptions.” If government officials have already disclosed the CIA, DOD, and DOJ’s interest and role in the program, it follows that the existence of legal analysis related to the program would no longer be protected. Next, the Times and ACLU briefs make the case that “abstract legal analysis” cannot be withheld under FOIA Exemption 1 or 3, as it neither “pertains to” a category of information properly subject to classification under Executive Order 13,526, Section 1.4, nor does it reveal “intelligence sources and methods.” Both briefs note that allowing government to withhold legal reasoning under these exemptions “would expand exponentially the universe of information that has until now been regarded as properly classifiable.” The ACLU supplements this argument with its own case that Exemptions 1 and 3 do not apply, noting that even if “there are some responsive documents that cannot be identified or described without disclosing information protected by Exemptions 1 or 3, the declarations do not logically or plausibly establish that this is true of every responsive document.” In fact, the government has since identified other OLC memoranda, according to the ACLU brief. Finally, the Times argues that FOIA Exemption 5 does not protect the contents of the OLC-DOD memo because that memo is not “predicisional” or “deliberative,” but rather, it has become the government’s “working law” and has been “adopted publicly as the Government’s legal position.” The ACLU marshals the government’s public statements regarding the targeted killing program as evidence that at least some withheld records “embody the government’s ‘effective law and policy.’” Further, the Times notes that the memo would not fall under the attorney-client privilege because it constitutes the policy of the government, rather than advice from a lawyer to a client in a legal dispute. The Government’s Response The government’s brief begins by addressing the applicability of FOIA Exemptions 1 and 3 to the withheld information. Exemption 1 is applicable, explains the government, because “disclosing information about the number and nature of responsive but exempt documents in the CIA’s possession would tend to reveal information about intelligence activities, intelligence methods, and CIA functions, which reasonably could be expected to harm our counterterrorism activities and damage foreign relations.” Further, legal analysis can be classified because it “clearly would ‘pertain to’ an intelligence activity, intelligence source or method, or foreign activity.” Under Exemption 3, the government notes that while legal advice may not constitute “intelligence sources and methods,” such advice may “incorporate information that would tend to reveal intelligence sources and methods.” Next, the government distinguishes between official disclosure of a CIA or DOD interest in the targeted killing program and the lack of any acknowledgment as to the CIA and DOD’s operational role in or authorization to conduct such killings. Pointing to the same D.C. Circuit case that is mentioned in the appellants’ briefs, the government argues that that decision “involves a FOIA request that is materially different from the New York Times requests,” as it addressed a FOIA request seeking CIA records relating to drones generally, while the present requests seek legal reasoning specifically pertaining to the CIA and could reveal “whether or not the CIA was involved in particular targeting operations could reveal.” However, the government acknowledged that in light of recent public disclosures relating to the targeted killing program made after the government’s response to these FOIA requests, “it can provide some limited additional information about classified documents in its possession that are responsive to the ACLU request.” Finally, the government argues that the withheld documents are not the “working law” of the government, but rather, constitute confidential legal advice and so were properly withheld under FOIA Exemption 5. While government officials have discussed the legality of targeted killings, the government points out that “’there is no suggestion’ in any public statements by government officials about the use of targeted lethal force ‘that the legal reasoning being discussed is the reasoning’ in the withheld documents.” Furthermore, the “confidential OLC memorandum sought by plaintiffs . . . does not opine on the legal rights of the public but rather serves to provide confidential legal advice to the Attorney General and the Executive Branch regarding policy on the use of force.” Arguments will begin at 2:00pm on Tuesday afternoon. The New York Times and ACLU have been allotted 15 minutes each, while the government will have 30 minutes for its argument. The case will be heard by Circuit Judges José Cabranes and Rosemary Pooler and Circuit Senior Judge Jon Newman.
Matt Danzer is a graduate of Columbia Law School, where he was a member of the Columbia Law Review and served as president of the National Security Law Society. He also works as an editor for the Topic A public policy blogs on Roll Call. He graduated from Cornell University in 2012 with a B.S., with honors, in Industrial and Labor Relations.
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