Like Jack, I am a little surprised by the government’s brief–filed late last night–in the ACLU/New York Times FOIA case on targeted killings. This was the brief, remember, for which the government received an extension after informing the court that “given the significance of the matters presented in this case, the government’s position is being deliberated at the highest level of the executive branch.” A lot of people–including me–expected this brief to contain some sort of acknowledgement of the targeted killing program and perhaps to thus begin a process of declassifying some of the material the ACLU and the Times have sought.
The government’s position remains what it was: that any program is highly classified, that any involvement in the Al Aulaqi killing is highly classified, that to even identify documents responsive to the FOIA requests would confirm the existence of any such program or participation in the strike, that the government will not therefore even present a Vaughn index of the material its internal searches have identified, and that detailed descriptions in the press of the internal discussions surrounding these issues have no effect on the analysis:
The Executive Branch has determined that, while the government can acknowledge the existence of some documents responsive to the FOIA requests that form the basis of this lawsuit, for the most part it cannot provide public details regarding the classified documents that are withheld; even to describe the numbers and details of most of these documents would reveal information that could damage the government’s counterterrorism efforts. The Executive Branch has supported these judgments with detailed public and classified declarations that explain the harms that could result from further disclosure, and that do so taking into account the media reports that plaintiffs have identified. Case law makes clear that substantial deference must be accorded to the Executive’s logical and plausible judgments in this regard.
At least we know now that the decision to withhold this material was made “at the highest levels of the executive branch.”