Jack and Ben earlier noted the government’s long-awaited brief in support of its motion for summary judgment in New York Times Co. v. Department of Justice and ACLU v. Department of Justice, the consolidated FOIA actions now pending in the Southern District of New York. In the brief, the government has continued - despite earlier speculation to the contrary - to resist disclosures regarding its targeted killing program.
The government’s filing also officially acknowledged the existence of some CIA documents potentially responsive to the plaintiffs’ requests in the New York cases. These records “would include” . . . copies of two speeches related to targeted killing, previously given by White House advisor John Brennan and Attorney General Eric Holder, respectively.
Based on that acknowledgment, the government now seeks a remand of a parallel FOIA lawsuit regarding the targeted killing program, which is now set for oral argument on September 20 before the D.C. Circuit. According to the government’s attorneys, the effect of their acknowledgement in the New York case on the D.C. Circuit case can only be explained in an additional filing. A remand to the D.C. district court therefore is warranted:
3. In the instant case, the CIA does not agree with plaintiffs that the statements they discuss in the briefing constitute an official acknowledgment that the CIA possesses any records responsive to plaintiffs’ request. However, the June 20 filing in the Southern District of New York officially acknowledges the CIA’s possession of some records that could potentially be responsive to plaintiffs’ FOIA requests in this case as well, such as a copy of the April 30, 2012 speech by Assistant to the President for Homeland Security and Counterterrorism John O. Brennan, which included discussion of the U.S. government use of drones. Explaining the effect, if any, of this later development on the FOIA request here will require a further filing by the government.
4. If the case is remanded to the district court, the government will file a supplemental response that will take into account the effect of the June 20 response in the Southern District of New York, and also will provide the district court a further declaration that addresses that response and the scope of any Glomar or “no number, no list” response in this case. The district court is in the best position to receive such new information and to consider, in the first instance, its effect on the government’s response in this case.