A new filing yesterday, in parallel FOIA actions regarding the targeted killing program: the government’s “Combined Opposition to Plaintiffs’ Cross-Motions for Summary Judgment and Reply in Further Support of Government’s Motion for Summary Judgment.”
Before the Southern District of New York are two separate but related FOIA cases regarding drones and targeted killing—one brought by the New York Times and two of its reporters, and another by the ACLU and an affiliate organization. Yesterday’s filing responds to the ACLU’s own motion for summary judgment, while advancing additional arguments in favor of the government’s position in both FOIA cases; the government’s consolidated summary judgment paperscan be found here.
I’ve only glanced at the government’s opposition. Here’s the opening:
The American Civil Liberties Union (“ACLU”) and New York Times plaintiffs do not seriously dispute the facial applicability of FOIA Exemptions 1, 3 and 5 to the classified and privileged information that the defendant agencies have sought to protect in this case. Instead, plaintiffs oppose the government’s motion for summary judgment in large part by espousing two distinct and novel theories of waiver, neither supported by law. Plaintiffs’ first theory of waiver would deprive the government of the ability to protect information that is properly classified. Although the government can waive the protections governing classified information through an official disclosure into the public domain of exactly the same information being withheld, plaintiffs point to not a single such instance of official acknowledgment. Instead, plaintiffs resort to inference and supposition in an effort to establish what otherwise does not exist on its own. Even more remarkably, plaintiffs argue that an accumulation of non-acknowledgments and unofficial remarks can together satisfy the exacting specificity required for official acknowledgment and waiver. But under the law of FOIA, as under the law of mathematics, zero plus zero will always equal zero. Plaintiffs cannot establish waiver by reciting an “avalanche” of news reports, none of which on its own establishes an official disclosure.