Tuesday’s oral argument in the New York Times and American Civil Liberties Union’s Freedom of Information Act cases before the Second Circuit Court of Appeals spent as much time clarifying the basic issues at play as it did digging into the substantive questions in the case. As noted in our preview post, the Times and the ACLU are seeking two things from the government: a Vaughn index enumerating the documents responsive to their respective requests regarding the targeted killing program, and the content of an Office of Legal Counsel memorandum to the Department of Defense outlining the legal justifications for the targeted killing program.
Counsel for the Times, David McCraw, is only able to outline the two major issues in the case before the judges begin their questions. Many of the early inquiries focus on orienting the judges with the key issues: What disclosure would satisfy the Times? What type of documents is the Times requesting in its FOIA request? What would a Vaughn index include? Counsel explains that the Times is seeking a Vaughn index of relevant final and draft OLC memoranda, including the name of the author, date, redacted heading, and reason for exemption under FOIA for each one.
Once the judges are clear on this, they focus primarily on whether the OLC-DOD memo can be withheld by the government under FOIA Exemption 5, which allows nondisclosure of privileged records. McCraw explains that the government has converted the memo from legal analysis to “working law.” In addition, the memo has been adopted as policy and is now used to set policy. Judge Newman pushes back, asking how legal analysis on the lawfulness of a given action can become policy. McCraw argues that by disclosing the fact of OLC legal advice, but not the content, for political purposes as a means of persuading the public of the legality of the targeted killing program, the government waived the privileged status of the document.
Before McCraw is able to conclude his argument---well past his allotted twelve minutes---Senior Judge Newman asks whether the government sought discovery in the District Court for the Southern District of New York. McCraw responds that while the Times did not seek discovery, the ACLU did ask for discovery, although none was conducted. Judge Jon Newman verbally expresses shock that no discovery was performed, although McCraw clarifies that discovery is rare in FOIA cases.
Next up is Jameel Jaffer for the ACLU, who is cut off by Judge José Cabranes no more than three words into his oral argument in order to follow up on the discovery line. Jaffer explains that while the ACLU had mentioned its interest in discovery during an informal conference with Judge Colleen McMahon, it had been urged not to conduct discovery and so none took place. This seems to confuse the judges, but they leave it alone. Jaffer then launches into the crux of the ACLU’s argument, noting that the government’s “no number, no list” response must be inappropriate because it cannot be that not a single responsive document can be disclosed under FOIA. As proof, he points to the numerous disclosures since the ACLU’s FOIA request, including the CIA’s intelligence interest in the targeted killing program, the CIA’s operational role in targeted killing, the identity of US citizens successfully targeted by the program, and more.
Judge Newman then engages in a lengthy back-and-forth with Jaffer about the usefulness of a Vaughn index to the ACLU. The judge wonders whether a partial and redacted list of the headings and dates of various memoranda is too vague to tell the ACLU and the public much of anything. Jaffer responds that the memo headings themselves could reveal government legal analysis that has not previously been disclosed, such as the evidentiary standard (beyond a reasonable doubt, preponderance of the evidence, etc.) used by the government when deciding whether it is appropriate to target an individual. Further, Jaffer stresses that having a list of documents and the exact FOIA exemptions claimed by the government would allow the ACLU to challenge the grounds upon which specific documents have been withheld and to determine whether information that cannot be disclosed can be separated from that which can be disclosed. Judge Newman further challenges Jaffer, reiterating his contention that a Vaughn index is too vague to be useful and stating that this case is primarily about the OLC-DOD memo.
As Jaffer prepares to wrap up---also well over his time limit---Judge Newman raises a point that had not been mentioned previously: In light of the government’s recent disclosures, which took place subsequent to the ACLU’s FOIA request and the District Court’s ruling, should the Second Circuit remand the case back to Judge McMahon for reconsideration in light of new information? Judge Rosemary Pooler points out that the lower court relied heavily on a similar case in the District Court for the District of Columbia that was subsequently overturned by the D.C. Circuit, so remand might be useful to reconsider on those grounds as well. Jaffer urges the court not to remand the case, noting that the issues in this case are mainly issues of law and that remand would not be in the interest of judicial economy.
With that, Sharon Swingle rises to defend the government’s victory in the District Court. She begins by arguing that legal advice used by the government does not constitute “working law” that waives attorney-client privilege, highlighting the possibility that it could chill the willingness of government agencies to seek OLC advice in the future. Judge Newman quickly jumps in, asking why the government continues to withhold its legal analysis behind the targeted killing program, even as it expresses the legality of that program to the public. Swingle responds that the government should not be penalized for its willingness to assure the public of the lawfulness of its actions, but Judge Newman’s question appears to have lit up the bench, as all three judges begin pushing on the government’s expressed inability to disclose anything. Judge Pooler and Judge Cabranes ask why the government cannot simply redact sensitive material in the memos, to which Swingle notes that the lower court never reached this question because the records were exempted under attorney-client privilege. However, Judge Newman does not seem satisfied, pressing Swingle on why the government does not to disclose its legal analysis. He asks Swingle for the policy rationale, not the legal grounds, but she notes that her job is not to make policy, but rather, to defend the government’s decisions in court. She then reiterates her previous legal justifications for withholding OLC memos. Judge Newman leans back in his chair, visibly frustrated by the response. He notes that the government’s position seems to be that “anything we can withhold, we will withhold,” which Swingle denies.
Judge Newman continues his questioning, asking how comments by then-CIA Director Leon Panetta discussing the targeted killing of Anwar al-Awlaki on the television show 60 Minutes could possibly be read as referring to anything other than the CIA interest in the targeted killing program. Judge Newman calls the “inference [of CIA involvement] irresistible.” However, Swingle explains that those comments are vague and were not part of an official statement by the government.
Judge Cabranes then raises a hypothetical, asking whether the government can continue to withhold the records if it is found to have waived attorney-client privilege. Swingle responds in the negative and then makes the case that the government cannot actually lose at this stage in the case. Rather, even if the Second Circuit found that the documents were not protected under any FOIA exemption, it would still have to remand to the District Court to determine whether it is possible to segregate the highly classified information in the records.
Judge Cabranes next asks Swingle how the government can distinguish this case from the recent D.C. Circuit case in which that court found that the CIA’s interest in the targeted killing program is known to the public and therefore cannot justify a Glomar response in which it neither confirmed nor denied the existence or nonexistence of records revealing that interest. Swingle urges the court to look at the precise terms of the FOIA requests in each case, pointing out that in the D.C. Circuit case, the ACLU had requested records demonstrating the CIA’s interest in the targeted killing program without requiring disclosure of what part of the government engages in that program. In the present case, the FOIA requests specifically seek records demonstrating the CIA’s interest in a program of its own, says Swingle.
Judge Newman returns to his line of question surrounding the viability of redaction, asking why a Vaughn index redacting sensitive information would not satisfy the government. Swingle responds that it is a threat to national security to disclose even the number of responsive documents, as it would show the level of interest, intelligence, and foreign activity involved. Judge Cabranes then notes that the Second Circuit has never even formally adopted the Vaughn index, a construct of the D.C. Circuit.
Finally, Judge Newman questions the following sentences from page 47 of the government’s appellate brief:
Given recent acknowledgments by the President and other senior officials of the previously properly classified fact that the United States carried out the targeted strike that killed Anwar al-Awlaki, DOJ has now determined that it can provide some limited additional information about classified documents in its possession that are responsive to the ACLU request. Specifically, DOJ can now disclose that there are a significant number of responsive classified records, consisting of legal advice and analysis (including about al-Awlaki), requests for legal advice, internal Executive Branch legal deliberations (including legal and factual input and comments on draft legal advice and analysis), summaries of legal advice and analysis, internal attorney work product (such as draft legal advice and analysis, preliminary outlines of the same, and related questions and notes), and confidential factual information regarding terrorist organizations and individuals potentially involved in such organizations received from Executive Branch clients. (emphasis added)
Judge Newman asks whether the italicized portion refers to material that will be disclosed in the future or records that have already been disclosed. Swingle explains that the first sentence expresses DOJ’s willingness to acknowledge the existence of withheld information in response to a new FOIA request. Judge Newman presses Swingle, who explains that the government is offering to describe the nature of additional documents, but not a Vaughn index or anything that would be included in such an index, including the number of documents, their respective dates, or their headings. Judge Cabranes asks the government to provide a four-page, double-spaced supplemental brief by October 11 clarifying what exactly the government means by these sentences, with opposing counsel asked to respond by October 18. Judge Pooler points out that given the recent stream of declassified government documents, perhaps there will be additional unilateral disclosures by the time the supplemental briefs are filed.
Judge Cabranes gives Swingle an opportunity for a final thought and she urges the court to pay close attention to the classified material provided to the court before deciding the case.
David McCraw rises for a brief rebuttal in which he repeats his contention that legal advice cannot be withheld under FOIA Exemption 5 when it comes to describe the existing policy of the government. He concludes with a 30,000 foot view, noting that the Times is not satisfied with the trickle of government disclosures because FOIA has a “presumption of openness.”
Rounding out the day, Jameel Jaffer rises for his own rebuttal and stresses that government assurances that sound legal reasoning exists for policies is not enough. He points to role that the disclosure of the government’s legal analysis played in revealing the “unusual” way in which government defined torture.
After nearly two hours of oral argument, Judge Cabranes gavels out.