Secrecy: FOIA

Second Circuit Orders Release of Al Awlaki Memo

By Benjamin Wittes
Monday, April 21, 2014, 11:35 AM

The U.S. Court of Appeals for the Second Circuit has reversed a lower court opinion and ordered the government to release key portions of the legal memos that lie behind the targeted killing of Anwar Al Awlaki. Here's the opinion, which I have not yet read, by a unanimous three-judge panel. Here's coverage from the New York Times's Benjamin Weiser.

The 52-page opinion, by Judge Jon Newman for himself, Jose Cabranes, and Rosemary Pooler, opens:

This appeal of a judgment dismissing challenges to denials of requests under the Freedom of Information Act (“FOIA”) presents important issues arising at the intersection of the public's opportunity to obtain information about their government's activities and the legitimate interests of the Executive Branch in maintaining secrecy about matters of national security. The issues assume added importance because the information sought concerns targeted killings of United States citizens carried out by drone aircraft. Plaintiffs-Appellants The New York Times Company and New York Times reporters Charlie Savage and Scott Shane (sometimes collectively “N.Y. Times”), and the American Civil Liberties Union and the American Civil Liberties Union Foundation (collectively “ACLU”) appeal from the January 24, 2013, judgment of the United States District Court for the Southern District of New York (Colleen McMahon, District Judge) dismissing, on motions for summary judgment, their consolidated FOIA suits. See New York Times Co. v. U. S. Dep’t of Justice (“Dist. Ct. Op.”), 915 F. Supp. 2d 508 (S.D.N.Y. 2013). The suits were brought against the Defendants-Appellees United States Department of Justice (“DOJ”), the United States Department of Defense (“DOD”), and the Central Intelligence Agency (“CIA”) (sometimes collectively the “Government”). 

We emphasize at the outset that the Plaintiffs’ lawsuits do not challenge the lawfulness of drone attacks or targeted killings. Instead, they seek information concerning those attacks, notably, documents prepared by DOJ’s Office of Legal Counsel (“OLC”) setting forth the Government’s reasoning as to the lawfulness of the attacks.

The issues primarily concern the validity of FOIA responses that (a) decline to reveal even the existence of any documents responsive to particular requests (so-called “Glomar responses” (described below)), (b) acknowledge the existence of responsive documents but decline to reveal either the number or description
of such documents (so-called “no number, no-list” responses (described below)), (c) assert various FOIA exemptions or privileges claimed to prohibit disclosure of various documents that have been publicly identified, notably the OLC-DOD Memorandum [redacted], and (d) challenge the adequacy of a FOIA search conducted by one office of DOJ.

We conclude that (1) a redacted version of the OLC-DOD Memorandum must be disclosed, (2) a redacted version of the classified Vaughn index (described below) submitted by OLC must be disclosed, (3) [redacted], (4) the Glomar and “no number, no list” responses are insufficiently justified, (5) DOD and CIA must submit Vaughn indices to the District Court for in camera inspection and determination of appropriate disclosure and appropriate redaction, and (6) the Office of Information Policy (“OIP”) search was sufficient. We therefore affirm in part, reverse in part, and remand.