Earlier this month, Quinta Jurecic noted a suit filed by the nonprofit Protect Democracy under the Freedom of Information Act (FOIA) to obtain the Trump administration’s legal justification behind U.S. airstrikes in Syria during April 2017. This post summarizes the ongoing battle over the release, in particular, of a legal memorandum (and related documents) provided to the National Security Advisor on the legality of the administration’s missile strike.
(Full disclosure: Protect Democracy is also representing Lawfare’s editor in chief, Benjamin Wittes, in multiple other FOIA matters and in the filing of an amicus brief in the Foreign Intelligence Surveillance Court.)
On April 4, 2017, Syrian President Bashar al-Assad ordered an attack on the rebel-controlled town of Khan Sheikhoun, which the UN later confirmed to have killed upwards of eighty people through the use of sarin gas. Two days after the attack, President Trump announced that he had “ordered a targeted military strike on the air base in Syria [Al Shayrat airfield] where the chemical attacks was launched.” Trump declared, “It is in this vital national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons.” The Pentagon stated that the strike included firing 59 Tomahawk cruise missiles from the USS Ross and USS Porter in the eastern Mediterranean. At the time, Talal Barazi, governor of Homs Province, told the Associated Press that the U.S. attack killed some Syrians and wounded others.
Pursuant to section 4 of the War Powers Resolution, the White House sent a report informing Congress of the U.S. missile launch on April 8. The report notes that U.S. military forces were “operating beyond the territorial sea of any state” and that the attack was directed “in order to degrade the Syrian military’s ability to conduct further chemical weapons attacks and to dissuade the Syrian regime from using or proliferating chemical weapons, thereby promoting the stability of the region and averting a worsening of the region’s current humanitarian catastrophe.” In a final paragraph, the president states that he “acted in the vital national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct foreign relations and as Commander in Chief and Chief Executive.”
In May 2017, Justin Florence of Protect Democracy announced the organization’s FOIA suit in a post on Lawfare. Florence wrote, in relevant part, that the brutality of President Assad’s chemical attack “cannot obscure the question of what the President’s legal authority was for the missile strikes, or whether he usurped the power that belongs to Congress.” In particular, Florence noted that:
Members of the Administration have offered a plethora of inconsistent rationales for the strikes. Most recently, Commerce Secretary Ross described it as no-cost “after-dinner entertainment” for the President’s guests at Mar-a-Lago. The President referenced chemical weapons as justification. The Secretary of State referred to enforcing violations of international commitments. White House spokesman Sean Spicer made the astounding claim that the Constitution gives the President "the full authority to act" whenever military force is "in the national interest.” The Administration released some anonymous bullet points as “Press Guidance.” But as commentators have pointed out, these sparse points are deeply flawed substantively because they fail to acknowledge the absence of U.N. Security Council authorization. Moreover, the “Press Guidance” lacks the hallmarks of adequate legal process, such as which lawyer or legal office developed it and whether any would stand behind it.
Motion for Preliminary Injunction
On May 22, 2017, Protect Democracy filed a Motion for Preliminary Injunction in the U.S. District Court for the District of Columbia against the Department of Defense, the Department of Justice and the State Department. The motion sought to compel the three departments “to process [Protect Democracy’s] FOIA requests on an expedited basis, and produce all requested records (or acknowledge if there are no such records) without further delay.”
On July 13, 2017, Judge Christopher Cooper of the D.C. District Court compelled the Justice, Defense and State Departments to process Protect Democracy’s requests on an expedited basis, but declined to require that all responsive records be provided by a certain date. In reaching this conclusion, the Court addressed two questions: first, whether the agencies appropriately denied the request for expedited processing and second, assuming the request should be expedited, whether the agencies were processing the request as quickly as practicable. As to the first question, the Court found that the expedited request was improperly denied because Protect Democracy’s request was likely to succeed on the merits and did not cause irreparable harm. As to the second question, however, the Court wrote that, “It cannot be said, however, that there will be irreparable harm if the requested information is not released within, say, twenty days.” The Court compelled the Defense, Justice and State Departments to file a status report by July 28, 2017 and a response to Protect Democracy’s timeline by August 2, 2017.
The First Government Response
On November 17, 2017, the government released three documents. The first is the Vaughn Index, a document that identifies documents responsive to a FOIA request that the government believes are covered by a statutory nondisclosure justification. This Vaughn Index lists 15 documents, including two State Department/Justice Department Office of Legal Counsel (OLC) legal memos “prepared by an interagency group of attorneys for the purpose of providing advice and recommendations to the President and/or other senior Executive Branch officials regarding the legal basis for potential military action.” The government argues that this legal memo should be withheld under FOIA exemption b(1) (as the document allegedly contains sensitive national security information) and b(5) (citing the deliberative process privilege, attorney-client privilege, and presidential communications privilege).Other documents included in this Vaughn Index are draft versions of the above legal memos (withheld under the same reasoning), an OLC outline advising the Attorney General on the legality of the April 6 strike (withheld under exemption b(5) as subject to deliberative process privilege and attorney-client privilege) and a variety of press, public affairs, and Congressional guidances and talking points (withheld for a variety of reasons, including exemption b(5) under the deliberative process privilege).
The second released document contains a declaration from Patricia Gaviria, Director of the Information Management Division at the Office of the Director of National Intelligence. Gaviria’s statement lays out the intelligence community’s justification in withholding all copies of the legal memorandum referred to in the Vaughn Index, noting that the memo’s “factual background” section “contains certain currently and properly classified [intelligence community] equities.” These equities include “a limited number of discrete words and phrases” that “identify and describe certain of the Signals Intelligence . . . relating to this attack, and . . . the US Government’s confidence level with regard to the accuracy of intelligence information in its possession.” Together, these words and phrases reveal specific NSA sources, methods, targets, and analytic tradecraft classified at the Top Secret level. Gaviria further submits that, if the Court requires further information regarding why the memo was withheld, the government would submit an in camera, ex parte classified declaration explaining the harm to national security that could reasonably be expected to occur if the withheld information were publicly disclosed.
Lastly, the government released a declaration by Paul Colborn, Special Counsel at OLC, explaining the reasoning behind the government’s invocation of deliberative process privilege, attorney-client privilege and presidential communications privilege. Colborn argues that the memo is protected by the deliberative process privilege because “the document is pre-decisional and provided legal advice as part of a presidential deliberative process,” and by attorney-client privilege because it was provided by OLC “in a special relationship of trust with the President and his advisors.” Lastly, Colborn states that the memo, which OLC provided to the National Security Council Legal Advisor, is subject to the presidential communications privilege’s protection of “confidential communications that relate to possible presidential decisionmaking and that involve the President or his senior advisers.” Likewise, Colborn argues that the OLC outline prepared for the attorney general is protected by both deliberative process and attorney-client privilege: it is predecisional and was prepared “in preparation for providing legal advice to the Attorney General in connection with his role as chief legal advisor to the President.” Colborn asserts that portions of the memo and outline could not be released separately “without divulging information protected by one or more of the FOIA exemptions.”
Response from Protect Democracy
On November 17, 2017, the government filed a motion for summary judgement. On December 8, Protect Democracy responded with a cross-motion for summary judgment calling on the court order the government to produce relevant parts of the legal memorandum. Protect Democracy clarified that it had agreed to its request to “documents regarding the legal justification for the military action as well as final versions of responsive records,” excluding non-final versions of the memo as well as correspondence discussing or transmitting prior versions of the memo. Based on these narrower requests, Protect Democracy argues that the government lacked basis for these FOIA exemptions because (1) the legal justification in included in the documents is not classified and (2) the legal justification can be segregated from the classified factual information. Furthermore, Protect Democracy says that each of the three privileges cited in Colborn’s declaration are inapplicable.
In the organization’s view, first, the attorney-client privilege does not attach to either the memo, the outline, or selected talking points because the Executive has not given “more than conclusory assertions that these documents have been kept confidential” and any claim to such privilege has been waived “as a result of repeated disclosures of information intended to justify the legality of the April 6 military strikes.” Second, the presidential communications privilege does not apply to the memo because the president is not known to have seen the memo, nor has the government identified the individuals who authored or solicited the document with sufficient specificity for the privilege to attach. Third, the deliberative process privilege does not apply to the withheld documents because the memo, the outline, and selected talking points all fall within the “working law” doctrine, which “removes protection for records that have been adopted as agency policy.” Moreover, the outline and talking points are also postdecisional: they were created after the strike and thus cannot be deliberative.
On January 9, 2018, the Justice Department released a second declaration on behalf of Paul Colborn, clarifying some of his previous statements in light of Protect Democracy’s Cross-Motion for Summary Judgment. First, Colborn notes that all relevant OLC documents were “intended to be confidential, and to our knowledge, the confidentiality of the document[s] has been maintained.” Second, Colborn argues that the OLC outline prepared for the Acting Assistant Attorney General was predecisional because it was presented for a briefing “over how to advise the President on future military actions” and reiterates aspects of the predecisional legal advice provided by OLC in the memo.
On January 23, 2018, Protect Democracy filed a Reply Memorandum in Support of the Cross-Motion for Summary Judgment. This Reply Memorandum again makes the case, with more granularity, that the relevant legal documents are not privileged. First, Protect Democracy states that press talking points cannot be shielded under the deliberative process privilege when the government refuses to establish whether the talking points have already been provided to the press. (The brief notes an April 6 Washington Post report that the government had cleared a set of press talking points on the airstrikes for public release.) Second, the legal memo cannot be withheld when the Justice Department has adopted the memo as working law. (Protect Democracy points to Colborn’s second declaration that the legal justification will be used for advising the President in future military decisions regarding Syria.) Third, post-strike legal documents cannot be shielded by the deliberative process privilege without showing that at least portions of the notes recount predecisional legal argumentation. Protect Democracy again argues that claims to attorney-client privilege were waived by the post-strike public relations campaign.
Relatedly, Protect Democracy argues in the alternative that if the government can establish that the documents are privileged in their entirety, its post-strike official acknowledgement of the legal basis for the military strikes to the press waives the government’s ability to withhold the officially acknowledged information. The organization urges the Court to at least order in camera review of the final legal memo, press talking points, and the outline.
Where The Case Stands Today
Though the court has yet to adjudicate this second round of litigation from Protect Democracy, interest in the case begun to percolate on Capitol Hill. On January 8, just before Paul Colborn’s second declaration, Senator Tim Kaine wrote to Secretary of State Rex Tillerson requesting that a copy of the final legal memo be made available to Congress “for immediate review.” Kaine rejected the logic of President Trump’s War Powers Act notification, saying that “this expansive view of the President’s Article II powers . . . does not justify U.S. military action without the authorization of Congress.”