New Court Orders Signal More Drone Documents Are on the Way

This was originally posted on Just Security.

For more than four years of Freedom of Information Act litigation concerning the government's targeted-killing program, the government managed to avoid releasing a single document in response to requests filed by the American Civil Liberties Union and reporters for the New York Times. That changed with a federal appeals court's release, just more than two weeks ago, of the July 2010 Office of Legal Counsel memorandum that authorized the killing of Anwar al-Aulaqi, a U.S. citizen. Now, two separate rulings issued this week in the same case—New York Times Co. v. Department of Justice—make clear that additional releases of information are likely to be on the way. Together, the two court orders mean that the district court will proceed almost immediately to evaluate and prepare additional OLC memoranda for public release and will, perhaps shortly thereafter, decide whether the government must make public additional documents relating to the legal and factual bases for the government's targeted-killing program.

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In broad strokes, the Second Circuit's June 23 opinion held that the government had officially acknowledged—and therefore waived its ability to withhold under FOIA—the substance of its legal analysis of the targeted killing of a U.S. citizen; that the CIA has an operational role in the targeted-killing program; and that the killing of al-Aulaqi had taken place in Yemen, with both DOD and CIA involvement. As relief, in addition to compelling the disclosure of the July 2010 OLC memorandum, the court ordered the government to release, in part, a previously classified index of responsive documents created by OLC, as well as to submit, in camera to the district court, additional OLC memoranda concerning the targeted-killing program for review (and possible public release) according to the terms of the Second Circuit's waiver analysis.

In the context of a case in which the government has sought delay after delay for the last four years, the two court orders issued this week are a welcome sign that the public might see the fruits of the Second Circuit's ordered relief sooner rather than later.

First, early this week, the government asked the district court to hold off on the Second Circuit's order that the district court review in camera the additional OLC memoranda. (The Second Circuit had remanded this aspect of its ordered relief to the district court in a June 26 order.) The government suggested that rather than proceed directly to the district court's review, the parties should engage in more extensive summary-judgment briefing concerning the additional memoranda. The ACLU and the Times opposed that request, citing the clear instructions of the Second Circuit with respect to the grounds for the government's waiver and the process the appeals court expected the litigation to take going forward on remand. On Wednesday, Judge McMahon of the Southern District of New York rejected the government's proposal:

I agree with the ACLU. . . .

This court will not be entertaining arguments about the applicability of FOIA exemptions to the legal memoranda that the Government must produce before complying with the [Second Circuit's partial] mandate. Instead, it will follow the mandate to the letter: I will analyze the legal memoranda that were not previously produced (either to this court or to the Second Circuit) to see if the Government has waived its right to invoke any FOIA exemptions. I will do that before anything else, and I will do it on the schedule I set.

The court went on to address the government's insistence that it should be given time to conduct a careful inter-agency review of the memoranda before submitting the memoranda in camera to the court:

There is no need to conduct any ‘careful review,' let alone any ‘inter-agency review' before producing the documents in accordance with the mandate. The Circuit's order that they be produced for in camera inspection is clear and admits of no argument or exception. Frankly, the Government's bald assertion, in its letter of July 7, 2014, that it gets to decide ‘whether any of those documents, or particular portions thereof, fall within the scope of the waiver found by the Second Circuit' would be offensive if it were not so laughable. The Second Circuit directed this court to make that determination, in light of the rulings it has made. And so I shall.

Judge McMahon gave the government until August 15 to comply with her order.

Second, yesterday, the Second Circuit dispensed with what remained of the petition for rehearing filed by the government in the wake of the court's June 23 opinion. The government had sought rehearing in the Second Circuit on two grounds. In a brief order issued alongside its June 23 opinion, the court granted in part the first half of the government's petition, which sought additional redactions to the July 2010 OLC memorandum. Yesterday, the Second Circuit resolved the second half of the government's petition—a request that the court withdraw its order respecting the classified index of responsive OLC documents—by largely denying the government additional relief and sending the case back to the district court for litigation concerning documents responsive to the plaintiffs' requests.

Yesterday's order requires the government to release the Vaughn index, which contains descriptions and titles of documents responsive to the plaintiffs' requests—though the court did agree to redact various entries on the list based on the government's arguments about specific information whose continued withholding the court deemed justified. In its opinion, the Second Circuit rejected several of the government's arguments as too broad, and too late, to warrant relief:

[T]he Government contends that the titles and descriptions of ‘other' listings [on the Vaughn index] should not be disclosed. The Government has now had three opportunities to claims justified exceptions to the Vaughn index disclosures—first, in its brief on the merits, second, in the pending petition for rehearing, and third, in its response to the Court's ex parte letter of June 10, submitting for in camera review the Court's proposed Revised Opinion. It is far too late in the day to fail to identify by specific numbers the ‘other' listings. The Government's claim that ‘space constraints' in the rehearing petition preclude the requisite specificity is without merit. Any additional numbers could have been included in one or two lines of type in the blank bottom one-third of the last page of the petition.

Additionally, the Second Circuit ordered the creation of Vaughn indices by both DOD and the CIA. Further—and perhaps significantly—the Second Circuit panel retained jurisdiction over ‘[a]ny subsequent appeal following remand . . . in the interests of judicial economy.'

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Taken together, this week's two orders from the Second Circuit panel and Judge McMahon mean that the public might finally start to learn—from official government documents that speak for themselves, rather than selective and partial public disclosures—crucial, unknown facts about the government's targeted-killing program. (Just Security's Ryan Goodman detailed some of these facts in a recent post.) Indeed, the Second Circuit's June 23 opinion and the two orders this week are sure to reverberate even more broadly than in this particular case: In a separate FOIA action brought by the ACLU four years ago in Washington, D.C.—ACLU v. CIA—the ACLU is seeking a different set of drone-related documents that includes additional legal analysis concerning both U.S. citizens and foreigners, factual information relating to specific strikes, and information about casualties (including of civilian bystanders) caused by the program. The Second Circuit's analysis in N.Y. Times Co.—together with the D.C. Circuit's own strong opinion, issued last year, rejecting the CIA's Glomar response in ACLU v. CIA—will surely have significant implications for the latter case as it moves forward on remand in the D.C. district court.

The release of this information is long overdue—but this week's orders are encouraging news, and they might eventually be seen as the turning of the tide with respect to the government's long-promised but long-delayed transparency about its targeted-killing program.

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