Case Summary and Outcome

This is a Freedom of Information Act case arising out of the killing of U.S. citizens, deemed to be terrorists or associated with Al-Qaeda, in Yemen in 2011. Both the N.Y. Times and the American Civil Liberties Union (ACLU) sought the legal analysis prepared by the U.S. Dept. of Justice that justified the targeted killings away from the field of battle.

The Second Circuit Court of Appeals reversed the District Court, and ordered that the documents be released.

Facts

In June 2010, The N.Y. Times filed a Freedom of Information Act (FOIA) request with the U.S. Dept. of Justice Office of Legal Counsel (OLC) requesting all internal opinions or memoranda that addressed the legal status of targeted killings, assassinations, or killing of people suspected to be associated to Al-Qaeda or other terrorist groups. In October 2010, another FOIA was sent to the OLC requesting all documents analysing whether it would be lawful for the U.S. government to target and kill a U.S. citizen who is deemed a terrorist. The OLC denied the requests, and claimed that the documents about the Dept. of Defense could be withheld under FOIA exemptions 1 and 3 because the documents contained classified information, and Exemption 5 because the documents constituted intra-agency or inter-agency deliberations. For documents related to an agency (inter-agency) other than the Dept. of Defense, the OLC claimed that the documents, if they even existed, were “privileged,” and therefore need not be disclosed.

In October 2011, the ACLU submitted a three FOIA requests to the U.S. Dept. of Justice’s OLC and Office of Information Policy (OIP), and the Central Intelligence Agency (CIA). The requests were similar to those made by The NY TImes. The ACLU requested documents regarding the target killings of U.S. citizens in general, and of two U.S. citizens, Anwar al-Awlaki, his son, Abdulrahman al-Awlaki, and Samir Khan. All three were killed in drone attacks in Yemen in September 2011. The OLC and CIA withheld documents and, like for the NY Times request, neither denied or confirmed the existence of any documents, pursuant to FOIA exemptions 1, 3, and 5. The DOD responded that it did not have sufficient time to respond to the requests.

In December 2010, and in February 2012, The NY Times, and the ACLU, filed lawsuits challenging the government’s withholding of the documents. The two cases were consolidated into one case. In January 2013, the District Court granted the government’s summary judgment motion, and upheld the government’s withholding of the requested information. After the District Court entered summary judgment for the government, a DOJ White Paper, entitled “Lawfulness of a Letah Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qaida or an Associated Force” was made public. The White Paper is a near-replica of and OLC-Dept. of Defense memo analyzing the lawfulness of targeted killings. Senior government officials also made various public statements regarding the Plaintiffs’ claims.

On appeal, the Plaintiff-Appellants argued that the documents, because they contained legal analysis, could not be considered classified information. The Plaintiff-Appellants also argued that “working-law” doctrine trumped Exemption 5. The “working-law” doctrine is the principle that documents lose their privilege when they are adopted as law.

The Second Circuit court of appeals affirmed in part, and reversed in part.

Decision Overview

The Court of Appeals issued five holdings. Of importance, are two. The first was the Court’s conclusion that the government had waived all FOIA exemptions when senior government officials made public statements claiming that the targeted killings were legal. The second was the Court’s conclusion that a waiver of privilege had occurred with respect to the Plaintiffs-Appellants legal analysis claim. The Court determined that when senior government officials make public statements about the lawfulness of the targeted killings, and when the government releases a detailed analysis that mirrors its legal analysis in an OLC-Dept. of Defense memorandum (withheld on the basis of privilege), that the government has waived any right to claim the documents are privileged.

Despite this determination, the Second Circuit recognized that FOIA permits “[a]ny reasonably segregable portion of a record … to be provided to any person requesting such record after deletion of the portions which are exempt.” Thus the Court specified that the government’s waiver only applied to the legal analysis portion of the document.

As a result of the Court of Appeals’ Opinion, the redacted OLC-Dept. of Defense memo was released, and the case was remanded to the District Court for an in camera review of the other 10 legal memoranda. The District Court found that the other memos should not be released under FOIA, and the Plaintiffs-Appellants appealed a second time to the Second Circuit Court of Appeals. The Appeals Court has yet to issue a decision.