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Media Alerts - The New York Times Company v. United States - Second Circuit
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April 22, 2014
  The New York Times Company v. United States - Second Circuit
Headline: Second Circuit Reverses District Court in Part, Requiring Limited Disclosure of Classified Government Documents Pertaining to Legal Justification for Use of Drones for Targeted Killings of United States Citizens in Response to New York Times and ACLU FOIA Requests

Area of Law: Freedom of Information Act

Issue(s) Presented: Whether United States agency responses to FOIA requests, seeking documents related to the United Stated government's justification for a 2011 targeted drone strike killing three United States citizens in Yemen, one of whom the government claimed was a member of Al Qaeda, which refused to disclose responsive documents on grounds that they were classified, privileged, or met other FOIA exemptions and, in some cases, refused to admit or deny the existence of potentially responsive documents, were lawful?

Brief Summary: Plaintiffs, The New York Times, two of its reporters, and the American Civil Liberties Union, brought suit against the Department of Justice (DOJ), the Department of Defense, and the Central Intelligence Agency for failing to adequately respond to Freedom of Information Act (FOIA) requests for documents pertaining to the justification for the government's use of drone attacks that killed three American citizens in 2011. The United States District Court for the Southern District of New York granted the government's motion for summary judgment, dismissing the challenge to the FOIA responses, and the plaintiffs appealed. The Second Circuit affirmed in part, reversed in part, and remanded the case, holding that the government should be required to disclose a classified memorandum prepared by the DOJ's Office of Legal Counsel setting out the legal justification for the drone killings and to submit certain indices of relevant documents to the district court for review of their privilege and exclusion claims.

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...006f148ca16/1/hilite/

Extended Summary: Plaintiffs-Appellants, The New York Times Company, two New York Times reporters, Charlie Savage and Scott Shane, and The American Civil Liberties Union (ACLU) (collectively, "Plaintiffs"), submitted Freedom of Information Act (FOIA) requests to the United States Department of Justice (DOJ), the United States Department of Defense (DOD), and the Central Intelligence Agency (CIA) (collectively, "the Government") seeking information concerning the legal justification for targeted drone strikes that killed three United States citizens, Anwar al-Awlaki and Samir Khan, along with Anwar al-Awaki's teenage son, Abdulrahman al-Awlaki, in Yemen in 2011. The DOJ's Office of Legal Counsel (OLC) denied some of the FOIA requests on the grounds that the requested documents were exempt from disclosure pursuant to FOIA exclusions for documents properly classified in the interest of national defense or foreign policy (exemption 1), records specifically exempted by statute - here, the Central Intelligence Agency Act of 1949 or National Security Act of 1947 (exemption 3) - or otherwise exempt as agency memoranda "not available by law to a party other than an agency in litigation with the agency" (exemption 5). The OLC also neither admitted nor denied the existence of other requested documents, asserting the existence or nonexistence of such documents was itself classified. Plaintiffs brought suit in the United States District Court for the Southern District of New York challenging the denials of the requests and the suits were later consolidated. The parties made cross motions for summary judgment and the district court granted Defendants' motions for summary judgment. After the district court entered judgment for Defendants, certain government documents were leaked and then subsequently released by the government, affirming the existence of a classified DOD-OLG memorandum and other documents that were responsive to Plaintiffs' requests.

The Second Circuit began by noting that the FOIA calls for broad disclosure of government records, but also sets out several exemptions to the required disclosure. The Second Circuit affirmed the district court's finding that the search undertaken for responsive documents was sufficient and agreed that the Government was not required to provide to the ACLU certain requested legal memoranda which were very brief, informal and pre-decisional, and constituted personal opinions of the writer. The Second Circuit reversed the district court in part, however, determining that the government should be required to disclose, in redacted form, a classified memorandum - the "OLC-DOD Memorandum" - that set out the OLC's confidential legal advice to the Attorney General relating to the use of drones for targeted killings, and to submit certain indices of relevant documents to the district court for review of their privilege and exclusion claims.

Specifically, the Second Circuit held that the government waived its right to withhold the "OLC-DOD Memorandum" under exemptions 1 and 5 as protected by the deliberative process and attorney-client privileges and as information about military operations, intelligence methods, and foreign relations activities by disclosing portions of the contents of the Memorandum in public statements and in its release of a classified "White Paper" to the public, following a leak of this document, in a public relations effort to convince the public of the lawfulness of the killing of al-Awlaki. The Second Circuit rejected the Government's contention that disclosure of the OLC-DOD Memorandum would inhibit agencies from seeking OLC's legal advice, reasoning that upholding that rationale would effectively mean a waiver of privileges protecting legal advice could never occur. The Second Circuit also rejected the Government's contention that the LOC-DOD Memorandum contents could not be understood without reference to other classified documents and found that, under the FOIA, a redacted version of the document should be provided after deletion of portions exempt under the statute.

The Second Circuit also ordered the Government to disclose indices listing certain documents, the existence of which the Government previously declined to confirm or deny and required the Government to submit other indices to the district court for in camera review on remand for review of claims of exemption and privilege.

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...006f148ca16/1/hilite/

Panel:
Circuit Judges Newman, Cabranes, and Pooler

Argument Date:
10/1/2013

Date of Issued Opinion:
4/21/2014

Docket Number
: Nos. 13-422(L), 13-445(Con).

Decided: Affirmed in part, reversed in part, and remanded

Case Alert Author: Gillian Kirsch

Counsel: David E. McCraw, The New York Times Company, New York, N.Y. (Stephen N. Gikow, New York, N.Y., on the brief), for Plaintiffs-Appellants The New York Times Company, Charlie Savage, and Scott Shane. Jameel Jaffer, American Civil Liberties Union Foundation, New York, N.Y. (Hina Shamsi, Brett Max Kaufman, American Civil Liberties Union Foundation, New York, N.Y., Joshua Colangelo-Bryan, Dorsey & Whitney LLP, New York, N.Y., Eric Ruzicka, Colin Wicker, Dorsey & Whitney LLP, Minneapolis, MN., on the brief), for Plaintiffs-Appellants American Civil Liberties Union and American Civil Liberties Union Foundation.

Sharon Swingle, U.S. Appellate Staff Atty., Washington, D.C. (Preet Bharara, U.S. Atty., Sarah S. Normand, Asst. U.S. Atty., New York, N.Y., Stuart F. Delery, Acting Asst. U.S. Atty. General, Washington, D.C., on the brief), for Defendants-Appellees.

(Bruce D. Brown, Mark Caramanica, Aaron Mackey, The Reporters Committee for Freedom of Press, Arlington, V.A., for amicus curiae The Reporters Committee for Freedom of Press, in support of Plaintiffs-Appellants.) (Marc Rotenberg, Alan Butler, Ginger McCall, David Brody, Julia Horwitz, Electronic Privacy Information Center, Washington, D.C., for amicus curiae Electronic Privacy Information Center, in support of Plaintiffs-Appellants.)

Author of Opinion: Judge Jon O. Newman

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Diamond @ 04/22/2014 08:43 AM     2nd Circuit  

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