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Media Alerts - The New York Times Company v. United States Department of Justice
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November 23, 2015
  The New York Times Company v. United States Department of Justice
Headline: Second Circuit Issues Mixed Ruling in FOIA Request for Information About Targeted Drone Strikes, Ordering Disclosure of Small Amount of New Material

Area of Law: National Security

Issue Presented: Whether information currently under seal in the United States District Court should be disclosed under the Freedom of Information request submitted by plaintiffs.

Brief Summary: In 2014, in response to a FOIA request by the New York Times, the ACLU, and other plaintiffs, the Second Circuit ordered disclosure of a 41-page legal opinion prepared by the Department of Justice's Office of Legal Counsel ("OLC") regarding the legality of targeted drone attacks. In that decision, the Second Circuit remanded the remainder of the case back to the district court for the Southern District of New York, for analysis of whether other related OLC documents that had been withheld should also be disclosed. The district court ruled, in a partially redacted opinion, that most of those documents should not be disclosed, except for one document (itself a redacted version of another document that the court ruled should be kept secret). On appeal, the Second Circuit affirmed all of the district court's conclusions. It ruled that the one redacted document should be disclosed, and that three redacted paragraphs in the district court's opinion could also be disclosed (as the district court itself had urged). All of the remaining documents, however, will remain undisclosed. To read the full opinion, please visit

Extended Summary: There are various exemptions to the Freedom of Information Act (FOIA) that permit government agencies to withhold certain information. One such exemption allows an agency to withhold information pursuant to an Executive order to keep it secret in the interest of national defense or foreign policy. Another such exemption allows an agency to withhold information that describes intelligence sources in methods. Here, the Second Circuit agreed with the district court that most of the documents in question - which, again, related to the legality of drone strikes - fell into the various FOIA exemptions. Most of the opinion's discussion related to a document referred to as "Exhibit E," which reflected "the provision of legal advice in 2002 provided to the President's close legal advisor about the Executive Order 12333 [a 1981 document entitled "United States Intelligence Activities"]. Exhibit E dealt with some topics that were later publicly discussed by the government, but also included other information that has never been disclosed. The court concluded that "these differences suffice to preclude a ruling that waiver has occurred, and we therefore affirm the District Court's decision not to disclose Exhibit E."

The Second Circuit also agreed with the district court that three redacted paragraphs of the court's opinion could be disclosed. The district judge, Colleen McMahon, had herself urged disclosure of these paragraphs, but had maintained them under seal pending appellate review. Although the government had argued that those three paragraphs could be "understood to imply a fact that should not be disclosed," namely, "the nationality of a person who has been considered as a possible target of a drone attack," the Second Circuit was unconvinced. "The three paragraphs neither say nor imply anything about such a nationality," the court explained. The Second Circuit did agree that a handful of words that might be used to identify the nationality of potential targets of drone strikes should remain redacted.

Additionally, the court also declined to disclose the redacted portion of the oral arguments conducted in a closed hearing about these issues. As such, that redacted information would not be disclosed. The Second Circuit noted, however, that "[w]e have substantial reservations about the Government's decision to bring to a closed ex parte hearing personnel whose identity and affiliation it will not disclose to opposing counsel, who were excluded from the hearing." It cautioned that should the need for such a closed ex parte hearing arise again, "the Government should either not bring personnel whose identities may not be disclosed, or present, prior to the hearing, a substantial justification for including such personnel."

Newman, Cabranes and Pooler

Argument Date:

Date of Issued Opinion: 11/23/15

Docket Numbers:
14-4432-cv, 14-4764-cv

Decided: Judgment AFFIRMED; redacted portions of District Court opinion to remain UNDISCLOSED, except for three paragraphs (as redacted pursuant to Part IV of this opinion) that the District Court wishes to disclose; and redacted portions of transcript of June 23, 2015, oral argument to remain UNDISCLOSED; case REMANDED.

Case Alert Author: Gavin Michael Strube

Counsel: David E. McCraw, The New York Times Company, New York, N.Y. (Jeremy A. Kutner, 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, Dror Ladin, American Civil Liberties Union Foundation, New York, N.Y., Eric Ruzicka, Colin Wicker, Michael Weinbeck, Dorsey & Whitney LLP, Minneapolis, Minn., on the brief), for Plaintiffs-Appellants American Civil Liberties Union and American Civil Liberties Union Foundation. Sarah S. Normand, Asst. U.S. Atty., New York, N.Y. (Preet Bharara, U.S. Atty., New York, NY, Benjamin C. Mizer, Acting Asst. U.S. Atty. General, Matthew M. Collette, Sharon Swingle, Thomas Pulham, Civil Division, U.S. Dep't of Justice, Washington, D.C., on the brief), for Defendants-Appellees. (Lawrence S. Lustberg, Joseph A. Pace, Gibbons P.C., Newark NJ, for amici curiae Senators Ron Wyden, Rand Paul, Jeff Merkley, and Martin Heinrich, in support of Plaintiffs-Appellants)

Author of Opinion: Jon O. Newman

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 11/23/2015 09:27 PM     2nd Circuit  

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