“Severe Clear,” a project by artist David Birkin. Skywriting appears over New York City in a celestial “Glomar” response. For more, see Birkin’s post here.
In response to consolidated lawsuits filed by the ACLU and The New York Times, the Second Circuit recently ordered the Obama administration to disclose (with redactions) one of the legal memos authorizing the government’s premeditated killing of Anwar al-Aulaqi, an American citizen. The government has challenged certain aspects of the court’s decision, apparently with some degree of success (more on that below), and it has managed to defer the release of the memo by two months. To its credit, though, the court appears unwilling to allow the government to delay the release of the memo indefinitely. If the court holds to a plan it set forth ten days ago, it will publish the memo itself this coming week.
The publication of the memo won’t quiet the calls for transparency about the targeted-killing program—legal analysis isn’t the only thing that human rights groups have been calling on the government to release; legal analysis isn’t the only thing at issue in the ACLU’s litigation; and even with respect to legal analysis, the memo that the Second Circuit has ordered disclosed is only one of many related memos, and the government does not intend to release any of those related memos anytime soon, or even to identify them publicly.
But the publication of the one memo will be a significant milestone and certainly one of the most significant transparency-related developments since the administration’s release of the torture memos in 2009. It will begin to close the gap between the administration’s official narrative of the targeted-killing program and the actual facts about the program, and it will allow for a more informed debate about one of the government’s most controversial counterterrorism policies.
The FOIA Suits & the Second Circuit’s Decision
The case grows out of three Freedom of Information Act requests filed separately by the ACLU and two New York Times reporters, Charlie Savage and Scott Shane, in 2011 and 2012. Though the requests differed in scope, all of them sought legal memos relating to the government’s “targeted killing” of U.S. citizens.
For the most part, the government has refused to identify the legal memos (a refusal the plaintiffs are challenging), but in the course of litigation the government has acknowledged the existence of one such memo, a 41-page classified document, dated July 16, 2010, captioned “Memorandum for the Attorney General” and authored by the then-acting chief of the Office of Legal Counsel (and newly confirmed First Circuit judge), David Barron.
The ACLU and The New York Times argued in the district court that the government had waived its right to withhold the legal analysis in the memo because senior government officials had discussed the memo’s contents in public speeches, media interviews, and congressional testimony, and because they had invoked the memo, and the imprimatur of the Office of Legal Counsel, to reassure the public that the killing of al-Aulaqi was lawful.
The district court rejected this argument, holding that the government’s public statements weren’t specific enough to amount to waiver. The court said that it reached this conclusion reluctantly but that there was “no way around the thicket of laws and precedents that effectively allow[ed] the [government] to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.” (“The Alice-in-Wonderland nature of this pronouncement is not lost on me,” the court also wrote.)
The Second Circuit overturned the district court’s decision in April, holding that the collection of statements and disclosures made by the administration both before and after the district court’s decision amounted to waiver. (The Second Circuit’s opinion was redacted in part to preserve the government’s ability to seek further judicial review.) For a unanimous panel, Judge Jon O. Newman wrote:
“After Senior Government officials have assured the public that targeted killings are “lawful” and that OLC advice “establishes the legal boundaries within which we can operate,” and the Government makes public a detailed analysis [REDACTED], waiver of secrecy and privilege as to the legal analysis in the Memorandum has occurred.”
Notably, the Second Circuit was not the first appellate court to conclude that the government’s responses (or non-responses) to FOIA requests about the targeted-killing program were unlawful. In March of last year, in a separate FOIA lawsuit filed by the ACLU, the D.C. Circuit held that the CIA had acknowledged an “intelligence interest” in the targeted-killing program, and it rejected the contention that the agency could “neither confirm nor deny the existence or non-existence” of responsive records. (This kind of non-response is called a “Glomar” response, for reasons Nate Wessler and I explained here.) The government had already disclosed the facts that it was pretending were secret, the D.C. Circuit held. The purported secrecy was “a fiction.”
Proceedings Since the Second Circuit’s Decision
Since the Second Circuit issued its decision in April, the government has filed two motions. The first was a motion for leave to file its rehearing petition entirely under seal. This motion was denied. The court wrote: “We see no reason why the Government cannot prepare and serve its petition for rehearing in the normal course, redacting any particular portions that require secrecy and submitting only those redacted portions to the court ex parte and in camera.”
The second was the government’s petition for rehearing, which, because of the court’s resolution of the government’s earlier motion, was filed on the public docket—though with redactions. The petition sought further redactions to the Barron memo—i.e. redactions beyond those contemplated by the court’s April ruling, which sought to draw a line between “operational details” (which the court held the government could withhold) and “legal analysis” (which the court held the government must disclose). It’s difficult to assess the scope and import of the government’s request because, again, the petition is redacted. It’s evident, though, that the government asked the court to redact, among other things, references to other OLC memos—presumably memos the OLC relied on in concluding that the targeted killing of an American citizen like al-Aulaqi would be lawful in certain circumstances.
In its rehearing petition, the government also asked the court to withdraw its order requiring the OLC to provide the plaintiffs with a redacted version of a classified index of OLC documents, which the agency had submitted to the district court under seal. The government argued that even with the redactions contemplated by the court, the index would reveal information protected by one or another of the exceptions to the FOIA.
In an order issued on June 10, the court (i) bifurcated the issues concerning disclosure of the Barron memo from the issues concerning the index of classified OLC documents; (ii) deferred decision on issues relating to the index; (iii) granted the government’s request for further redactions from the Barron memo; and (iv) advised that it would publish the Barron memo, a revised version of its April ruling, and an opinion relating to the government’s petition for rehearing on June 23—unless the government filed specific objections by June 20, in which case the Court would hear oral argument on June 23 instead. On June 20, though the government filed a heavily redacted pleading apparently seeking clarification of some of the court’s redaction decisions, the Court informed the parties that it would not hear oral argument on June 23.
It seems likely that the court will publish, as early as Monday, a redacted version of the Barron memo, a revised version of its April ruling, and an opinion relating to the government’s petition for rehearing.
One thing to look for in these documents is the CIA. Since we commenced the litigation, the “secret” that the government has seemed most intent on protecting is the fact that the CIA has an operational role in the targeted-killing program. It fought to protect that ostensible secret even after the D.C. Circuit ruled that the CIA had acknowledged an “intelligence interest” in the use of drones for targeted killing—and even while senior government officials spoke freely to the press about the CIA’s operational role in such killings, about specific strikes, and about the contemplated transfer of the targeted-killing program from the CIA to the Defense Department.
At some point the Second Circuit will also resolve the issue relating to the OLC index. However the court resolves this issue, there is no longer any question that the OLC, CIA, and DOD will have to provide the plaintiffs with some kind of index of responsive records. The Second Circuit has already rejected the government’s “Glomar” response, and it has rejected its categorical “no-number-no-list” response as well. (When an agency offers a “no-number-no-list” response, it concedes the existence of responsive records but contends that it can’t enumerate, identify, or describe any of the records without disclosing protected information.) The question on which the court has reserved decision is whether the government must disclose a redacted version of the index it previously filed in secret, or whether it should instead be given the opportunity to craft a new index for submission to the district court on remand.
The dispute over the indices may seem peripheral, but it’s important. The indices will tell the public more about what the government is withholding and will make it possible for the ACLU and The New York Times to challenge the lawfulness of those withholdings. The government’s great success in this litigation thus far has been to delay the production of the indices through its illegitimate “Glomar” and “no-number-no-list” responses. The disclosure of the Barron memo (assuming the memo is, in fact, disclosed) should not obscure the fact that the government has managed to deprive the public of crucial information about the targeted-killing program for more than four years and to keep the public dependent, during that time, on the government’s discretionary, self-serving, and sometimes outright false representations about the program’s lawfulness, effectiveness, and necessity. (I wrote about this issue here after the Second Circuit heard oral argument in our case.)
As the case progresses, it seems likely that the ACLU and New York Times cases will diverge, mainly because the ACLU’s FOIA request was broader than were those filed by the newspaper. Our request was relatively broad because we don’t think the public can meaningfully evaluate the lawfulness of the strike that killed al-Aulaqi and Samir Khan—or the strike that killed 16-year-old Abdulrahman al-Aulaqi two weeks later—without access to the factual basis the government relied on to justify the strikes. We also believe that the public is entitled to records relating to civilian casualties. (Though the New York Times’ FOIA requests sought only legal memos, the newspaper has, of course, reported about the facts of specific strikes.) Once the Second Circuit remands our case to the district court, the ACLU will almost certainly be litigating not only over the other OLC memos but over this kind of factual information as well.