On Thursday, a federal district court in New York issued its latest ruling in the ACLU’s long-running Freedom of Information Act (FOIA) litigation seeking the legal and factual bases of the 2011 drone strike that killed three Americans in Yemen. The 160-page opinion addresses hundreds of records withheld by the Justice Department’s Office of Legal Counsel (OLC), CIA, and Defense Department. The opinion itself is heavily redacted, a product of well over a month of classification review by the government, and a testament to the overbroad secrecy which has pervaded this litigation.
In 2013, the same court deferred to the government’s refusal to confirm or deny whether it possessed documents responsive to the ACLU’s FOIA request. But the Second Circuit conclusively rejected this argument, forcing the government to release a redacted version of a 41-page July 2010 OLC Memo, and ordering the agencies to submit indexes enumerating and describing the other withheld documents.
Listed below are the seven documents the court has ordered released, in whole or in part, on the grounds that government officials have already disclosed the information in other contexts. (Note that if the government appeals the order, these documents will likely remain sealed pending appellate review.)
Office of Legal Counsel (OLC)
- OLC index no. 46
We know nothing about this document. Its title, date, author, recipient, and description have all been redacted. The court has ordered the document disclosed in part.
After in camera review, the district court held that “[i]nformation that has not been officially acknowledged [redacted] can in fact be segregated from information that has been publicly acknowledged (which is legal analysis about the targeting of Aulaqi). Everything in the document except the paragraph that begins ‘Second’ should be redacted; only the paragraph that begins ‘Second’ should be produced.”
- OLC index no. 50.
This is as an “internal OLC draft insert to draft legal analysis of the legal basis for use of lethal force against a U.S. citizen abroad.” According to the OLC’s index, the draft consists of a two-paragraph insert, dated October 24, 2011, to the draft DOJ White Paper. The Court describes the document as “an email from Virginia Seitz of OLC to herself.” The Court ordered the document disclosed in full.
After in camera review, the Court concluded that the document “consists of a brief précis of the legal reasoning that it explicated in greater detail in the Draft White Paper and the OLC-DOD Memorandum. Every statement in this document appears elsewhere in one or both of those documents … .”
- OLC index no. 144.
This document is an undated, internal draft of talking points entitled “Legal Basis for Use of Force Against Al Qaeda.” The Court ordered the document disclosed in part.
The Court wrote: “Document 144 consists of a set of talking points concerning the legal basis for using force against Al Qaeda. Most of the document actually does not address that issue. … The rest of the document may touch on legality, but it does not track the information disclosed in the OLC-DOD Memorandum or the Draft White Paper. However it does touch upon matters falling under Listed Fact #4 [“Information about the legal basis … for engaging in the targeted killings abroad”] as found by the court earlier in this decision. Accordingly, I conclude that Document 144 should be produced in redacted form. The last paragraph should be redacted.”
- OLC index no. 145.
This document consists of outline of analysis of a possible lethal operation against Anwar al-Aulaqi. The Court ordered the document disclosed in part.
After in camera review, the Court concluded that although some of the information in the document had been publicly disclosed in other documents it was “too inextricably intertwined with information as to which there has been no waiver of exemption … to be reasonably segregated.” However, the court held that other portions of the document must be disclosed. “Under the heading ‘Potential Constitutional Issues,’ the first bullet point on page 2 is derived directly from the legal analysis as to which exemptions have been waived; with the exception of the last sentence of that paragraph [redacted] it should be produced.”
Central Intelligence Agency
- CIA index no. 59, Tab C.
This is a draft document describing “the legal framework for targeting U.S. citizens who are engaged in terrorist activities.” The Court ordered the document disclosed in full.
The Court wrote: “[T]here is no reason why this document should not be produced, since there is absolutely no FOIA privilege appurtenant to it that has not been waived.”
- CIA index no. 109.
This document consists of a classified internal outline discussing Anwar al-Aulaqi. The Court ordered the document disclosed in part.
The Court concluded that the outline contained “information about the Aulaqi operation that is already in the public domain” which “is entirely segregable” from other parts of the document.
- CIA index no. 113.
This document is a classified rough outline. The Court ordered the document disclosed in part.
The Court wrote: “Much of the contents of the document can be disclosed, since it simply repeats information contained in the Draft White Paper and the OLC-DOD Memorandum. … There is no indication that this document is a draft, or predecisional, or that it was prepared in advance of the Aulaqi operation; it appears to be an after-the-fact summary of the legal bases of the operation, just as other documents that have been released or ordered released are. In fact, its text adds nothing to the quantum of information already known by the public.”
The Court conducted a careful review and it was right to order the CIA and Office of Legal Counsel to disclose additional documents. This said, the government should be required to provide a fuller accounting of its drone program, including the strike at issue in this case. Unfortunately, the government continues to vigorously oppose the ACLU’s suits to enforce FOIA requests, even when this information is — as here — already in the public domain.
Expect more rulings about the secrecy surrounding the drone program in the next few months. Another part of this case, concerning the Office of Legal Counsel’s withholding of a smaller set of legal memoranda, is pending before the Second Circuit.
The ACLU is also litigating two other Freedom of Information Act suits concerning the drone program — one case was filed in the District of Columbia and the other is pending before the same New York judge who issued yesterday’s ruling.