Earlier today on Twitter, USA Today‘s Brad Heath posted the key paragraphs from DOJ’s denial of his FOIA request for any OLC memos relating to the applicability of the AUMF to uses of force against ISIL (memos that, I hope we can all agree, would sure provide a useful explication of the Administration’s legal arguments):
— Brad Heath (@bradheath) September 30, 2015
What’s especially interesting about the denial is that it rests on Exemption 5 of FOIA (information protected by the deliberative process and/or attorney-client privileges), rather than Exemption 1 of FOIA (classified materials), even though, as the denial notes, the three responsive OLC memos are each classified.
As a result, although I suspect DOJ’s denial will now lead to litigation, it’s worth reminding folks of the D.C. Circuit’s January 2014 decision in Electronic Frontier Foundation v. Department of Justice, which took a rather expansive view of Exemption 5 as applied to OLC memos–and which I analyzed (and criticized) here. If anything, today’s denial may bring home to roost some of the very concerns about the EFF decision’s expansiveness that I warned about last January–and leave us that much more to rely upon nothing other than the beneficence of the Justice Department for the disclosure of such vital legal analyses.