When will federal judges start acting more like State Department flacks?
It’s a question worth thinking about during Sunshine Week. For those of us who regularly litigate national security FOIA cases, it has been delightful to see the State Department trot out PR people to challenge the intelligence agencies over whether Hillary Clinton’s emails contained classified information. “Classification is rarely a black and white question,” said one State Department spokesman with a bureaucrat’s gift for understatement.
But the simple playground truth illuminating State’s response to the intelligence agencies — “just because you say it’s so doesn’t it make so” — rarely shines its light in federal courthouses, where meaningful victories in national security FOIA cases remain legal unicorns. In the aftermath of Wikileaks and Snowden, the misuse of classification has never been more apparent, yet little has changed in FOIA litigation.
The case for disclosure is often compelling as a matter of democracy and self-governance, but in FOIA lawsuits a cluster of small-bore but powerful rules shape the narrative and too often defeat transparency. Anyone looking to for places to reform FOIA might start with these:
A presumption of good faith attaches to the Government’s affidavits. Virtually every FOIA case gets decided on competing motions for summary judgment. The Government makes its case through affidavits from agency officials, who inevitably proclaim in generic language, literally repeated from case to case, how important secrecy is.
Here, for instance, is a key paragraph from a recent CIA declaration involving documents from the 1960s:
In this case, acknowledging the existence or nonexistence of records reflecting a classified connection to the CIA reasonably could be expected to cause damage to the national security by alerting individuals of intelligence interest to what methods the CIA employed or did not employ with regard to [the subject of the request], thus allowing those individuals to determine what countermeasures, if any, to take in the future to thwart intelligence collection and activities.
While the law calls for the affidavits to be “reasonably detailed,” many courts seem to think that putting “in this case” at the front of the boilerplate gets the job done. The agencies then get the powerful advantage of having a “presumption of good faith” attach to their declarations, making them largely unchallengeable. Take any other type of civil litigation, and imagine how the suit would play out if the law required judges to presume that one side was telling the truth. And then imagine it being the side that also has exclusive access to the evidence. Welcome to FOIA.
Discovery is almost never allowed in FOIA cases. The defining feature of American civil litigation is discovery, where the parties get to depose witnesses. Then there is FOIA, largely a discovery-free zone, even when the facts used to justify withholding are critical and dubious.
The rationale for barring discovery is murky. Some argue it makes no sense in a case involving secrecy to ask witnesses to testify about what they cannot reveal — even though the same is true in trade secret cases where discovery rages on unabated. And there is a sense that it is somehow wrong to take government employees away from their vital work for depositions in cases brought by average citizens — an inconvenience all the rest of us must face if we happen to get sued by, yes, average citizens (or the Government, for that matter).
In one of my FOIA cases, the court found that a Defense Department affidavit failed to show whether a proper search had taken place. The court ordered a second affidavit. The second affidavit was indisputably more thorough — only it told an entirely different story than the first: different searchers finding different documents in different places. It was the sort of contradiction that would prompt depositions in any other litigation. Not FOIA. The court accepted the second affidavit and dismissed the case.
The Government doubles down on secrecy with the National Security and CIA Acts. FOIA gives the Government two shots at defending classification. FOIA’s Exemption 1 allows agencies to withhold material that is properly classified under Executive Order 13526. As wide-ranging as the Executive Order is, the Government is still required to show that disclosure “reasonably could be expected to cause identifiable or describable damage to national security.”
Not so with the National Security and CIA Acts. They allow secrecy with no showing that any harm might result from disclosure. The acts cover documents pertaining to “sources and methods,” and many courts have been willing to read those words sweepingly. And with those readings, any hope of serious judicial review of unwarranted classification disappears.
The waiver doctrine remains an absurdity. When The New York Times and the ACLU won the release of two Justice Department memos providing the legal justification for the killing of Anwar al-Awlaki in Yemen, we did so on the basis of waiver. Simply put, officials had disclosed so much about the topic publicly, they had lost the right to keep the memos secret.
Yet to get to that result, the Second Circuit had to put aside what most FOIA waiver cases have held: Any waiver extends only to information that is a “match” of what is publicly disclosed. As the Second Circuit said, if the waiver doctrine were taken literally, it would allow FOIA requesters to obtain only what they already know — which is precisely the opposite of what FOIA is supposed to be about.
The Government gets too much credit from the courts for faux releases. After a dozen national security FOIA cases, I have become accustomed to the “faux release.” We sue, and the agency then tells the court that it will review the documents and release what it can. Several months later, we begin receiving documents. Were redaction an art form, we could open a gallery.
We get documents bravely marked “approved for public release” even though they are otherwise completely redacted. We once received a page that had only one word unredacted in the text: “propaganda,” appropriately enough. But my favorite remains a DOJ document in which an entire text block is redacted — except for a comma. The comma is carefully carved out for disclosure, a small testament to the American public’s right to have access to punctuation even in these dangerous times.
The Government then comes back to the court to talk about the hundreds or thousands of pages that were dutifully reprocessed and released. Few courts are interested in doing a deep dive into the documents to see what has actually been disclosed. So the Government gets credit for that comma as a boon to transparency, while the rest of us are left wondering what lies beneath that sea of redaction.
The law actively encourages the courts not to act like State Department flacks. Every Government brief in a national security case reminds the judge of what prior decisions have said: The executive branch has unique expertise in national security and the court is not competent to second-guess the executive’s decisions. Of course, the security stakes are rarely that high in a FOIA case, and the executive branch is effectively asking that there be no external check on its power to classify information. Still, many courts quickly defer, missing out on the lesson of the Clinton emails: just because an agency says information is properly classified doesn’t mean it is.
Occasionally, though, there is hope. I have a case in which the CIA refuses to say whether it has any documents about a Cuban official who defected to the US nearly 50 years ago. The Government insists that national security will be harmed by acknowledging even a single piece of paper exists (or doesn’t). As the argument unfolded earlier this year at the Second Circuit, a judge finally stopped the CIA lawyer to remind her quizzically that we were not talking about ISIS or terrorism. We were talking about Cuba and things that happened in the 1960s.
Was the judge second-guessing the experts? Perhaps. Was it needed? Absolutely.
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FOIA has always been an imperfect system for getting information. Government agencies have largely unchecked power to be arbitrary and unmoving and to meet any request with delay and denial. But when requesters finally make their way to court, they have the right to expect the law to give them more fairness and more justice, not more of the same.