The Second Circuit and the Vices of Selective Disclosure

I’ve now had a full day to digest yesterday’s lengthy decision by the Second Circuit in New York Times v. Department of Justice, which, among other things, orders the disclosure of a redacted version of an OLC memo relating to the targeted killing of Anwar al-Aulaqi. As I explain in more detail below the fold, although the ruling has been widely hailed as a victory for transparency, I’m not at all sure that it will be a positive development in that regard, at least in the long term. It may still be preferable to the status quo, but that only underscores far deeper problems with U.S. transparency law.

I.  Selective Disclosure of Secret Legal Rationales Has High Costs

The key to yesterday’s decision from a legal perspective is the government’s “selective disclosure” of the legal rationale for targeted killing operations against U.S. citizens–especially the so-called “white paper” disclosed in February 2013. Although this is a bit of an oversimplification, the crux of the Second Circuit’s analysis focused on the government’s effort to invoke exemptions to FOIA, notwithstanding its selective disclosure of aspects of the very analyses it was seeking to exempt. Indeed, but for the white paper and a series of other disclosures in speeches and other official statements, the government very likely would have prevailed on appeal (as it did in the district court).

The question then becomes why the government engages in selective disclosure. My (admittedly outsider) suspicion is that selective disclosure is attractive almost entirely as a way of splitting the difference–of allowing the Executive Branch to look at least somewhat transparent while satisfying those constituencies within the government that are more adamantly opposed to disclosure of any kind and in any form. White papers, then, provide a form of sanitized public access to at least some of the legal reasoning, in a manner that at once (1) allows the government to control the terms of disclosure of any sensitive information; and (2) provides at least the appearance of an ability for interested members of the public to evaluate the government’s underlying legal justifications for its actions.

But what yesterday’s decision suggests (so long as it stands) is that such selective disclosure actually has little value, because it won’t necessarily achieve its first goal–i.e., controlling the terms of disclosure. Under the Second Circuit’s analysis, selective disclosure of a hitherto-secret legal rationale makes it that much harder for the government to invoke the national security exemption to FOIA, since the public is already being apprised of many of the key elements of the government’s putatively protected reasoning. Thus, from the perspective of those agencies resisting any disclosure, selective disclosure could actually be worse than no disclosure, insofar as it emboldens arguments for full disclosure–such as those embraced by the Second Circuit yesterday.

II.  Selective Disclosure of Secret Legal Rationales Has Little Value

Of course, selective disclosure will not always lead to full disclosure, and so one response might be that it’s still “worth it,” especially insofar as it serves its second goal–providing a modicum of public accessibility to the government’s underlying legal rationales for secret programs. But if the targeted killing and NSA white papers are any guide, these incomplete legal rationales tend to be, charitably, unconvincing. When the targeted killing white paper was disclosed last February, readers will recall that it raised far more questions than it answered, largely because of its format–as a non-specific series of abstract discussions of abstract legal propositions like imminence, proportionality, and due process. If anything, the white paper only emboldened criticism of the Obama Administration, given that the vagueness and openendedness of its analysis could be used to support much broader assertions of authority than those which the government had publicly embraced. Simply put, separate from its costs, selective disclosure also appears to have little value, because it doesn’t seem to actually advance public understanding of the government’s actual legal justifications–and, if anything, it distorts that understanding in ways that are counterproductive.

At a more superficial level, this is what is so frustrating to me about the Obama Administration’s approach to transparency. I understand the serious pressures from within to disclose as little as possible, and I also understand the sincere desire on the part of any number of senior officials, including the President himself, to disclose as much as possible. Selective disclosure appears to be the “happy” medium upon which the Administration has settled. But if the above analysis is at all convincing, there’s little that’s “happy” about it; neither side ends up with what they want, and the Administration receives criticism from all corners and in different directions.

III.  The Second Circuit’s Decision Might Therefore be Counterproductive for Transparency

This leads to the most worrisome reaction I have to yesterday’s decision–that, in the long term, it will disincentivize any disclosure of secret legal rationales, lest even fairly limited disclosures empower FOIA-based arguments such as those upon which the Court of Appeals seized yesterday. In its editorial today, the New York Times suggests that the President should react to this decision by “allowing the conversation the country needs to have.” I fear it will have the opposite effect–and, when combined with the D.C. Circuit’s decision earlier this year with respect to Exemption 5, make it that much less likely that this or any future President will proactively support any disclosure of secret OLC memoranda, or even sanitized white-paper versions thereof. That’s not to say that I would have preferred the opposite result; only that the real solution, at the end of the day, will likely have to come from Congress–and not the courts. 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).