Concerning the Department of Justice’s Obligation to Disclose OLC Legal Opinions Under the FOIA
Second Circuit Orders Release of OLC Memo
On April 21, 2014, the Second Circuit decided New York Times v. Department of Justice, ordering the Obama Administration to disclose the Office of Legal Counsel memorandum that provided the legal justifications for the targeted killing of Anwar al-Awlaki, an American citizen. The Second Circuit held that “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’ waiver of secrecy and privilege as to the legal analysis in the Memorandum has occurred.”
The court required the release of a redacted version of the “OLC-DOD Memorandum,” an OLC memo pertaining to the DOD that contains legal advice for the Attorney General “regarding a potential military operation in a foreign country.” New York Times v. DOJ, 13-422 L, 2014 WL 1569514, at *1, *8 (2d Cir. Apr. 21, 2014). The court found that the government had waived its classification and deliberative process privilege claims by publicly invoking the memo as the legal basis for its targeted killing program through (1) public statements by government officials regarding the lawfulness of targeted killings and (2) the official disclosure of a closely-related DOJ White Paper in February 2013. Id. at *11, *14.
The court further required that the OLC release a redacted version of a classified Vaughn index, and that the “DOD and CIA submit classified Vaughn indices to the District Court on remand for in camera inspection and determination of appropriate disclosure and appropriate redaction.” Id. at *15. (A Vaughn index lists what documents an agency is withholding, and includes each document’s title, description, and relevant FOIA exemption(s). Id. at *3.) Finally, the Second Circuit upheld part of the lower court ruling, finding two other OLC legal memoranda properly exempted under the deliberative process privilege due to their “informal and predecisional” nature. Id. at *14.
The Government subsequently sought to file an ex parte and in camera motion for panel and en banc rehearing of the April 21, 2014 decision. The court denied this request, and directed the Government to file a public motion for rehearing, with necessary redacted portions provided to the court in camera. The Court also required that the Government provide any additional requested redactions to the OLC-DOD memorandum in its ex parte and in camera filing. After the Government filed its public petition for rehearing and ex parte supplements, the court granted the petition in part and issued its first of two rehearing opinions on June 23, 2014. The First Rehearing Opinion included a revised version of the April 23, 2014, Opinion, along with a redacted copy of the OLC-DOD memorandum as Appendix A. In the Second Rehearing Opinion, issued on July 10, 2014, the court denied in part the Government’s request to withhold the “titles and descriptions” of listings in the Vaughn Index. Specifically, the court granted the Government’s request to withhold the titles, but not descriptions, of 25 items in the Vaughn Index, and to withhold the titles and descriptions of 3 more items, but denied the Government’s request to withhold more than 28 other titles and descriptions. The court stressed that “the burden is on the Government to justify not disclosing withheld information.”
The New York Times and the American Civil Liberties Union both filed Freedom of Information Act requests with various federal agencies, including the Department of Justice, the CIA, and the Department of Defense, seeking documents related to the Executive Branch’s “targeted killing program.” Pursuant to the Authorization for the Use of Military Force, the federal government initiated a covert “targeted killing” program as part of its global war on terror. Under this program, the President has targeted and killed individuals that he deems have ties to terrorism. Some of these individuals have been American citizens. Targeted individuals have been killed by missile strikes from combat drones in Afghanistan, Pakistan, Yemen, and Somalia. Anwar Al-Awlaki, a senior leader of Al-Qaeda, was killed by a drone strike in late 2011 in Yemen. Also killed with Al-Awlaki was Samir Khan. Later, on October 14, 2011, Al-Awlaki’s underage son, Abdulrahman Al-Awlaki, was also killed in a drone strike in Yemen. All three men were American citizens.
The New York Times specifically requested DOJ Office of Legal Counsel(“OLC”) memoranda containing the legal justification for the Administration’s conclusion that it is lawful to target for killing persons, including United States citizens, who are suspected of ties to terrorist groups. The ACLU requested a range of documents related to the legal basis for the targeted killing program, as well as the factual basis that supported the targeting of specific individuals, including Anwar and Abdulrahman Al-Awlaki. The targeted killing program, its kill list, and its legal authorization are highly classified. The ability of the U.S. government to kill one of its own citizens, away from a battlefield, outside of exigent circumstances, and without any judicial process, is hotly contested. Various news investigations revealed the existence of a legal memo written by the OLC that explains why the federal government may engage in targeted killing.
Litigation in the District and Appellate Courts
The U.S. District Court for the Southern District of New York upheld the Department of Justice’s withholding of the legal memoranda. The Court said that the legal memos are classified and thus exempt from the Freedom of Information Act. The Court also held that the memos were subject to the deliberative process privilege, stating that the memos were merely advisory opinions. The deliberative process privilege exempts materials from disclosure under FOIA if the materials are deliberative and predecisional. However, final opinions, binding rules, and “working law” do not fall within the privilege.
The New York Times and the ACLU appealed the District Court’s decision to the U.S. Court of Appeals for the Second Circuit. The Times and ACLU argued that the District Court was incorrect in finding that the legal memos could be withheld due to these FOIA exemptions. First, the Times and ACLU argued that the legal memos were improperly classified. Pure legal analysis, once it is divorced from sensitive facts, does not meet the precise legal qualifications for classification, so the memos should never have been classified in the first place. Second, the Times and the ACLU argued that the deliberative process privilege does not apply because an OLC legal opinion is the working law of the Executive Branch.
EPIC’s Amicus Curiae Brief
EPIC, along with seven other open government organizations, authored a “friend of the court” brief supporting The New York Times and ACLU. EPIC’s brief walked through the history and legal authority of the Office of Legal Counsel to show how the OLC’s legal opinions establish binding law for the Executive Branch. EPIC showed that OLC’s current policies and past directors all agree that the Office is the authoritative legal arbiter of the Executive Branch, that its opinions are binding law, and that its formal written opinions should be disclosed to the public.
EPIC’s brief explained that the classification and withholding of OLC legal analysis established “secret law” within the Executive Branch that undermined oversight and accountability, violates the requirements of the FOIA, and is has no place in a democratic system of republican governance. In addition, EPIC discussed how past instances of disclosure or withholding of OLC legal memoranda has shaped or stifled public debate of important issues.
EPIC frequently engages in Freedom of Information Act litigation seeking documents related to federal government authority to conduct privacy-invasive programs. For more than eight years, EPIC has sought OLC legal opinions related to the warrantless wiretapping program initiated by President Bush after September 11th. In EPIC v. DOJ, the District Court for the District of Columbia ruled that certain OLC memoranda could be protected by the deliberative process privilege, but that the government had not sufficiently described the documents in question. EPIC continues to seek disclosure of the legal justification for the warrantless wiretapping program, and EPIC v. DOJ is one of our oldest ongoing FOIA cases.
United States Court of Appeals for the Second Circuit
- Opinion of the Court
- Brief of Appellant American Civil Liberties Union
- Brief of Appellant New York Times
- Brief of Amici Curiae EPIC and Seven Open Government Organizations
- Brief of Amici Curiae Reporters Committee for Freedom of the Press
- Brief of Appellee U.S. Department of Justice, et al.
- Reply Brief of Appellant New York Times
- Reply Brief of Appellant American Civil Liberties Union
United States District Court for the Southern District of New York
- EPIC: Freedom of Information Act Work on the National Security Agency’s Warrantless Surveillance Program
- EPIC: Open Government
- Federal Cases
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975)
- Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473 (2d Cir. 1999)
- Wilson v. CIA, 586 F.3d 171 (2d Cir. 2009)
- Brennan Ctr. for Justice v. Dep’t of Justice, 697 F.3d 184 (2d Cir. 2012)
- EPIC v. DOJ, 584 F.Supp.2d 65 (D.D.C. 2008)
- CREW v. Office of Admin., 249 F.R.D. 1 (D.D.C. 2008)
Relevant Law Review Articles, Reports, and Books
- Eric Lane, Frederick A.O. Schwarz, Jr. & Emily Berman, Too Big a Canon in the President’s Arsenal: Another Look at United States v. Nixon, 17 Geo. Mason L. Rev. 737 (2010)
- Vicki Divoli, The “Full Access Doctrine”: Congress’s Constitutional Entitlement to National Security Information from the Executive, 34 Harv. J. L. & Pub. Pol’y 493 (2011)