The New York Times Co. v. DOJ, No. 11 Civ. 9336, 2013 WL 50209 (S.D.N.Y. Jan. 3, 2013) (McMahon, J.)

Date: 
Thursday, January 3, 2013
Re: Request for records concerning the legal analysis surrounding "targeted killing of persons deemed to have ties to terrorism" Disposition: Granting defendants' motion for summary judgment except to the extent necessary to allow DOD to supplement its declaration concerning two memorandums withheld pursuant to the deliberative process privilege
  • Adequacy of Search: After reviewing the declarations in this case, the court concludes "that the searches submitted by the responding agencies comported with their statutory obligations."
  • Exemption 1: The court rejects plaintiff's argument that legal analysis cannot be classified. It holds that "legal analysis that 'pertains to' military plans or intelligence activities (including covert actions), sources or methods – all of which are classified matters, can indeed be classified."
  • Exemption 1/Waiver: The court concludes that the government has not waived the protections of Exemption 1. Waiver in the context of classified information is "rare." The court notes that "Exemption 1 is not waived if an agency official merely discusses the 'general subject matter' of the records sought." Here, "there has been no official disclosure of sufficient exactitude to waive the Government's right to assert their classification as a justification for not providing them to the ACLU." The court emphasizes that "no operational details were disclosed, other than the fact the operation was carried out with cooperation from Yemeni security forces." With regard to an Attorney General's speech at Northwestern, the court notes that it "mentions relevant doctrines but does not explain the actual reasoning that led the Government to conclude that the targeted killing of a suspected terrorist" was permissible. Likewise with regard to comments made by other senior officials, the court opines that "none of those public pronouncements reveals the necessarily detailed legal analysis that supports the Administration's conclusion that targeted killing, whether o[f] citizens or otherwise is lawful." The court declines to conduct an in camera review of withheld documents, noting that it does "not need to review the OLC-DoD Memo in camerato know that its legal analysis would be far more detailed and robust" than information mentioned in the Attorney General's public speeches.
  • Exemption 3: The court finds that Exemption 3 was properly invoked to withhold records pertaining to the "targeted-killing program." The court determines that the CIA properly withheld records pursuant to Section 102A(i)(1) of the National Security Act (NSA). This section "provides that 'the Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure.'" The court rejects plaintiffs' argument that the program is not an "intelligence program," opining that "[p]laintiffs seek too narrow a reading of the authority conferred by the NSA to protect 'intelligence sources and methods.'" It goes on to note that "the Court has no reason to second-guess the CIA as to which programs that may or may not be of interest implicate the gathering of intelligence." Furthermore, the court continues, such an argument "ignores the scope of the CIA's specific authority to engage in activities beyond 'traditional' intelligence gathering (however defined), such as intelligence activities and operations, covert operations, and foreign relations activities." With respect to plaintiffs' argument that legal analysis is not an "intelligence source or method," the court decides that the analysis is still not disclosable. The court states: "First, FOIA exemptions other than Exemption 3 may bar disclosure – especially here, where the legal analysis is classified. Second, it may well be that legal analysis in a particular document is inextricably intertwined with information that is statutorily exempt from disclosure, including information about intelligence sources and methods that is statutorily exempt [from] disclosure." The court decides that even if the material could be redacted to disclose information not protected by NSA, in camerareview to determine if the information could in fact be segregated would be "pointless" because the material is covered by Exemption 5. The court holds that records were also properly withheld pursuant to the CIA Act. Citing to ACLU v. DOJ, 808 F.Supp.2d 280 (D.D.C. 2011), the court says that "[t]o the extent that the ACLU seeks information regarding the CIA's participation, if any, in the Government's targeted killing program, that information is properly withheld under Exemption 3 and the CIA Act." The court quotes the rationale of that case and states that it applies equally to the present case. There the court said that "[i]n the end, the CIA is justifiably concerned that revealing the existence or nonexistence of records sought on various topics sought by Plaintiffs could alone reveal information on the CIA's internal structure and its capabilities and potential interests and involvement in/operation of the drone program."
  • Exemption 5/Waiver/Declaration:The court rejects plaintiff's arguments that the documents they seek are no longer protected by Exemption 5 because of "waiver, adoption, and/or the working law doctrine." Plaintiffs do not contest the applicability of Exemption 5 to a number of documents listed in the OLC, OIP, and DOD Vaughn indices so the court does not address these items. Instead plaintiffs seek 1) an OLC-DOD memorandum identified by OLC as well as 2) a "Memorandum from Legal Counsel to Chairman of the Joint Chiefs of Staff to National Security Legal Advisor with legal analysis regarding the effect of U.S. citizenship on targeting enemy belligerents" and 3) an earlier version of this memorandum to the Chairman of the Joint Chiefs of Staff. The court decides that the declaration concerning the two versions of the Memorandum to the Chairman of the Joint Chiefs of Staff is insufficient. The court holds that "it will need a more fulsome response from the Defense Department before [it[ can reach any conclusion, one way or the other, about the applicability of the deliberative process to these two documents." With regard to the OLC-DOD memo, the court ultimately decides that the document is still protected by the deliberative process privilege. The court notes that "Second Circuit precedent indicates that waiver of the deliberative process privilege only occurs when a pre-decisional document has been adopted as final policy." Thus, the court reasons, "a pre-decisional document should be stripped of its privilege when it becomes, in effect, the decision of the agency . . . [T]he doctrines of waiver and adoption are interlinked where the deliberative process is concerned." The court then conducts a "fact-specific" inquiry into whether the document at issue has been expressly adopted or incorporated by reference and concludes that it has not. The court declares that "[t]he various public statements on which Plaintiffs rely in this case are obviously grounded in legal analysis that was performed by someone for someone. But there is no suggestion, in any of those speeches or interviews, that the legal reasoning being discussed is the reasoning set out in the OLC-DoD Memo, a document which the Government acknowledges exists." The court declines to conduct in camera review of the memorandum because it would be "pointless where there has been no public reference to a particular document. Review of the OLC-DoD Memo would not answer the question of whether the Attorney General and other Executive Branch officials, in making their public statements, relied on this document specifically."
  • Exemption 5/Waiver: The court finds that there has been no waiver of the attorney-client privilege with respect to a presentation by the General Counsel of DoD. The court concludes that "[t]here is not the slightest evidence that [the General Counsel's] presentation to senior officers was ever deliberately disclosed in any forum, let alone is circumstances where disclosure was voluntary and calculated to benefit the disclosing party. Therefore there has been no waiver of the privilege."
  • Waiver/Glomar: The court concludes that the CIA has not waived its right to assert a Glomar response to the requests concerning whether it has legal opinions addressing the targeted killing program. The court finds: "In no statement made by either the President or Secretary Panetta is there a reference to the existence of any particular records that pertain to the targeted killing operations – whether by drone strikes or otherwise, and whether involving American citizens or otherwise."
  • Waiver: The court also rejects plaintiff's waiver argument with respect to defendants' assertion of a Glomar response for certain requests and a "No Number No List" response. "A No Number, No List Response is employed where the 'details that would appear in a Vaughn index' are protected by a FOIA exemption. . . . [W]hen it gives a No Number, No List response, [an agency admits that it has documents responsive to a FOIA request, but refuses to disclose the number or nature of those documents." Although the court acknowledges that there is no prior case law discussing when a "No Number No List" response has been waived, it assumes "the standards for assessing waiver in this context are identical to the standards for assessing waiver in the national security context generally." The information at issue here is "the number and nature of records withheld under Exemptions 1 and 3 – in other words, the information that traditionally appears in a Vaughn index." The court notes that "Plaintiffs have provided the Court with every public pronouncement by a senior Executive Branch official that touches on the intelligence community's involvement in the Government's targeted killing program. In none of these statements is there a reference to any particular records pertaining to the program, let alone the number or nature of those records." Accordingly, there has been no waiver of the defendants' assertion of the "No Number No List" response or its Glomar response.
Topic: 
Declarations
District Court
Exemption 1
Exemption 3
Exemption 5
Glomar
Waiver
Updated August 6, 2014