As we wrote about early last year, Judge McMahon reluctantly dismissed two FOIA suits seeking disclosure of a secret government memo addressing the legality of drone strikes on U.S. citizens. Now, the Second Circuit has reversed that decision and ordered that the government produce the memo (known as the OLC-DOD Memorandum) in response to FOIA requests made by New York Times reporters and the ACLU. The Second Circuit ruled that public disclosure of the contents of the memo had waived any claim to secrecy. Notably, just weeks after Judge McMahon’s decision, a 16-page DOJ “white paper” was leaked to the press, which itself analyzed the lawfulness of targeted drone killings. Though not part of the underlying record on appeal, the appellate court chose to consider this subsequent disclosure in rendering its opinion.
As the Second Circuit concluded:
With the redactions and public disclosures discussed above, it is no longer either “logical” or “plausible” to maintain that disclosure of the legal analysis in the OLC-DOD Memorandum risks disclosing any aspect of “military plans, intelligence activities, sources and methods, and foreign relations.” The release of the DOJ White Paper, discussing why the targeted killing of al-Awlaki would not violate several statutes, makes this clear. [redacted] in the OLC-DOD Memorandum adds nothing to the risk. Whatever protection the legal analysis might once have had has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the DOJ White Paper.
The opinion itself is redacted in places, at the government’s request, to preserve the government’s right to further appellate review. In particular, the court redacted its discussion of the contents of the OLC-DOD Memorandum unless and until its ruling is not altered by further appellate review.
Before considering the relevance of the DOJ White Paper to the Government’s claim to continued secrecy and privilege of the legal analysis in the OLC-DOD Memorandum, we describe that Memorandum, which we have examined in camera, in some detail. . . . The OLC-DOD Memorandum has several parts. After two introductory paragraphs, Part I(A) reports [redacted]. Parts I(B) and I(C) describe [redacted]. Part II(A) considers [redacted]. Part II(B) explains [redacted]. Part III(A) explains [redacted], and Part III(B) explains [redacted]. Part IV explains [redacted]. Part V explains [redacted]. Part VI explains [redacted].