12 Civ. 00794

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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.
Continue Reading Second Circuit Orders Release of Memo Discussing Legality of Drone Strikes

Yesterday, the federal government moved for summary judgment on two related lawsuits brought by the New York Times and the ACLU, in which the plaintiffs’ sought to compel the release of documents responsive to Freedom of Information Act (“FOIA”) requests. The FOIA requests at issue sought documents related to the targeted killing of individuals suspected to be associated with al Qaida or other terrorist cells, including the targeting of U.S. citizens and the use of unmanned “drones” to carry out attacks. Both the Times and ACLU made requests in October 2011, after the death of Anwar Al-Awlaki, a U.S. citizen who was accused of being an “operational” terrorist affiliated with al Qaida.
Continue Reading Government Moves for Summary Judgment on Times, ACLU FOIA Request Lawsuit

Yesterday, Judge McMahon granted the government’s request for more time to file a summary judgment motion in response to Freedom of Information Act lawsuits from the ACLU and the New York Times concerning (among other things) a secret legal memo first reported the New York Times justifying the targeted killing of U.S. citizen Anwar al-Awlaki. The government stated that it needed more time because its “position is being deliberated at the highest level of the Executive Branch.” The government supported its request with an ex parte confidential declaration from James R. Clapper, Jr., the Director of National Intelligence. Judge McMahon granted the request but not without a small dig at the government:
Continue Reading Judge McMahon Notes Irony of Government Seeking Extension in FOIA Case for Secret Reasons