More Machinations in Second Circuit Targeted Killing FOIA Litigation

The release last month of the Al-Aulaqi Office of Legal Counsel memo, it turns out, was not the end of the Second Circuit litigation regarding the New York Times and ACLU’s FOIA requests for information on the government’s targeted killing programs. A petition for rehearing en banc is still pending. And yesterday, the Justice Department, the Pentagon, and the CIA filed a motion for leave to submit ex parte classified and privileged supplemental declarations in support of their petition for rehearing. The issue comes down to a classified index of records withheld by OLC in response to the ACLU’s FOIA request. The court has ordered the index's release. But in its motion, the government seeks an opportunity to argue that release of the classified index would be inappropriate. First, a quick recap of the relevant facts: In 2011 and 2012, the Times and ACLU filed separate suits in the Southern District of New York, challenging the government's responses to their FOIA requests on targeted killing. In the course of the consolidated district court proceedings, the government submitted various declarations. Attached to one classified declaration was a classified index, submitted ex parte and in camera, identifying records withheld by the OLC in response to the ACLU’s FOIA request. The district court granted summary judgment to the government, upholding the government’s withholding of information and the responses to the requests. On appeal, however, a panel of the Second Circuit reversed and remanded to, among other things, (1) require DOD and CIA to prepare and provide public indices of withheld records, and (2) require DOJ to release the classified OLC index at issue in the present motion. The court of appeals ruled on the latter issue without prompting: neither the Times nor the ACLU had raised the issue on appeal. The government sought panel rehearing---or alternatively, rehearing en banc---with respect to limited parts of the panel’s decision, including the panel’s order requiring the disclosure of information in the classified OLC index. On July 10, 2014, the panel denied the government’s petition for panel rehearing with respect to the court’s classified OLC index order. The panel stated that although it would exempt either the titles or the descriptions of several listings in the classified OLC index---and both the titles and the descriptions of some others---it would not do so for all the listings specifically identified by the government, and it would not do so for any of the listings not specifically identified by the government. Chief among its reasons for denial of the government's request for more extensive exemptions, the panel declared that the government already had three opportunities to claim exceptions to disclosure and had failed to make such claims all three times. The government's current motion does not “seek to reargue the merits of [the government's] rehearing petition.” Rather, it “seek[s] leave to submit, ex parte and in camera, two declarations explaining that the panel’s decision, as clarified in its recent order of July 10, requires the disclosure of classified information, as well as privileged information and information protected by statute that does not fall within the reasoning of the panel’s underlying decision, thus supporting [the government’s] pending request for en banc review to reverse the order of disclosure and to remand to the district court.” Because the “issue whether specific entries in the classified OLC index should be released was not fully briefed,” the government argues that the court should “provide[] a full opportunity for the appropriate agency officials with expertise to submit declarations explaining the basis of the classification decision.” The nub of the government’s argument is as follows:

OLC submitted its classified declaration and index to aid the district court in camera and ex parte, and the issue whether specific entries in that index were properly classified or privileged was not an issue in this litigation until the panel sua sponte elected to parse individual entries in the OLC index. In addition to these changed factual circumstances, the case involves classified national security information. In these circumstances, the court should not order the information released without providing the government an opportunity to more fully explain the basis of the classified and privileged entries at issue through ex parte declarations. Moreover, because the OLC index was not prepared with public release in mind, the entries were not written in a way that could have avoided, in certain contexts, language that would disclose privileged or classified information. The government could not have anticipated that it would be called upon to release entries from the index without first having an opportunity to prepare a [public] Vaughn index whose descriptions do not themselves reveal the information sought to be protected.

The motion goes on to explain why, in the three instances the panel cited as missed opportunities to claim exceptions to disclosure, the government either “reasonably” did not claim exceptions or “could not have realistically provided any meaningful explanations” for claiming exceptions. Previous coverage of the case can be found here.