Order to Release the OLC Targeted Killing Memo: A Summary

As Ben noted this morning, the Second Circuit has ordered the release of a redacted version of the OLC memorandum that justified the targeted killing of U.S. citizen Anwar al-Awlaki. Specifically, the three-judge panel has ordered the government to disclose redacted versions of the requested memoranda on the legal status of targeted killings generally and of the targeting of U.S. citizens specifically. The government must also release a redacted version of the classified "Vaughn index" that agencies must typically provide to justify withholding information under a FOIA exemption, and the DOD and CIA must submit Vaughn indices to the District Court for in camera inspection and determinations as to the appropriate disclosure and redaction. The decision is a long time coming. In June 2010 and October 2010, Scott Shane and Charlie Savage of the New York Times submitted separate FOIA requests to OLC. They sought, respectively, all post-2001 OLC opinions or memoranda that addressed the legal status of targeted killings or killing of al-Qaeda suspects, and all OLC memoranda analyzing the circumstances under which it would be lawful for the U.S. to target a U.S. citizen. OLC denied both requests. In October 2011, the ACLU submitted similar FOIA requests to DOJ, DOD and CIA, seeking various documents related to the targeted killings of U.S. citizens in general as well as those specifically concerning the killing of al-Awlaki, his 16-year-old son and Samir Khan. The opinion, authored by Judge Newman, lays out a four-part overview of the relevant background in the case. That trek through the marshes simultaneously builds the logical underpinnings of the panel's conclusion that the government must disclose the OLC memorandum and its justifications for withholding other documents. The opinion summarizes (1) the FOIA requests submitted by the New York Times and the ACLU, (2) the government's reliance on FOIA exemptions in refusing to confirm or deny the existence of the requested documents, (3) the analysis accompanying the district court's decision to uphold the government's claims to various exemptions, and (4) the subsequent public disclosure of the DOJ White Paper on targeted killings and Attorney General Eric Holder's letter conceding that the U.S. had targeted al-Awlaki. All of this tees up the crux of the panel's discussion, on page 37 of its opinion:

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 [redacted], waiver of secrecy and privilege as to the legal analysis in the Memorandum has occurred.

The court emphasizes at the outset of its decision that the FOIA suits in question "do not challenge the lawfulness of drone attacks or targeted killings" but rather" seek information concerning those attacks." It should be noted that some of the decision, including one of its holdings, has been redacted.