No Remand in ACLU FOIA Appeal

A three-judge panel of the D.C. Circuit (Judges Tatel, Garland and Griffith) has rejected the CIA's motion to remand in ACLU v. CIA, the FOIA action regarding the Obama Administration's targeted killing program.  The appeal thus will be argued on September 20, as scheduled.  The reasons behind the decision are opaque; the court's one-page order denied the CIA's motion without explanation.  But - and since it is very much the season for speculating about the motivations underlying certain judicial rulings - I couldn't help but wonder if the government's litigating position might have undermined its case a bit.  In requesting remand, the government cited parallel FOIA litigation brought against the Justice Department, and ongoing before the Southern District of New York.  There, the ACLU and others had sought documents similar to those requested from the CIA in the D.C. FOIA case.   But in the New York case, the government recently had acknowledged the existence of potentially responsive documents - including copies of widely disseminated speeches by John Brennan and Eric Holder.  The question was what this acknowledgement meant for the appeal before the D.C. Circuit - if it meant anything at all.  What was odd is that the CIA's motion did not actually explain, or even hint at, the acknowledgment's significance going forward (bold and italics mine):

3. In the instant case, the CIA does not agree with plaintiffs that the statements they discuss in the briefing constitute an official acknowledgment that the CIA possesses any records responsive to plaintiffs’ request. However, the June 20 filing in the Southern District of New York officially acknowledges the CIA’s possession of some records that could potentially be responsive to plaintiffs’ FOIA requests in this case as well, such as a copy of the April 30, 2012 speech by Assistant to the President for Homeland Security and Counterterrorism John O. Brennan, which included discussion of the U.S. government use of drones. Explaining the effect, if any, of this later development on the FOIA request here will require a further filing by the government.

4. If the case is remanded to the district court, the government will file a supplemental response that will take into account the effect of the June 20 response in the Southern District of New York, and also will provide the district court a further declaration that addresses that response and the scope of any Glomar or “no number, no list” response in this case. The district court is in the best position to receive such new information and to consider, in the first instance, its effect on the government’s response in this case:

So the argument is not that the state of play has changed, such that further appellate proceedings are unwarranted.  Instead the argument is that the state of play might have changed, and that the extent of any change only will be clarified if the government wins its motion.  Not exactly hard-charging stuff.  Is it really that surprising that the government's claim didn't persuade the panel to remand the case - especially since the plaintiffs had argued quite vigorously that the "we have copies of two speeches" revelation did not alter the status quo at all? Nah.