N.Y. Times Co. v. U.S. Dep't of Justice
| Decision Date | 03 January 2013 |
| Docket Number | Nos. 11 Civ. 9336 (CM), 12 Civ. 794 (CM).,s. 11 Civ. 9336 (CM), 12 Civ. 794 (CM). |
| Citation | 915 F.Supp.2d 508 |
| Parties | The NEW YORK TIMES COMPANY, Charlie Savage, and Scott Shane, Plaintiffs, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant. American Civil Liberties Union and the American Civil Liberties Union Foundation, Plaintiffs, v. U.S. Department of Justice, including its component the Office of Legal Counsel, U.S. Department of Defense, including its Component U.S. Special Operations Command, and Central Intelligence Agency, Defendants. |
| Court | U.S. District Court — Southern District of New York |
OPINION TEXT STARTS HERE
David Edward McCraw, New York, NY, for Plaintiffs.
Sarah Sheive Normand, New York, NY, for Defendant.
CORRECTED OPINION GRANTING THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS' CROSS MOTION FOR SUMMARY JUDGMENT1
Plaintiffs in these consolidated actions have filed Freedom of Information Act (“FOIA”) requests with the federal Government in order to obtain disclosure of information relating to a particular tactic that is admittedly being employed in the so-called “War on Terror”—the targeted killing of persons deemed to have ties to terrorism, some of whom may be American citizens.
Most of what is sought in the facially overbroad request filed by the American Civil Liberties Union (“ACLU”) was properly withheld pursuant to one or more properly-invoked exemptions that Congress wrote into the FOIA statute to guard against the disclosure of highly confidential and operational information—if, indeed, the Government has acknowledged that any such documents exist. Thornier issues are raised by two much narrower requests, filed by reporters from The New York Times. Broadly speaking, they seek disclosure of the precise legal justification for the Administration's conclusion that it is lawful for employees or contractors of the United States Government to target for killing persons, including specifically United States citizens, who are suspected of ties to Al–Qaeda or other terrorist groups. Documents responsive to these requests would also be responsive to portions of the ACLU's request.
The FOIA requests here in issue implicate serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States, and about whether we are indeed a nation of laws, not of men. The Administration has engaged in public discussion of the legality of targeted killing, even of citizens, but in cryptic and imprecise ways, generally without citing to any statute or court decision that justifies its conclusions. More fulsome disclosure of the legal reasoning on which the Administration relies to justify the targeted killing of individuals, including United States citizens, far from any recognizable “hot” field of battle, would allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated. It might also help the public understand the scope of the ill-defined yet vast and seemingly ever-growing exercise in which we have been engaged for well over a decade, at great cost in lives, treasure, and (at least in the minds of some) personal liberty.
However, this Court is constrained by law, and under the law, I can only conclude that the Government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States. The Alice–in–Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules—a veritable Catch–22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for its conclusion a secret. But under the law as I understand it to have developed, the Government's motion for summary judgment must be granted, and the cross-motions by the ACLU and the Times denied, except in one limited respect. Final rulings on that discrete issue must abide further information from the Government.
This opinion will deal only with matters that have been disclosed on the public record. The Government has submitted material to the Court ex parte and for in camera review. It is necessary to discuss certain issues relating to this classified material in order to complete the reasoning that underlies this opinion. That discussion is the subject of a separate, classified Appendix to this opinion, which is being filed under seal and is not available to Plaintiffs' counsel. In crafting that Appendix, the Court has done its best to anticipate the arguments that Plaintiffs would have made in response to the Government's classified arguments.2
On June 11, 2010, Times reporter Scott Shane (“Shane”) addressed a FOIA request to the Department of Justice's (“DoJ”) Office of Legal Counsel (“OLC”) seeking the following:
... copies of all Office of Legal Counsel opinions or memoranda since 2001 that address the legal status of targeted killing, assassination, or killing of people suspected of ties to Al–Qaeda or other terrorist groups by employees or contractors of the United States government. This would include legal advice on these topics to the military, the Central Intelligence Agency or other intelligence agencies. It would include the legal status of killing with missiles fired from drone aircraft or any other means.
As a member of the news media, Shane sought expedited processing of his request. ( Id.)
On October 27, 2011, OLC denied Shane's request. ( Id., Ex. B.) Citing FOIA Exemptions 1, 3, and 5, OLC withheld all responsive records pertaining to the Department of Defense (“DoD”). ( Id.) Citing the same exemptions, OLC provided Shane with a so-called Glomar response, Military Audit Project v. Casey, 656 F.2d 724 (D.C.Cir.1981); Phillippi v. CIA, 546 F.2d 1009 (D.C.Cir.1976); that is, the OLC refused either to confirm or deny the existence of responsive records “because the very fact of the existence or nonexistence of such documents is itself classified, protected from disclosure by statute, and privileged.” ( Id.)
On November 4, 2011, the Times appealed OLC's denial to the Director of DoJ's Office of Information Policy (“OIP”). (Declaration of Nabiha Syed (“Syed Decl.”), Ex. E.) OIP did not respond within twenty days, as required by Section 552(a)(6)(ii) of FOIA. ( Id. ¶ 8.)
On October 7, 2011, Times reporter Charlie Savage (“Savage”) submitted a similar FOIA request to OLC seeking the following:
... a copy of all Office of Legal Counsel memorandums analyzing the circumstances under which it would be lawful for United States armed forces or intelligence community assets to target for killing a United States citizen who is deemed to be a terrorist.
(Bies Decl., Ex. C.)
Savage sought expedited processing of his request in light of his status as a reporter and the “pressing public interest” generated by “the recent death in Yemen of Anwar Al–Awlaki, a United States citizen who has been accused of being an ‘operational’ terrorist with the group Al–Qaeda in the Arabian Peninsula.” ( Id.)
On October 27, 2011, citing FOIA Exemptions 1, 3, and 5, OLC denied Savage's request, providing him with a blanket Glomar response. ( Id., Ex. D.) The Times appealed this denial to the Director of OIP on November 7, 2011. (Syed Decl., Ex. E.) Once again OIP did not respond within twenty days, as required by Section 552(a)(6)(ii) of FOIA. ( Id., ¶ 8.)
Shane, Savage, and the Times (together, the “Times Plaintiffs”) filed suit on December 20,2011.
On October 19, 2011, the ACLU addressed a FOIA request to various components of DoJ and DoD, as well as the Central Intelligence Agency (“CIA”). (Bies Decl., Ex. E.) The request seeks six categories of documents created after September 11, 2001 (see Annex I for the full contents of the ACLU's request):
1. Records pertaining to the legal basis in domestic, foreign, and international law upon which U.S. citizens can be subjected to targeted killings.
2. Records pertaining to the process by which U.S. citizens can be designated for targeted killings, including who is authorized to make such determinations and what evidence is needed to support them.
3. Records pertaining to the legal basis in domestic, foreign, and international law upon which the targeted killing of Anwar Al–Awlaki was authorized and upon which he was killed, including discussions of:
a. The domestic-law prohibitions on murder, assassination, and excessive use of force;
b. The Fifth Amendment Due Process Clause;
c. International-law prohibitions on extrajudicial killing;
d. The Treason Clause;
e. The legal basis authorizing the CIA, JSOC, or other U.S. Government entities to carry out the targeted killing of Anwar Al–Awlaki;
f. The Government's understanding of “imminence of harm” in the case of Anwar Al–Awlaki; and
g. Any requirement that the U.S. Government first attempt to capture Anwar Al–Awlaki before killing him.
4. Records pertaining to the factual basis for the targeted killing of Anwar al-Awlaki.
5. All records pertaining to the factual basis for the targeted killing of Samir Khan.
6. All records pertaining to the factual basis for the targeted killing of Abdulrahman Al–Awlaki.
( Id. at 5–6.)
The ACLU, like the Times, asked for expedited processing of its request. ( Id. at 7–9.)
On November 14, 2011, citing FOIA Exemptions 1, 3, and 5, OLC denied the ACLU's request, providing it with a blanketGlomar response. ( Id., Ex. F.) The ACLU...
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