Case 1:11-cv-09336-CM Document 1 Filed 12/20/11 Page 1 of 12

NTha.-ovlrhu'i-fES..yMecd'C(aqdm~is_£,i6f nf.{jend~lf!g}
Legal Depa.Itment The New York Times Company 620 8th Avenue- 18th Floor New York, NY 10018 phone: (212) 556-4031 fax: (212) 556-1009 mccraw@nytimes.com Counsel for Plaintiffs

11. ].

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
X THE NEW YORK TIMES COMPANY, CHARLIE SAVAGE, and SCOTT SHANE,
Plaintiffs,
-against-
UNITED STATES DEPARTMENT OF JUSTICE,
Defendant.
___________________________________X

CASHIERS
No. _ _ _ __
COMPLAINT ECFCASE

Plaintiffs The New York Times Company, Charlie Savage, and Scott Shane (jointly,

"NYT"), by their undersigned attorney, allege for their Complaint:

1.

This is an action under the Freedom of Information Act ("FOIA"), 5

U.S.C. §552, et seq., seeking the production of agency records improperly withheld by

Defendant United States Department of Justice ("DOJ") in response to requests properly

made by Plaintiffs.

2.

Questions surrounding the legality of targeted killing- especially the

extrajudicial use of lethal force away from any so-called "hot" battlefield where United

Case 1:11-cv-09336-CM Document 1 Filed 12/20/11 Page 2 of 12

States forces are engaged in active combat- have generated extensive public debate since

October 2001, when the Bush Administration first contemplated whether covert lethal force

could be used against people deemed to be al-Qaeda operatives.

3.

Most recently, the death of an American citizen, Anwar al-Awlaki,

who was killed in a drone strike in Yemen in September, has kindled widespread interest in -

and controversy over- the scope of the circumstances in which it is lawful for government

officials to employ targeted killing as a policy tool.

4.

Given the questions surrounding the legality of the practice under

both U.S. and international law, notable legal scholars, human rights activists, and current

and former government officials have called for the government to disclose its legal analysis

justifying the use of targeted lethal force, especially as it applies to American citizens.

5.

For example, the former legal adviser to the United States

Department of State in the Bush administration, John B. Bellinger TIT, has argued that it is

"important to domestic audiences and international audiences for the Administration to

explain how the targeting and killing of an American complies with applicable constitutional

standards."

6.

To date, the government has not offered a thorough and transparent

legal analysis of the issue of targeted ki lling. Instead, several government officials have made

statements broadly asserting the legality of such actions in a conclusory fashion .

7.

Upon information and belief, there exists at least one legal

memorandum detailing the legal analysis justifying the government's use of targeted killing.

Case 1:11-cv-09336-CM Document 1 Filed 12/20/11 Page 3 of 12

8.

In a Feb. 11, 2011, article about targeted killing operations by the

Central Intelligence Agency, Newsweek quoted an anonymous government oftlcjal as saying

such actions were "governed by legal guidance provided by the Department of Justice."

9.

On September 30, 2011 , the Washington Post reported that the

government had produced a "secret memorandum authorizing the legal targeting" of Anwar

al-Awlaki, an American citizen who had been killed earlier that day in Yemen.

10.

On October 8, 2011, The New York Times published an article that

described some details ahout the context and contents of the Awlald memorandum.

11.

Both before and after the death of ai-Awlaki, NYT duly filed FOIA

requests seeking memoranda that detail the legal analysis behind the government's use of

targeted lethal force. To date, DOJ has refused to release any such memoranda or any

segregabJe portions, claiming them to be properly classified and privileged and in respect to

ce1tain memoranda has declined to say whether they in fact exist.

.JURISDICTION AND VENUE

12.

This Court has subject matter jurisdiction over this action pursuant to

5 U.S.C. §§552(a)(4)(B) and 28 U.S.C. §1331.

13.

Venue is premised on the place of business of Plaintiffs and is proper

in this district under 5 U.S.C. § 552(a)(4)(B).

14.

Because DOJ has failed to determine either of the two pending

administrative appeals in the time set by FOIA, NYT is deemed to have exhausted all

administrative remedies as to each and is now entitled to appeal directly to the Court to

enforce the dictates of FOIA pursuant to 5 U.S.C. § 552(a)(4)(B).

Case 1:11-cv-09336-CM Document 1 Filed 12/20/11 Page 4 of 12

PARTIES

15. Plaintiff The New York Times Company is the publisher of The New

York Times. The weekday circulation of The New York Times is the highest in the nation

among metropolitan dailies, at more than 900,000 daily, with 1.35 million on Sunday. The

average number of monthly unique visitors to NYTimes.com has exceeded 20 million.

16. The New York. Times Company is headquartered in this judicial

district at 620 Eighth Avenue, New York, N.Y.

17.

Plaintiff Charlie Savage is a reporter for The New York Times.

18.

Plaintiff Scott Shane is a reporter for The New York Times.

19.

Defendant DOJ is an agency of the federal government that has

possession and control of the records sought by Plaintiffs' FOIL requests.

20.

DOl is the federal agency responsible for enforcing the law and

defending the legal i.nterests of the United States. The Office of Information Policy ("OlP"),

a component entity of DOJ, is responsible for ensuring the agency's compliance with FOIA

requests. The Office of Legal Counsel ("OLC"), a component entity of DOJ, assists the

Attorney General in his function as legal adviser to the President and all executive branch

agencies.

2 1.

DOJ is an agency within the meaning of 5 U.S.C. § 552(t)(l).

FACTS

The Memoranda Underlying The Times's FOIA Requests

22. A central issue in the debate over targeted killings has been the

scope of the government's legal authority to use force against American citizens when

officials have deemed them to be terrorists.

Case 1:11-cv-09336-CM Document 1 Filed 12/20/11 Page 5 of 12

23.

On February 3, 2010, Director of National Intelligence Dennis C.

Blair testified to the House Permanent Select Committee on Intelligence that "we take direct

actions against terrorists in the intelligence community. If we think that direct action will

involve killing an American citi1.en, we get specific permission to do that."

24.

A number of senators, representatives, and government officials -

including both supporters and opponents of the practice - have since urged the Department of

Justice to make public its legal justification for the targeted killing of individuals.

25.

For example, on October 2, 2011, Jane Harman, a former United

States representative and a former ranking member of the House Intelligence Committee,

argued that "targeted killing of anyone should give us pause, and there has to be a legal

framework around doing that. Reports say there is a lengthy memo that the Office of' Legal

Counsel and the Department of Justice has prepared making the case. 1 believe there is a

good case. But I think the Justice Depmtment should release that memo."

26.

Similarly, on October 7, 2011, Senator Dianne Feinstein,

chairwoman of the Senate Select Commitlee on Intelligence, called on the administration to

" make public its legal analysis on its counterterrorism authorities" because "for transparency

and to maintain public support of secret operations, it is important to explain the general

framework for counterterrorism actions."

27.

Senator Carl Levin, chairman of the Senate Armed Services

Committee, has said: "I would urge them to release the memo. I don' t see any reason why

they shouldn' t."

28. Other officials have complained that much of the publicly available

information on targeted kilJing resu lts from off-the-record comments by government officials

Case 1:11-cv-09336-CM Document 1 Filed 12/20/11 Page 6 of 12

reported in the media. As a former United States representative and a former chairman of the

House Select Committee on Intelligence, Peter Hoekstra, has noted: "The targeting of

Americans - it is a very sensitive issue, but again there's been more information in the public

domain than what has been shared with this committee. There is no clarity. Where is the legal

framework?"

29.

Former attorneys for the OLC have also recommended the release of

memoranda detailing the legality of targeted killing.

30.

Jack Goldsmith, a former assistant attorney general who headed the

OLC, has argued that "a legal analysis of the U.S. ability to target and kill enemy combatants

(including U.S. citizens) outside Afghanistan can be disclosed without revealing means or

methods of intelligence-gathering or jeopardizing technical covertness. The public legal

explanation need not say anything about the means of fire (e.g. drones or something else), or

particular countries, or which agencies of the U.S. government are involved, or the

intelligence basis for the attacks... A full legal analysis, as opposed to conclusory

explanations in government speeches and leaks, would permit a robust debate about targeted

killings - especially of U.S. citizens- that is troubling to many people."

31.

Only extremely limited legal analysis has been made available by

government officials with knowledge of the program.

32.

For example, in a speech on March 10, 2010, Harold Koh, legal

adviser of the United States Department of State, assured members of the American Society

of International Law that "it is the considered view of this administration - and it has

cettainly been in my experience during my time as legal adviser- that U.S. targeting

Case 1:11-cv-09336-CM Document 1 Filed 12/20/11 Page 7 of 12
practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war."
33. On September L6, 2011, John 0. Brennan, a senior adviser to President Obama on homeland security and countertenorism, provided similar reassurance: "We will uphold the core values that define us as Americans, and that includes adhering to the rule of law. And when I say 'all our actions,' that includes covert actions, which we undettake under the authorities provided to us by Congress. President Obama has directed that all om actions - even when conducted out of public vjew - remain consistent with our laws and values."
34. Upon information and belief, there exists at least one official OLC memorandum that details the legal argument justifying targeted killing.
35. On September 30, 201 1, the Washington Post described a Department of Justice "secret memorandum authorizing the legal targeting" of al-Awlaki, an American citizen accused of coordinating the Al-Qaeda operations in the Arabicm peninsula. The mticle said that officials refused to disclose the exact legal analysis" such as "how they considered any Fifth Amendment right to due process." It also quoted a "former senior intelligence official" as saying the C.I.A. "would not have killed an American without such a written opinion."
36. On October 8, 2011, The New York Times published an mticle that described the memorandum in greater detail, including the rough timeframe and bureaucratic background in which it had been produced and an outline of some of its legal reasoning.

Case 1:11-cv-09336-CM Document 1 Filed 12/20/11 Page 8 of 12

Mr. Shane's FOIA Request for Memoranda Related to Targeted Killing

37.

On June 11,2010, Mr. Shane had submitted a FOIA request to DOJ

OLC seeking a copy of "all Office of Legal Counsel opinions or memoranda since 2001 that

address the legal status of targeted killings, assassination, or killing of people suspected of

ties to AI-Qaeda or other terrorist groups by employees or contractors of the United States

government."

38.

By letter dated October 27, 2011, DOJ OLC denied Mr. Shane's

request.

39.

The DOJ OLC responded that "insofar as your request pertains to the

Department of Defense," all responsive records were being withheld pursuant to FOIA

Exemption 1, § 552(b)(l) (relating to national defense or foreign policy information properly

classified pursuant to Executive Order No. 13526), FOIA Exemption 3, § 552(b)(3) (relating

to information protected from di.sclosure by statute), and Exemption 5 (§ 552(b)(5) (relating

to information that is privileged).

40.

The DOJ OLC also stated that, to the extent the request sought

documents pertaining to other government agencies, it "neither confim1s nor denies the

existence of the documents described in your request," pursuant to FOIA Exemption 1,

Exemption 3, and Exemption 5.

41.

On November 4, 2011, NYT submitted to DOJ OIP its appeal of the

denial of Mr. Shane's request.

42.

More than twenty days have passed since NYT submitted its

November 4, 2011 administrative appeal to DOJ OIP. NYT has received no further response

to its appeal.

Case 1:11-cv-09336-CM Document 1 Filed 12/20/11 Page 9 of 12

43.

As a result, NYT is deemed to have exhausted its administrative

remedies with regard to Mr. Shane's request.

Mr. Savage's FOIA Request for Memoranda Related to Targeted Killing

44.

On October 7, 20 11 , Mr. Savage submitted a FOIA request DOJ

OLC seeking 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."

45.

By letter dated October 27, 201 1, on the same day Mr. Shane was

sent his denial letter, DOJ OLC also denied Mr. Savage's request.

46.

DOJ OLC stated that it "neither confirms nor denies the existence of

the documents described in your request," pursuant to FOIA Exemption 1, § 552(b)(l)

(relating to national defense or foreign policy information properly classified pursuant to

Executive Order No. 13526), FOIA Exemption 3, § 552(b)(3) (relating to information

protected from disclosure by statute), and Exemption 5 (§ 552(b)(5) (relating to information

that is privileged).

47.

On November 4, 20 11, NYT submitted to DOJ OLP its appeal of the

denial of NYT's request. DOJ OIP adjudicates such appeals, including those made to DOJ

OLC.

48.

More than twenty days have passed since NYT submitted its

November 4, 2011 administrative appeal to DOJ OIP. NYT has received no further response

to its appeal.

Case 1:11-cv-09336-CM Document 1 Filed 12/20/11 Page 10 of 12

49.

As a result, NYT is deemed to have exhausted its administrative

remedi.es with regard to Mr. Savage's request.

CAUSE OF ACTION

50.

NYT repeats, realleges, and incorporates the allegations in the

foregoing paragraphs as though fully set fmth herein.

51.

DOJ, as an agency subject to FOIA, 5 U.S.C. § 552(f), must release

in response to a FOIA request any disclosable records in its possession at the time of the

request and provide a lawful reason for withholding any materials as to which it is claiming

an exemption under 5 U.S.C. § 552(a)(3).

52 .

Upon information and belief, DOJ has possess ion of memoranda

setting forth the government' s analysis of the legality of targeted lethal force, including its

use on American citizens.

53.

Defendant has improperly withheld the memoranda under FOIA.

54.

Memoranda containing legal analysis relied upon by the government

constitute a final determination of policy by the government and therefore m·e not

deliberative materials and not properly subject to Exemption 5.

55.

Memoranda containing only legal analysis fai l to meet the

requirements for properly classified materials under Executive Order No. 13526 or other

legal authority, and therefore Exemptions 1 and 3 do not apply.

56.

Even if parts of the memoranda are properly classified or otherwise

subject to an exemption, DOJ has an obligation to redact non-public pmtions of the

memoranda and release those portions that are public under FOIA.

Case 1:11-cv-09336-CM Document 1 Filed 12/20/11 Page 11 of 12

57.

Defendant's failure to provide the memoranda violates FOIA.

REQUEST FOR RELIEF WHEREFORE, NYT respectfully requests tha~ this Court:
a. Expedite consideration of this Complaint pursuant to 28 U.S.C. § 1657;
b. Declare that the memoranda requested by NYT are public under 5 U.S.C. § 552 and must be disclosed or, in the alternative, conduct an in camera review to determine whether any patts of the memoranda are properly public under FOIA;
c. Order the DOJ to provide the memoranda, or such parts as the Court determines are public under FOIA, to NYT within twenty business days of this Court' s order;
d. Award NYT its costs of this proceeding, including reasonable attorneys' fees, as expressly permitted by FOIA; and

Case 1:11-cv-09336-CM Document 1 Filed 12/20/11 Page 12 of 12
e. Grant NYT such other and further relief as the Cou1t deems just and p ro pe r.

Dated : New York, New York December 20, 20 II

1J _ I r_ L·
David E. McCraw Nabiha Syed (admission pending) Legal Department The New York Times Company 620 8th Avenue - 181h Floor New York, NY 10018 phone: (2 12) 556-4031 fax: (212) 556-1009
mccraw@ nylimes.com
Counsel for Plaintiffs

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------)( THE NEW YORK TIMES COMPANY, CHARLIE SAVAGE, and SCOTT SHANE,

-against-

Plaintiffs,

II Civ. 9336 (CM)

UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

---------------------------------------------------------------)(
AMERICAN CIVIL LIBERTIES UNION and THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
Plaintiffs,

12 Civ. 794 (CM)

-against-
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.

---------------------------------------------------------------)(
CORRECTED OPINION GRANTING THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS' CROSS MOTION FOR SUMMARY JUDGMENT'

1 This final version of the opinion corrects several typographical, grammatical and syntactical errors and expands briefly the discussion of the court's ability (or lack of same) to declassify classified documents. It is substantively identical to the original opinion issued on January 2, 2012. It should be substituted for the original opinion for publication and appellate purposes.

McMahon, J.: INTRODUCTION
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-inWonderland nature ofthis 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
THE FOIA REQUESTS I. The New York Times' FOIA Requests
A. The Shane Request 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. (Declaration of John E. Bies ("Bies Decl."), Ex. A.) As a member of the news media, Shane sought expedited processing of his request. (/d.) On October 27, 2011, OLC denied Shane's request. (/d., Ex. B.) Citing FOIA Exemptions 1, 3, and 5, OLC withheld all responsive records pertaining to the Department of Defense ("DoD"). (/d.) 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." (/d.)
2 The final draft of this unclassified opinion was provided to the FBI several days ago, in order to give the Government an opportunity to object to the disclosure of any classified information that may have inadvertently found its way into this document.

On November 4, 2011, the Times appealed OLC's denial to the Director ofDoJ's Office oflnformation Policy ("OIP"). (Declaration ofNabiha Syed ("Syed Decl."), Ex. E.) OIP did not respond within twenty days, as required by Section 552(a)(6)(ii) ofFOIA. (!d.~ 8.)
B. The Savage Request 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 AI-Awlaki, a United States citizen who has been accused of being an 'operational' terrorist with the group AIQaeda in the Arabian Peninsula." (!d.) 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 ofOIP 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) ofFOIA. (!d.,~ 8.) Shane, Savage, and the Times (together, the "Times Plaintiffs") filed suit on December 20,2011. II. The ACLU's FOIA Request On October 19,2011, the ACLU addressed a F01A request to various components ofDoJ 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):

I. Records pertaining to the legal basis in domestic, foreign, and
international law upon which US citizens can be subjected to targeted killings.

2. Records pertaining to the process by which US 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 alAwlaki.
5. All records pertaining to the factual basis for the targeted killing of Samir Khan.
6. All records pertammg 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 blanket Glomar response. (/d., Ex. F.) The ACLU appealed this denial, to no avail. (ACLU Memo. in Support/Opp'n. at 5.)
The ACLU filed suit on February 1, 2012. III. Subsequent Modification of Initial Responses Since these cases were filed, senior executive branch officials have publicly addressed "significant legal and policy issues pertaining to U.S. counterterrorism operations and the potential use of lethal force by the U.S. government against senior operational leaders of alQa'ida or associate forces who have U.S. citizenship." (Declaration of John Bennett ("Bennett Decl."), ~ 17.) Those public statements will be discussed fulsomely below. For the moment, it is enough to say that, as a result of these statements, the Government decided it was in a position to modify its previous responses to Plaintiffs' requests. The modification consisted, in essence, of admitting that various agencies had documents pertaining to those speeches and other public comments, including: (1) the text of a March 5, 2012 speech delivered by Attorney General Eric Holder at Northwestern University School of Law (the "Northwestern Speech") (Declaration of Douglas R. Hibbard ("Hibbard Decl."), Ex. E (OIP));3 (2) the text of a February 22, 2012 "Dean's Lecture" delivered by DoD General Counsel Jeh Johnson at Yale Law School (the "Yale Dean's Lecture") (Declaration ofRobert R. Neller ("Neller Decl."), Ex. I (DoD));4 and (3) a set of talking points "prepared for the use of the Attorney General and others in addressing hypothetical questions about Anwar al-Aulaqi's death" (Hibbard Decl. ~ 8, Ex. C).
3 Available at http://www.cfr.org/terrorisrn-and-the-law/holders-speech-targeted-killing-rnarch-20 12/p27562. 4 Available at http://www.cfr.orglnational-security-and-defense/jeh-johnsons-speech-national-security-law-lawyerslawyering-obarna-adrnin istration/p27448.

At the same time, OLC (Bies Decl., Ex. 1), DoD (Neller Decl., Ex. J), and OIP (Hibbard Decl., Ex. F) produced three Vaughn indices, listing unclassified documents that were being withheld by OLC, DoD, and OIP pursuant to the deliberative, attorney-client, and/or presidential communications privileges enshrined in FOIA Exemption 5.
The CIA, which was also a recipient of the ACLU's FOIA request, acknowledged that it had a "general interest" in (1) "the legal basis ... upon which U.S. citizens can be subjected to targeted killing" and (2) "the process by which U.S. citizens can be designated for targeted killing." (Bennett Decl. ~ 27.) The Agency also identified two documents in its records that reflected this "general interest" and were responsive to the ACLU's request: (1) the text ofthe Northwestern speech and (2) the text of an April 30, 2012 speech entitled "The Ethics and Efficacy of the President's Counterterrorism Strategy," which was delivered by Assistant to the President for Homeland Security and Counterterrorism John 0. Brennan at the Woodrow Wilson International Center for Scholars (the "Ethics and Efficacy Speech").5 (ld.)
None of these disclosures added anything to the public record. Although it was not the recipient of either the Savage or the Shane requests, the CIA revealed that it was asking OLC, on its behalf, to assert a Glomar response with respect to certain documents that, if they existed in CIA or other agency files, would implicate "CIA equities." (Bennett Decl. ~~ 61-62.) The CIA carved out a limited exception to its Glomar response to the Shane request; it represented that it had in its files no legal opinions responsive to the request that addressed CIA involvement in the operation that resulted in the death of Osama Bin Laden. (!d. at~ 64)
5 Available at http://www.cfr.org/counterterrorism/brennans-speech-counterterrorism-april-20 l2/p28l 00.

However, DoD and OLC admitted the existence of one classified legal opinion that was not listed on either agency's Vaughn index; this document is "responsive to the Shane and Savage requests." (Bies Decl. ~ 30; Neller Decl. ~ 17.) The OLC represents that its opinion "contains confidential legal advice to the Attorney General, for his use in interagency deliberations, regarding a potential military operation in a foreign country," (Bies Decl. ~ 30.), and so excepts to disclosure of the document. DoD also excepts to disclosure of this document (though it was apparently not prepared for or directed to the Defense Department), on the ground that the legal opinion contains "information about military operations, intelligence sources and methods, foreign government information, foreign relations, and foreign activities." (Neller Decl. ~ 17.) The document (which I shall refer to as the "OLC-DoD Memo") was withheld as classified and privileged pursuant to Exemptions 1, 3, and 5. (Bies Decl. ~~ 30, 38, 45; Neller Decl. ~ 17.)
Finally, the Government partially superseded its original Glomar responses (neither confirming nor denying that any responsive documents exist) with so-called "No Number, No List" responses pursuant to Exemptions 1 and 3. These are responses in which the agencies admitted that responsive records existed, but would not provide any information about the number or nature of those records, on the grounds that such identifying information was itself classified. (See Declaration of John F. Hackett ("Hackett Decl."), ~~ 21-28 (DoJ); Bies Decl., ~ 38 (OLC); Neller Decl., ~~ 25-26 (DoD); Bennett Decl., ~~ 27-37 (CIA); Hibbard Decl., ,[8. (OIP). The No Number, No List responses apply to both the ACLU and the Times' requests. As noted above, the CIA has maintained its Glomar response to the Shane and Savage requests, so its No Number, No List response is necessarily limited. (See Bennett Decl. ~~ 61-65.)
HISTORY BEHIND THE FOIA REQUESTS AT ISSUE HERE

Following the destruction of the World Trade Center and the targeting of the Pentagon by a group ofterrorists affiliated with the organization known as Al-Qaeda on September 11, 2001, Congress passed a resolution entitled "Authorization for the Use of Military Force" ("AUMF"), which empowers the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Pub. L. No. 107-40, 115 Stat. 224 (2001 ). Ever since, the United States has been engaged in an exercise known colloquially as the "War on Terror," which is dedicated principally to the eradication of Al-Qaeda.
The primary field of battle in that war has been Afghanistan, where Al-Qaeda was sheltered and nurtured for many years, and from which the group's now-dead leader, Osama Bin Laden, ordered and directed the 9/11 mission. The United States military has been engaged in that country since the fall of2001 and continues its combat mission to this day.
However, as part of that same effort, the United States has pursued members of Al-Qaeda and affiliated groups elsewhere in the world, both in the adjacent country of Pakistan and far from any "hot" battlefield. In recent years, it has targeted a number of such individuals for death and killed them, using both armed forces and unpiloted, remotely controlled precision aircraft known as "drones." The Obama Administration has publicly admitted that the Government is engaged in such operations:
So let me say it as simply as I can. Yes, in full accordance with the law - and in order to prevent terrorist attacks on the United States and to save American lives the United States Government conducts targeted strikes against specific a1-Qa'ida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones.

John 0. Brennan, Ethics and Efficacy Speech (Apr. 30, 2012).
Al-Qaeda operative Anwar Al-Awlaki was killed in late 2011. Speaking on September
30, 2011, the day of Al-Awlaki's death, at the "Change of Office" Chairman ofthe Joint Chiefs
of Staff Ceremony in Fort Myer, Virginia, President Obama described Al-Awlaki as follows:
Awlaki was the leader of external operations for al Qaeda in the Arabian Peninsula. In that role, he took the lead in planning and directing efforts to murder innocent Americans. He directed the failed attempt to blow up an airplane on Christmas Day in 2009. He directed the failed attempt to blow up U.S. cargo planes in 2010. And he repeatedly called on individuals in the United States and around the globe to kill innocent men, women and children to advance a murderous agenda.6
At the time of his death, Al-Awlaki was not in or near the field of battle in Afghanistan, where
active military operations were taking place. He was located about 1500 miles from Afghanistan,
in Yemen, a country with which the United States is not at war (indeed, which the United States
counts as an ally).
Killed with Al-Awlaki was an individual named Samir Khan. Al-Awlaki's teenaged son,
Abdulrahman Al-Awlaki, was killed in a separate strike in Yemen, on October 14,2011. Al-Awlaki, his son, and Khan were all United States citizens.7
The President and the Secretary of Defense (who was formerly the CIA Director) have
publicly acknowledged that the United States in fact had a role in Al-Awlaki's death. Neither the
President nor the Secretary of Defense has identified precisely who (other than the President)
was involved in Al-Awlaki's death, including what agencies or departments may have
participated in the operation that killed him or how they were involved; neither have they
provided any operational details of the killings. The Court is unaware of any public statements
6 Available at http://www.whitehouse.gov/the-press-office/2011/09/30/remarks-president-change-office-chairmanjoint -chiefs-staff-ceremony. 7 Al-Awlaki and his son were born in the United States and held dual United States and Yemeni citizenship. Khan was of Pakistani origin and a naturalized United States citizen.

by named, current executive branch officials that discuss or acknowledge responsibility for, or participation in, the killings of Khan or Al-Awlaki's son.
The various public statements that have been made about the Al-Awlaki killing, and about targeted killings generally, will be discussed in detail later. They reveal (or seem to reveal) that the decision to target a United States citizen for death is made by the President on the recommendation of senior Government officials - although the identity of the officials who made any such recommendation (if one was made) with respect to Al-Awlaki, Khan, or the child has not been publicly revealed. According to the Attorney General of the United States and other senior Executive Branch officials, these decisions are made pursuant to a process that is constitutionally and statutorily compliant In particular, Government officials insist that a United States citizen can be targeted by the Executive Branch and still be accorded due process of law.
The Government's vociferous insistence that its decisions to kill United States citizens are lawful, and most especially its references to due process, may seem odd in the context of war- although there is and long has been robust debate about what to call the anti-Al-Qaeda operation, and whether anti-terrorist operations in countries other than Afghanistan and adjacent territory in Pakistan can fairly or legally be classified as a war. See, e.g., Mark V. Vlasic, Assassination and Targeted Killing- A Historical and Post-Bin Laden Legal Analysis, 43 Geo. J. Int'l L. 259 (20 12); Afsheen John Radsan & Richard Murphy, The Evolution ofLaw and Policy for CIA Targeted Killing, 5 J. Nat'l Security L. & Pol'y 439 (2012); LaurieR. Blank, Defining the Battlefield in Contemporary Conflict and Counterterrorism: Understanding the Parameters ofthe Zone ofConflict, 39 Ga. J. Int'l & Comp. L. 1 (2010). However, even ifthere were no such debate, it is not surprising that the Government feels somewhat defensive. Some Americans question the power of the Executive to make a unilateral and unreviewable decision

to kill an American citizen who is not actively engaged in armed combat operations against this country. Their concern rests on the text of the Constitution and several federal statutes, and is of a piece with concerns harbored by the Framers of our unique form of Government.
CONSTITUTIONAL AND STATUTORY CONCERNS ABOUT TARGETED KILLINGS As they gathered to draft a Constitution for their newly liberated country, the Founders fresh from a war of independence from the rule of a King they styled a tyrant- were fearful of concentrating power in the hands of any single person or institution, and most particularly in the executive. That concern was described by James Madison in Federalist No. 47 (1788): The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.... The magistrate in whom the whole executive power resides cannot of himself ... administer justice in person, though he has the appointment of those who do administer it. Madison's statements echoed those of the great French philosopher Montesquieu, who wrote, in his seminal work The Spirit ofthe Laws (1748): "Were [the power of judging] joined to the executive power, the judge might behave with all the violence of an oppressor." The Framers took steps to address their fear in the document they drafted. In particular, the Fifth Amendment to the Constitution provides that no person shall be "deprived of life ... without due process of law." The words "due process of law" are not further defined in the Constitution, or in the Bill of Rights. However, "The first, central, and largely uncontroversial meaning of 'due process of law,' the meaning established in Magna Charta and applied vigorously by Coke against the first two Stuart Kings, was that the executive may not ... restrain the liberty of a person within the realm without legal authority arising either from established common law or from statute. In other words, executive decrees are not 'law."' Nathan S.

Chapman & Michael W. McConnell, Due Process as Separation ofPowers, 121 Yale L.J. 1672, 1782 (20 12). In the early days of the Republic, the United States Supreme Court endorsed this understanding: "The words 'due process oflaw,' were undoubtedly intended to convey the same meaning as the words, 'by the law of the land,' in Magna Charta," Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272,276 (1855).
Outside the criminal law context, the phrase has come to mean that no person can be aggrieved by action of the Government without first being given notice of the proposed action and an opportunity to be heard:
An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of action and afford them an opportunity to present their objections. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). When a person is accused of committing a crime, and the Government has the power, upon conviction, to deprive him of life or liberty, the particular rights enumerated in the Fifth and Sixth Amendments (ranging from the right to indictment to the right to counsel) are recognized as setting the minimum guarantee of the Due Process Clause. To at least one Founder, Alexander Hamilton, "the words 'due process' have a precise technical import, and are only applicable to the process and proceedings of the courts ofjustice." Alexander Hamilton, Remarks on an Act for Regulating Elections, New York Assembly, 6 Feb. 1787, in 4 Papers ofAlexander Hamilton 34, 35 (Harold C. Syrett ed., 1962). As due process in the context of regulatory action extends to actions taken by the Executive Branch, rather than the courts, it would seem that the narrow Hamiltonian view of "due process" has long since been rejected. However, the concept of due process of law has never been understood to apply to combatants on the battlefield actively engaged in armed combat against the United States. Cf

Hamdi v. Rumsfeld, 542 U.S. 507, 531 (2004) ("[T]he law of war and the realities of combat may render [military detention of enemy combatants] both necessary and appropriate, and our due process analysis need not blink at those realities.") (O'Connor, J.). Indeed, during the American Civil War, hundreds ofthousands of persons recognized by the United States Government as American citizens, who were engaged in armed rebellion against the country, were killed in
·.
battle without any suggestion that their due process rights were being violated.
The activities in which Al-Awlaki is alleged to have engaged violate United States law. Specifically, they constitute treason as defined in the Constitution (Art. 3, Section 3) and 18 U.S.C. § 2381, which provide:
Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort with the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years, and fined under this title .... If the War on Terror is indeed a war declared by Congress pursuant to its constitutional power, and if Al-Awlaki was a combatant in that war, then he was a traitor. Even if he was not a combatant levying war against his country, but instead gave aid and comfort to enemies of the United States (such as Al-Qaeda), he was a traitor. Indeed, Al-Awlaki could arguably have committed treason if all he did was encourage others to engage in attacks on the United States; it was settled during and after World War II that activities like broadcasting messages that gave aid and comfort to an enemy of the United States (by, for example, encouraging soldiers to desert, or telling them that their cause was lost) were treasonable. See, e.g., D 'Aquino v. United States, 192 F.2d 338 (9th Cir. 1951); Gillars v. United States, 182 F.2d 962 (D.C. Cir. 1950); Chandler v.

United States, 171 F.2d 921 (1st Cir. 1948). And if Al-Awlaki was actually planning some sort of attack on the United States or its facilities or citizens, he was a traitor.8
The Framers who were themselves susceptible to being hanged as traitors by the King of England during the Revolutionary War were as leery of accusations of treason as they were of concentrating power in the hands of a single person or institution. As a result, the Constitution accords special protections to those accused of this most heinous of capital crimes; Article 3, Sec. 3 sets the procedural safeguard that, "No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."
Interestingly, the Treason Clause appears in the Article of the Constitution concerning the Judiciary- not in Article 2, which defines the powers of the Executive Branch. This suggests that the Founders contemplated that traitors would be dealt with by the courts of law, not by unilateral action of the Executive. As no less a constitutional authority than Justice Antonin Scalia noted, in his dissenting opinion in Hamdi, 542 U.S. at 554, "Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime." See also Carlton F.W. Larson, The Forgotten Constitutional Law ofTreason and the Enemy Combatant Problem, 154 U. Pa. L. Rev. 863
(2006). Assuming arguendo that in certain circumstances the Executive power extends to killing
without trial a citizen who, while not actively engaged in armed combat against the United
MHe may also have been acting in violation of any number of other laws, including, inter alia, conspiracy to commit racketeering acts in violation of 18 U.S.C. § 1962(d); conspiracy to use weapons of mass destruction in violation of 18 U.S.C. § 2332a(a); conspiracy to commit acts of terrorism transcending national boundaries in violation of 18 U.S.C. § 2332b(a)(2); and/or conspiracy to provide material support to terrorists and/or foreign terrorist organizations in violation of 18 U.S.C. §§ 2339A(a), 2339B(a). The anti-terrorism statutes are of particular importance; entirely too few Americans know that it violates domestic U.S. law to c?rnmit o~ con~p~r~ to commit acts of terrorism like those assigned to AI Awlaki in public comments made about htm and hts actiVlttes. Those activities are, by Act of Congress, crimes.

States, has engaged or is engaging in treasonous acts, it is still subject to any constraints legislated by Congress. One such constraint might be found in 18 U.S.C. § 1119, which is entitled "Foreign murder of United States nationals." This law, passed in 1994, makes it a crime for a "national of the United States" to "kill[] or attempt[] to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country." The statute contains no exemption for the President (who is, obviously, a national of the United States) or anyone acting at his direction. At least one commentator has suggested that the targeted killing of Al-Awlaki (assuming it was perpetrated by the Government) constituted a violation of the foreign murder statute. Philip Dore, Greenlighting American Citizens: Proceed with Caution, 72 La. L. Rev. 255 (2011).
There are even statutory constraints on the President's ability to authorize covert activity. 50 U.S.C. §413b, the post-World War II statute that allows the President to authorize covert operations after making certain findings, provides in no uncertain terms that such a finding "may not authorize any action that would violate the Constitution or any statute of the United States." 50 U.S.C. § 413b(a)(5). Presidential authorization does not and cannot legitimize covert action that violates the constitution and laws of this nation.
So there are indeed legitimate reasons, historical and legal, to question the legality of killings unilaterally authorized by the Executive that take place otherwise than on a "hot" field of battle. Which is not to say that the matter is straightforward. It is not. The literal language of the Fifth Amendment, the Treason Clause, and the cited statutes notwithstanding, the Administration obviously believes that it acted lawfully in connection with the killing of Al-Awlaki (and, presumably, of Khan and the child). It has gone so far as to mount an extensive public relations campaign in order to convince the public that its conclusions are correct.

PUBLIC STATEMENTS BY SENIOR OFFICIALS ABOUT TARGETED KILLINGS
Plaintiffs have brought to the Court's attention at least two dozen public statements made by senior executive branch officials with respect to the Government's targeted killing program. Plaintiffs' vigilance is unsurprising. Because the records that Plaintiffs seek are largely classified, their case consists largely of the argument that, by making these statements, the Administration has waived the right to rely on FOIA exemptions for classified and privileged materials. Accordingly, the Court finds it fitting to discuss at some length the most significant of
I. State Department Legal Adviser Harold Koh: American Society of International Law On March 25, 2010, State Department Legal Adviser Harold Koh addressed the Annual
Meeting of the American Society oflnternational Law in Washington, DC. 10 With respect to the subject of targeted killings, Mr. Koh pledged the Obama
Administration's commitment to carrying out such operations in accordance with "all applicable law, including the laws of war." He also emphasized that such operations do not constitute unlawful extrajudicial killings or assassinations because "a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force."
9 Other public statements submitted by Plaintiffs include: John Brennan's September 16, 2011 remarks at Harvard Law School, available at http://www.cfr.org/counterterrorism/brennans-remarks-counterterrorism-september20ll/p27572; CIA General Counsel Stephen Preston's April 10, 2012 remarks at Harvard Law School, available at http://www.cfr.org/rule-of-law/cia-general-counsel-stephen-prestons-remarks-rule-law-apri\-20 l2/p27912; and CNN correspondent Jessica Yellin's September 5, 2012 interview of President Obama, available at http:/Isecurity.blogs.cnn.com/20 12/09/05/obama-reflects-on-drone-warfare/. 10 Available at http://www.cfr.org/international-law/Jegal-adviser-kohs-speech-obama-administration-internationallaw-march-20 1O/p223QQ.

Mr. Koh assured the audience that the Government's "procedures and practices for identifying lawful targets are extremely robust." He announced that the principles of distinction and proportionality enshrined in the law of war are not mere window dressing, but are "implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law." II. President Barack Obama: Google+ Hangout
On January 30, 2012, President Obama took part in a so-called "Google+ Hangout," in which he fielded questions from online participants. 11
In response to a question about the Government's targeted killing program, President Obama, like Mr. Koh, did not deny that such a program existed. Instead, he emphasized that the Government is "very careful in terms of how it's been applied" and does not carry out such operations "willy-nilly." Instead, the program is a "targeted, focused effort at people who are on a list of active terrorists who are trying to go in and harm Americans, hit American facilities, American bases, and so on."
President Obama urged that the program is "kept on a very tight leash" and is not "a bunch of folks in a room somewhere just making decisions." Rather, it is "part and parcel of our overall authority when it comes to battling al-Qaeda. It is not something that is being used beyond that." He insisted that the Government was "judicious" in its use of drones.
Finally, President Obama emphasized that the Government's "ability to respect the sovereignty of other countries and to limit our incursions into somebody else's territory is enhanced by the fact that we are able to pinpoint strike an al-Qaeda operative in a place where the capacities of that military and that country may not be able to get to them."
11 Available at http://www. whitehouse.gov/photos-and-video/video/20 12/01 /30/president-obama-s-google-hangout.

III. DoD General Counsel Jeh Johnson: The Yale Dean's Lecture On February 22, 2012, DoD General Counsel Jeh Johnson delivered the Dean's Lecture
at the Yale Law School. The purpose of the speech was to summarize "some of the basic legal principles that form the basis for the U.S. military's counterterrorism efforts against AI·Qaeda and its associated forces." The speech identified six such principles.
First, Mr. Johnson noted that "in the conflict against an unconventional enemy such as al Qaeda, we must consistently apply conventional legal principles"- e.g., "the law of armed conflict, including applicable provisions of the Geneva Conventions and customary international law, core principles of distinction and proportionality, historic precedent, and traditional principles of [domestic] statutory construction."
Second, Mr. Johnson asserted that the "bedrock of the military's domestic legal authority" in the conflict against al-Qaeda and associated forces remains the AUMF, which was passed by Congress immediately following the attacks of September 11, 2001. Mr. Johnson emphasized that neither the AUMF nor the term "associated forces" is "open-ended." He insisted that the AUMF "does not authorize military force against anyone the Executive labels a 'terrorist. "'12 Instead, "it encompasses only those groups or people with a link to the terrorist attacks on 9/11, or associated forces." He defined an associated force as an (1) "organized, armed group that has entered the fight alongside al Qaeda" who is (2) "a co-belligerent with al Qaeda in hostilities against the United States or its coalition partners."
12 Mr. Johnson recently reemphasized this point, in a speech given at the Oxford Union on November 30, 2012, when he said that "Our enemy does not include anyone solely in the category of activist, journalist, or propagandist. Nor does our enemy in this armed conflict include a 'lone wolf who, inspired by al Qaeda's ideology, selfradicalizes in the basement of his own home, without ever actually becoming part of a\ Qaeda. Such persons are dangerous, but are a matter for civilian law enforcement, not the military, because they are not part of the enemy force." Available at http://www.lawfareblog.com/20 12/11/jeh-johnson-speech-at-the-oxford-unionl#_ftn9.

Third, Mr. Johnson noted that the AUMF does not restrict the use of force to the "hot"
battlefields of Afghanistan. Rather, the "AUMF authorized the use of necessary and appropriate
force against the organizations and persons connected to the September 11th attacks- al Qaeda and the Taliban- without a geographic limitation." However, "International legal principles, including respect for a state's sovereignty and the laws of war, impose important limits on our ability to act unilaterally, and on the way in which we can use force in foreign territories."
Fourth, explicitly echoing Mr. Koh's comments on targeted killing, Mr. Johnson stated that, under "well-settled legal principles, lethal force against a valid military objective, in an armed conflict, is consistent with the law of war and does not, by definition, constitute an 'assassination."'
Fifth, citing Ex Parte Quirin, 317 U.S. 1 (1942) and Hamdi, Mr. Johnson posited that "belligerents who also happen to be U.S. citizens do not enjoy immunity where non-citizen belligerents are valid military objectives."13
Sixth, Mr. Johnson argued that "targeting decisions are not appropriate for submission to a court" because "they are core functions of the Executive Branch, and often require real-time decisions based on an evolving intelligence picture that only the Executive Branch may timely possess." 14 IV. Attorney General Eric Holder: The Northwestern Speech
13 Both Quirin and Hamdi involved individuals who were in United States custody. Quirin remains the lone case upholding the right to try a United States citizen before a military commission; it said nothing at all about killing a United States citizen without any sort of trial. Hamdi addressed the right of a United States citizen detained in the United States as an enemy combatant to challenge his confinement via habeas corpus. Again, there was no suggestion that Mr. Hamdi was to be executed without some kind of trial. 14 Obviously the courts are in no position to decide who should or should not be targeted for any sort of action, military or judicial. In this country, courts are not investigative bodies and do not decide whom to prosecute; that i.s the prerogative of the Executive. Courts exist to afford due process of law to those who are accused by the Execut1ve of violating the law.

The most fulsome discussion to date of the legal basis for the Government's targeted killing program is Attorney General Holder's Northwestern Speech on March 5, 2012. (Hibbard Decl., Ex. E.) The public statements that preceded this speech contain bits and pieces of the presentation that the Attorney General made at Northwestern, so in essence, the Northwestern Speech is Plaintiffs' case.
The relevant passages of the Northwestern Speech are dedicated to supporting the Government's conclusion that, under the appropriate conditions, it is lawful for the Government to "us[e] lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans."
The Attorney General noted that "Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it's clear that United States citizenship alone does not make such individuals immune from being targeted." 15 Nevertheless, where United States citizens are concerned, there are certain "constitutional considerations" in play, "the most relevant [of which] is the Fifth Amendment's Due Process Clause."16
"[T]he Supreme Court has made clear that the Due Process Clause ... mandates procedural safeguards that depend on specific circumstances." The Attorney General then invoked the Supreme Court's "balancing approach, [which] weigh[s] the private interest that will be affected against the interest the government is trying to protect, and the burdens the
15 This is most likely a reference to Quirin and Hamdi, the two cases referenced by Mr. Johnson in the Yale Dean's Lecture. 16 The Attorney General mentions no other relevant constitutional provisions, notably the Treason Clause, which by definition can apply only to United States Citizens.

government would face in providing additional process," 17 also noting that "Where national security operations are at stake, due process takes into account the realities of combat." 18
Without explicitly tying it to the concept of due process of law, the Attorney General then laid out the three-part test that the Government employs in making the determination that a United States citizen may be targeted for death: First, the individual must pose an imminent threat of violent attack against the United States. Second, capture must not be feasible. Third, the operation to kill the individual must be conducted in a manner consistent with the law of war.
With respect to the imminence requirement, the Government's analysis "incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States." Because terrorist organizations do not operate like conventional military forces, and tend to strike without warning, "the Constitution does not require the President to delay action until some theoretical end-stage of planning when the precise time, place, and manner of an attack become clear." 19
With respect to the requirement that capturing the plotter be unfeasible, the analysis is "fact-specific," and often "time-sensitive." "It may depend on, among other things, whether capture can be accomplished in the window of time available to prevent an attack and without undue risk to civilians or to U.S. personnel."
17 These references to the tailored nature of due process protections and the Supreme Court's balancing test are most likely references to Mathews v. Eldridge, 424 U.S. 319 (1976) and its progeny. 18 Another likely reference to Hamdi. 19 This appears to be an effort to distinguish the Executive's power to take action against a potential terrorist threat by al Qaeda or associated forces from, say, an effort to prosecute garden variety conspiracies, most of which according to the standard jury instruction- must go past the "talking" stage and encompass the perfor~ance of some sort of overt act in order to become criminal. See United States v. Wallace, 85 F. 3d 1063, 1068 (2d C1r. 1996).

With respect to the law of war requirement, the Government ensures that any use of lethal force complies with four governing principles: necessity, distinction, proportionality, and humanity. Under the principle of necessity, the target must have "definite military value." The principle of distinction dictates that only "lawful targets" (e.g., combatants, civilians directly participating in hostilities, and military objectives) may be "targeted intentionally." A military operation comports with the principle of proportionality if"the anticipated collateral damage [is] not ... excessive in relation to the anticipated military advantage." Finally, in accordance with the principle of humanity, the Government may only use weapons that "will not inflict unnecessary suffering."
The Northwestern Speech also mentions that there are limitations imposed by international law that constrain the Government's ability to act unilaterally abroad, such as the principle of territorial sovereignty. However, "the use of force in foreign territory would be consistent with ... international legal principles if conducted, for example, with the consent of the nation involved- or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States."20
The Northwestern Speech also summarizes the Government's argument for why targeted killings of US citizens do not constitute "assassinations." The argument boils down to a syllogism: assassinations are unlawful killings; the killings at issue here are not unlawful, therefore they cannot possibly be assassinations. What makes it lawful to engage in the targeted killing of U.S. citizens abroad is apparently a combination of: (1) Congressional authorization "to use all necessary and appropriate force against [Al-Qaeda, the Taliban, and associated forces]" in the wake of the attacks of September 11, 2001 (emphasis added); (2) the right under
20 Apparently, a reference to a so-called ''failed state," like, for example, Somalia.

international law to "take action against enemy belligerents" in times of armed conflict; (3) the
President's power under the Constitution "to protect the nation from any imminent threat of violent attack;"21 and (4) the inherent right of national self-defense enshrined in international law.
Finally, the Northwestern Speech explains that the "due process" guaranteed by the Fifth Amendment does not equate to "judicial process." Mr. Holder admitted that, "The Constitution's guarantee of due process is ironclad, and it is essential - but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war -even if that individual happens to be a U.S. citizen." Holder did not identify which recent court decisions so held.22 Nor did he explain exactly what process was given to the victims of targeted killings at locations far from "hot" battlefields, other than Executive consideration of the factors discussed above (i.e., the individual is believed to pose an "imminent threat" to the country and
cannot feasibly be captured).
21 Actually, the President's oath of office- which appears in the text of the Constitution itself, at Art. 2, Sec. I, Cl. 8 -requires him to promise that he will faithfully execute his office and "preserve, protect and defend the Constitution of the United States" not the territory of the United States, and not the people of the United States. It seems that the Founders subscribed to the notion that, as long as the President looked out for the Constitution, the country would be safe. 22 Although Mr. Holder did not identify any such decisions, one likely candidate is Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010), which is, ironically, the case in which Al-Awlaki's father sued in federal court in the District of Columbia to get AI-Awlaki taken off the Government's kill list. His case was dismissed for lack of standing. The passage upon which the Attorney General most likely relied is the following: "Here, plaintiff asks this Court to do exactly what the D.C. Circuit forbid in El-Shifa- assess the merits of the President's (alleged) decision to launch an attack on a foreign target. Although the 'foreign target' happens to be a U.S. citizen, the same reasons that counseled against judicial resolution ofthe plaintiffs' claims in El-Shifa apply with equal force here." !d. at 47 (citing El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836 (D.C. Cir. 20 I0)).

V. Assistant to the President for Homeland Security and Counterterrorism John 0. Brennan: The Ethics and Efficacy Speech On April 30, 2012, Assistant to the President for Homeland Security and
Counterterrorism John 0. Brennan delivered the Ethics and Efficacy Address at the Woodrow Wilson International Center for Scholars in Washington, DC.
Mr. Brennan began the relevant portion of his remarks by stating plainly that "Yes, in full accordance with the law and in order to prevent terrorist attacks on the United States and to save American lives the United States Government conducts targeted strikes against specific al-Qa'ida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones." Mr. Brennan identified the purpose of his speech as, per President Obama's instructions, "to be more open with the American people about these efforts."
Explicitly echoing the Attorney General, Mr. Koh, and Mr. Johnson, Mr. Brennan also asserted the legality of targeted strikes as a matter of both domestic and international law. He argued that Article II of the Constitution and the AUMF empowered the President to engage in targeted drone strikes against "those nations, organizations, and individuals responsible for 9111." Under international law, such operations would be consistent with the "inherent right of national self-defense," including when conducted "outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat."
Mr. Brennan also argued that targeted strikes are ethical under the law of war. Like the Attorney General, Mr. Brennan emphasized that drone strikes comport with the fundamental law ofwar principles of necessity, distinction, proportionality, and humanity.

SPECIFIC PUBLIC DISCUSSION OF THE KILLING OF ANWAR AL-AWLAKI
The speeches discussed above deal with targeted killings generally in the context of the
War on Terror. The ACLU Plaintiffs have also called the Court's attention to a number of public
statements made by President Obama and Secretary of Defense (and former Director of the CIA)
Leon Panetta that address the killing of Anwar Al-Awlaki.
Anwar Al-Awlaki was killed on September 30, 2011. Approximately a year and a half
earlier, on March 26, 2010, then-CIA Director Panetta was quoted in a Wall Street Journal
article, saying that "[Anwar Al-Awlaki is] clearly someone we're looking for .... There isn't any question that he's one of the individuals we're focusing on."23 (Wicker Decl., Ex. 21.)
The day Al-Awlaki was killed, the Armed Forces Press Service, a component of DoD,
published an item on the DoD website with the headline "Panetta: Awlaki Airstrike Shows U.S.Yemeni Cooperation."24 (Wicker Decl., Ex. 14.) The article was based on a press conference that
had been held earlier in the day, at which Secretary Panetta stated:
Well, this has been a bad year for terrorists. You know, we- we just have seen a major blow another major blow to al-Qaida, someone who was truly an operational arm of al-Qaida in this node of Yemen. And, you know, we had always had tremendous concern that after getting bin Laden, that someone like Awlaki was a primary target because of his continuing efforts to plan attacks against the United States....
As far as the operational elements here, I'm not going to speak to those except to say that we've been working with the Yemenis over a long period of time to be able to target Awlaki, and I want to congratulate them on their efforts, their intelligence assistance, their operational assistance to get this job done.25
(Wicker Decl., 22.)
23 Keith Johnson, U.S. Seeks Cleric Backing Jihad, W.S.J., Mar. 26, 2010, available at http://online.wsj.com/article/SB 1000 l42405:2748704094104575144122756537604.html. 24 Available at http://W.\VW.defense.gov/news/newsartic1e.aspx?id=65512. 25 Available at http://www.defense.gov/transcripts/transcript.aspx?transcriptid=4890.

President Obama also addressed the killing of Al-Awlaki on September 30. Speaking at the "Change of Office" Ceremony for the outgoing and incoming Chairmen of the Joint Chiefs of Staff, President Obarna stated that the killing of Al-Awlaki was a "significant milestone" and "a tribute to our intelligence community."26 (Normand Decl., Ex. H.) A few weeks later, President Obama appeared on "The Tonight Show with Jay Leno" on October 25 and was asked about Anwar Al-Awlaki. The President replied that Al-Awlaki "was probably the most important al Qaeda threat that was out there after bin Laden was taken out, and it was important that, working with the Yemenis, we were able to remove him from the field.'.27 (Wicker Decl., Ex. 5) (emphasis added.)
In January 2012, Secretary Panetta appeared on the CBS program "60 Minutes," where he was again asked to discuss Al-Awlaki's killing and the legal basis for it.28 (Wicker Decl. ~ 14.) The interviewer, Scott Pelley ("Pelley"), said to Secretary Panetta, "You killed Al-Awlaki"; Secretary Panetta nodded affirmatively. (!d.) Pelley then engaged in the following exchange with Secretary Panetta about the legal authority to kill U.S. citizens suspected of being terrorists:
Pelley: So it's the requirement of the administration under the current legal understanding that the President has to make that declaration? Secretary Panetta: That is correct. Pelley: Not you? Secretary Panetta: That's correct. Pelley: Only the President can decide?
26 Available at http://www.whitehouse.gov/the-press-office/20 11 /09/30/remarks-president-change-office-chainnanjoint-chiefs-staff-ceremony. 27 Available at http://news.yahoo.com/transcript-president-obamas-interview-tonight-show-jay-leno003505288.html. 28 Available at http://www.cbsnews.com/video/watch/?id=7396830n.

Secretary Panetta: Well, it's a recommendation we make, it's a recommendation the CIA director makes in my prior role, but in the end when it comes to going after someone like that, the President of the United States has to sign off. (Id.)
DISCUSSION I. Standard of Review
Summary judgment is the typical means for disposing of cases challenging a Government's agency's FOIA response. See Center for Biological Diversity v. US Marine Corps, No. 00 Civ. 2387,2003 WL 26121134, at *3 (D.D.C. Aug. 21, 2003) (citing Fed. R. Civ. P. 56(c); McGehee v. CIA, 697 F.2d 1095, 1101 (D.C. Cir. 1983); Founding Church of Scientology v. NSA, 610 F.2d 824, 836 (D.C. Cir. 1979); Nat'! Cable Television Ass'n, Inc., v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)). A party is entitled to summary judgment when there is "no genuine issue as to any material fact" and the undisputed facts warrant judgment for the moving party as a matter oflaw. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On a motion for summary judgment, the court must view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
A district court reviews the agency's FOIA determination de novo. Wilner v. NSA, 592 F.3d 60, 69 (2d Cir. 2009); see also 5 U.S.C. § 552(a)(4)(B). Exemptions are to be narrowly construed. See Halpern v. F.B.I., 181 F.3d 279,287 (2d Cir. 1999). All doubts as to the applicability ofthe asserted FOIA exemption are to be resolved in favor of disclosure. Wilner, 592 F.3d at 69.
Summary judgment in the agency's favor is appropriate where:

the affidavits describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith. Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible. Wilner, 592 F.3d at 73 (quoting Larson v. Dep 't ofState, 565 F.3d 857, 862 (D.C. Cir. 2009)). An agency resisting disclosure of records responsive to a FOIA request bears the burden of demonstrating that the asserted FOIA exemption applies. Wilner v. NSA, 592 F.3d 60, 68-69 (2d Cir. 2009). However, "Affidavits or declarations ... giving reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain the agency's burden." Carney v. Dep't ofJustice, 19 F.3d 807, 812 (2d Cir. 1994). In the national security context, agency declarations are entitled to substantial deference. See CIA v. Sims, 471 U.S. 159, 179; ACLUv. Dep't ofJustice, 681 F.3d 61,72 (2d Cir. 2012) (the "Waterboarding Case"). Deference to the Government's explanations does not, however, mean acquiescence. ACLU v. Office ofthe Dir. OfNat'l Intelligence, No. 10 Civ. 4419,2011 WL 5563520, at *5 (S.D.N.Y. Nov. 15, 2011) (quoting Campbell v. US. Dep 't ofJustice, 164 F.3d 20, 30 (D.C. Cir. 1998)) ("ODNF'). Courts have rejected Government affidavits for being vague and conclusory and reading like "bureaucratic double-talk." See Halpern, 181 F.3d at 293; see also generally ODNI, 2011 WL 5563520. Understanding that a district court should endeavor "to create as complete a public record as is possible," ODNI, 2011 WL 5563520, at *12 (quoting Phillippi, 546 F.2d at 1013), FOIA nonetheless empowers a district court to conduct in camera review of documents withheld pursuant to a FOIA exemption. 5 U.S.C. § 552(a)(4)(B). A district court may also conduct in camera review of classified affidavits when national security is at issue. See ODNI, 2011 WL 5563520, at* 12. Courts have found in camera review to be appropriate in cases involving all

three of the FOIA exemptions at issue here. See, e.g., The New York Times Co. v. Dep 't of Justice,--- F. Supp. 2d ----, 2012 WL 1869396 (S.D.N.Y. May 17, 2012) (the "Patriot Act Case") (Exemptions 1 and 3); Brennan Ctr. for Justice v. Dep 't ofJustice, No. 09 Civ. 8756, 2011 WL 4001146, at *6 (S.D.N.Y. Aug. 30, 2011) aff'd in part, rev'd in part, and remanded by 697 F.3d 184 (2d Cir. 2012) (Exemption 5). However, where the response comes from the CIA, in camera review of documents is discouraged; 50 U.S.C. § 431 (f)(2) directs that, "the court shall, to the fullest extent practicable, determine issues of fact based on sworn written submissions of the parties."
The Court notes that in camera review "is not a substitute for the government's burden of proof." Halpern, 181 F.3d at 295 (quoting Church ofScientology v. Dep't ofthe Army, 611 F.2d 738, 743 (9th Cir. 1980)).
FOIA also provides that "Any reasonably segregable portion of a record shaH be provided to any person requesting such record after deletion of the portions which are exempt under this subsection." 5 U.S.C. § 552(b). Accordingly, the agency must provide "a detailed justification for [its] decision that non-exempt material is not segregable." Mead Data Central v. Dep't ofthe Air Force, 566 F.2d 242,261 (D.C. Cir. 1977); accord Nat'! Immigration Project of the Nat'l Lawyers Guildv. Dep't ofHomeland Sec., 842 F. Supp. 2d 720,725 n. 5 (S.D.N.Y. 2012). The agency is entitled to a presumption that it complied with its obligation to disclose reasonably segregable material. Sussman v. US Marshals Service, 494 F.3d 1106, 1117 (D.C. Cir. 2011); accord Ferrigno v. Dep 't ofHomeland Sec, No. 09 Civ. 5878, 2011 WL 1345168, at *10 (S.D.N.Y. Mar. 29, 2011).
A district court "must make specific findings of segregability regarding the documents to be withheld" before ruling that an asserted FOIA exemption is applicable. Sussman v. US

Marshals Serv., 494 F.3d at 1116; accord Ferrigno, 2011 WL 1345168, at *10. Non-exempt
portions of a document may only be withheld if they are "inextricably intertwined" with the exempt portions. Inner City Press/Cmty. on the Move v. Bd. ofGovernors ofthe Fed. Reserve Sys., 463 F.3d 239, 249 n. 10 (2d Cir. 2006); Sussman, 494 F.3d at 1116; Patriot Act Case, 2012 WL 1869396, at *6.
It is within the district court's discretion to conduct in camera of a withheld document to review the Government's segregability decisions. See, e.g., Ferrigno, 2011 WL 1345168, at *1011. II. The Government Conducted An Adequate Search for Responsive Documents
As part of their challenge to the Government's response to their requests, plaintiffs allege that the Government conducted a less than adequate search for responsive documents. I reject this challenge.
An agency can show that it has conducted an adequate search for records responsive to a FOIA request by demonstrating, through affidavits or declarations, that it has conducted "a search ... reasonably calculated to discover the requested documents." Grand Cent. P 'ship, Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir. 1999); see also Weisberg v. Dep 't ofJustice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). The agency need not show that it "actually uncovered every document extant." Grand Cent. P 'ship, 166 F.3d at 489. Nor is the agency required to search every record system; it need only search those systems in which it believes responsive records are likely to be located. Amnesty Int '! USA v. CIA, 728 F. Supp. 2d 4 79, 497 (S.D.N.Y. 201 0).
The Second Circuit has noted that: to establish the adequacy of a search, agency affidavits must be relatively detailed and nonconclusory, and submitted in good faith .... affidavits submitted by an agency are accorded a presumption of good faith. This presumption cannot be rebutted by purely speculative claims about the existence and discoverability of

other documents .... [I]n order to justify discovery once the agency has satisfied its burden, the plaintiff must make a showing of bad faith on the part of the agency sufficient to impugn the agency's affidavits or declarations. Grand Cent. P 'Ship, at 489-90 (internal citation, quotation marks, and editing omitted). A "reasonably detailed" affidavit should set forth the search terms used, describe the type of search conducted, and indicate that all files likely containing responsive records were searched. Oglesby v. Dep'tofthe Army, 920 F.2d 57,68 (D.C. Cir. 1990). "Even ifthese conditions are met the requester may nonetheless produce countervailing evidence, and if the sufficiency of the agency's identification or retrieval procedure is genuinely in issue, summary judgment is not in order." Founding Church ofScientology ofWashington, D.C., Inc. v. NSA, 610 F.2d 824, 836 (D.C. Cir. 1979). In this case, the Government's explanation of its searches can be found in the following declarations: 1. OLC (DoJ): Bies Declaration,~~ 18-28. 2. OIP (DoJ): Hibbard Declaration,~~ 7-34. 3. DoD: Neller Declaration,~~ 9-10. 4. CIA: Classified Bennett Declaration. The court has reviewed these explanations and concludes that the searches by the responding agencies comported with their statutory obligations. III. The FOIA Responses Were Legally Compliant The responding agencies invoke three separate exemptions to excuse their refusal to produce any documents responsive to the FOIA requests other than the speeches and public statements that have been discussed above.

EXEMPTION 1

Exemption I to FOIA exempts from disclosure records that are "(A) specifically

...., :· ,• '~

authorized under criteria established by an Executive Order to be kept secret in the interest of

national defense or foreign policy and (B) are in fact properly classified pursuant to such

Executive Order." 5 U.S.C. § 552(b)(l). Section l.l(a) of Executive Order ("E.O.") 13526 (the

relevant executive order in this case) establishes the following criteria for the classification of

national security information:

Information may be originally classified under the terms of this order only if all of the following conditions are met:

(1) an original classification authority is classifying the information;
(2) the information is owned by, produced by or for, or is under the control of the United States Government;

(3) the information falls within one or more of the categories of information listed in section 1.4 of this order; and
(4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.

Section 1.4 ofE.O. 13526 provides that:

Information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security in accordance with section 1.2 of this order, and it pertains to one or more of the following:

(a) military plans, weapons systems, or operations;

(b) foreign government information;

(c) intelligence activities (including covert action), intelligence sources or methods, or cryptology;

(d) foreign relations or foreign activities of the United States, including confidential sources;

(e) scientific, technological, or economic matters relating to the national security;
(f) United States Government programs for safeguarding nuclear materials or facilities;
(g) vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security; or
(h) the development, production, or use of weapons of mass destruction.
Section 1.2 of E.O. 13526, which is referenced in Section 1.4, pertains to classification
levels:
(a) Information may be classified at one of the following three levels:
(1) "Top Secret" shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority is able to identify or describe.
(2) "Secret" shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security that the original classification authority is able to identify or describe.
(3) "Confidential11 shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause damage to the national security that the original classification authority is able to identify or describe.
(b) Except as otherwise provided by statute, no other terms shall be used to identify United States classified information.
(c) If there is significant doubt about the appropriate level of classification, it shall be classified at the lower level.
It should also be noted that Section 1.7(a) ofE.O. 13256 places certain limitations on
classification:
(a) In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to:
(1) conceal violations oflaw, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;

(3) restrain competition; or

(4) prevent or delay the release of information that does not require protection in the interest of the national security.

Nearly all of the documents located in response to the FOIA requests here under review are classified, and appropriate affidavits have been filed by appropriate authorities from each of the responding agencies. There is no evidence suggesting that proper procedures were not followed when these documents were classified. See Nat'l Catholic Reporter Pub. Co. v. FBI, 514 F. Supp. 1149, 1153 (D.D.C. 1981); Kanter v. Dep't o.fState, 479 F. Supp. 921, 924 (D.D.C.

1979). It lies beyond the power of this Court to declassify a document that has been classified in

accordance with proper procedures on the ground that the court does not think the information

contained therein ought to be kept secret. Cf Morley v. CIA, 508 F.3d 1108, 1124 (D.C. Cir.

2007) ("[T]he text of Exemption 1 itself suggests that little proof or explanation is required

beyond a plausible assertion that information is properly classified."). All a court can do with a

document that has been classified using proper procedures is determine whether classification protection has been waived. Public Citizen v. Dep't ofState, 11 F.3d 198 (D.C. Cir. 1993);

Afshar v. Dep't ofState, 702 F.2d 1125 (D.C. Cir. 1983). And that is precisely what the ACLU

and the Times argue: the Government cannot invoke Exemption 1 with respect to documents relating to targeted killings using drones because, through its relentless public relations campaign of recent months, the Government has waived the right to rely on the documents' classified status and/or demonstrated that the withheld legal analysis has been adopted as official policy. Plaintiffs argue further that, to the extent the requests seek legal analysis (and that is all the Times requests seek), such analysis is not a proper subject of classification. I will address that

issue first. A.

Legal Analysis May Appropriately Be Classified

All Plaintiffs argue that legal analysis is not the proper subject of classification. Indeed, they note that the Government cites not a single case which holds that legal analysis can properly be classified.
The Government counters that E.O. 13256 does not contain a specific carve-out for legal analysis; rather, E.O. 13526 applies to any information that "pertains to" the various items listed in Section 1.4. Therefore, legal analysis that "pertains to" military plans or intelligence activities (including covert action), sources or methods - all of which are classified matters - can indeed be classified.
Several cases support the proposition that legal analysis can be withheld as classified pursuant to Exemption 1. See, e.g., Patriot Act Case, 2012 WL 1869396, at* 1, 6; ODNI, 2011 WL 5563520, at *8; Ctr.for Int'l Environ. Law v. Office ofthe US Trade Rep., 505 F. Supp. 2d 150, 154 (D.D.C. 2007) ("CIEL f'). I see no reason why legal analysis cannot be classified pursuant to E.O. 13526 if it pertains to matters that are themselves classified.
B. The Government Has Not Waived The Benefit of Classification "Voluntary disclosures of all or part of a document may waive an otherwise valid FOlA exemption." Dow Jones & Co., Inc. v. Dep 't ofJustice, 880 F. Supp. 145, 150-51 (S.D.N.Y. 1995) (citing Mobil Oil Corp. v. E.P.A., 879 F.2d 698, 700 (9th Cir. 1989); Afshar v. Dep 't of State, 702 F.2d 1125, 1133 (D.C. Cir. 1983); Mehl v. E.P.A., 797 F.Supp. 43, 47 (D.D.C. 1992)), vacated in part on other grounds by 907 F. Supp. 79 (S.D.N.Y. 1995). The FOIA requester bears "the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld." Afshar, 702 F.2d at 1130 (D.C. Cir. 1983); accord Hudson River Sloop Clearwater, Inc. v. Dep 't ofthe Navy, 891 F.2d 414,421 (2d Cir. 1989).

Plaintiffs argue that the many speeches and public pronouncement discussed above
constitute a waiver of Exemption 1's shielding of classified documents from disclosure.
The Second Circuit has made clear that it is the rare case where the Government waives Exemption 1 protection:
the application of Exemption 1 is generally unaffected by whether the information has entered the realm of public knowledge. A limited exception is permitted only where the government has official1y disclosed the specific information the requester seeks.
Halpern, 181 F.3d at 294 (citing Hudson River Sloop, 891 F.2d at 421 (2d Cir. 1989)). Such official disclosure is governed by a "strict test." Wilson v. C.lA., 586 F.3d 171, 186
(2d Cir. 2009).
Classified information that a party seeks to obtain or publish is deemed to have been officially disclosed only if it (1) "[is] as specific as the information previously released," (2) "match[es] the information previously disclosed," and (3) was "made public through an official and documented disclosure."
Id. (quoting Wolf, 473 F.3d at 378). For example, Exemption I is not waived if an agency official
merely discusses the "general subject matter" of the records sought. Public Citizen v. Dep 't of
State, II F.3d 198, 201 (D.C. Cir. 1993). In sum, the key to the official disclosure analysis in the Exemption 1 context is the
"insistence on exactitude[, which] recognizes the Government's vital interest in information relating to national security and foreign affairs." Wo(f, 473 F.3d at 378 (emphasis added) (internal quotation marks omitted); accord Amnesty Int 'l USA v. CIA, 728 F. Supp. 2d 479, 512
(S.D.N.Y. 2010). As to documents containing operational details of targeted killing missions (including but
not limited to the operation that took out Al-Awlaki), there has been no official disclosure of sufficient exactitude to waive the Government's right to assert their classification as a

justification for not providing them to the ACLU. Indeed, there has been no disclosure of operational details at all, except of the military operation that resulted in the killing ofOsama Bin Laden. The most that can be said of the various public statements made by President Obama and Secretary Panetta with respect to the drone strike that claimed the life of Anwar Al-Awlaki is that the Government claims to have had some role in it. The President of the United States went on late night television and admitted that "we" (i.e., the United States Government) had a role in the operation that ended Al-Awlaki's life; Secretary Panetta confirmed that disclosure ~ith a nod of his head. But neither official offered any information about who was involved in the decisionmaking process or in the execution of the mission. No operational details were disclosed, other than the fact that the operation was carried out with cooperation from Yemeni security forces. To the extent that the ACLU contends that these extremely limited statements constitute official disclosure sufficient to waive Exemption 1 protection of the factual basis for the targeted killing of Anwar Al-Awlaki, I cannot agree.
As Plaintiffs have not identified a single statement by a current, named executive branch official that mentions the killings ofSamir Khan and Abdulrahman Al-Awlaki, there has obviously been no waiver of Exemption 1 protection of any documents the responding agencies may possess concerning the factual basis for "targeting" them (if indeed that occurred).
We turn, then, to documents responsive to Plaintiffs' requests to the extent that they seek the analysis used to justifY the legality of targeted killings, whether of United States citizens or otherwise.
The Northwestern Speech discussed the legal considerations that the Executive Branch takes into account before targeting a suspected terrorist for killing. Indeed, the speech constitutes a sort of road map of the decision-making process that the Government goes through before

deciding to "terminate" someone "with extreme prejudice." It is a far cry from a "general

discussion" of the subject matter.

But the Holder speech is also a far cry from a legal research memorandum. The speech

mentions relevant doctrines but does not explain the actual reasoning that led the Government to

conclude that the targeted killing of a suspected terrorist complies with the law of war, or

accords a suspect due process of law, or does not constitute assassination. In fact, in the

approximately 15 minutes (out of an approximately 40 minute speech) that Attorney General

Holder devoted to the subject of the Government's targeted killing program, he did not cite to a

single specific constitutional provision (other than the Due Process Clause), domestic statute

(other than the AUMF), treaty obligation, or legal precedent. Nor did he address many key

matters that are covered by the FOIA requests: for example, Mr. Holder did not address why the

Treason Clause was not violated by killing a United States citizen who was engaged in

apparently treasonous activities or, in the alternative, why the Treason Clause simply did not

apply.

The lack of authority and the vague and imprecise discussion of the legal issues that must

have been considered by the Administration does not necessarily render the Attorney General's

remarks "general" within the meaning of Public Citizen. But no lawyer worth his salt would

.

.

equate Mr. Holder's statements with the sort of robust analysis that one finds in a properly

constructed legal opinion addressed to a client by a lawyer.

Nor can it be said that Mr. Holder revealed the exact legal reasoning behind the

Government's conclusion that its actions comply with domestic and international law. In fact,

when you really dissect the speech, all it does is recite general principles oflaw and the Government's legal conclusions.29
My learned colleague Judge Scheindlin has held that repeated disclosure of legal analysis
can support a finding of waiver. See Nat 'l Day Laborer Org. Network v. Immigration and Customs Enforcement, 827 F. Supp. 2d 242, 256-57 (S.D.N.Y. 2011). The core legal conclusions
of the Northwestern Speech have been repeated publicly on many occasions by other senior
executive branch officials (see above). If their words do not qualify as official and documented
disclosure, then that phrase has no recognizable meaning. As a result, the ACLU and the Times
argue that this case is the same case as Nat 'l Day Laborer. But it is not, because none of those
public pronouncements reveals the necessarily detailed legal analysis that supports the Administration's conclusion that targeted killing, whether or citizens or otherwise, is lawful. 30
The only question, then, is whether the court needs to review the only classified
document that has been publicly identified as containing legal advice responsive to the Times'
FOIA requests- the OLC-DoD Memo in order to insure that the Holder speech is less specific
than the Memo. and see whether the rubric it disclosed matches the advice that was given him by
OLC. In camera review of withheld documents may be appropriate to determine whether
Exemption 1 has been waived. See Public Citizen v. Dep't ofState, No. 91 Civ. 746, 1991 WL
29Some of the preceding pages include an effort by one person (me), who has some rudimentary knowledge ofthe law in this area, to anticipate arguments that might be made in support of the Administration's position, and even to respond to them, as a way of framing discussion. This sort of"reverse engineering" of the Administration's legal reasoning has been going on for as long as targeted killings and drone strikes have been in the public consciousness. But informed guesses by outsiders are no substitute for disclosure of the precise reasoning that underlies the Government's decision to proceed with targeted killings and drone strikes, and so have no bearing on the waiver analysis.
°3 Contrast these speeches with the so-called "Torture Memo" that was prepared by DoJ officials to set out a
purportedly principled justification for the legality of"enhanced interrogation ~echniques." The ~e?'o has been roundly criticized for the quality of its legal analysis, but it was at least recogmzable as a legal optmon.

179116, at *3 (D.D.C. Aug. 27, 1991 ). But such review is not necessary here. As the Second Circuit has noted, "A court should only consider information ex parte and in camera that the agency is unable to make public if questions remain after the relevant issues have been identified by the agency's public affidavits and have been tested by plaintiffs." Wilner, 592 F.3d at 75-76. It is plain that the Attorney General's discussion of the legal underpinnings of the Government's targeted killing program in the Northwestern Speech, which cites almost no specific authority, could not possibly be the exact legal analysis purportedly contained in the OLC-DoD Memo (unless standards at OLC have slipped dramatically). I do not need to review the OLC-DoD Memo in camera to know that its legal analysis would be far more detailed and robust.
Furthermore, even if the Attorney General's speech could be said to include "self-serving partial disclosures of classified information," this complaint is more "properly addressed to Congress, not to this court." Public Citizen, 11 F.3d at 204. This Court, like the DC Circuit, is "unwilling to fashion a rule that would require an agency to release all related materials any time it elected to give the public [some] information about a classified matter. To do so would give the Government a strong disincentive ever to provide its citizenry with briefings of any kind on sensitive topics." Jd. at 203.
Finally, Exemption 5 plainly applies (see below), so in camera review to resolve whether Exemption 1 also applies would not be appropriate.
EXEMPTION 3 Under Exemption 3, records and information "specifically exempted from disclosure by statute" need not be disclosed. 5 U.S.C. § 552(b)(3). In analyzing an Exemption 3 assertion, a court must first determine whether the statute invoked is an exemption statute under FOIA, and

then determine whether the withheld records meet the exemption statute's criteria for nondisclosure. Sims, 471 U.S. at 167; Wilner, 592 F.3d at 72.
The Second Circuit has noted that "Exemption 3 differs from other FOIA exemptions in that its applicability depends less on the detailed factual contents of specific documents; the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within the statute's coverage." Wilner, 592 F.3d at 72 (quoting Ass 'n ofRetired R.R. Workers v. US. R.R. Retirement Bd., 830 F.2d 331,336 (D.C. Cir. 1987)). Accordingly, in the Exemption 3 context, a court should "not closely scrutinize the contents of a withheld document." Krikorian v. Dep't ofState, 984 F.2d 461,465 (D.C. Cir. 1993); accord Patriot Act Case, 2012 WL 1869396, at *5.
A. The National Security Act Section 102A(i)(1) of the National Security Act ("NSA"), as amended, 50 U.S.C. § 403l(i)(l), provides that "the Director ofNationallntelligence shall protect intelligence sources and methods from unauthorized disclosure." It is well settled that Section 102A(i)( 1) of the NSA is an exempting statute within the meaning of Exemption 3. See Sims, 471 U.S. at 167 (discussing prior version ofNSA); Waterboarding Case, 681 F.3d at 72-73 (citing Larson, 565 F.3d at 865 (D.C. Cir. 2009)) (discussing current version ofNSA). The Government contends that its public declarations amply demonstrate that disclosure of records, or even the number and nature of records that may exist, that are specific to the individuals named in the ACLU's FOIA request would disclose information pertaining to intelligence sources and methods in violation of the NSA. (See Bennett Decl. ~~ 24, 39-54, 60; Hackett Decl. ~~ 20-23.)

The ACLU's principal argument against Exemption 3 is that the targeted killing of
United States citizens does not constitute an "intelligence source or method" within the meaning of the NSA.31 In support of this argument, the ACLU cites excerpts from the Supreme Court's
discussion of intelligence sources and methods in Sims:
Congress simply and pointedly protected all sources of intelligence that provide, or are engaged to provide, information the Agency needs to perform its statutory duties with respect to foreign intelligence....
General Vandenberg, then the Director of the Central Intelligence Group, the Agency's immediate predecessor, emphasized that "foreign intelligence [gathering] consists of securing all possible data pertaining to foreign governments or the national defense and security of the United States."
471 U.S. at 169-71 (quoting General Vandenberg's testimony at a 1947 Senate hearing).
According to the ACLU, General Vandenberg's definition of intelligence gathering does
not encompass "Placing individuals on kill lists and then killing them," and thus information
pertaining to the Government's targeted killing program should be disclosed. (ACLU Memo. in
Support/Opp'n at 41.)
The Government counters that Sims stands for the proposition that "Congress intended to
give the Director of Central Intelligence broad power to protect the secrecy and integrity of the
intelligence process." 471 U.S. at 170 (emphasis added); accord Waterboarding Case, 681 F.3d
at 73-74. The Government also points out that Judge Collyer of the District Court for the District
of Columbia rejected the ACLU' s argument just last year:
At first blush, there is force to Plaintiffs' argument that a "targeted-killing program is not an intelligence program" in the most strict and traditional sense, the argument bolstered by the principle that FOIA exemptions are to be narrowly construed. See Public Citizen, Inc. v. Rubber Mfrs. Ass'n, 533 F.3d 810, 813 (D.C. Cir. 2008). Nonetheless, Plaintiffs seek too narrow a reading of the authority conferred by the NSA to protect "intelligence sources and methods." The "Supreme Court has recognized the broad sweep of 'intelligence sources'
31 The Times Plaintiffs do not appear to join in this argument.

warranting protection in the interest of national security." Wolfv. CIA, 473 F.3d 370, 375 (D.C. Cir. 2007); see also Fitzgibbon v. CIA, 911 F.2d 755, 760-63 (D.C. Cir. 1990).... The Court has no reason to second-guess the CIA as to which programs that may or may not be of interest implicate the gathering of intelligence .... Plaintiffs' argument that a program of drone strikes cannot form the basis of, or involve, intelligence sources or methods also ignores the scope of the CIA's specific authority to engage in activities beyond "traditional" intelligence gathering (however defined), such as intelligence activities and operations, covert operations, and foreign relations activities.
ACLUv. Dep't ofJustice, 808 F. Supp. 2d 280,290-92 (D.D.C. 2011) (the "Drone Strike Case"). 32
I agree with my distinguished colleague Judge Collyer that the ACLU's argument is without merit.
All Plaintiffs argue that legal analysis, which is what they really seek, cannot be considered an "intelligence source or method" within the meaning of the NSA, and challenge the Government to show that the legal opinions whose disclosure is sought "logically fall[] within the claimed exemptions." Wilner, 592 F.3d at 69.
In reply, the Government notes, "It is entirely logical and plausible that the legal opinion contains information pertaining to military plans, intelligence activities, sources and methods, foreign government information, and foreign relations." (Gov't Memo. in Opp'n/Reply 6.) But that begs the question. In fact, legal analysis is not an "intelligence source or method." As my colleague, The Hon. Alvin K. Hellerstein, put it in ACLU v. Dep 't ofDeftnse, 389 F. Supp. 2d 547, 565 (S.D.N.Y. 2005) (the "Torture Memo Case"), "A memorandum from Dol to CIA
32 The Drone Strike Case is currently up on appeal in the D.C. Circuit (No. 11-5320). Oral argument was held on September 20, 2012.

interpreting the Convention Against Torture, does not, by its terms, implicate intelligence sources or methods." (internal quotation marks and editing omitted)
That, of course, does not render the legal analysis disclosable. First, FOIA exemptions other than Exemption 3 may bar disclosure~ especially here, where the legal analysis is classified. Second, it may well be that legal analysis in a particular document is inextricably intertwined with information that is statutorily exempt from disclosure, including information about intelligence sources and methods that is statutorily exempt form disclosure. Indeed, that is "entirely logical and plausible," as the Govemment notes.
But it is also entirely logical and plausible that such information could be redacted from the legal analysis. There is probably no way, short of in camera inspection, to determine whether the legal analysis that is not statutorily protected by the NSA is inextricably intertwined with material that is protected from disclosure by statute.
Again, however, in camera inspection would be pointless here, because Exemption 5 plainly applies.
B. The CIA Act Section 6 of the CIA Act protects information concerning the "functions" of the CIA, including: intelligence sources and methods, and names, official titles, salaries, or numbers of personnel employed by the Agency. 50 U.S.C. § 403g. Section 6 is also an exempting statute within the meaning ofExemption 3. Baker v. CIA, 580 F.2d 664,667 (D.C. Cir. 1978). The D.C. Circuit has held that Section 6 does not grant the CIA the authority "to refuse to provide any information at all about anything it does." Phillippi, 546 F.2d at 1015 n. 14 (D.C. Cir. 1976). Rather, the aim of Section 6 is to shield the CIA from having to "divulge information about its internal structure." !d. Section 6 "offers a limited sanctuary from the CIA's FOIA

obligations because '[o]nly the specific information on the CIA's personnel and internal structure
that is listed in the statute will obtain protection from disclosure."' Drone Strike Case, 808 F.
Supp. 2d at 287-88 (quoting Baker, 580 F.2d at 670).
In the Drone Strike Case, a case involving an ACLU FOIA request quite similar to the
one here, Judge Collyer said the following with regard to Section 6:
The fact of the existence or nonexistence of responsive information falls within the ambit of [Section 6] because whether the CIA cooperates with, is interested in, or actually directs drone strikes pertains to (possible) functions of CIA personnel. See Rique/me v. CIA, 453 F.Supp.2d 103, 111 (D.D.C. 2006) (accepting CIA's argument that FOIA request seeking information relating to CIA agents' "activities, assistance, participation, involvement, and contacts" speaks to the "functions" of CIA agents, protected from disclosure under [Section 6]). Plaintiffs' FOIA request sent to multiple agencies is clearly designed, at least in part, to determine which agencies, and its personnel, are involved in drone strikes and in what capacities....
In the end, the CIA is justifiably concerned that revealing the existence or nonexistence of records sought on the various topics sought by Plaintiffs could alone reveal information on the CIA's internal structure and its capabilities and potential interests and involvement in/operation of the drone program. Although the matter is not entirely free from doubt, the Court is satisfied that the CIA has properly invoked [Section 6] of the CIA Act to withhold this fact under Exemption 3.
!d. at 288-89.
Once again I must agree with Judge Collyer. To the extent that the ACLU seeks
information regarding the CIA's participation, if any, in the Government's targeted killing
program, that information is properly withheld under Exemption 3 and the CIA Act. And, as with
the NSA, the CIA Act's prohibition on the disclosure of intelligence sources or methods would
apply to the targeted killing program itself, but not to the withheld legal analysis.
EXEMPTIONS
Exemption 5 to FOIA exempts from disclosure "inter-agency or intra-agency
memorandums or letters which would not be available by law to a party other than an agency in

litigation with the agency." 5 U.S.C. § 552(b)(5). Exemption 5 covers documents withheld under the deliberative process privilege (a.k.a., the executive privilege) and the attorney-client privilege, both of which the Government has invoked with respect to the OLC-DoD Memo. Tigue v. Dep 't ofJustice, 312 F.3d 70, 76 (2d Cir. 2002).
The Second Circuit has summarized the Exemption 5 analysis as follows: the appropriate analysis requires us to determine whether the documents sought more closely resemble the type of internal deliberative and predecisional documents that Exemption 5 allows to be withheld, or the types of documents that section 552(a)(2) requires be disclosed. Brennan Ctr. for Justice v. Dep 't ofJustice, 697 F.3d 184, 202 (2d Cir. 2012). FOIA Section 552(a)(2) provides that an agency must make available for public inspection, among other things: "(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases [and] (B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register." A. The Attorney-Client and Deliberative Process Privileges The attorney-client privilege protects confidential communications between client and counsel made for the purpose of obtaining or providing legal assistance." In re Cnty. ofErie, 473 F.3d 413,418 (2d Cir. 2007). The privilege is construed narrowly and the party invoking it has the burden of proof. Id. "In civil suits between private litigants and government agencies, the attorney-client privilege protects most confidential communications between government counsel and their clients that are made for the purpose of obtaining or providing legal assistance." Jd. "A party invoking the attorney-client privilege must show (1) a communication between client and counsel that (2) was intended to be and was in fact kept confidential, and (3) was made for the purpose of obtaining or providing legal advice." ld. at 419.

To qualify for the deliberative process privilege, an agency record must be "predecisional" and "deliberative." Grand Cent. P 'ship, 166 F.3d at 482 (citing Renegotiation Bd. v. GrummanAircraft Eng'gCorp.,421 U.S.168, 184 (1975)).
A document is "predecisional" when it is "prepared in order to assist an agency decisionmaker in arriving at his decision." Renegotiation Bd., 421 U.S. at 184. Predecisional documents "reflect the personal opinions of the writer rather than the policy of the agency." Grand Cent. P'ship, 166 F.3d at 482 (internal quotation marks omitted). The agency need not identify a specific decision that the document preceded; the document need only have been "prepared to assist [agency] decisionmaking on a specific issue." Tigue, 312 F.3d at 80; see also N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 151 n. 18 (1975) "Finally, 'the privilege does not protect a document which is merely peripheral to actual policy formation; the record must bear on the formulation or exercise of policy-oriented judgment."' Grand Cent. P 'ship, 166 F.3d at 482 (quoting Ethyl Corp. v. E.P.A., 25 F.3d 1241, 1248 (4th Cir. 1994). As the Supreme Court has noted:
Agencies are, and properly should be, engaged in a continuing process of examining their policies; this process will generate memoranda containing recommendations which do not ripen into agency decisions; and the lower courts should be wary of interfering with this process. Sears, 421 U.S. at 151 n. 18. "A document is 'deliberative' when it is actually ... related to the process by which policies are formulated." Grand Cent. P 'Ship, 166 F.3d at 482 (internal quotation marks omitted) (alteration in original). In determining whether a document is deliberative, the Second Circuit has emphasized the following factors: (1) whether the document "formed an important, if not essential, link in [the agency's] consultative process"; (2) whether the document reflects the

opinion of its author rather than agency policy; and (3) whether the document might "reflect inaccurately upon or prematurely disclose the views of [the agency]." Id. at 483.
"[T]o carry its burden, the agency must describe [in its Vaughn indices] not only the contents of the document but also enough about its context, [i.e.,] the agency's decisionmaking process, to establish that it is a pre-decisional part thereof." SafeCard Serv., Inc. v. SEC, 926 F.2d 1197, 1204 (D.C. Cir. 1991). "Since the applicability of the deliberative process privilege depends on the content of each document and the role it plays in the decisionmaking process, an agency's affidavit must correlate facts in or about each withheld document with the elements of the privilege." Judicial Watch, Inc. v. US Postal Serv., 297 F. Supp. 2d 252, 259-60 (D.D.C. 2004) (citing Senate ofPuerto Rico on Behalfofthe Judiciary Committee v. Dep 't ofJustice, 823 F.2d 574, 585 (D.C. Cir. 1987); Coastal States Gas Corp. v. Dep 't ofEnergy, 617 F.2d 854, 866 (D.C. Cir. 1980); Mead Data Cent., Inc. v. Dep 't ofAir Force, 566 F.2d 242, 251 (D.C. Cir. 1977)).
As part of its campaign of increased transparency about the legality of targeted killings, the Government produced to Plaintiffs Vaughn indices from OLC (Bies Decl., Ex. 1), DoD (Neller Decl., Ex. J), and OIP (Hibbard Decl., Ex. F). These affidavits describe (in limited terms akin to a traditional privilege log) 74 non-classified documents responsive to Plaintiffs' FOIA requests that the Government has withheld under Exemption 5. The vast majority of the documents were withheld under the deliberative process privilege. Slightly fewer were withheld under both the deliberative privilege and the attorney-client privilege. A few were withheld pursuant to the attorney-client privilege alone. Just one, from the OIP Vaughn index (Document

1), was withheld under the "presidential communications privilege"; it was also withheld under
the deliberative process privilege.33
OLC: In its Vaughn index, OLC identifies 60 non-classified, responsive documents that it
has withheld pursuant to the deliberative process privilege. (Bies Decl., Ex. I.) All of these
documents are described as email chains reflecting internal and/or interagency deliberations
among Government attorneys and officials. (!d.) The subject matter of these email chains is
uniformly the legal basis "for the use oflethal force in a foreign country against U.S. citizens in
certain circumstances." (Id) All 60 of the documents withheld by OLC were withheld under both
the attorney-client privilege and the deliberative process privilege- which is hardly surprising,
given OLC's role in the Executive Branch. (!d.)
The OLC-DoD Memo was identified by OLC but does not appear on its Vaughn index.
The Government contends that the OLC-DoD Memo was properly withheld under the
deliberative process privilege because:
it is confidential, pre-decisional, and deliberative. The document is pre-decisional because it was prepared in advance of Executive Branch decisions regarding a potential military operation in a foreign country, and it is deliberative because it contains legal advice by OLC attorneys to other Executive Branch officials in connection with potential decisions regarding such an operation.... Compelled disclosure of the document would undermine the deliberative processes of the Government and chill the candid and frank communications necessary for effective governmental decision-making.
(Bies Decl. ~ 31.) The Government also argues that the OLC-DoD Memo was also properly
withheld under attorney-client privilege because:
The document reflects confidential communications between OLC and Executive Branch clients made for the purpose of providing legal advice. In providing legal
33 The presidential communications privilege applies "to communications in performance of a President's responsibilities, ... and made in the process of shaping policies and making decisions.". Nixon v. Adm 'r ofGe~. Servs., 433 U.S. 425, 449 (1997) (internal quotation marks, citation, and formatting omitted). None of the parties addresses this privilege in any detail and it has no bearing on the outcome of this case, so the Court will not dwell on it.

advice contained in the opmton, OLC was serving an advisory role as legal counsel to the Executive Branch. Having been requested to provide counsel of the law, OLC stood in a special relationship of trust with the Attorney General, as well as other participants in the interagency deliberations in connection with which the advice was prepared. Just as disclosure of client confidences in the course of seeking legal advice would seriously disrupt the relationship of trust so critical when attorneys formulate legal advice to their clients, disclosure of the advice itself would be equally disruptive to that trust. (Bies Decl. ~ 32; see also Neller Decl. ~ 24.)34 The Times' sole apparent goal at this point is to get a hold of the OLC-DoD Memo, which, it assumes, contains the final legal analysis and justification it seeks. (See NYT Memo. in Support/Opp'n at 6-7, 11, 14-15, 25.; NYT Reply Memo. at 3, 9-10.) Indeed, the only publicly-
identified document that the Times Plaintiffs ask this Court to declare "public" and order
disclosed is the OLC-DoD Memo. (NYT Memo. in Support/Opp'n at 25; NYT Reply Memo. at
10.) As I read the briefs, the Times does not seek disclosure of anything that appears on OLC's
Vaughn Index. The Times does not disagree that the OLC-DoD Memo might at one time have been
properly withheld under the deliberative process and/or attorney-client privileges. (See NYT
Memo. in Support/Opp'n at 14.) It argues instead that the privilege has been overcome because
of one or more of the following: waiver, adoption, and/or the working law doctrine. The ACLU, for its part, piggybacks on the Times' Exemption 5 arguments, and explicitly
states that it is not seeking the 60 email chains listed on OLC's Vaughn index. (ACLU Memo. in
Support/Opp'n at 48 n. 44.) I thus need not discuss those emails further. 0/P: In its Vaughn index, OIP describes four documents withheld pursuant to the
deliberative process privilege. (Hibbard Decl., Ex. F.) Document 1 is a set of draft talking points
34 OlP did not invoke attorney-client privilege and DoD invoked it only as to the CAPSTONE presentation described above. (See Neller Dec!., Ex. J.)

prepared for the Attorney General in preparation for a briefing with the President; it was apparently attached to a non-responsive, internal email at Dol (Jd.) Document 2 is briefing material prepared for the Attorney General ahead of upcoming testimony; this too was apparently attached to a non-responsive, internal email at Dol. (Jd.) Document 3 is an email chain from State Department officials to various officials at Dol regarding the Northwestern Speech; portions of these emails were excised as non-responsive. (Jd.) Document 4 is an internal Dol email chain concerning language in Document 1; portions of these emails were also excised as non-responsive. (!d.)
The Times Plaintiffs appear to have little interest in these documents and do not press their claim to them; the ACLU specifically disclaims any interest in having them disclosed. I need not discuss them, either.
DoD: The Defense Department identifies in its Vaughn index nine documents withheld pursuant to the deliberative process privilege alone. (Neller Decl., 1.)
Documents 1-7 are email chains among Government attorneys discussing changes to the Northwestern Speech and Dean's Lecture. (Jd.) The ACLU (the only party to direct a FOIA request to DoD) has disclaimed interest in having these communications disclosed. (ACLU Memo. in Support/Opp'n at 48 n. 44).
The tenth document on DoD's Vaughn index, Document 8, was withheld solely under the attorney-client privilege. (Neller Decl., Ex. J.) It is described as a "CAPSTONE presentation presented by the General Counsel on February 1, 2012, to officers who recently obtained the rank of0-7 regarding international legal principles." (Neller Decl. ~ 15.) It is plainly a communication from attorney to client and so is not disclosable unless the privilege has been waived. The ACLU does not contend otherwise.

However, Documents 9 and I 0 are of great interest to the ACLU. Both are described on the Vaughn index as: "Memorandum from Legal Counsel to Chairman of the Joint Chiefs of Staff to the National Security Legal Advisor with legal analysis regarding the effect of U.S. citizenship on targeting enemy belligerents." (!d.) Document 10 was apparently "subsequent to and references document number 6." (!d.) This appears to be a typographical error, since Document 6 is one of the email chains discussing the Northwestern Speech. The logical reference would be to Document 9, which is likely an earlier iteration of Document 10. Both documents were withheld pursuant to Exemption 5's deliberative process privilege.
The ACLU argues that the Times' analysis about why the OLC-DoD Memo ought to be made public applies with equal force to the two non-classified legal memoranda identified on DoD's Vaughn index (see below). (ACLU Memo. in Support!Opp'n at 48-49.) In response, Lieutenant General Robert R. Neller represents that Documents 9 and 10 (the "Unclassified Memos") are exempt under the deliberative process privilege because, "They are predecisional and deliberative, as they contain opinions, advice, and recommendations as part of the consultative process. Disclosure of this information could chill full, frank and open discussions on matters between legal counsel." (Neller Decl. ~ 16.)
I cannot take the good General's wholly conclusory word for that. Unlike the other responders, he does nothing more than parrot the relevant statutory language. That is never enough to avoid disclosure under FOIA. Larson, 565 F.3d at 864 ( "conclusory affidavits that merely recite statutory standards, or are overly vague or sweeping will not carry the government's burden"); accord ODNI, 2011 WL 5563520, at *5; see also Defenders of Wildlife v. US Border Patrol, 623 F. Supp. 2d 83, 90 (D.D.C. 2009) ("Where the agency's affidavits or declarations merely parrot the language of the statute and are drawn in conclusory terms, as they

are here, the Court's ability to conduct its own review of the agency's determinations is severely frustrated.") (internal quotation marks omitted). As I have no other information about these documents, I will need a more fulsome response from the Defense Department before I can reach any conclusion, one way or the other, about the applicability of the deliberative process privilege to these two documents. See Elec. Frontier Found. v. Dep 't ofJustice, 826 F. Supp. 2d 157, 16673 (D.D.C. 2011).
B. Defenses to the Assertion of Exemption 5 Plaintiffs assert that three different doctrines~ waiver, adoption, and working or "secret" law~ defeat the Government's assertion of Exemption 5 to shield the OLC-DoD Memo and the two DoD Unclassified Memos from disclosure?5 Because waiver and adoption merge, at least in the context of the deliberative process, I will discuss them together. And because they bar disclosure of the OLC-DoD Memo, there is no need to discuss the concept of secret or working law, and only a limited basis on which to mention attorney-client privilege.
i. Waiver/Adoption in the Context of the Deliberative Privilege As they did with Exemption l, Plaintiffs argue that the speeches and other public pronouncements on which they rely indicate that the Government has chosen to make public the legal basis underlying its ability to target civilians, including especially United States citizens, for killing without trial, thereby waiving the protection of Exemption 5. The case law suggests that the bar for waiver might be slightly lower in the Exemption 5 context than for Exemption 1: "Specificity is the touchstone in the waiver inquiry, and thus, neither general discussions of topics nor partial disclosures of infonnation constitute waiver of an otherwise valid FOIA exemption." Dow Jones, 880 F. Supp. at 151. Any semantic differences
35 As 1 am unable to determine whether the deliberative process privilege applies to the Unclassified Memosleaving open the possibility that the privilege may not apply: which. would likely r~quire that they be disclosed the analysis that follows on defenses to the assertion ofExemptwn SWill focus exclusively on the OLC-DoD Memo.

between "exactitude" and "specificity" need not detain us, however: Second Circuit precedent indicates that waiver of the deliberative process privilege only occurs when a pre-decisional document has been adopted as final policy. See Tigue, 312 F.3d at 80-81. At least two of my colleagues have so held explicitly. See Elec. Privacy Info. Ctr. v. Dep't ofJustice, 584 F. Supp. 2d 65, 78 (D.D.C. 2008) ("The deliberative process privilege is waived only ifthere is an 'express' adoption ofOLC memoranda.") (citing Sears, 421 U.S. at 152); Strini v. Edwards Lifesciences Corp., No. 05 Civ. 440, 2007 WL 1017280, at *4 (N.D.N.Y. Mar. 30, 2007) (citing Tigue for the proposition that the "deliberative process privilege may be waived by publication or public adoption of [an] otherwise privileged document").
This stands to reason; a pre-decisional document should be stripped of its privilege when it becomes, in effect, the decision of the agency. While "Agencies are, and properly should be, engaged in a continuing process of examining their policies," once a memo "ripen[s] into [an] agency decision[]," it is fair game for FOIA disclosure. Sears, 421 U.S. at 151 n. 18. Thus, the doctrines of waiver and adoption are interlinked where the deliberative process privilege is concerned.
Plaintiffs argue that the various public statements by Executive Branch officials on which they rely purport to disclose information about final policies that have been adopted by the Executive to target individuals and to decide whether or not they can lawfully be killed by Executive fiat.
"An agency may be required to disclose a document otherwise entitled to protection under the deliberative process privilege if the agency has chosen 'expressly to adopt or incorporate by reference [a] ... memorandum previously covered by Exemption 5 in what would otherwise be a final opinion."' Nat'! Council ofLa Raza v. Dep't ofJustice, 411 F.3d 350, 356

(2d Cir. 2005) (quoting Sears, 421 U.S. at 161) (emphasis added). Adoption can defeat both the deliberative and the attorney-client privilege. ld. at 360.
The first thing to note about adoption is that it refers to the adoption of a "memorandum" -i.e., adoption of a particular document. See Bronx Defenders v. Dep 't ofHomeland Sec., No. 04 Civ. 8576, 2005 WL 3462725, at *4 (S.D.N.Y. Dec. 15, 2005) (discussing "adoption or incorporation of a particular document into agency policy") (citing La Raza, 411 F.3d at 358) (emphasis added). "[T]here must be evidence that an agency has actually adopted or incorporated by reference the document at issue; mere speculation will not suffice." La Raza, 411 F.3d at 360 (emphasis in original). Casual or minor references to a document do not constitute adoption. !d.
Furthermore, the agency must also have adopted the reasoning of the document, not just its conclusions.ld. at 358-59; accord Wood v. FB.l., 432 F.3d 78, 84 (2d Cir. 2005). In other words, "where an agency, having reviewed a subordinate's non-binding recommendation, makes a 'yes or no' determination without providing any reasoning at all, a court may not infer that the agency is relying on the reasoning contained in the subordinate's report." La Raza, 411 F.3d at 359.
The adoption inquiry is necessarily fact-specific. A district court "must examine all the relevant facts and circumstances in determining whether express adoption or incorporation by reference has occurred." !d. at 357 n. 5 (emphasis in original). Indeed, the Second Circuit has rejected "a bright-line test ... whereby a document may be deemed expressly adopted or incorporated only in the event that an agency, in essence, uses specific, explicit language of adoption or incorporation." !d.

The parties contest how express the agency's adoption of the withheld document must be.
Citing Bronx Defenders, Plaintiffs argue that "adoption can be premised on only implicit reliance
on a document's legal analysis" and that "an express or explicit statement of incorporation is not
required." (NYT Memo. in Support/Opp'n at 17.)
The Government, noting that the doctrine extends only to express adoption, argues that
express means express (Gov't Opp'n!Reply at 28-29)- the perfect example of its position being
La Raza, where then-Attorney General John Ashcroft (among other DoJ officials) made frequent
and explicit public reference to both the reasoning and conclusions of a particular OLC memo
setting forth a change in DoJ policy to permit state and local law enforcement agencies to
enforce the civil provisions of federal immigration law. 411 F.3d at 358-59. For example, in a
March 11, 2003 letter to one of the plaintiffs, the Attorney General stated that:
Let me first state clearly the policy of the Department on this issue. The Depmtment's Office of Legal Counsel (OLC) previously opined that state and local law enforcement officials have inherent authority to make arrests for criminal immigration law violations generally. It has now additionally opined that they possess inherent authority to arrest individuals whose names have been entered into the [NCIC database] because they have both (1) violated civil provisions of the federal immigration laws that render them deportable and (2) been determined by federal authorities to pose special risks, either because they present national security concerns or because they are absconders who have not complied with a final order of removal or deportation. Thus, when state and local law enforcement officers encounter an alien who poses special risks and has been listed in the NCIC database for violating the [Immigration and Nationality Act], they may arrest that individual and transfer him to the custody of the Immigration and Naturalization Service (INS). The policy and the authority are no broader than this, and the narrow, limited mission that we are asking state and local police to undertake is a voluntary one.
ld. at 353-54 (emphasis in original).
The various public statements on which Plaintiffs rely in this case are obviously
grounded in legal analysis that was performed by someone for someone. But there is no
suggestion, in any of those speeches or interviews, that the legal reasoning being discussed is the

reasoning set out in the OLC-DoD Memo, a document which the Government acknowledges exists. This document, unlike the OLC opinions on local enforcement of immigration laws, has never been mentioned in any public statement. For that matter, OLC has never been mentioned in any public statement; none of the speeches attribute any legal principles announced to OLC or to any opinion it has issued. This contrasts with Bronx Defenders, where there were numerous and express public references to an OLC memorandum that the plaintiffs sought, as well as to conclusions that were attributed to OLC. See 2005 WL 3462725, at *4.
Of course, the Government undoubtedly goes too far when it suggests (as it does) that "explicit" adoption of a memorandum requires the use of "magic words." Courts have consistently rejected that formalistic position in favor of a more holistic approach. See La Raza, 411 F.3d at 357 n. 5; Nat'! Day Laborer, 827 F. Supp. 2d at 258; Bronx Defenders, 2005 WL 3462725, at *6. For example, in Nat'! Day Laborer, the plaintiffs presented significant evidence, both direct and circumstantial, that a particular memorandum drafted by the Office of the Principal Legal Advisor of the Immigration and Customs Enforcement Agency had been adopted by the agency as its policy. See 827 F. Supp. 2d at 254-56, 258-59. Indeed, this was "an instance where the agency ... continually relied upon and repeated in public the arguments made in the Memorandum," id. at 259 even though there does not appear to have been a public reference to the memorandum by an Executive Branch official as explicit as those in La Raza. Instead, pieces of the memorandum, while not explicitly acknowledged as such, popped up repeatedly in various expressions of Government policy, including public statements by Government officials, documents issued by the Government, and internal Government communications. ld. at 254-56, 258-59. My colleague Judge Scheindlin noted, "[U]nless the defendants have unlawfully withheld other legal memoranda from plaintiffs and this Court, it was the only document

comprehensively laying out the legal authority for making Secure Communities mandatory. Thus, the analysis in the Memorandum seems to be the only rationale that the agency could have relied upon and adopted as the legal basis for the policy." !d. at 259.
In this case, however, there is no evidence that the Government "continually relied upon and repeated in public the arguments made" specifically in the OLC-DoD Memo. Nat 'l Day Laborer, 827 F. Supp. 2d at 259. All Plaintiffs say is that, in the ordinary course, "OLC opinions are not mere advice, but rather establish the binding parameters within which officials may operate without fear of prosecution in areas that are not ordinarily subject to judicial review such as the realm of national security." (NYT Reply Memo. at 7-8.) That may be so, but it is sheer speculation that this particular OLC memorandum- addressed to the Attorney General (Bies Decl. ~ 30), "pertaining to the Department of Defense" (id.), and "regarding a potential military operation in a foreign country" (id.)- contains the legal analysis that justifies the Executive Branch's conclusion that it is legal in certain circumstances to target suspected terrorists, including United States citizens, for killing away from a "hot" field of battle. "Mere speculation will not suffice" to support a conclusion that a particular document has been adopted as official agency policy, La Raza, 411 F.3d at 360, and aside from speculation, there is no indication that the OLC-DoD Memo is the "the only document comprehensively laying out the [Government's] legal authority" with respect to targeted killing operations. Nat'l Day Laborer, 827 F. Supp. 2d at 259.
Plaintiffs so argue because this Memorandum is the only document containing legal analysis and opinions whose existence has been disclosed to them. But as chronicled at the beginning of this opinion, various agencies have filed No Number, No List Responses to both FOIA requests; and the CIA has asserted a Glomar response to the requests from the two Times

reporters (which seek only legal opinions). As a result, it is impossible even to know whether any other legal opinions aside from the OLC-DoD Memo exist, let alone whether senior Administration officials were actually relying, in whole or in part, on some other opinion or opinions that might (or might not) exist when they made their public statements.
While in camera review of a withheld document can be an appropriate way to determine whether a document's reasoning and conclusion have been adopted by an agency, c.f Brennan Ctr. for Justice, 2011 WL 4001146, at *6-7, it is not appropriate here. In camera review is pointless where there has been no public reference to a particular document. Review of the OLCDoD Memo would not answer the question of whether the Attorney General and other Executive Branch officials, in making their public statements, relied on this document specifically. Even if the OLC-DoD Memo contains language identical to that uttered by the Attorney General and others in the various public statements on which Plaintiffs rely, that would still not necessarily constitute proof that the Government had adopted this document in particular as its policy.
In sum, the Court finds that the Government has neither expressly adopted nor incorporated by reference the OLC-DoD Memo. Accordingly, the deliberative process privilege still adheres to this document, see Tigue, 312 F.3d at 80-81, and Exemption 5 remains a valid basis for its being withheld.
ii. Waiver in the Context ofthe Attorney-Client Privilege The only publicly-disclosed document that is withheld under the attorney-client privilege alone is the CAPSTONE presentation by the General Counsel of DoD, which none of the Plaintiffs apparently seeks (see above). The attorney-client privilege is waived when a party "mak[es] 'a deliberate decision to disclose privileged materials in a forum where disclosure was voluntary and calculated to benefit

the disclosing party."' Nat'llmmigration Project, 842 F. Supp. 2d at 728 (quoting In re Grand Jury Proceedings, 219 F.3d 175, 184 (2d. Cir. 2000)). There is not the slightest evidence that Mr. Johnson's presentation to senior officers was ever deliberately disclosed in any forum, let alone in circumstances where disclosure was voluntary and calculated to benefit the disclosing party. Therefore, there has been no waiver of the privilege with respect to the CAPSTONE presentation.
Plaintiffs contend that the Government, through the various public statements discussed herein, has waived the attorney-client privilege with respect to the OLC-DoD Memo. The Court need not rule on this issue, however, as the deliberative process plainly applies to this document, so it was properly withheld under Exemption 5.
Glomar and No Number, No List Responses As noted above, OLC initially responded to Plaintiffs' FOIA requests with so-called Glomar responses (except that it acknowledged that DoD had records it would not identify that were responsive to Shane's request). (See Bies Decl., Exs. B, D, F.) Since the filing of these cases, those Glomar responses have been superseded by so-called No Number, No List responses with respect to Dol (Hackett Decl. ~~ 21-28), OLC (Bies Decl. ~ 38), DoD (Neller Decl. ~~ 2526), and OIP (Hibbard Decl. ~ 8). The CIA has persisted in its initial Glomar response with respect to the Shane and Savage requests (even though they were not addressed to the CIA), superseding it only to the limited extent of disclosing that it has no legal opinions in its files concerning its participation in the operation that killed Osama Bin Laden. (See Bennett Decl. ~~ 61-65.) By contrast, the CIA decided that it "can confirm the existence of records responsive to ACLU's request without harming national security" (Bennett Decl. ~ 27), although it refuses to confirm or deny the

existence of any records that would also be responsive to the Shane and Savage requests that is to say, legal opinions. (Bennett Decl. ~ 65 n. 7.) However, that is as far as it went; the Agency, like OLC and DoD, asserts a No Number, No List response, insisting that it "cannot further describe or even enumerate on the public record the number, types, dates, or other descriptive information about these responsive records because to do so would reveal classified information about the nature and extent of the CIA's interest in [the] broad topics [addressed by the ACLU's FOIA request]." (!d.~~ 27-28.)
A Glomar response is appropriate when "to confirm or deny the existence of records ... would cause harm cognizable under a FOIA exception." Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982); see also Roth v. Dep 't ofJustice, 642 F.3d 1161, 1178 (D.C. Cir. 2011 ). A No Number, No List response is employed where the "details that would appear in a Vaughn index" are protected by a FOIA exemption. Bassiouni v. CIA, 392 F.3d 244, 246 (7th Cir. 2004). Although the Seventh Circuit suggested in Bassiouni that the two types of response are really one and the same, I beg to differ; when it gives a No Number, No List response, an agency admits that it has documents responsive to a FOIA request, but refuses to disclose the number or nature of those documents; when it gives a Glomar response, the agency neither confirms nor denies that responsive documents exist at all. That said, there is considerably less law addressing No Number, No List responses than there is on Glomar; but such law as exists suggests that Glomar law should be used to evaluate the propriety of a No Number, No List response.
The standard of review for Glomar and No Number, No List responses is identical to that of an assertion of a FOIA exemption, as these responses are themselves invocations of one or more FOIA exemptions. See Wilner, 592 F.3d at 68; Wolf, 473 F.3d at 378. Here, the Government invoked Exemptions 1 (classification) and 3 (specifically exempted by statute) as

the basis for its No Number, No List responses. (See Hackett Decl. ~~ 21-28; Bies Decl. ~ 38; Neller DecJ. ~~ 25-26, Bennett Decl. ~~ 27-37; Hibbard Decl. ~ 8.)
When the Government issues a Glomar or No Number, No List response, "there are no relevant documents for the court to examine other than the affidavits which explain the Agency's refusal." Wolf, 473 F.3d at 374 n.4 (intemal quotation marks omitted); see also Jarvik v. CIA, 741 F. Supp. 2d 106, 123 (D.D.C. 2010). Moreover, courts play a rather limited role when such responses are filed: "When ... a court finds that the government's public affidavits sufficiently allege the necessity of a Glomar [or No Number, No List] response, ex parte and in camera review of additional, confidential material is unnecessary and beyond the role assigned to the judiciary by applicable law." Wilner, 592 F.3d at 76. I have already noted that Govemment declarations in the national security context are entitled to substantial deference. See Sims, 471 U.S. at 179; Waterboarding Case, 681 F.3d at 72; Wilner, 592 F.3d at 76.
Nevertheless, in supporting a Glomar or No Number, No List response, the Government must provide "specific, non-conclusory justifications for withholding ... [the requested] information." Roth, 642 F.3d at 1178; see also Jarvik, 741 F. Supp. 2d at 123.
In the Drone Strike Case, 808 F. Supp. 2d 280 (D.D.C. 2011)- where the ACLU submitted a FOIA request to the CIA seeking similarly detailed information on the CIA's involvement in targeted killings via drone strikes the ACLU argued that the CIA has waived its right to rely on a Glomar response on the basis of public statements made by former CIA Director Leon Panetta. These statements included remarks during a question and answer session folJowing a speech at the Pacific Council on International Policy, a Washington Post interview, a Wall Street Journal article quoting Director Panetta, and an ABC News interview. !d. at 293-97.

Not surprisingly, many of the statements on which the ACLU here relies are the same as those relied on in the Drone Strike Case.
Judge Collyer ruled against the ACLU on two grounds. With respect to whether Panetta had disclosed CIA involvement in drone strikes, she held that:
Even if Director Panetta were speaking squarely on the issue of drone strikes, he never acknowledged the CIA's involvement in such program. That Director Panetta acknowledged that such a program exists and he had some knowledge of it, or that he was able to assess its success, is simply not tantamount to a specific acknowledgment of the CIA's involvement in such program, nor does it waive the CIA's ability to properly invoke Glomar. ... !d. at 294. Second, Judge Collyer held that in none of Panetta's public statements did he make reference to any specific records related to the ACLU's FOIA request. ld at 297. "[O]nly by inference ... might one conclude that the CIA might have some kind(s) of documentation somewhere." ld. The ACLU makes essentially the same arguments to me that it made to Judge Collyer. The Government does not argue former adjudication, so I will not address it here; but it relies heavily on Judge Collyer's opinion to rebut the ACLU's contention that the CIA's right to assert a Glomar response to its requests has been waived. There is tension at the very least, if not ground for waiver, between the CIA's assertion, on the one hand, of a "general interest in" the "legal basis upon which U.S. citizens can be subjected to targeted killing" and "the process by which U.S. citizens can be designated for targeted killing" (Bennett Decl. ~ 27) and, on the other hand, its Glomar and No Number, No List responses to the FOIA requests in this suit. But while only the most naive among us would ever assume that the CIA was entirely uninterested in "OLC opinions .... concerning targeted lethal operations conducted by the CIA against terrorists, including those who are U.S. citizens

(Bennett Decl. ~,1 61-62), it is a far cry from the extremely general statements made by President Obama and Secretary (and former CIA Director) Panetta about the involvement of the "intelligence community" in such operations to a conclusion that the Agency had waived its right to assert a Glomar response if disclosing the existence of such documents in its files would expose classified material containing intelligence sources and methods.
Moreover, as the DC Circuit has noted, in the Glomar waiver context, "the specific information at issue [in a Glomar response) is the existence vel non of records." Wolf, 473 F.3d at 379 (emphasis in original) (internal citation and quotation marks omitted). Therefore, what waives Glomar is an acknowledgement that records do in fact exist. In no statement made by either the President or Secretary Panetta is there a reference to the existence of any particular records that pertain to targeted killing operations whether by drone strikes or otherwise, and whether involving American citizens or otherwise. See Drone Strike Case, 808 F. Supp. 2d at 297.
With respect to the No Number, No List responses issued by Dol (Hackett Decl. ,],]2128), OLC (Bies Decl. ~ 38), DoD (Neller Decl. ,[~ 25-26), OIP (Hibbard Decl. ~ 8), and CIA (Bennett Decl. ~~ 27-37), none of the parties has directed the Court to case law addressing under what circumstances a No Number, No List response is waived, nor could the Court find any. Neither Bassiouni nor Jarvik, the two cases upon which the Government principally relies, touches on waiver in the No Number, No List context. I assume the standards for assessing waiver in this context are identical to the standards for assessing waiver in the national security context generally- i.e., "Classified information that a party seeks to obtain or publish is deemed to have been officially disclosed only if it (1) '[is] as specific as the information previously released,' (2) 'match[es] the information previously disclosed,' and (3) was 'made public

through an official and documented disclosure.'" Wilson, 586 F.3d at 186 (quoting Wolf, 473 F.3d at 378). As in Wolf, 473 F.3d at 379, the specific information at issue in the No Number, No List context would be the number and nature of records withheld under Exemptions 1 and 3 - in other words, the information that traditionally appears in a Vaughn index.
Plaintiffs have provided the Court with every public pronouncement by a senior Executive Branch official that touches on the intelligence community's involvement in the Government's targeted killing program. In none of these statements is there a reference to any particular records pertaining to the program, let alone the number or nature of those records.
Accordingly, the waiver argument with respect to the Government's Glomar and No Number, No List responses is without merit.
CONCLUSION The Government's motion for summary judgment is granted except to the extent of permitting the DoD to submit a supplemental and more detailed justification for why the deliberative process privilege applies to the two Unclassified Memos on its Vaughn Index. Plaintiffs' cross motions for summary judgment are denied except as to the open issue described above. This constitutes the decision and order of the Court. The Clerk of the Court is directed to remove the motions at Docket 11 Civ. 9336 # 10 and 19 and Docket 12 Civ. 794 # 24 and 34 from the Court's list of open motions.

Dated: January 3, 2013 BY ECF TO ALL COUNSEL

U.S.D.J.

 
 Case 1:11-cv-09336-CM Document 34 Filed 01/22/13 Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
THE NEW YORK TIMES COMPANY, CHARLIE SAVAGE, and SCOTT SHANE,
Plaintiffs,

11 Civ. 9336 (CM)

-againstUNITED STATES DEPARTMENT OF JUSTICE,
Defendant.

---------------------------------------------------------------x
AMERICAN CIVIL LIBERTIES UNION and THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
Plaintiffs,

12 Civ. 794 (CM)

-against-
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.

---------------------------------------------------------------x
DECISION AND ORDER McMahon, J.:

On January 3, 2013, the Court entered summary judgment in this Freedom of Information Act ("FOIA") case in favor ofthe Government, but reserved judgment with respect to whether the deliberative process privilege (and, by extension, Exemption 5 to FOIA) applies to two unclassified memoranda identified by the Department of Defense ("DoD") in its Vaughn index

Case 1:11-cv-09336-CM Document 34 Filed 01/22/13 Page 2 of 3
(the "Unclassified Memos"). (See Declaration of Lieutenant General Robert R. Neller ("Neller Decl."), Ex. J, Documents 9 and 10.) I found General Neller's justification for why DoD was withholding the Unclassified Memos lacking and permitted the Government to submit a supplemental declaration, in the hopes of receiving a more detailed explanation of DoD's reasoning. See New York Times Co. v. Dep 't ofJustice, Nos. 11 Civ. 9336, 12 Civ. 794, ---F. Supp. 2d ----,2013 WL 50209, at *31, 38 (S.D.N.Y. Jan. 3, 2013). To that end, on January 18, the Government submitted the Declaration of Brigadier General Richard C. Gross ("Gross Dec!."), Legal Counsel to the Chairman of the Joint Chiefs of Staff.
The relevant legal standards for the deliberative process privilege can be found in the Court's January 3 opinion at *27-28. Having reviewed the Gross Declaration, I conclude that the Unclassified Memos fall squarely within the deliberative process privilege and thus were properly withheld under Exemption 5. General Gross has demonstrated to my satisfaction that the Unclassified Memos are both predecisional and deliberative, for the reasons articulated in the Court's original decision. (See Gross Decl., ~ 8.)
Accordingly, the Government's motion for summary judgment with respect to the Unclassified Memos is granted and Plaintiffs' cross motions for summary judgment are denied.
The Clerk of the Court is directed to enter judgment for the Government and to close both cases.
This constitutes the decision and order of the Court.
2

Case 1:11-cv-09336-CM Document 34 Filed 01/22/13 Page 3 of 3
Dated: January 22, 2013

BY ECF TO ALL COUNSEL

U.S.D.J.

3

 
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13-422-cv The New York Times Company v. United States

USDC SDNY DOCUMENT
ELECTRONICALLY FILED DOC #: _________________ DATE FILED:A_p_r_il_2_1__, _2_0_1_4___

N.Y.S.D. Case # 11-cv-9336(CM)

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2013

Argued: October 1, 2013

Decided: April 21, 2014

Docket Nos. 13-422(L), 13-445(Con)
- - - - - - - - - - - - - - - - - - - - - -
THE NEW YORK TIMES COMPANY, CHARLIE SAVAGE, SCOTT SHANE, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
Plaintiffs-Appellants,

v.

UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF DEFENSE, CENTRAL INTELLIGENCE AGENCY,
Defendants-Appellees. - - - - - - - - - - - - - - - - - - - - - -
Before: NEWMAN, CABRANES, and POOLER, Circuit Judges.
Appeal from the January 24, 2013, judgment of the United
States District Court for the Southern District of New York
(Colleen McMahon, District Judge), dismissing, on motion for
summary judgment, a suit under the Freedom of Information Act
seeking documents relating to targeted killings of United States
citizens carried out by drone aircraft.
We conclude that (1) a redacted version of the OLC-DOD

1

CERTIFIED COPY ISSUED ON 04/21/2014

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Memorandum must be disclosed, (2) a redacted version of the
classified Vaughn index (described below) submitted by OLC must
be disclosed, (3) [redacted],1 (4) the Glomar and “no number, no
list” responses are insufficiently justified, (5) DOD and CIA
must submit Vaughn indices to the District Court for in camera
inspection and determination of appropriate disclosure and
appropriate redaction, and (6) the OIP search was sufficient.
We therefore affirm in part, reverse in part, and remand.
David E. McCraw, The New York Times Company, New York, N.Y. (Stephen N. Gikow, New York, N.Y., on the brief), for Plaintiffs-Appellants The New York Times Company, Charlie Savage, and Scott Shane.
Jameel Jaffer, American Civil Liberties Union Foundation, New York, N.Y. (Hina Shamsi, Brett Max Kaufman, American Civil Liberties Union Foundation, New York, N.Y., Joshua Colangelo-Bryan, Dorsey & Whitney LLP, New York, N.Y., Eric
1 The redactions in the text of this opinion, most of which refer to the content of the OLC-DOD Memorandum, disclosure of which is the primary subject of this appeal, are being made at the request of the Government to preserve its opportunities for further appellate review of our ruling requiring disclosure of a redacted version of that Memorandum. In the event that our ruling requiring disclosure of a redacted version of the Memorandum is not altered in the course of any further appellate review, an unredacted version of this opinion, together with a redacted version of the OLC-DOD Memorandum, will be filed.
2

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Ruzicka, Colin Wicker, Dorsey & Whitney LLP, Minneapolis, MN., on the brief), for PlaintiffsAppellants American Civil Liberties Union and American Civil Liberties Union Foundation.
Sharon Swingle, U.S. Appellate Staff Atty., Washington, D.C. (Preet Bharara, U.S. Atty., Sarah S. Normand, Asst. U.S. Atty., New York, N.Y., Stuart F. Delery, Acting Asst. U.S. Atty. General, Washington, D.C., on the brief), for Defendants-Appellees.
(Bruce D. Brown, Mark Caramanica, Aaron Mackey, The Reporters Committee for Freedom of Press, Arlington, V.A., for amicus curiae The Reporters Committee for Freedom of Press, in support of Plaintiffs-Appellants.)
(Marc Rotenberg, Alan Butler, Ginger McCall, David Brody, Julia Horwitz, Electronic Privacy Information Center, Washington, D.C., for amicus curiae Electronic Privacy Information Center, in support of Plaintiffs-Appellants.)
JON O. NEWMAN, Circuit Judge:
This appeal of a judgment dismissing challenges to denials
of requests under the Freedom of Information Act (“FOIA”)
presents important issues arising at the intersection of the
public's opportunity to obtain information about their
government's activities and the legitimate interests of the
3

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Executive Branch in maintaining secrecy about matters of national security. The issues assume added importance because the information sought concerns targeted killings of United States citizens carried out by drone aircraft. Plaintiffs-Appellants The New York Times Company and New York Times reporters Charlie Savage and Scott Shane (sometimes collectively “N.Y. Times”), and the American Civil Liberties Union and the American Civil Liberties Union Foundation (collectively “ACLU”) appeal from the January 24, 2013, judgment of the United States District Court for the Southern District of New York (Colleen McMahon, District Judge) dismissing, on motions for summary judgment, their consolidated FOIA suits. See New York Times Co. v. U. S. Dep’t of Justice (“Dist. Ct. Op.”), 915 F. Supp. 2d 508 (S.D.N.Y. 2013). The suits were brought against the Defendants-Appellees United States Department of Justice (“DOJ”), the United States Department of Defense (“DOD”), and the Central Intelligence Agency (“CIA”) (sometimes collectively the “Government”).
We emphasize at the outset that the Plaintiffs’ lawsuits do not challenge the lawfulness of drone attacks or targeted killings. Instead, they seek information concerning those attacks, notably, documents prepared by DOJ’s Office of Legal Counsel (“OLC”) setting forth the Government’s reasoning as to
4

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the lawfulness of the attacks. The issues primarily concern the validity of FOIA responses
that (a) decline to reveal even the existence of any documents responsive to particular requests (so-called “Glomar responses” (described below)), (b) acknowledge the existence of responsive documents but decline to reveal either the number or description of such documents (so-called “no number, no-list” responses (described below)), (c) assert various FOIA exemptions or privileges claimed to prohibit disclosure of various documents that have been publicly identified, notably the OLC-DOD Memorandum [redacted], and (d) challenge the adequacy of a FOIA search conducted by one office of DOJ.
We conclude that (1) a redacted version of the OLC-DOD Memorandum must be disclosed, (2) a redacted version of the classified Vaughn index (described below) submitted by OLC must be disclosed, (3) [redacted], (4) the Glomar and “no number, no list” responses are insufficiently justified, (5) DOD and CIA must submit Vaughn indices to the District Court for in camera inspection and determination of appropriate disclosure and appropriate redaction, and (6) the Office of Information Policy (“OIP”) search was sufficient. We therefore affirm in part, reverse in part, and remand.
5

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Background The FOIA requests at issue in this case focus primarily on the drone attacks [redacted] that killed Anwar al-Awlaki2 and Samir Khan in September 2011 and al-Awlaki’s teenage son, Abdulrahman al-Awlaki, in October 2011. All three victims were United States citizens either by birth or naturalization. Statutory Framework. FOIA provides, with exceptions not relevant to this case, that an “agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . , shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A) (2013). FOIA contains several exemptions, three of which are asserted in this case. Exemption 1 exempts records that are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1) (2013). Executive Order 13526 allows an agency to withhold information that (1) “pertains
2 This spelling, which we adopt (except in quotations), is used by the District Court and in the Government’s brief. The briefs of N.Y. Times and ACLU and numerous documents in the record render the name “al-Aulaqi.”
6

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to” one of the categories of information specified in the Executive order, including “intelligence activities (including covert action),” “intelligence sources or methods,” or “foreign relations or foreign activities of the United States” and (2) if “unauthorized disclosure of the information could reasonably be expected to cause identifiable and describable damage to the national security.” Executive Order No. 13526 § 1.1(a)(3)-(4), 1.4(c)-(d), 75 Fed. Reg. 708, 709 (Dec. 29, 2009).
Exemption 3 exempts records that are “specifically exempted from disclosure by [another] statute” if the relevant statute either “requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue” or “establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3)(A)(i), (ii) (2013). Two such statutes are potentially relevant here. The Central Intelligence Agency Act of 1949, as amended, provides that the Director of National Intelligence “shall be responsible for protecting intelligence sources or methods,” and exempts CIA from “any other law which require[s] the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency.” 50 U.S.C. § 3507 (2013). The
7

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National Security Act of 1947, 50 U.S.C. § 3024-1(i)(1) (2013),

exempts from disclosure “intelligence sources and methods.”

Exemption 5 exempts “inter-agency or intra-agency

memorandums or letters which would not be available by law to a

party other than an agency in litigation with the agency.” 5

U.S.C. § 552(b)(5) (2013). Exemption 5 encompasses traditional

common law privileges against disclosure, including the attorney-

client and deliberative process privileges.

See National

Council of La Raza v. Dep't of Justice, 411 F.3d 350, 356 (2d

Cir. 2005).

The N.Y. Times FOIA requests and Government responses.

Shane and Savage, New York Times reporters, submitted separate

FOIA requests to OLC. Shane’s request, submitted in June 2010,

sought:

all Office of Legal Counsel opinions or memoranda since 2001 that address the legal status of targeted killings, assassination, or killing of people suspected of ties to Al-Qaeda or other terrorist groups by employees or contractors of the United States government.

Joint Appendix (“JA”) 296-97.

Savage’s request, submitted in October 2010, sought:

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

8

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citizen who is deemed to be a terrorist. JA 300-01.
OLC denied Shane’s request. With respect to the portion of his request that pertained to DOD, OLC initially submitted a socalled “no number, no list” response3 instead of submitting the usual Vaughn index,4 numbering and identifying by title and description documents that are being withheld and specifying the FOIA exemptions asserted. A no number, no list response acknowledges the existence of documents responsive to the request, but neither numbers nor identifies them by title or description. OLC said that the requested documents pertaining to DOD were being withheld pursuant to FOIA exemptions 1, 3, and 5.
As to documents pertaining to agencies other than DOD, OLC submitted a so-called “Glomar response.”5 This type of response
3 The term was apparently coined by CIA, see Bassiouni v. CIA, 392 F.3d 244, 246 (7th Cir. 2004), and the CIA’s use of no number, no list responses to FOIA requests has been considered by district courts in the District of Columbia. See National Security Counselors v. CIA, 898 F. Supp. 2d 233, 284-85 (D.D.C. 2012); Jarvik v. CIA, 741 F. Supp. 2d 106, 123 (D.D.C. 2010).
4 The term derives from Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
5 The term derives from the Hughes Glomar Explorer, a vessel built to recover a sunken Soviet submarine. See Phillippi v. CIA, 546 F.2d 1009, 1010-12 (D.C. Cir. 1976). A Glomar response was first used in 1992 in a case challenging a Government agency’s refusal to confirm or
9

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neither confirms nor denies the existence of documents responsive to the request. See Wilner v. National Security Agency, 592 F.3d 60, 68 (2d Cir. 2009). OLC stated that the Glomar response was given “because the very fact of the existence or nonexistence of such documents is itself classified, protected from disclosure by statute, and privileged” under 5 U.S.C. § 552(b)(1), (3), (5). CIA confirmed that it requested DOJ to submit a Glomar response on its behalf.6
OLC also denied Savage’s request. Declining to submit either a Vaughn index or even a no number, no list response, OLC submitted a Glomar response, stating that, pursuant to Exemptions 1, 3, and 5, it was neither confirming nor denying the existence of documents described in the request. Unlike its letter denying the Shane request, OLC’s response to the Savage request did not identify any responsive documents relating to DOD.
During the course of the litigation, OLC modified its responses to the Shane and Savage requests by identifying the
deny the existence of certain materials requested under FOIA, see Benavides v. DEA, 968 F.2d 1243, 1245 (D.C. Cir. 1992).
6 CIA made one exception to its request that OLC submit a Glomar response. Because CIA’s involvement in the operation that resulted in the death of Osama bin Laden had been acknowledged and was not classified, the agency asserted that any OLC documents related to the agency’s involvement in that operation would not be covered by a Glomar response, but added that there were no such documents.
10

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existence of one document pertaining to DOD, what the District
Court and the parties have referred to as the OLC-DOD Memorandum,
but claimed that this document was exempt from disclosure under
Exemption 5. Because the OLC-DOD Memorandum was classified, it
was presumably also withheld under Exemption 1. As to all other
DOD documents, it is not clear whether OLC was continuing to
assert a Glomar response, as it had made to Shane, or a no
number, no list response, as it had made to Savage.
The ACLU FOIA requests and Government responses. In October
2011, ACLU submitted FOIA requests to three agencies: DOJ
(including two of DOJ’s component agencies, OIP and OLC), DOD, and CIA. The requests, quoted in the margin,7 sought
7
1. All records created after September 11, 2001, pertaining to the legal basis in domestic, foreign, and international law upon which U.S. citizens can be subjected to targeted killings, whether using unmanned aerial vehicles (“UAVs” or “drones) or by other means. 2. All records created after September 11, 2001, 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. All memoranda, opinions, drafts, correspondence, and other records produced by the OLC after September 11, 2001, 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 reasons why domestic-law prohibitions on murder,
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assassination, and excessive use of force did not preclude the targeted killing of al-Awlaki;
B. The protection and requirements imposed by the Fifth Amendment Due Process Clause;
C. The reasons why International-law prohibitions on extrajudicial killing did not preclude the targeted killing of al-Awlaki;
D. The applicability (or non-applicability) of the Treason Clause to the decision whether to target alAwlaki;
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. Any requirement for proving that al-Awlaki posed an imminent risk of harm to others, including an explanation of how to define imminence in this context; and
G. Any requirement that the U.S. Government first attempt to capture Al-Awlaki before killing him.
4. All documents and records pertaining to the factual basis for the targeted killing of Al-Awlaki, including:
A. Facts supporting a belief that al-Awlaki posed an imminent threat to the United States or United States interests;
B. Facts supporting a belief that al-Awlaki could not be captured or brought to justice using nonlethal means;
C. Facts indicating that there was a legal justification for killings persons other than alAwlaki, including other U.S. citizens, while attempting to kill al-Awlaki himself;
D. Facts supporting the assertion that al-Awlaki was operationally involved in al Qaeda, rather than being involved merely in propaganda activities; and
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various documents concerning the targeted killings of United
States citizens in general and al-Awlaki, his son, and Khan in
particular.
Both OLC and CIA initially submitted Glomar responses,
refusing to confirm or deny the existence of responsive
documents, pursuant to Exemptions 1, 3, and 5.
DOD initially stated that it could not respond to the
request within the statutory time period because of the scope and
complexity of the request.
During the course of the litigation, the Government agencies
E. Any other facts relevant to the decision to authorize and execute the targeted killings of alAwlaki.
5. All documents and records pertaining to the factual basis for the killing of Samir Khan, including whether he was intentionally targeted, whether U.S. Government personnel were aware of his proximity to al-Awlaki at the time the missiles were launched at al-Awlaki’s vehicle, whether the United States took measures to avoid Khan’s death, and any other facts relevant to the decision to kill Khan or the failure to avoid causing his death.
6. All documents and records pertaining to the factual basis for the killing of Abdulrahman al-Awlaki, including whether he was intentionally targeted, whether U.S. Government personnel were aware of his presence when they launched a missile or missiles at his location, whether he was targeted on the basis of his kinship with Anwar al-Awlaki, whether the United States took measures to avoid his death, and any other factors relevant to the decision to kill him or the failure to avoid causing his death.
JA 252-53.
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modified their original responses in light of statements by senior Executive Branch officials on the legal and policy issues pertaining to United States counterterrorism operations and the potential use of lethal force by the United States Government against senior operational leaders of al-Qaeda who are United States citizens.
OLC provided ACLU with a Vaughn index of sixty unclassified responsive documents, each described as an e-mail chain reflecting internal deliberations concerning the legal basis for the use of lethal force against United States citizens in a foreign country in certain circumstances. OLC withheld these documents pursuant to Exemption 5.
OLC also submitted a no number, no list response as to classified documents, stating that it could not provide the number or description of these documents because that information was protected from disclosure by Exemptions 1 and 3. OLC did describe one of these documents as an “OLC opinion related to DoD operations,” Declaration of John E. Bies, Deputy Assistant Attorney General, OLC ¶ 38 (“Bies Decl.”), JA 279, which it withheld in its entirety under Exemptions 1 and 3. This is apparently not the OLC-DOD Memorandum, which OLC said was exempt from disclosure under Exemption 5. That this document is not the
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OLC-DOD Memorandum is confirmed by OLC’s assertion that this document “cannot be further identified or described on the public record.” Id. The OLC-DOD Memorandum was withheld under Exemptions 1 and 5.
OIP located one responsive document, a set of talking points prepared for the Attorney General and others related to “hypothetical questions about Anwar al-Aulaqi’s death,” Declaration of Douglas R. Hibbard, Deputy Chief of the Initial Request Staff, OIP ¶ 8, JA 441, which it released to ACLU. OIP also issued a Vaughn index listing four unclassified records withheld under Exemptions 3, 5, and 6.8 OIP also submitted a no number, no list response to various classified documents withheld under Exemptions 1 and 3.
DOD’s revised response disclosed a speech given by Jeh Johnson, then-DOD General Counsel, at Yale Law School on February 22, 2012. DOD also provided ACLU with a Vaughn index listing ten unclassified records, withheld pursuant to Exemption 5. Seven of those documents were e-mail traffic regarding drafts of the speech given by Johnson at Yale Law School and a speech delivered
8 Exemption 6, which is not in issue in this appeal, applies to “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6) (2013).
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by Attorney General Holder at Northwestern University School of Law. One of the withheld unclassified records was a presentation by Johnson in February 2012, regarding international law principles, to officers who had recently obtained the rank of O7. The remaining two withheld unclassified records were described as “memoranda from the Legal Counsel to the Chairman of the Joint Chiefs of Staff to the White House’s National Security Council Legal Advisor addressing the legal basis for conducting military operations against U.S. citizens in general.” Declaration of Robert E. Neller, Lt. General, United States Marine Corp, Director of Operations for the Joint Staff at the Pentagon, ¶ 16 (“Neller Decl.”). JA 334.
DOD also located responsive classified records. One of these was the previously mentioned OLC-DOD memorandum, which DOD withheld under Exemptions 1 and 5. As to the other classified documents, DOD submitted a no number, no list response.
CIA modified its initial Glomar responses in June 2012 by confirming the existence of “responsive records reflecting a general interest” in two areas described in the ACLU’s request: (1) “‘the legal basis . . . upon which U.S. citizens can be subjected to targeted killing’” and (2) “‘the process by which U.S. citizens can be subjected to targeted killing.’” Declaration
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of John Bennett, Director, National Clandestine Service, CIA, ¶ 27 (quoting ACLU request). In these two categories, CIA submitted a no number, no list response, relying on Exemptions 1 and 3, with the exception that CIA acknowledged that it possessed copies of speeches given by the Attorney General at Northwestern University Law School on March 5, 2012, and by the Assistant to the President for Homeland Security and Counterterrorism on April 30, 2012. See id.
The pending lawsuit and District Court opinions. In December 2011, N.Y. Times filed a lawsuit challenging the denials of the Shane and Savage requests. ACLU filed its suit in February 2012. After the suits were consolidated, both Plaintiffs and the Government filed cross-motions for summary judgment. In January 2013, the District Court denied both Plaintiffs’ motions for summary judgment and granted the Defendants’ motion in both cases, with one exception, which required DOD to submit a more detailed justification as to why the deliberative process exemption (asserted through Exemption 5) applied to two unclassified memos listed in its Vaughn index. See Dist. Ct. Op., 915 F. Supp. 2d at 553. Later in January 2013, after receiving a supplemental submission from DOD, the District Court granted the Defendants’ motion for summary
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judgment with respect to the two unclassified DOD memos. See New York Times Co. v. U. S. DOJ (“Dist. Ct. Supp. Op.”), Nos. 11 Civ. 9336, 12 Civ. 794, 2013 WL 238928 (S.D.N.Y. Jan. 22, 2013).
In its principal opinion, which we discuss in more detail in Parts III and IV, below, the Court first ruled that the Government had conducted an adequate search for responsive documents. See Dist. Ct. Op., 915 F. Supp. 2d at 532-33. The Court then considered separately each of the Government’s claims to an exemption.
As to Exemption 1, concerning properly classified documents, the Court first ruled that there was no evidence that any of the documents withheld pursuant to Exemption 1 had not been properly classified. See id. at 535. The Court specifically considered the Plaintiffs’ claim that legal analysis could not be classified and rejected the claim. See id.
Turning to the Plaintiffs’ claim of waiver, the Court, citing Wilson v. CIA, 586 F.3d 171, 186 (2d Cir. 2009), first ruled that waiver of Exemption 1 had not occurred with respect to classified documents containing operational details of targeted killing missions. See Dist. Ct. Op., 915 F. Supp. 2d at 535-37. The Court then specifically considered whether waiver of Exemption 1 had occurred with respect to the OLC-DOD
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Memorandum and rejected the claim. See id. at 538. As to Exemption 3, which protects records exempted from
disclosure by statute, the District Court first noted that section 102A(i)(1) of the National Security Act, now codified at 50 U.S.C. § 3024(i)(1) (2013), is an exempting statute within the meaning of Exemption 3, and that this provision protects from disclosure “intelligence sources and methods.” Id. at 539. The Court then reckoned with ACLU’s contention that placing individuals on kill lists does not fall within the category of intelligence sources and methods. Agreeing with a decision of a district court in the District of Columbia, ACLU v. Dep’t of Justice, 808 F. Supp. 2d 280, 290-92 (D.D.C. 2011) (“Drone Strike Case”), which was later reversed on appeal, see ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013), the District Court here rejected ACLU’s argument. See Dist. Ct. Op., 915 F. Supp. 2d at 540. The District Court then specifically focused on the issue whether legal analysis could fall within the category of intelligence sources and methods. Acknowledging that it is “entirely logical and plausible” that intelligence sources and methods could be redacted from legal analysis upon in camera inspection, the Court declined to make such inspection or resolve the issue because it concluded that Exemption 5 “plainly applies” to the legal
19

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analysis that is sought here. See id. The District Court then determined that section 6 of the CIA
Act, 50 U.S.C. § 403g, now codified at 50 U.S.C. § 3507 (2013), is an exempting statute within the meaning of Exemption 3 and that section 6 protects from disclosure information concerning the “functions” of CIA. See id. at 541. Again, following the district court decision in the Drone Strike Case, before it was reversed, the District Court here ruled that Exemption 3 permitted CIA, in response to ACLU’s request, to refuse to reveal the existence of records concerning drone strikes. See id.
As to Exemption 5, covering “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency,” the District Court noted that this exemption applies to documents withheld “under the deliberative process privilege (a.k.a., the executive privilege) and the attorney-client privilege,” citing this Court’s decision in Tigue v. U.S. Dep’t of Justice, 312 F.3d 70, 76 (2d Cir. 2002). See Dist. Ct. Op., 915 F. Supp. 2d at 54142. OLC relied on the deliberative process privilege to withhold the classified OLC-DOD Memorandum, which both Plaintiffs sought, and DOD relied on this privilege to withhold the two unclassified documents on its Vaughn index that ACLU requested. These two,
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numbered 9 and 10, were described as “Memorandum from Legal Counsel to Chairman of the Joint Chiefs of Staff to the National Security Legal Advisor with legal analysis regarding the effect of U.S. citizenship on targeting enemy belligerents.” JA 409.
With respect to the OLC-DOD Memorandum, the District Court, accepting N.Y. Times’s concession that this document at one time might have been properly withheld under the deliberative process and/or attorney-client privileges, see id. at 544, rejected the Plaintiffs’ contentions that these privileges had been lost because of one or more of the following principles: waiver, adoption, or working law, see id. at 546-50.
As to documents 9 and 10 on DOD’s Vaughn index, the Court initially found DOD’s justification for invoking Exemption 5 inadequate, see id. at 545, but ruled that a subsequent submission sufficiently supported the application of the deliberative process privilege and hence Exemption 5 to these documents, see Dist. Ct. Supp. Op., 2013 WL 238928, at *1.
Finally, the District Court considered the Glomar and no number, no list responses that were given by DOJ, DOD, and CIA. Apparently accepting the sufficiency of the affidavits submitted by officials of these agencies to justify the responses under Exemptions 1 and 3, the Court turned its attention to the
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Plaintiffs’ claims that these protections had been waived.
Again, following the district court opinion in the Drone Strike
Case, before it was reversed, the District Court here concluded
that none of the public statements of senior officials waived
entitlement to submit Glomar or no number, no list responses
because “[i]n none of these statements is there a reference to
any particular records pertaining to the [targeted killing]
program, let alone the number or nature of those records.” Dist.
Ct. Op., 915 F. Supp. 2d at 553 (emphases in original).
Information made public after the District Court opinions.9
9 As a general rule, a FOIA decision is evaluated as of the time it was made and not at the time of a court's review. See, e.g., Bonner v. U.S. Dep’t of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991) (“To require an agency to adjust or modify its FOIA responses based on post-response occurrences could create an endless cycle of judicially mandated reprocessing.”). On this basis, the Government argues that we cannot consider any official disclosures made after the District Court's opinion.
We disagree. Although we are not required to consider such evidence, the circumstances of this case support taking judicial notice of the statements here. See Fed. R. Evid. 201(b)(2). The Government's post-request disclosures “go[] to the heart of the contested issue,” Powell v. U.S. Bureau of Prisons, 927 F.2d 1239, 1243 (D.C. Cir. 1991) (internal quotation marks omitted), and, as discussed below, are inconsistent with some of its prior claims [redacted]. Taking judicial notice of such statements is the same course taken by the Court of Appeals for the D.C. Circuit in its recent ACLU v. C.I.A. decision. 710 F.3d at 431. We conclude that it is the most sensible approach to ongoing disclosures by the Government made in the midst of FOIA litigation.
Moreover, the Government’s request for an opportunity to submit new material concerning public disclosures made after the District
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After the District Court entered judgment for the Defendants, one document and several statements of Government officials that the Plaintiffs contend support their claims became publicly available. The document is captioned “DOJ White Paper” and titled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or an Associated Force” (“DOJ White Paper”). As the Government acknowledges, see Br. for Appellees at 25, the 16-page, singlespaced DOJ White Paper was leaked to the press and subsequently officially disclosed by DOJ.10 The leak occurred on February 4,

Court’s decision was honored by affording the Government an opportunity, after oral argument, to submit such material ex parte for in camera inspection, which the Government has done.

10 The DOJ White Paper was leaked to Michael Isikoff, a reporter

with NBC News, according to a report available at

http://nbcnews.to/U1ZII3; the text of the leaked document is available

via a link at that website. (Hard copies of the documents available

at this and all other websites cited in this opinion, as well as

copies of videos available at websites cited in this opinion, to the

extent they can be copied, have been docketed with the Clerk of Court

for public reference.) The official disclosure, acknowledged by the

Government, see Br. for Appellees at 25, was made by OIP on Feb. 4,

2013, in response to an FOIA request submitted by Truthout, according

to a report available at http://www.truth-out.org/news/item/14585-

targeted-killing-white-paper-leaked-to-nbc-news-turned-over-to-

truthout-by-doj-in-response-to-a-six-month-old-foia-request-four-days-

later; the text of the officially disclosed document is available via

a

link

at

that

website

and

also

at

https://www.documentcloud.org/documents/602342-draft-white-paper.html.

The document disclosed to Truthout is marked “draft”; the document

leaked to Isikoff is not marked “draft” and is dated November 8, 2011.

The texts of the two documents are identical, except that the document

leaked to Isikoff is not dated and not marked “draft.”

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2013; the official disclosure occurred four days later.
The statements are those of John O. Brennan, Attorney
General Eric Holder, and President Obama. Brennan, testifying
before the Senate Select Committee on Intelligence on February
7, 2013, on his nomination to be director of CIA, said, among
other things, “The Office of Legal Counsel advice establishes the
legal boundaries within which we can operate.” Open Hearing on
the Nomination of John O. Brennan to be Director of the Central
Intelligence Agency Before the S. Select Comm. on Intelligence,
113 Cong. 57 (Feb. 7, 2013) (“Brennan Hearing”), available at
http://www.intelligence.senate.gov/130207/transcript.pdf. Holder
sent a letter to Senator Patrick J. Leahy, Chairman of the Senate
ACLU contends that DOJ did not release the DOJ White Paper in response to its FOIA request, nor list it on its Vaughn index. See Br. for ACLU at 21 n.7. The Government responds that ACLU had narrowed its request to exclude “draft legal analyses,” Letter from Eric A.O. Ruzicka to Sarah S. Normand (Apr. 3, 2012), and that the DOJ White Paper was “part of document number 60 on the Vaughn index submitted by the Office of Legal Counsel as an attachment to a responsive e-mail. See Br. for Appellees at 25 n.8. The OLC’s Vaughn index describes document number 60 as “E-mail circulating draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens in certain circumstances, and discussion regarding interagency deliberations concerning the same” and invokes Exemption 5. Apparently, OLC expected ACLU to understand “circulating” to mean “attachment.”
The Government offers no explanation as to why the identical text of the DOJ White Paper, not marked “draft,” obtained by Isikoff, was not disclosed to ACLU, nor explain the discrepancy between the description of document number 60 and the title of the DOJ White Paper.
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Judiciary Committee on May 22, 2013 (“Holder Letter”).11 In that letter Holder stated, “The United States . . . has specifically targeted and killed one U.S. citizen, Anwar al-Aulaqi,” Holder Letter at unnumbered second page, and acknowledged that United States counterterrorism operations had killed Samir Khan and Abdulrahman al-Awlaki, who, he states, were not targeted by the United States, see id. He also stated, “[T]he Administration has demonstrated its commitment to discussing with the Congress and the American people the circumstances in which it could lawfully use lethal force in a foreign country against a U.S. citizen who is a senior operational leader of al-Qa’ida or its associated forces, and is actively engaged in planning to kill Americans.” Id. He also stated, “The decision to target Anwar al-Aulaki was lawful . . . .” Id. at fourth unnumbered page. President Obama delivered an address at the National Defense University on May 23, 2013.12 In that address, the President listed al-Awlaki’s terrorist activities and acknowledged that he had “authorized the strike that took him out.”
Discussion
11 The Holder Letter is available at http://www.justice.gov/ag/AGletter-5-22-13.pdf.
12 The President’s address is available via a link at http://wh.gov/hrTq.
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I. FOIA Standards. FOIA calls for “broad disclosure of Government records.” CIA
v. Sims, 471 U.S. 159, 166 (1985). The disclosure obligation is subject to several exemptions. However, “consistent with the Act’s goal of broad disclosure, these exemptions have consistently been given a narrow compass.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) (internal quotation marks omitted). Exemptions 1 (classified documents), 3 (documents protected by statute), and 5 (privileged documents), outlined above, have been invoked in this litigation. “The agency asserting the exemption bears the burden of proof, and all doubts as to the applicability of the exemption must be resolved in favor of disclosure.” Wilner, 592 F.3d at 69. To meet its burden of proof, the agency can submit “[a]ffidavits or declarations giving reasonably detailed explanations why any withheld documents fall within an exemption.” ACLU v. Dep’t of Justice, 681 F.3d 61, 69 (2d Cir. 2012) (internal quotation marks omitted).
We review de novo a district court’s grant of summary judgment in FOIA litigation. See Wilner, 592 F.3d at 69. When an agency claims that a document is exempt from disclosure, we review that determination and justification de novo. See id.
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When the claimed exemptions involve classified documents in the national security context, the Court must give “substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record.” ACLU, 681 F.3d at 69 (emphasis in original) (internal quotation marks omitted). II. Appellants’ Claims
Narrowing the scope of the Shane request (OLC opinions that address the legal status of targeted killings) and the Savage request (OLC memoranda analyzing the circumstances under which it would be lawful to kill a United States citizen who is deemed to be a terrorist), Appellant N.Y. Times presses on appeal its request to OLC for disclosure of the OLC-DOD Memorandum. N.Y. Times also requests a Vaughn index of all withheld documents, instead of the no number, no list and Glomar responses it has received. See Br. for N.Y. Times at 51-52. ACLU seeks disclosure of the OLC-DOD memorandum; what it refers to as “the Unclassified Memos,” Br. for ACLU at 50, 61, which are documents nos. 9 and 10 on DOD’s Vaughn index, see Dist. Ct. Op., 915 F. Supp. 2d at 545; and “certain OLC memoranda that the agencies have not addressed in this litigation but whose existence they have officially acknowledged in public statements,” Br. for ACLU at 50. ACLU also requests Vaughn indices and asks that OIP be
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required “to renew its search for responsive documents.” Br. for ACLU at 61. III. The OLC-DOD Memorandum
The OLC-DOD Memorandum, as described by OLC, is an “OLC opinion pertaining to the Department of Defense marked classified . . .[t]hat . . . contains confidential legal advice to the Attorney General, for his use in interagency deliberations, regarding a potential military operation in a foreign country.” Bies Decl. ¶ 30.
OLC withheld the OLC-DOD Memorandum as protected from disclosure by Exemption 5 “because it is protected by the deliberative process and attorney-client privileges.” Id. DOD withheld the document under Exemptions 1 and 5 “because the content of the document contains information about military operations, intelligence sources and methods, foreign government information, foreign relations, and foreign activities.” Neller Decl. ¶ 17. General Neller stated that the classified information in the OLC-DOD Memorandum “is not reasonably segregable.” Id.
In upholding the application of Exemption 1 to the OLC-DOD Memorandum, the District Court first ruled that the affidavits supplied by senior Government officials demonstrated that
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classification had been properly made. See Dist. Ct. Op., 915 F. Supp. 2d at 535. The Court then ruled that legal analysis may be classified, citing three district court opinions.13 See id. After pointing out that Exemption 1 applies to documents properly classified pursuant to an Executive Order and that Executive Order No. 13526 “applies to any information that ‘pertains to’ military plans or intelligence activities (including covert action), sources or methods,” id., the Court stated, “I see no reason why legal analysis cannot be classified pursuant to E.O. 13526 if it pertains to matters that are themselves classified,” id.
In considering the application of Exemption 5 to the OLC-DOD Memorandum, the District Court noted the Government’s claim that both the deliberative process and attorney-client privileges protected the document, and observed that N.Y. Times did not disagree that the document might at one time have been withheld under both privileges. See id. at 544.
After determining that Exemptions 1 and 5 applied to the
13 New York Times Co. v. U.S. Dep’t of Justice, 872 F. Supp. 2d 309, 312-13, 317-18 (S.D.N.Y. 2012), ACLU v. Office of the Director of National Intelligence, No. 10 Civ. 4419, 2011 WL 5563520, at *8 (S.D.N.Y. Nov. 15, 2011), and Center for International Environmental Law v. Office of the U.S. Trade Representative, 505 F. Supp. 2d 150, 154 (D.D.C. 2007).
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OLC-DOD Memorandum, the Court considered and rejected the Plaintiffs’ claims that the Government had waived application of these exemptions. With respect to waiver of Exemption 1, the Court stated that waiver occurs only where the government has “officially” disclosed the information sought, Dist. Ct. Op., 915 F. Supp. 2d at 536 (citing Halpern v. FBI, 181 F.3d 279, 294 (2d Cir. 1989)), and that official disclosure of classified information occurs only if the classified information is “‘as specific as the information previously released,’” “‘match[es] the information previously disclosed,’” and was “‘made public through an official and documented disclosure,’” id. (quoting Wilson, 586 F.3d at 186). The District Court ruled that no official disclosure had been made concerning documents containing operational details of targeted killings, sought by ACLU, see id., and that none of the public pronouncements cited by the Plaintiffs “reveals the necessary detailed legal analysis that supports the Administration’s conclusion that targeted killing, whether of citizens or otherwise, is lawful,” id. at 538 (footnote omitted).
With respect to waiver of Exemption 5, the District Court ruled that the deliberative process privilege had not been waived because “there is no evidence that the Government continually
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relied upon and repeated in public the arguments made specifically in the OLC-DOD Memo,” id. at 549 (emphasis in original) (internal quotation marks omitted), and that “it is sheer speculation that this particular OLC memorandum . . . contains the legal analysis that justifies the Executive Branch’s conclusion that it is legal in certain circumstances to target suspected terrorists, including United States citizens, for killing away from a ‘hot’ field of battle,” id. The Court saw no need to consider the plaintiffs’ claim of waiver in the context of the attorney-client privilege because the deliberative process privilege protected the OLC-DOD Memorandum under Exemption 5. See id.
We agree with the District Court’s conclusions that the OLCDOD Memorandum was properly classified and that no waiver of any operational details in that document has occurred. With respect to the document’s legal analysis, we conclude that waiver of Exemptions 1 and 5 has occurred.14 “Voluntary disclosures of all or part of a document may waive an otherwise valid FOIA exemption,” Dow Jones & Co. v. U.S. Dep’t of Justice, 880 F. Supp. 145, 150-51 (S.D.N.Y. 1995) (citing Mobil Oil Corp. v.
14 We therefore need not consider the Appellants’ claim that the legal analysis in the OLC-DOD Memorandum was not subject to classification.
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E.P.A., 879 F.2d 698, 700 (9th Cir. 1989)), vacated in part on other grounds, 907 F. Supp. 79 (S.D.N.Y. 1995), and the attorneyclient and deliberative privileges, in the context of Exemption 5, may be lost by disclosure, see Brennan Center for Justice v. U.S. Dep’t of Justice, 697 F.3d 184, 208 (2d Cir. 2012).
(a) Loss of Exemption 5. Exemption 5 “‘properly construed, calls for disclosure of all opinions and interpretations which embody the agency’s effective law and policy, and the withholding of all papers which reflect the agency's group thinking in the process of working out its policy and determining what its law shall be.’” Id. at 196 (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975)). At the same time, we recognize that “the law extends the privilege to legal advice given by a lawyer to his client [because] statements by the lawyer often reveal – expressly or by necessary implication – assumptions of fact based on statements by the client,” George A. Davidson & William H. Voth, Waiver of the Attorney-Client Privilege, 64 Oregon L. Rev. 637, 650 (1986).
In considering waiver of the legal analysis in the OLC-DOD Memorandum, we note initially the numerous statements of senior Government officials discussing the lawfulness of targeted killing of suspected terrorists, which the District Court
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characterized as “an extensive public relations campaign to convince the public that [the Administration’s] conclusions [about the lawfulness of the killing of al-Awlaki] are correct.” Dist. Ct. Op., 915 F. Supp. 2d at 524. In a March 25, 2010, speech at the annual meeting of the American Society of International Law in Washington, D.C., then-Legal Adviser of the State Department Harold Hongju Koh said, “U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war.” JA 113, 124. In a February 22, 2012, speech at the Yale Law School, Jeh Johnson, then-General Counsel of DOD, “summarize[d] . . . some of the basic legal principles that form the basis for the U.S. military’s counterterrorism efforts against Al Qaeda and its associated forces,” JA 399, and referring explicitly to “targeted killing,” said, “In an armed conflict, lethal force against known, individual members of the enemy is a long-standing and long-legal practice,” JA 402.
In a March 5, 2012, speech at Northwestern University, Attorney General Holder said, “[I]t is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces.” JA 449. He discussed the relevance of the Due
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Process Clause, id., and maintained that killing a senior al Qaeda leader would be lawful at least in circumstances where
[f]irst, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles. JA 450. Amplifying this last point, he stated that “use of lethal force by the United States will comply with the four fundamental law of war principles governing the use of force: . . . necessity[,] . . . distinction[,] . . . proportionality[,] . . . [and] humanity.” Id. As the District Court noted, “The Northwestern Speech [by the Attorney General] discussed the legal considerations that the Executive Branch takes into consideration before targeting a suspected terrorist for killing” and “the speech constitutes a sort of road map of the decision-making process that the Government goes through before deciding to ‘terminate’ someone ‘with extreme prejudice.’” Dist. Ct. Op., 915 F. Supp. 2d at 537. In an April 30, 2012, speech at the Wilson Center in Washington D.C., John O. Brennan, then-Assistant to the President for Homeland Security and Counterterrorism, said, “Yes, in full accordance with the law, and in order to prevent terrorist
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attacks on the United States and to save American lives, the United States Government conducts drone strikes against specific al-Qaida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones.” JA 95. On Feb. 7, 2013, Brennan, testifying on his nomination to be director of CIA, said, “The Office of Legal Counsel advice establishes the legal boundaries within which we can operate.” Brennan Hearing at 57.
Even if these statements assuring the public of the lawfulness of targeted killings are not themselves sufficiently detailed to establish waiver of the secrecy of the legal analysis in the OLC-DOD Memorandum, they establish the context in which the most revealing document, disclosed after the District Court’s decision, should be evaluated. That document is the DOJ White Paper, officially released on Feb. 4, 2013. See note 9, above. Before considering the relevance of the DOJ White Paper to the Government’s claim to continued secrecy and privilege of the legal analysis in the OLC-DOD Memorandum, we describe that Memorandum, which we have examined in camera, in some detail.
The OLC-DOD Memorandum is a 41-page classified document, dated July 16, 2010, captioned:
MEMORANDUM FOR THE ATTORNEY GENERAL
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Re: [redacted15] It was prepared on the letterhead of OLC and signed by David J. Barron, Acting Assistant Attorney General.
The OLC-DOD Memorandum has several parts. After two introductory paragraphs, Part I(A) reports [redacted]. Parts I(B) and I(C) describe [redacted]. Part II(A) considers [redacted]. Part II(B) explains [redacted]. Part III(A) explains [redacted], and Part III(B) explains [redacted]. Part IV explains [redacted]. Part V explains [redacted]. Part VI explains [redacted].
The 16-page, single-spaced DOJ White Paper [redacted] in its analysis of the lawfulness of targeted killings. [redacted] The DOJ White Paper explains why targeted killings do not violate 18 U.S.C. §§ 1119 or 2441, or the Fourth and Fifth Amendments to the Constitution, and includes an analysis of why section 1119 encompasses the public authority justification. Even though the DOJ White Paper does not discuss 18 U.S.C. § 956(a)[redacted]. After the District Court’s decision, Attorney General Holder publicly acknowledged the close relationship between the DOJ White Paper and previous OLC advice on March 6, 2013, when he
15 We have deleted classification codes from the caption and throughout the document.
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said at a hearing of the Senate Committee on the Judiciary that the DOJ White Paper’s discussion of imminence of threatened action would be “more clear if it is read in conjunction with the underlying OLC advice.”16 Oversight of the U.S. Department of Justice Before the Senate Committee on the Judiciary, 113th Cong. (Mar. 6, 2013).
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 recent opinion of the District Court for the Northern District of California, First Amendment Coalition v. U.S. Dep’t of Justice, No. 4:12-cv-01013-CW (N.D. Cal. April 11, 2014), denying an FOIA request for the OLC-DOD Memorandum, is readily distinguishable because the Court, being under the impression that “there has been no ‘official disclosure’ of the White Paper,” id., slip op. at 24, did not assess its significance,
16 The statement was made in a response to a question from Senator Mike Lee. A webcast of the hearing is available via a link at http://www.judiciary.senate.gov/hearings/hearing.cfm?id=e0c4315749c1 0b084028087a4aa80a73, at 1:51:30.
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whereas in our case, the Government has conceded that the White Paper, with its detailed analysis of legal reasoning, has in fact been officially disclosed, see footnote 10, supra.
In resisting disclosure of the OLC-DOD Memorandum, the Government contends that making public the legal reasoning in the document will inhibit agencies throughout the Government from seeking OLC’s legal advice. The argument proves too much. If this contention were upheld, waiver of privileges protecting legal advice could never occur. In La Raza, we explained that “[l]ike the deliberative process privilege, the attorney-client privilege may not be invoked to protect a document adopted as, or incorporated by reference into, an agency’s policy.” 411 F.3d at 360. Here, the Government has done so by publicly asserting that OLC advice “establishes the legal boundaries within which we can operate”; it “cannot invoke that relied-upon authority and then shield it from public view.” Brennan Center, 697 F.3d at 207-08. Agencies seeking OLC legal advice are surely sophisticated enough to know that in these circumstances attorney/client and deliberative process privileges can be waived and the advice publicly disclosed. We need not fear that OLC will lack for clients.
The Government also argues that because the OLC-DOD
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Memorandum refers to earlier OLC documents that remain classified, those assessing the legal reasoning in the OLC-DOD Memorandum might find the reasoning deficient without an opportunity to see the previous documents. However, the reasoning in the OLC-DOD Memorandum is rather elaborate, and readers should have no difficulty assessing the reasoning on its own terms. Moreover, the Government had no similar concern when it released the DOJ White Paper, the reasoning of which cannot be properly assessed, on the Government’s argument, without seeing the OLC-DOD Memorandum. Finally, the Government always has the option of disclosing redacted versions of previous OLC advice.
The loss of protection for the legal analysis in the OLC-DOD Memorandum does not mean, however, that the entire document must be disclosed. FOIA provides that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552b. The Government’s waiver applies only to the portions of the OLC-DOD Memorandum that explain legal reasoning. These are Parts II, III, IV, V, and VI of the document, and only these portions will be disclosed. Even within those portions of the document, there are matters that the
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Government contends should remain secret for reasons set forth in the Government’s classified ex parte submission, which we have reviewed in camera.
One of those reasons concerns [redacted] the Government persuasively argues warrants continued secrecy. [redacted] We will redact all references to that [redacted].
Two arguments concern facts [redacted] that no longer merit secrecy. One is the identity of the country in which al-Awlaki was killed. [redacted17]
The other fact [redacted] that the Government contends merits secrecy is the identity of the agency, in addition to DOD, that had an operational role in the drone strike that killed alAwlaki. Both facts have been redacted from this public opinion. [redacted]
[redacted] [redacted] [redacted] [redacted] [redacted] (b) Loss of Exemption 1. Much of the above discussion
17 [redacted] 40

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concerning loss of Exemption 5 is applicable to loss of Exemption 1. As the District of Columbia Circuit has noted, “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007) (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982)). But Gardels made it clear that the justification must be “logical” and “plausible” “in protecting our intelligence sources and methods from foreign discovery.” 689 F.2d at 1105.
The District Court noted the Government’s contention that “‘[i]t is entirely logical and plausible that the legal opinion contains information pertaining to military plans, intelligence activities, sources and methods, and foreign relations.’ (Gov’t Memo. in Opp’n/Reply 6).” Dist. Ct. Op., 915 F. Supp. 2d at 540. But the Court then astutely observed, “[T]hat begs the question. In fact, legal analysis is not an ‘intelligence source or method.’” Id.
We recognize that in some circumstances the very fact that legal analysis was given concerning a planned operation would risk disclosure of the likelihood of that operation, but that is not the situation here where drone strikes and targeted killings have been publicly acknowledged at the highest levels of the
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Government. We also recognize that in some circumstances legal analysis could be so intertwined with facts entitled to protection that disclosure of the analysis would disclose such facts. Aware of that possibility, we have redacted, as explained above, the entire section of the OLC-DOD Memorandum that includes any mention of intelligence gathering activities. [redacted18]
The three-part test for “official” disclosure, relevant to Exemption 1, which the District Court took from Wilson, 586 F.3d at 536, has been sufficiently satisfied. [redacted] is “‘as specific as the information previously released’” [redacted], it “‘match[es] the information previously disclosed,’” and was “‘made public through an official and documented disclosure.’” Dist. Ct. Op., 915 F.3d at 536 (quoting Wilson, 586 F.3d at 186). In reaching this conclusion, we do not understand the “matching” aspect of the Wilson test to require absolute identity. Indeed, such a requirement would make little sense. A FOIA requester would have little need for undisclosed information if it had to match precisely information previously disclosed.19
18 [redacted] 19 Although we conclude that the three-part test of Wilson has been satisfied, and Wilson remains the law of this Circuit, we note that a rigid application of it may not be warranted in view of its questionable provenance. Wilson took the test from Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007), which took the test from Fitzgibbon v.
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With the redactions and public disclosures discussed above,
it is no longer either “logical” or “plausible” to maintain that
disclosure of the legal analysis in the OLC-DOD Memorandum risks
disclosing any aspect of “military plans, intelligence
activities, sources and methods, and foreign relations.” The
release of the DOJ White Paper, discussing why the targeted
killing of al-Awlaki would not violate several statutes, makes
CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). Fitzgibbon purported to find the test in Afshar v. Dep’t of State, 702 F.2d 1125, 1133 (D.C. Cir. 1983). The issue in Afshar was whether several books submitted to CIA for clearance contained official disclosure of details of CIA’s relationship with SAVAK, Iran’s intelligence service prior to 1979 and the existence of a CIA station in Tehran prior to 1979. Afshar rejected the claim of official disclosure for three reasons: (1) none of the books revealed a continuing relationship between CIA and SAVAK after 1963, the date of the earliest withheld document; (2) the books provided only a general outline of such a relationship; and (3) none of the book was an official and documented disclosure. The second reason was supported by a citation to Lamont v. Dep’t of Justice, 475 F. Supp. 761, 772 (S.D.N.Y. 1979), with a parenthetical stating that the withheld information must have “already been specifically revealed to the public” (emphasis in Afshar). Lamont did not assert specific revelation as a requirement for disclosure; it observed that the plaintiff had raised a factual issue as to whether the information sought had been specifically revealed. More important, Afshar, the ultimate source of the three-part test does not mention a requirement that the information sought “match[es] the information previously disclosed.”
Wilson also cited Hudson River Sloop Clearwater, Inc. v. Dep’t of the Navy, 891 F.2d 414 (2d Cir. 1989). Clearwater also cited Fitzgibbon and Afshar and drew from those opinions more rigidity than was warranted. The issue in Clearwater was simply whether the Navy had previously disclosed, as the plaintiff claimed, that it was planning to deploy nuclear weapons at the New York Harbor Homeport. The Court rejected the claim, pointing out that the Navy had said only that the ships to be stationed at the Homeport were capable of carrying nuclear weapons. See id. at 421.
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this clear. [redacted] in the OLC-DOD Memorandum adds nothing to the risk. Whatever protection the legal analysis might once have had has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the DOJ White Paper. IV. Legal Analysis in Other Withheld Documents20
In addition to seeking at least the legal analysis in the OLC-DOD Memorandum, ACLU also seeks disclosure of the legal analysis in documents numbered 9 and 10 on DOD’s unclassified Vaughn index and in other OLC legal memoranda the existence of which ACLU contends have been officially acknowledged in public statements. See Br. for ACLU at 50. ACLU contends that Senator Feinstein said at the confirmation hearing of Brennan to be CIA director that there are eleven such memoranda, see id. at 50 n.25, of which four were provided to the Senate Select Committee on Intelligence, see id. at 24 & n.9.
20 Other than the legal analysis in the documents considered in this section, it is unclear whether the Appellants are seeking on appeal any other withheld documents. See, e.g., Br. for ACLU at 50 (“Plaintiffs do not challenge the bulk of those withholdings.”). In any event, except as to the OLC-DOD Memorandum discussed in Section III, above, the documents discussed in this Section IV, and the indices discussed in Section V, below, on the current record, we affirm the District Court’s decision to withhold all other documents sought. After the Government submits its classified Vaughn indices on remand, the District Court may, as appropriate, order the release of any documents that are not properly withheld.
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Documents numbered 9 and 10 are OLC legal memoranda, which were made available to this Court ex parte for in camera inspection. As to these documents, we agree with the District Court that the declaration of Richard C. Gross, Brigadier General, United States Army, JA 863, adequately supports the application of Exemption 5. See Dist. Ct. Supp. Op., 2013 WL 238928, at *1. As General Gross pointed out, these brief documents (two and four pages respectively) are informal and predecisional. One does not even identify the sender or the receiver. They mention legal authorities, but in no way resemble the detailed, polished legal analysis in the disclosed DOJ White Paper. At most, they are “part of a process by which governmental decisions and policies are formulated, [or] the personal opinions of the writer prior to the agency’s adoption of a policy.” Public Citizen, Inc. v. Office of Management and Budget, 598 F.3d 865, 875 (D.C. Cir. 2010) (alteration in original) (internal quotation marks omitted). See also Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006) (protecting as deliberative “the give-and-take of the consultative process”) (internal quotation marks omitted). No waiver of Exemption 5 has occurred with respect to these two documents.
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[redacted] V. Glomar and No Number, No List Responses
As set forth above, OLC, DOD, and CIA submitted either Glomar or no number, no list responses to the N.Y. Times and ACLU requests, in addition to Vaughn indices. For clarification, we set forth in the margin a chart showing the revised responses of the three agencies.21 An agency may withhold information on the number of responsive documents and a description of their contents if those facts are protected from disclosure by a FOIA exemption. See Wilner, 592 F.3d at 67-69; Hayden v. National Security Agency, 608 F.2d 1381, 1384 (D.C. Cir. 1979). However, we agree with the D.C. Circuit that “[s]uch a response would only be justified in unusual circumstances, and only by a particularly persuasive affidavit.” ACLU, 710 F.3d at 433.
The Government’s core argument to justify the Glomar and no

21

OLC:

DOD:

CIA:

Glomar to NYTimes; no number, no list to ACLU as to classified documents, except OLC-DOD Memorandum

no number, no list to Shane, Glomar to Savage, except OLCDOD Memorandum; no number, no list to ACLU as to classified documents, except OLC-DOD Memorandum

Glomar to NYTimes; no number, no list to ACLU

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number, no list responses, as it was with the effort to withhold the OLC-DOD Memorandum, is that identification of any document that provides legal advice to one or more agencies on the legality of targeted killings “would tend to disclose the identity of the agency or agencies that use targeted lethal force against certain terrorists who are U.S. citizens . . . .” Br. for Appellees at 37. If one of those agencies is CIA, the Government’s argument continues, disclosure of any information in a Vaughn index that “would tend to disclose the identity” of that agency must be protected because, the Government claims, “[T]he government has never disclosed (with the exception of the Bin Laden operation) whether the CIA has an operational role in the use of targeted lethal force or is authorized to use such force.” Id. at 38.
[redacted22] The Vaughn index submitted by OLC in camera must be disclosed, and DOD and CIA must submit classified Vaughn indices to the District Court on remand for in camera inspection and determination of appropriate disclosure and appropriate redaction.
As was also true of the OLC-DOD Memorandum, however, the requirement of disclosing the agencies’ Vaughn indices does not
22 [redacted] 47

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necessarily mean that either the number or the listing of all documents on those indices must be disclosed. The Appellees argue persuasively that with respect to documents concerning a contemplated military operation, disclosure of the number of such documents must remain secret because a large number might alert the enemy to the need to increase efforts to defend against attacks or to avoid detection and a small number might encourage a lessening of such efforts. Accordingly, all listings after number 271 on OLC’s Vaughn index will remain secret. See Wilner, 592 F.3d at 70 (upholding Glomar response as to identification of documents that would reveal “details of [a] program’s operations and scope”). The descriptions of listing numbers 1-4, 6, 69, 72, 80-82, 87, 92, 103-04, 244-49, and 256 reveal information entitled to be protected. Listing numbers 10-49, 5156, 84-86, 94, 101, 106-09, 111-12, 114-15, 251, 255, 257-61, and 266-67 describe email chains (or copies of chains). Because the Plaintiffs informed the District Court that they were not seeking these items, see Dist. Ct. Op., 915 F. Supp. 2d at 545, these listings need not be disclosed.
No reason appears why the number, title, or description of the remaining listed documents needs to be kept secret. Listing number 5 is the OLC-DOD Memorandum; listing numbers 7-9, 50, 250,
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262-65, and 269-71 describe documents and attorney notes concerning legal advice; listing numbers 57-68, 70-71, 73-79, 83, 88-91, 93, 95-100, 102, 105, 110, 113, 116-22, and 144-45 are described as including factual information concerning al-Awlaki; listing numbers 123-30 are described as unclassified open source materials; listing numbers 131-43 and 148-237 are described as drafts of the OLC-DOD Memorandum; listing numbers 238-43 are described as drafts of other documents; listing numbers 146-47 are described as drafts of Document 86A, a listing that does not appear on the OLC’s Vaughn index; and listing numbers 244, 246, 248, 252-54, 256, and 268 are described as including [redacted].
Some, perhaps all, of the information in many of these documents might be protected as classified intelligence information or predecisional. If the Plaintiffs challenge the applicability of a cited exemption, the District Court, after in camera inspection, will be able to determine which of these documents need to be withheld and which portions of these documents need to be redacted as subject to one or more exemptions that have not been waived. At this stage, we decide only that the number, title, and description of all documents listed on OLC’s classified Vaughn index must be disclosed, with the exception of listing numbers 1-4, 6, 69, 72, 80-82, 87, 92,
49

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103-04, 244-49; 10-49, 51-56, 84-86, 94, 101, 106-09, 111-12, 114-15, 251, 255-61, 266-67; and all listings after listing number 271.
Unlike OLC, DOD and CIA did not provide this Court with classified Vaughn indices, and we are unable to distinguish among listed document numbers, which titles or descriptions merit secrecy. We will therefore direct that, upon remand, DOD and CIA will provide the District Court with classified Vaughn indices listing documents responsive to the Plaintiffs’ requests. From these indices, the District Court, with the guidance provided by this opinion, should have little difficulty, after examining whatever further affidavits DOD and CIA care to submit to claim protection of specific listings, to determine which listings on these indices may be disclosed. See ACLU, 710 F.3d at 432 (prescribing a similar procedure after rejecting a Glomar response). VI. Adequacy of OIP’s Search
Finally, ACLU argues that OIP did not make an adequate search because it did not disclose thirty e-mail chains with other DOJ offices that were found during OLC’s search for responsive records. See Br. for ACLU at 60. However, as this Court has recognized, a search is not inadequate merely because
50

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it does not identify all responsive records. See Grand Central Partnership, Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir. 1999). The adequacy of a search is not measured by its results, but rather by its method. See Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). To show that a search is adequate, the agency affidavit “must be relatively detailed and nonconclusory, and submitted in good faith.” Grand Central Partnership, 166 F.3d at 489 (internal quotation marks omitted). The affidavit submitted by an OIP official, JA 412-419 ¶¶ 7-34, easily meets these requirements, and the November 3, 2011, cutoff date was reasonable as the date on which the search was commenced. See Edmonds Institute v. U.S. Dep’t of Interior, 383 F. Supp. 2d 105, 110-11 (D.D.C. 2005).
Conclusion For the reasons stated above, we conclude that:
(1) a redacted version of the OLC-DOD Memorandum (attached as Appendix A to this opinion) must be disclosed; (2) a redacted version of the classified Vaughn index submitted by OLC must be disclosed, including the number, title, and description of all documents, with the exception of listing numbers 1-4, 6, 10-49,
51

CasCea:s1e31-4:1212-cv-D09o3cu3m6-eCnMt: 2D05ocumPaegnet :4512 File0d40/241/2/210/14 Pa1g2e065122o4f 52 52
51-56, 69, 72, 80-82, 84-87, 92, 94, 101, 103-04, 106-09, 111-12, 114-15, 244-49, 251, 255-61, 266-67; and all listings after listing number 271; (3) [redacted]; (4) the Glomar and “no number, no list” responses are insufficiently justified; (5) DOD and CIA must submit Vaughn indices to the District Court for in camera inspection and determination of appropriate disclosure and appropriate redaction; and (6) the OIP search was sufficient. We therefore affirm in part, reverse in part, and remand.23
Appendix A OLC-DOD Memorandum after appropriate redactions and deletion
of classification codes [In this redacted version of the opinion, the entire redacted
version of the OLC-DOD Memorandum has been redacted. See footnote 1, supra.]
23 Prior to filing, we have made this opinion available to the Government in camera to afford an opportunity to advise whether any classified information, not intended to be disclosed by this opinion, has been inadvertently disclosed.
52

 
 Case 1:11-cv-09336-CM Document 43 Filed 06/30/14 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x THE NEW YORK TIMES COMPANY, CHARLIE SAVAGE, and SCOTT SHANE,

-against-

Plaintiffs,

11 Civ. 9336 (CM)

UNITED STATES DEPARTMENT OF JUSTICE,

Defendant.

-·-.-.. t·.

---------------------------------------------------------------x AMERICAN CIVIL LIBERTIES UNION and
THE AMERICAN CIVIL LIBERTIES UNION
FOUNDATION,

Plaintiffs,

12 Civ. 794 (CM)

-against-

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.

---------------------------------------------------------------x
ORDER

McMahon, J.: This court has received a partial mandate from the United States Court of Appeals for the

Second Circuit, directing that, at this time:
(3) other legal memoranda prepared by OLC and at issue here must be submitted to the District Court for in camera inspection and determination of waiver of privileges and appropriate redaction;

Case 1:11-cv-09336-CM Document 43 Filed 06/30/14 Page 2 of 2
New York Times Co. v. US. Dep't ofJustice, 13-422 L, 2014 WL 2838861 (2d Cir. June 23, 2014) (Mandate issued on June 26, 2014).
Accordingly, the Government is directed to comply with Paragraph 3 of the conclusion of the Second Circuit's amended opinion of June 23, 2014, by providing this court with:
(1) Unredacted copies of the "other legal memoranda prepared by OLC and at issue here" that are the subject of the Mandate (hereinafter "The OLC Opinions");
(2) A memorandum under seal in which, for each such OLC Opinion, the Government: a. Explains why, in its view, said OLC Opinion need not be disclosed at all because there has been no waiver of any applicable privilege; and b. If the Government concedes that certain portions of said OLC Opinion must be disclosed consistent with the Second Circuit's already articulated findings on waiver of privileges, provides the court with a list of proposed redactions, and as to each such proposed redaction (discussed individually): (i) Explains why that proposed redaction should not be disclosed; and (ii) Explains, with specific reference to the various speeches, Interviews, leaks and publicly-released documents that are discussed in the Second Circuit's opinion, why the Government has not waived disclosure of the proposed redacted material.
The Government has 21 days to comply.
BY ECF TO ALL COUNSEL

 
 CasCea:s1e31-4:1212-cv-D09o3cu3m6-eCnMt: 2D39ocumPaegnet :417 Fi0le7d/1007//21001/144 P1a2g6e7413o9f 15 15

13-422-cv The New York Times Company v. United States

N.Y.S.D. Case # 11-cv-9336(CM)

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2013

Submitted: June 5, 2014

Decided: July 10, 2014

Docket Nos. 13-422(L), 13-445(Con)

- - - - - - - - - - - - - - - - - - - - - -

THE NEW YORK TIMES COMPANY, CHARLIE SAVAGE,

SCOTT SHANE, AMERICAN CIVIL LIBERTIES UNION,

AMERICAN CIVIL LIBERTIES UNION FOUNDATION,

Plaintiffs-Appellants,

USDC SDNY

DOCUMENT

v.

ELECTRONICALLY FILED

DOC #: _________________

DATE FILED: _J_u_ly__1_0_,_2_0_1_4___

UNITED STATES DEPARTMENT OF JUSTICE, UNITED

STATES DEPARTMENT OF DEFENSE, CENTRAL

INTELLIGENCE AGENCY,

Defendants-Appellees.

- - - - - - - - - - - - - - - - - - - - - -

Before: NEWMAN, CABRANES, and POOLER, Circuit Judges.

On Petition for Rehearing.

With respect to bifurcated issues concerning Vaughn index

issues, Petition DENIED, except that Court’s Revised Opinion,

filed June 23, 2014, is further revised to exclude from

disclosure the titles and descriptions of listings 67, 105,

118, 119, 250, 262-65, and 271, and the titles of listings 57,

62, 66, 68, 69, 70, 78, 79, 80, 88, 92, 93, 97, 98, 100, 103,

104, 108, 123-28, and 130, and to delete listings 244, 246,

1

CERTIFIED COPY ISSUED ON 07/10/2014

CasCea:s1e31-4:1212-cv-D09o3cu3m6-eCnMt: 2D39ocumPaegnet :427 Fi0le7d/1007//21001/144 P1a2g6e7423o9f 15 15
248, and 256 from page 62, lines 9-10, and the case is
REMANDED.
Sharon Swingle, Atty., Appellate Staff, Civil Division, U.S. Dept. of Justice, Washington, D.C.; Preet Bharara, U.S. Atty., Sarah S. Normand, Asst. U.S. Atty., New York, N.Y., Stuart F. Delery, Asst. U.S. Atty. General, Beth S. Brinkman, Deputy Asst. U.S. Atty. General, Douglas N. Letter, and Matthew M. Collette, Attys., Appellate Staff, Civil Division, U.S. Dept. of Justice, Washington, D.C., on the petition, for Defendants-Appellees.
No opposition papers were requested.
JON O. NEWMAN, Circuit Judge:
This opinion adjudicates issues presented by the
Government’s petition to rehear our decision in The New York
Times v. United States Department of Justice, Nos. 13-422(L),
13-455(Con), 2014 WL 1569514 (2d Cir. Apr. 21, 2014), revised,
2014 WL 2838861 (2d Cir. June 23, 2014) (“Revised Opinion”),
which were bifurcated for later decision by our initial
opinion on the petition, see id., 2014 WL 2854878 (2d Cir.
2

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June 23, 2014) (“First Rehearing Opinion”).1 The remaining bifurcated issues concern the Government’s objections to the ruling requiring disclosure of the title and description, but not the content, of several items listed on a classified Vaughn index. See Revised Opinion at 58-63;2 2014 WL 2838861, at *18-19. That ruling resulted from the Appellants’ objections to the Appellees’ submission of so-called “Glomar” and “no number, no list” responses to portions of the Appellants’ FOIA requests.
The petition for rehearing, portions of which were submitted ex parte and in camera, contends that several of the listings in the Vaughn index, i.e., the titles and descriptions of numbered listings of documents, that were ordered to be disclosed contain information that is “classified, protected by statute, and/or privileged.” Petition 12. The petition refers specifically to three groups of listings (250, 262, 263, 264, 265, and 271), (57-68, 70-74, 76-79, 83, 88-110, 116-119, and 123-130), and (67, 118, and 119), and also expresses uncertainty as to whether a fourth
1 That decision adjudicated issues concerning disclosure of the OLC-DOD Memorandum.
2 Page references are cited to the typescript copy of the Revised Opinion posted on the Court of Appeals website.
3

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group of listings (244, 246, 248, and 256) has been ordered disclosed.
Once a FOIA request has been made for documents, the preparation of a Vaughn index is now an accepted method for the Government to identify responsive documents and discharge its obligation to assert any claimed FOIA exemptions to the various documents withheld.3 See American Civil Liberties Union v. CIA, 710 F.3d 422, 432 (D.C. Cir. 2013) (“With the failure of the CIA’s broad Glomar response, the case must now proceed to the filing of a Vaughn index or other description of the kind of documents the Agency possesses, followed by litigation regarding whether the exemptions apply to those documents.”); Judicial Watch, Inc. v. FDA, 449 F.3d 141, 14548 (D.C. Cir. 2006); Keys v. U.S. Dep’t of Justice, 830 F.2d
3 In some cases, preparation of a Vaughn index is not required if the agency submits a valid Glomar response, refusing to confirm or deny the existence of requested records because acknowledging even the existence of certain records would reveal information entitled to be protected. See Wilner v. National Security Agency, 592 F.3d 60 (2d Cir. 2009) (upholding Glomar response to FOIA request for records obtained under the Terrorist Surveillance Program). A Vaughn index is also not needed if the “factual nature” of all parts of the requested documents is known and the only dispute concerns the availability of FOIA exemptions. Vaughn v. Rosen, 484 F.2d 820, 824 (D.C. Cir. 1973) (citing EPA v. Mink, 410 U.S. 73, 92-93 (1973)).
4

CasCea:s1e31-4:1212-cv-D09o3cu3m6-eCnMt: 2D39ocumPaegnet :457 Fi0le7d/1007//21001/144 P1a2g6e7453o9f 15 15
337, 349-50 (D.C. Cir. 1987); National Treasury Employees Union v. U.S. Customs Service, 802 F.2d 525, 527 (D.C. Cir. 1986); Lykins v. United States Dep’t of Justice, 725 F.2d 1455, 1463 (D.C. Cir. 1984); see also Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (“[W]e do not retreat in the least from our belief that an index is of great assistance to requesters and courts in appropriate cases . . . .”).
The Vaughn index procedure was developed to avoid the cumbersome alternative of routinely having a district court examine numerous multi-page documents in camera to make exemption rulings. See Vaughn v. Rosen, 484 F.2d 820, 825 (D.C. Cir. 1973).4 With the large number of documents listed in the pending case, it would be unrealistic to expect the District Court to make an in camera inspection of so many documents to assure itself that the claimed exemptions apply.5
4 “In theory, it is possible that a trial court could examine a document in sufficient depth to test the accuracy of a government characterization, particularly where the information is not extensive. But where the documents in issue constitute hundreds or even thousands of pages, it is unreasonable to expect a trial judge to do as thorough a job of illumination and characterization as would a party interested in the case.” Vaughn, 484 F.2d at 825.
5 Cf. Donovan v. FBI, 806 F.2d 55, 59 (2d Cir. 1986) (approving in camera inspection of small number of documents), abrogated on other grounds by U.S. Dep’t of Justice v. Landano, 508 U.S. 165, 170 (1993) .
5

CasCea:s1e31-4:1212-cv-D09o3cu3m6-eCnMt: 2D39ocumPaegnet :467 Fi0le7d/1007//21001/144 P1a2g6e7463o9f 15 15
A Vaughn index typically lists the titles and descriptions of the responsive documents that the Government contends are exempt from disclosure. In some cases detailed affidavits from agency officials may suffice to indicate that requested documents are exempt from disclosure. See, e.g., Citizens for Responsibility and Ethics in Washington v. U.S. Dep’t of Justice, 746 F.3d 1082, 1088 (D.C. Cir. 2014) (“Agency affidavits sometimes take the form of a ‘Vaughn index,’ but there is ‘no fixed rule’ establishing what such an affidavit must look like.”) (citation omitted); Delaney, Migdail & Young, Chartered v. IRS, 826 F.2d 124, 128 (D.C. Cir. 1987) (“The materials provided by the agency may take any form so long as they give the reviewing court a reasonable basis to evaluate the claim of privilege.”). A so-called “classical” Vaughn index, Keys, 830 F.2d at 349, like that in the pending case, is one that lists titles and descriptions of documents with cites to claimed FOIA exemptions for each document listed. See, e.g., Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1128-36 (D.C. Cir. 2004) (Appendix displaying Vaughn index).
The titles and descriptions of documents listed in a Vaughn index usually facilitate the task of asserting and
6

CasCea:s1e31-4:1212-cv-D09o3cu3m6-eCnMt: 2D39ocumPaegnet :47 Fi0le7d/1007//21001/144 P1a2g6e7473o9f 15 15
adjudicating the requester’s challenges to the Government’s claims of exemption.6 “[T]he index gives the court and the challenging party a measure of access without exposing the withheld information,” Judicial Watch v. FDA, 449 F.3d at 146, and “it enables the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court,” Keys, 830 F.2d at 349 (internal quotation marks and citation omitted).
Especially in cases such as the pending one, involving a very large number of responsive documents, the index also enables the FOIA requester, after seeing the titles and descriptions of all listed documents, to inform the district court which of those documents it wants disclosed. For example, in this case the Vaughn index describes several listed documents as email chains, and, because the Plaintiffs have disclaimed any interest in disclosure of these documents,
6 However, a description that appears to place a document within an exemption may not be conclusive. For example, in American Civil Liberties Union v. U.S. Dep’t of Justice, 655 F.3d 1, 18 (D.C. Cir. 2011), the District of Columbia Circuit considered Vaughn index descriptions that “suggest[ed]” that the listed documents were “internal drafts containing information that may be covered by the deliberative-process or work-product privileges cognizable under FOIA Exemption 5.” Nevertheless, the Court remanded for further inquiry. Id. at 19.
7

CasCea:s1e31-4:1212-cv-D09o3cu3m6-eCnMt: 2D39ocumPaegnet :487 Fi0le7d/1007//21001/144 P1a2g6e7483o9f 15 15
we excluded them from disclosure in our Revised Opinion.7
We have located no reported FOIA decision considering whether the titles and descriptions of documents listed in a “classical” Vaughn index are protected from disclosure. The reason appears to be that it is unusual for the Government to classify a Vaughn index containing only titles and descriptions of withheld documents. “In the usual case, the index is public and relatively specific in describing the kinds of documents the agency is withholding.” American Civil Liberties Union, 710 F.3d at 432 (emphasis added). “The court is to require the agency to create as full a public record as possible, concerning the nature of the documents and the justification for nondisclosure.” Hayden v. National Security Agency, 608 F.2d 1381, 1384 (D.C. Cir. 1979) (emphasis added). Where, as here, the Government has elected to classify a Vaughn index,8 it becomes especially important to disclose the titles and descriptions of listed documents to facilitate the adjudication of claimed exemptions, unless those materials
7 The identification of excluded email chains should have included listing 105, which we now exclude from disclosure.
8 Despite the classification of the Vaughn index, those titles and descriptions, not themselves subject to any FOIA exemption, that we have ordered to be disclosed are obviously segregable from the balance of the index.
8

CasCea:s1e31-4:1212-cv-D09o3cu3m6-eCnMt: 2D39ocumPaegnet :497 Fi0le7d/1007//21001/144 P1a2g6e7493o9f 15 15
themselves reveal sensitive information.
Before considering the Government’s request to exclude from disclosure the titles and descriptions of specific listings, in addition to those already excluded, we note the Government’s more general argument that the Plaintiffs “did not seek disclosure of OLC’s classified Vaughn index.” Petition 12. But, as the petition acknowledges, the Plaintiffs “argued that the [G]overnment should prepare and produce a public Vaughn index,” Petition 12, and the Plaintiffs can hardly be faulted for not requesting the classified index of which they were unaware.
The Government also contends that our Revised Opinion “has not identified the legal ground” for the disclosure we ordered of some of the titles and descriptions of documents listed on the Vaughn index.9 Petition 11. However, in response to a FOIA request, the burden is on the Government to
9 The Petition incorrectly states that we have ordered disclosure of “the index.” Petition 11. We have not. As the Government appears to recognize, the dispute about the OLC’s Vaughn index concerns whether titles and descriptions of some specifically identified listings must be disclosed. Nor have we ordered disclosure of Vaughn indices to be prepared by DOD and CIA. We ordered these agencies to “submit Vaughn indices to the District Court for in camera inspection and determination of appropriate disclosure and appropriate redaction.” Revised Opinion 65 (Conclusion ¶ 5), 2014 WL 2838861, at *20.
9

CasCea:s1e31-4:1212-cv-D09o3cu3m6-eCnMt: 2D39ocumPaegnet :4170 File0d70/170/1/200/14 Pa1g2e671403o9f 15 15
justify not disclosing withheld information. See Hayden, 608 F.2d at 1384.
We turn then to the specific listings that the Government contends should not be disclosed, in addition to the 91 listings we excluded from disclosure in our Revised Opinion. The Government opposes disclosure of the titles and descriptions of listings in the first group because, it contends, the content of the documents contain sensitive information. Even if that is so, it is not necessarily a reason to withhold disclosure of the titles and descriptions of the documents, unless these titles and descriptions themselves contain sensitive information. We agree with the District of Columbia Circuit that “[w]hen the itemization and justification are themselves sensitive, . . . to place them on public record could damage security in precisely the way that FOIA Exemption 1 is intended to prevent.” Hayden, 608 F. 2d at 1384. As to non-sensitive titles and descriptions, however, disclosure is required, and the Plaintiffs can then inform the District Court which documents it wants disclosed and which claims of exemption it disputes. At that point the District Court can evaluate all of the Government’s submissions, adjudicate the Government’s claims for exemptions, and
10

CasCea:s1e31-4:1212-cv-D09o3cu3m6-eCnMt: 2D39ocumPaegnet :4171 File0d70/170/1/200/14 Pa1g2e671413o9f 15 15
determine which records warrant redactions or even withholding in their entirety.
The petition characterizes the six listings of the first group of documents as relating to a contemplated military operation. Although the titles and descriptions do not provide any information about such an operation, we will accept the Government’s representation and exempt these titles and descriptions from disclosure to avoid even the risk that the fact of the military operation might be inferred.
The petition characterizes the 57 listings of the second group of documents as describing information provided to OLC in connection with OLC’s preparation of pre-decisional legal advice, and then asserts that the content of information provided to a lawyer is privileged. Petition 14. However, with few exceptions, the titles and descriptions of these listings contain no information at all. See, e.g., Brinton v. United States Dep’t of State, 476 F. Supp. 535, 537-40 (D.D.C. 1979) (revealing non-informational titles of documents claimed to be protected by attorney-client privilege). Although the documents themselves, or at least portions of them,10 might be
10 See 5 U.S.C. § 552(b) (authorizing disclosure of segregable portions of exempted document).
11

CasCea:s1e31-4:1212-cv-D09o3cu3m6-eCnMt: 2D39ocumPaegnet :4172 File0d70/170/1/200/14 Pa1g2e671423o9f 15 15
exempt from disclosure, there is no reason not to disclose the non-informational titles and descriptions. Within the second group, taking a generous view of what constitutes “information,” we will add to the items already excluded from disclosure11 the titles, but not the descriptions, of listings 57, 62, 66, 68, 70, 78, 79, 88, 92, 93, 97, 98, 100, 103, 104, 108, 123-28, and 130, and, on our own reexamination of the Vaughn index, exclude from disclosure the titles, but not the descriptions, of listings 69 and 80.
The Petition seeks protection for the listings of the three documents in the third group of documents for reasons indicated by the Government in a sealed portion of its Petition. We deem those reasons sufficient to preclude disclosure of the listings in the third group of documents. We will therefore add to the items already excluded from disclosure the titles and descriptions of listings 67, 118, and 119.
Beyond the three groups of numbered listings, the Government contends that the titles and descriptions of
11 The Revised Opinion had already excluded from disclosure listings 92, 94, 101, 103-04, and 106-09, which are within the 57 listings the Government now seeks to exclude from disclosure. See Revised Opinion (Conclusion ¶ 2), 2014 WL 2838861, at *20.
12

CasCea:s1e31-4:1212-cv-D09o3cu3m6-eCnMt: 2D39ocumPaegnet :4173 File0d70/170/1/200/14 Pa1g2e671433o9f 15 15
“other” listings should not be disclosed. See Petition 14. The Government has now had three opportunities to claim justified exceptions to Vaughn index disclosures – first, in its brief on the merits, second, in the pending petition for rehearing, and third, in its response to the Court’s ex parte letter of June 10, submitting for in camera review the Court’s proposed Revised Opinion. It is far too late in the day to fail to identify by specific numbers the “other” listings. The Government’s claim that “space constraints” in the rehearing petition preclude the requisite specificity, see Petition 15, is without merit. Any additional numbers could have been included in one or two lines of type in the blank bottom one-third of the last page of the petition.
The Government expresses uncertainty as to whether the titles and descriptions of another group of listings (244, 246, 248, and 256) were excluded from disclosure by our Revised Opinion. Although the Revised Opinion expressly excluded these listings from disclosure, see Revised Opinion (Conclusion ¶ 2), 2014 WL 2838861, at *20, the reference to these listings elsewhere in the Revised Opinion created some doubt. We will therefore delete these listings from the text of the Revised Opinion at page 62, lines 9-10.
13

CasCea:s1e31-4:1212-cv-D09o3cu3m6-eCnMt: 2D39ocumPaegnet :4174 File0d70/170/1/200/14 Pa1g2e67143o9f 15 15
Accordingly, with respect to the bifurcated issues concerning the Vaughn index, we will grant the petition in part by excluding from disclosure the titles and descriptions of listings 67, 105, 118, 119, 250, 262-65, and 271, and the titles of listings 57, 62, 66, 68, 69, 70, 78, 79, 80, 88, 92, 93, 97, 100, 103, 104, 108, 123-28, and 130. We will remand the case to the District Court with directions, in addition to those ordered in our Revised Opinion (Conclusion ¶ 3), 2014 WL 2838861, at *20, to order the Appellee U.S. Department of Justice to file a public version of its Vaughn index in compliance with our Revised Opinion at 64-65 (Conclusion ¶ 2 (identifying listings not required to be disclosed)), 2014 WL 2838861, at *20, and this opinion.12 We will amend our Revised Opinion to delete listings 244, 246, 248, and 256 from page 62, lines 9-10. Apart from these rulings and those set forth in our opinion of June 23, 2014, on the bifurcated issues concerning the OLC-DOD Memorandum, the Petition for Rehearing
12 To avoid any misunderstanding, our combined rulings mean that the filed Vaughn index will contain the titles and descriptions of listings 5, 7-9, 50, 58-61, 63-65, 71, 73-77, 83, 89-91, 95, 96, 98, 99, 102, 110, 113, 116, 117, 120-22, 129, 131-243, and 269-270, and the descriptions of listings 57, 62, 66, 68, 69, 70, 78, 79, 88, 92, 93, 97, 100, 103, 104, 108, 123-28, and 130.
14

CasCea:s1e31-4:1212-cv-D09o3cu3m6-eCnMt: 2D39ocumPaegnet :4175 File0d70/170/1/200/14 Pa1g2e671453o9f 15 15 is DENIED, and the case is REMANDED.13
13 Any subsequent appeal following remand will be assigned to this panel in the interests of judicial economy.
15

 
 CaCsaes1e:1114--c4v4-3029,3D36o-cCuMmenDto1c3u7m, e1n1t/2534/20F1il5e,d11614/82734/15, PaPgaeg1eo1f o2f222
N.Y.S.D. Case # 11-cv-9336(CM)

14-4432-cv(L) 14-4764-cv(Con) The New York Times Company v. United States Department of Justice

1

UNITED STATES COURT OF APPEALS

2

FOR THE SECOND CIRCUIT

3

August Term 2014

4

Argued: June 23, 2015

Decided: October 22, 2015

5

6

Docket No. 14-4432-cv, 14-4764-cv

- - - - - - - - - - - - - - - - - - - - - -

1

THE NEW YORK TIMES COMPANY, CHARLIE SAVAGE,

2

SCOTT SHANE, AMERICAN CIVIL LIBERTIES UNION,

3

AMERICAN CIVIL LIBERTIES UNION FOUNDATION,

4

Plaintiffs-Appellants,

USDC SDNY DOCUMENT

5

v.

ELECTRONICALLY FILED
DOC #: _________________ DATE FILED: _1_1_/_2_3_/_2_0_1_5____

6

UNITED STATES DEPARTMENT OF JUSTICE, UNITED

7

STATES DEPARTMENT OF DEFENSE, CENTRAL

8

INTELLIGENCE AGENCY,

9

Defendants-Appellees.

10

- - - - - - - - - - - - - - - - - - - - - -

11

12

Before: NEWMAN, CABRANES, and POOLER, Circuit Judges.

13

14

Appeal from the October 31, 2014, decision and order of the

15

United States District Court for the Southern District of New

16

York (Colleen McMahon, District Judge), adjudicating, pursuant

17

to a remand from this Court, Freedom of Information Act requests

18

for documents prepared by the Office of Legal Counsel of the

19

United States Department of Justice concerning targeted killings

20

by drone aircraft. The District Court ordered disclosure of all

1

CERTIFIED COPY ISSUED ON 11/23/2015

CaCsaes1e:1114--c4v4-3029,3D36o-cCuMmenDto1c3u7m, e1n1t/2534/20F1il5e,d11614/82734/15, PaPgaeg2eo2f o2f222

1

or portions of some documents and denied disclosure of other

2

documents. The appeal also concerns disclosure of redacted

3

portions of the District Court’s sealed opinion and disclosure

4

of redacted portions of the transcript of the June 23, 2015, oral

5

argument present by the Government to the Court ex parte and in

6

camera.

7

Judgment AFFIRMED; redacted portions of District Court

8

opinion to remain UNDISCLOSED, except for three paragraphs (as

9

redacted pursuant to Part IV of this opinion) that the District

10

Court wishes to disclose; and redacted portions of transcript of

11

June 23, 2015, oral argument to remain UNDISCLOSED; case

12

REMANDED.

13

David E. McCraw, The New York Times

14

Company, New York, N.Y. (Jeremy A.

15

Kutner, New York, N.Y., on the

16

brief), for Plaintiffs-Appellants

17

The New York Times Company,

18

Charlie Savage, and Scott Shane.

19

20

Jameel Jaffer, American Civil

21

Liberties Union Foundation, New

22

York, N.Y. (Hina Shamsi, Dror

23

Ladin, American Civil Liberties

24

Union Foundation, New York, N.Y.,

25

Eric Ruzicka, Colin Wicker,

26

Michael Weinbeck, Dorsey & Whitney

27

LLP, Minneapolis, Minn., on the

28

brief), for Plaintiffs-Appellants

29

American Civil Liberties Union and

30

American Civil Liberties Union

31

Foundation.

2

CaCsaes1e:1114--c4v4-3029,3D36o-cCuMmenDto1c3u7m, e1n1t/2534/20F1il5e,d11614/82734/15, PaPgaeg3eo3f o2f222

1

Sarah S. Normand, Asst. U.S. Atty.,

2

New York, N.Y. (Preet Bharara,

3

U.S. Atty., New York, NY, Benjamin

4

C. Mizer, Acting Asst. U.S. Atty.

5

General, Matthew M. Collette,

6

Sharon Swingle, Thomas Pulham,

7

Civil Division, U.S. Dep’t of

8

Justice, Washington, D.C., on the

9

brief), for Defendants-Appellees.

10

11

(Lawrence S. Lustberg, Joseph A.

12

Pace, Gibbons P.C., Newark NJ, for

13

amici curiae Senators Ron Wyden,

14

Rand Paul, Jeff Merkley, and

15

Martin Heinrich, in support of

16

Plaintiffs-Appellants)

17

18

JON O. NEWMAN, Circuit Judge:

19

This appeal from the October 31, 2014, decision and order of

20

the District Court for the Southern District of New York (Colleen

21

McMahon, District Judge) concerns the second round in a

22

protracted Freedom of Information Act (“FOIA”) litigation seeking

23

disclosure of documents related to targeted killings by the use

24

of drone aircraft. On the prior appeal, see New York Times Co.

25

v. U.S. Dep’t of Justice, 756 F.3d 100 (2d Cir. 2014) (“NYTimes

26

I”), we ordered disclosure of a 2010 document known as the “OLC-

27

DOD Memorandum,” a 41-page legal opinion prepared by the Office

28

of Legal Counsel (“OLC”) in the Department of Justice for the

29

Department of Defense (“DOD”), advising as to the legality of

30

targeted drone attacks. See id. at 112-21. We ruled that prior

31

disclosures by senior officials of the Government, plus the

3

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1

release of what was referred to as “the White Paper,” resulted

2

in waiver of all applicable exemptions for protection of the OLC-

3

DOD Memorandum.

4

We also remanded the case to the District Court to review in

5

camera several other documents prepared by the OLC that the

6

Government had identified as responsive to the pending FOIA

7

requests but had withheld on various grounds. We remanded for

8

“determination of waiver of privileges and appropriate

9

redaction.” Id. at 124. The District Court ruled, in a partially

10

redacted opinion, that the Government had properly invoked

11

Exemption 1 (documents classified by executive order), Exemption

12

3 (intelligence sources and methods protected by statute), and

13

Exemption 5 (document protected by the deliberative process or

14

attorney-clients privilege), and that most of these documents

15

should not be disclosed.1 That ruling is challenged on the

1 As explained in our prior decision, see NYTimes I, 756 F.3d at 104, Exemption 1 permits an agency to withhold information that is “‘specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy’” if that information has been “‘properly classified pursuant to such Executive order.’” ACLU v. Dep’t of Justice, 681 F.3d 61, 69 (2d Cir. 2012) (quoting U.S.C. § 552(b)(1)). Exemption 3 permits an agency to withhold information that is “specifically exempted from disclosure by statute, see 5 U.S.C. § 552(b)(3)(A)(I), (ii), such as pursuant to 50 U.S.C. § 3024-1(i)(1), which exempts from disclosure “intelligence sources and methods,” or 50 U.S.C. § 3507, which exempts the CIA from “any other law which require[s] the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency.” Exemption 5 authorizes an agency to withhold “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C.
4

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1

pending appeal. The appeal also concerns disclosure of the

2

redacted portions of the District Court’s opinion, including

3

three paragraphs that the District Court wishes to disclose, and

4

disclosure of redacted portions of the transcript of the June 23,

5

2015, oral argument presented by the Government to this Court ex

6

parte and in camera.

7

Background

8

The background of the litigation was extensively set forth

9

in NYTimes I, 756 F.3d at 104-11, and need not be repeated here.

10

We recount only developments since our prior decision.

11

Paragraph (3) of the “Conclusion” of NYTimes I provided that

12

“other legal memoranda prepared by OLC and at issue here must be

13

submitted to the District Court for in camera inspection and

14

determination of waiver of privileges and appropriate redaction.”

15

Id. at 124. In conformity with that direction, the District

16

Court examined in camera eleven sealed documents, identified as

17

Exhibits A, B, C, E, F, G, H, I, J, K, and L to a sealed

18

affidavit submitted by John E. Bies, Deputy Assistant Attorney

19

General in the OLC. Exhibit D is the OLC-DOD Memorandum, already

20

disclosed.

§ 552(b)(5). Exemption 5 encompasses documents protected by, among other things, the attorney-client and deliberative process privileges. See National Council of La Raza v. Dep’t of Justice, 411 F.3d 350, 356 (2d Cir. 2005).
5

CaCsaes1e:1114--c4v4-3029,3D36o-cCuMmenDto1c3u7m, e1n1t/2534/20F1il5e,d11614/82734/15, PaPgaeg6eo6f o2f222

1

On October 31, 2014, the District Court filed under seal its

2

opinion adjudicating claims for disclosure of these documents.

3

The District Court’s opinion was sealed because, in discussing

4

the reasons for refusing disclosure of most of the documents at

5

issue, the Court necessarily discussed matters entitled to remain

6

secret. The Court submitted its opinion to the Government ex

7

parte for classification review. The Government requested

8

redaction of several portions of the District Court’s opinion.

9

The District Court agreed to all of the redactions proposed by

10

the Government with the exception of three paragraphs on page 9

11

of the Court’s opinion.2 Judge McMahon continued those

12

paragraphs under seal, however, to abide the outcome of appellate

13

review of her decision to disclose them. We will recount below

14

the District Court’s rulings with respect to each of the eleven

15

documents. The District Court certified its rulings for

16

immediate entry of a partial judgment under Rule 54(b) of the

17

Federal Rules of Civil Procedure.

18

After the Appellants and four United States Senators, as

19

amici curiae, filed their briefs, the Government filed a redacted

20

version of its brief and filed an unredacted version ex parte and

21

in camera. The Government later sought the opportunity to

22

present oral argument to the Court ex parte and in camera. We

2 The Government did not request redaction of the first sentence of the first paragraph.
6

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1

granted that request and heard Government counsel ex parte and

2

in camera on June 23, 2015, just prior to hearing both sides in

3

open court. On June 25, we entered two sealed orders, both sent

4

to the Government ex parte. These orders afforded the Government

5

an opportunity to submit ex parte and in camera a brief and a

6

supplemental declaration concerning matters that the Court had

7

raised with Government counsel at the June 23 ex parte and in

8

camera hearing. On July 7, the Government filed ex parte and in

9

camera a transcript of the June 23 argument, together with a

10

redacted version of that transcript, which was filed in the

11

normal course (“June 23 redacted tr.”). See Dkt. No. 119. On

12

July 17, the Government filed its response to our June 25 orders,

13

submitting, ex parte and in camera, a brief and a supporting

14

affidavit. On the same day, we asked the Government to submit

15

a letter justifying the transcript redactions. The Government

16

responded with a letter of July 24, 2015, filed ex parte and in

17

camera.

18

Discussion

19

We emphasize at the outset, as we did before, see NYTimes I,

20

756 F.3d at 103, that the lawfulness of drone strikes is not at

21

issue. This appeal, like the prior one, primarily concerns

22

whether documents considering such lawfulness must be disclosed.

23

7

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1

I. The Eleven OLC Documents.

2

Exhibits A, B, and C. The District Court ruled that these

3

documents were required to remain secret, but that the legal

4

reasoning contained in Exhibit B had been incorporated into

5

Exhibit K, which was appropriate for disclosure. We agree with

6

the District Court’s decision not to disclose Exhibits A, B, and

7

C, which contain intelligence information that was properly

8

exempted.

9

Exhibit E.3 This OLC document, as described by the

10

Government, is “the provision of legal advice in 2002 provided

11

to the President’s close legal advisor about the [E]xecutive

12

[O]rder 12333.”4 Executive Order 12333, captioned “United States

13

Intelligence Activities,” was signed by President Reagan on Dec.

14

4, 1981. The District Court withheld Exhibit E partly on the

15

ground that most of it discusses topics exempted from FOIA

16

disclosure and not subject to any waiver. We agree with the

17

District Court’s ruling in that respect. As to one portion of

18

Exhibit E that discusses a topic referred to in subsequent

19

statements of senior Government officials, the District Court

20

withheld that portion because the discussion “does not

21

correspond” to any legal analysis that has been disclosed.

3 Exhibit D is the OLC-DOD Memorandum, previously disclosed. 4 June 23 redacted tr. at 12.
8

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1

At issue is whether the Government waived its right to

2

invoke Exemption 5 as the basis for withholding portions of the

3

legal analysis in Exhibit E by subsequently making public

4

statements on topics related to some of the analysis contained

5

in that document. Our initial concern with disclosure of the

6

portion that is similar to subsequent disclosures is the

7

substantial time interval between the date of Exhibit E and the

8

subsequent arguably similar disclosures. In NYTimes I, several

9

relevant statements of Government officials were made before the

10

date of the July 16, 2010, OLC-DOD Memorandum,5 and other

11

statements were made less than three years afterwards.6 With

12

respect to Exhibit E, there is no statement of a Government

13

official before the date of that exhibit that even arguably

14

supports waiver of protection, and the earliest dates of

15

subsequent statements that even arguably support waiver were made

16

eight years after the date of Exhibit E.7

5 March 18, 2010, statement of then-CIA director Leon Panetta, see NYTimes I, 756 F.3d at 118; March 25, 2010, statement of then-Legal Adviser of the State Department Harold Hongju Koh, see id. at 114; June 27, 2010, statement of then-CIA director Leon Panetta, see id. at 118.
6 Nov. 8, 2011, White Paper, see NYTimes I, 756 F.3d at 110-11 & n.9; February 7, 2013, statement of John O. Brennan, id. at 111; statement of then-Attorney General Eric Holder, id.
7 See footnote 6, supra.
9

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1

We do not mean to imply that a Government official’s public

2

statement made after preparation of a legal opinion can never

3

result in waiver of protection for that opinion. Our reliance

4

on some statements made soon after the date of the OLC-DOD

5

Memorandum dispels such a broad implication. However, the

6

passage of a significant interval of time between a protected

7

document and a Government official’s subsequent statement

8

discussing the same or a similar topic considered in the document

9

inevitably raises a concern that the context in which the

10

official spoke might be significantly different from the context

11

in which the earlier document was prepared. Even if the content

12

of legal reasoning set forth in one context is somewhat similar

13

to such reasoning that is later explained publicly in another

14

context, such similarity does not necessarily result in waiver.

15

Moreover, ignoring both the differences in contexts and the

16

passage of a significant interval of time would risk requiring

17

Government officials to consider numerous arguably similar

18

documents prepared long before and then measure their public

19

words very carefully so as not to inadvertently precipitate a

20

waiver of protection for those earlier documents.

21

In this case, it would be difficult to explain in detail why

22

the context of the legal reasoning in Exhibit E differs from the

10

CaCsaes1e:1114--c4v4-3029,3D36o-cCuMmenDto1c3u7m, e1n1t/2534/20F1il5e,d11614/82734/15, PaPgaeg1e11o1f o2f222

1

context of the public explanations given by senior Government

2

officials eight years later without revealing matters that are

3

entitled to protection. We can say, however, that Exhibit E

4

concerns Executive Order 12333, and that Order is not mentioned

5

in any of the public statements we relied on in NYTimes I to

6

support waiver of protection for the OLC-DOD Memorandum. We can

7

also say that Exhibit E concerns actions and governing legal

8

standards different from those later publicly discussed. We

9

conclude that these differences suffice to preclude a ruling that

10

waiver has occurred, and we therefore affirm the District Court’s

11

decision not to disclose Exhibit E.

12

Exhibits F, G, H, I, and J. These OLC documents discuss

13

another document that remains entitled to protection. It would

14

be difficult to redact any arguably disclosable lines of legal

15

analysis from these documents without disclosing the contents of

16

that other document, and for that reason the District Court

17

properly withheld them from disclosure.

18

Exhibit K. This document is a redacted version of Exhibit B.

19

The District Court properly ordered it disclosed because the

20

Government waived any privilege in the redacted legal analysis.

21

Exhibit L. This document is an email that circulated the

22

White Paper to DOJ personnel, together with the White Paper

11

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1

itself. The White Paper has already been disclosed, and the

2

email contains no legal analysis. The District Court properly

3

withheld it from disclosure.

4

Unable to direct arguments to the specific documents, which

5

they have not seen, the Appellants make the general argument that

6

the legal reasoning in OLC opinions is “working law,” see Brennan

7

Center for Justice v. U.S. Dep’t of Justice, 697 F.3d 184 (2d

8

Cir. 2012), not entitled to be withheld under FOIA Exemption 5.

9

Whether or not “working law,” the documents are classified and

10

thus protected under Exemption 1, in the absence of statements

11

by public officials that constitute waiver of all FOIA

12

exemptions.

13

Moreover, these OLC documents are not “working law.” At

14

most, they provide, in their specific contexts, legal advice as

15

to what a department or agency “is permitted to do,” Electronic

16

Frontier Foundation v. U.S. Dep’t of Justice, 739 F.3d 1, 10

17

(D.C. Cir. 2014) (emphasis in original), but OLC “did not have

18

the authority to establish the ‘working law’ of the [agency],”

19

id. at 8, and its advice “is not the law of an agency unless the

20

agency adopts it,” id. The one document ordered disclosed in

21

Brennan Center was not deemed “working law,” 697 F.3d at 203, and

22

was ordered disclosed only because the agency had “adopted [it]

12

CaCsaes1e:1114--c4v4-3029,3D36o-cCuMmenDto1c3u7m, e1n1t/2534/20F1il5e,d11614/82734/15, PaPgaeg1e31o3f o2f222

1

by reference,” id. No agency of the Government has adopted by

2

reference any of the documents at issue in this case.

3

To recapitulate, we agree with all of the District Court’s

4

rulings with respect to the documents at issue, with the result

5

that only Exhibit K is to be disclosed. As explained above,

6

Exhibit K, which the District Court ordered disclosed, is a

7

redacted version of Exhibit B.

8

II. Disclosure of the Redacted Portions of the District

9

Court’s Opinion

10

The Appellants contend that the redacted portions of the

11

District Court’s opinion should be disclosed. Judge McMahon

12

herself urges us to permit disclosure of three paragraphs on page

13

9 of her opinion, which she maintained under seal only to assure

14

that those paragraphs remained sealed in the event that a

15

reviewing court disagreed with her decision to make them public.

16

The Appellants are understandably in a difficult position to

17

present their argument for disclosure of the redacted portions

18

of the District Court’s opinion because they have not seen them.

19

The Appellants’ basic argument is that the First Amendment

20

requires public access to normally public documents, such as

21

court opinions. They rely on United States v. Erie County, 763

22

13

CaCsaes1e:1114--c4v4-3029,3D36o-cCuMmenDto1c3u7m, e1n1t/2534/20F1il5e,d11614/82734/15, PaPgaeg1e41o4f o2f222

1

F.3d 235 (2d Cir. 2014), and Lugosch v. Pyramid Co., 435 F.3d 110

2

(2d Cir. 2006).

3

Erie County concerned compliance reports filed with a court

4

administering a stipulation governing prison conditions. As the

5

Court noted, “[E]very aspect of this litigation is public.” Erie

6

County, 763 F.3d at 241. By contrast, the pending case concerns

7

classified documents sought pursuant to FOIA requests, and the

8

District Court’s sealed opinion explains why, with limited

9

exception, those documents must remain under seal. Lugosch

10

concerned documents supporting and opposing a summary judgment

11

motion in litigation between private parties. Concerns related

12

to classified documents were not involved in either case. “As

13

a general rule,” there is no constitutional right of access “to

14

traditionally nonpublic government information.” McGehee v.

15

Casey, 718 F.2d 1137, 1147 (D.C. Cir. 1983). Appellants are

16

therefore not entitled to disclosure of those portions of the

17

District Court’s opinion that discuss information properly

18

withheld under an applicable FOIA exemption.

19

The Appellants further contend that even if the District

20

Court was entitled to seal its opinion, the Court failed to make

21

the findings warranting sealing that are required by Erie County,

22

763 F.3d at 239, and Lugosch, 435 F.3d at 120, both of which

14

CaCsaes1e:1114--c4v4-3029,3D36o-cCuMmenDto1c3u7m, e1n1t/2534/20F1il5e,d11614/82734/15, PaPgaeg1e51o5f o2f222

1

restated the findings requirement first announced in In re New

2

York Times, 828 F.2d 110, 116 (2d Cir. 1987) (“[D]ocuments may

3

be sealed if specific, on the record findings are made

4

demonstrating that closure is essential to preserve higher values

5

and is narrowly tailored to serve that interest.”) (internal

6

quotation marks omitted). But, as Erie County explained, the

7

findings requirement for sealing documents arises only after “a

8

First Amendment right of access to judicial documents is found.”

9

763 F.3d at 239. In any event, we require no findings in this

10

case to understand that the District Court sealed its opinion to

11

avoid disclosure of classified information.

12

We turn then to the three paragraphs of the District Court’s

13

opinion that Judge McMahon thought need not be withheld. Those

14

paragraphs briefly mention hypothetical situations that might

15

raise issues of waiver of attorney-client privilege with respect

16

to a non-compete clause in an employment contract. In an

17

unredacted order, she stated that the three paragraphs “contain

18

not a whit of classified material (the Government does not

19

suggest otherwise)” and would not “tend to reveal any classified

20

material.” SPA 176.

21

The Government contends that the three paragraphs at issue,

22

although containing no classified information, can be understood

15

CaCsaes1e:1114--c4v4-3029,3D36o-cCuMmenDto1c3u7m, e1n1t/2534/20F1il5e,d11614/82734/15, PaPgaeg1e61o6f o2f222

1

to imply a fact that should not be disclosed. That fact is the

2

nationality of a person who has been considered as a possible

3

target of a drone attack. However, the three paragraphs neither

4

say nor imply anything about such a nationality. At most, the

5

paragraphs, by considering various permutations of a law firm’s

6

advice concerning one or more different employment contracts,

7

might be understood to imply that drone attacks have been

8

considered for persons other than al-Awlaki, the subject of the

9

OLC-DOD Memorandum. That fact, of course, is widely known, see,

10

e.g., W.J. Hennigan & David S. Cloud, “U.S. airstrikes in Somalia

11

signal a more direct role against Shabab,” Los Angeles Times, July

12

23, 2015 (reporting six drone strikes in one week, quoting U.S.

13

military officials),8 and has been publicly acknowledged by

14

senior United States military personnel, see, e.g., Lolita C.

15

Baldor, “U.S. Drone Strike In Afghanistan Kills ISIS Recruiter

16

Who Was Once Held In Guantanamo,” Huffington Post (Feb. 10, 2015)

17

(reporting statement of Pentagon spokesman Rear Admiral John

18

Kirby).9

19

8 Available at http://www.latimes.com/world/la-fg-us-airstrikessomalia-20150723-story.html.
9 Available at http://www.huffingtonpost.com/2015/02/10/dronekills-guantanamo-de_n_6656530.html.
16

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1

The flaw in the Government’s argument is that a reader of

2

the District Court’s redacted opinion, with the three paragraphs

3

restored, could not identify the name or nationality of the

4

potential target. Indeed, the District Court’s opinion redacts

5

the entire discussion of the document that mentions that target’s

6

name, and that document remains undisclosed. To guard against

7

even the remote possibility that a reader might conceivably infer

8

the nationality of the potential target from the three paragraphs

9

at issue, we will order redaction of the few words in the first

10

of these paragraphs to which the Government, on classification

11

review, has called to our attention. See Point IV, below.

12

We agree with the District Court that the three paragraphs

13

need not be redacted, other than as ordered in Point IV, below,

14

and that the remainder of the Court’s opinion may remain sealed.

15

III. Disclosure of Redacted Portions of the June 23

16

Transcript

17

Because the Appellants have not seen the words that the

18

Government has redacted from the transcript of the June 23 ex

19

parte and in camera hearing, they obviously have had no

20

opportunity to argue for disclosure of these redactions. And

21

they have not seen the Government’s ex parte and in camera letter

22

of July 24 supporting those redactions. Our own ability to

17

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1

explain our rulings with respect to the redactions is also

2

handicapped, but for a different reason: if redacted words touch

3

on matters entitled to remain secret, we can state a conclusion,

4

but little, if anything, else.

5

Initially, we note some concern as to the need for the

6

Government’s ex parte and in camera oral argument. When asked

7

at the closed hearing why such argument was needed at this stage

8

of the litigation but not at the earlier stage, the Government

9

offered two different reasons. First, the Government noted that

10

many of the bases for withholding the documents at issue are

11

classified or statutorily protected. Then we were told the

12

reason was that a large portion of the District Court’s opinion

13

was redacted. Neither reason precluded the Government from fully

14

presenting its arguments in briefs and affidavits, submitted ex

15

parte and in camera, as it has done throughout this litigation.

16

Any future request for ex parte and in camera oral argument will

17

have to be persuasively supported, even if the request is

18

unopposed, as it was in this case.

19

Nearly all of the redactions made by the Government in the

20

June 23 transcript refer to the contents of Exhibit E. Because

21

we have upheld nondisclosure of that Exhibit in this opinion, we

22

will uphold nondisclosure of those redactions.

18

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1

One other redaction in the June 23 transcript has nothing to

2

do with Exhibit E. In response to the panel’s request for

3

identification of those in attendance at the closed hearing,

4

eight Government personnel named themselves and their

5

affiliations; one provided only a name. The Government has

6

redacted that name and the name and agency affiliation of one

7

other person.

8

We have substantial reservations about the Government’s

9

decision to bring to a closed ex parte hearing personnel whose

10

identity and affiliation it will not disclose to opposing

11

counsel, who were excluded from the hearing. Of course, the

12

Government is entitled to keep secret the name of any undercover

13

operative, but there is no claim that the two people whose names

14

have been redacted serve in such capacity, and it would be a rare

15

case where such persons would need to attend an appellate

16

argument. The Government’s justification for nondisclosure of

17

the two names is that they are CIA personnel, whose identities

18

are protected by the Central Intelligence Act and Exemption (3)

19

of FOIA, 5 U.S.C. § 552(b)(3).

20

Not having previously established ground rules concerning

21

disclosure of the identities of those attending the closed

22

hearing, we think it would be unfair to disclose the two names

19

CaCsaes1e:1114--c4v4-3029,3D36o-cCuMmenDto1c3u7m, e1n1t/2534/20F1il5e,d11614/82734/15, PaPgaeg2e02o0f o2f222

1

that the Government has redacted. However, if the need for a

2

closed ex parte hearing should arise in the future, the

3

Government should either not bring personnel whose identities may

4

not be disclosed, or present, prior to the hearing, a substantial

5

justification for including such personnel.

6

IV. Government’s Classification Review

7

After affording the Government an opportunity for

8

classification review of our proposed opinion, we received, ex

9

parte and in camera, requests for a correction of a misstatement,

10

redactions from the opinion, and requests to redact some words

11

from the three paragraphs on page 9 of the District Court’s

12

opinion that Judge McMahon stated should be disclosed.

13

With respect to our proposed opinion, we have corrected the

14

misstatement and made all of the redactions requested by the

15

Government, except those concerning the three paragraphs at issue

16

on page 9 of the District Court’s opinion. With respect to the

17

requested redactions from the District Court’s opinion, we rule

18

as follows: in the third line of the first full paragraph on page

19

9 of that opinion, the eight words following the word “opine”

20

will be redacted; in the 6th line of that paragraph, the six

21

words following the word “lawyer” will be redacted; in the

22

seventh line of that paragraph, “an” shall be changed to “a” and

20

CaCsaes1e:1114--c4v4-3029,3D36o-cCuMmenDto1c3u7m, e1n1t/2534/20F1il5e,d11614/82734/15, PaPgaeg2e12o1f o2f222

1

the next two words will be redacted. With these redactions, the

2

three paragraphs at issue may be disclosed. We recognize that

3

these redactions render the resulting wording somewhat awkward.

4

We leave it to Judge McMahon on remand, if she chooses, to make

5

further redactions or some rephrasing of her language to smooth

6

out the wording without restoring the words we have deleted.

7

The Government has requested that we either (1) submit our

8

revised opinion for further classification review or (2) maintain

9

our opinion under seal for 30 days to permit the Government an

10

opportunity to seek further appellate review. We will pursue the

11

second alternative and have instructed the Clerk accordingly.

12

Conclusion

13

We conclude that all the OLC documents at issue shall remain

14

undisclosed, except Exhibit K (the redacted version of Exhibit

15

B), which the District Court has authorized to be disclosed; that

16

the redacted portions of the District Court’s opinion shall

17

remain undisclosed, except for the three paragraphs on page 9,

18

(as redacted pursuant to Part IV of this opinion), which the

19

District Court wishes disclosed; and that the redactions from the

20

transcript of the June 23 hearing may remain undisclosed.

21

We therefore affirm the judgment, authorize the District

22

Court to disclose the three redacted paragraphs on page 9 of its

23

opinion (as redacted pursuant to Part IV of this opinion), and

21

CaCsaes1e:1114--c4v4-3029,3D36o-cCuMmenDto1c3u7m, e1n1t/2534/20F1il5e,d11614/82734/15, PaPgaeg2e22o2f o2f222

1

maintain undisclosed the redacted portions of the District

2

Court’s opinion and the June 23, 2015, transcript.

3

AFFIRMED and REMANDED.

22

 
 Case 1:11-cv-09336-CM Document 61 Filed 05/23/16 Page 1 of 21

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-----~---------------------------------------------------------X
THE NEW YORK TIMES COMPANY, CHARLIE SAVAGE, and SCOTT SHANE
. Plaintiffs,
. -against-
UNITED STATES DEPARTMENT OF JUSTICE,
Defendant.
---------------------------------------------------------------x
AMERICAN CIVIL LIBERTIES UNION and THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
Plaintiffs,
-against-
U.S. DEPARTMENT OF JUSTICE, including its component the Office ofLegal Counsel, U.S. DEPARTMENT OF DEFENSE, including its Component U.S. Special Operations Command, and CENTRAL INTELLIGENCE AGENCY,
Defendants.
-------------------------------------------------------~-------x

11 Civ. 9336 (CM) 12 Civ. 794 (CM)

REVISED DECISION ON REMAND WITH RESPECT TO ISSUE (3) McMahon, J.:
(U) The court has received mandates in connection with two separate remand orders from the Second Circuit.
(U) The first mandate requires me to review in camera certain "other legal memoranda prepared by OLC" that were identified as responsive to the Shane and Savage FOIA requests. That review is for the purpose of ascertaining whether the Government has waived the protection of asserted FOIA Exemptions for those

Case 1:11-cv-09336-CM Document 61 Filed 05/23/16 Page 2 of 21
documents, for the reasons announced in the Circuit's opinion (original!y'issued in redacted fonn on April 21, 2014 and reissued, in final redacted form, on June 23, 2014). If I decide that the FOIA Exemptions have been waived, I am to make appropriate redactions prior to authorizing disclosure. (Item 3 Remand).
(U) The second mandates requires me to review new Vaughn Indices from the Department of Defense (DOD) and Central Intelligence Agency (CIA), in order to determine appropriate disclosures and redactions in the indices (Item 5 Remand).
(U) This opinion addresses the Item 3 Remand only. Discussion
(U) The court has been provided with a total of ten legal memoranda prepared by
,.,.. : I
attorneys in OLC.
. I
have ~tlso been provided with a copy of an email covering a November 2011 d1:aft of a Department of Justice White Paper (Bics Ex. L).
(U) OLC, supported by the CIA, asserts that Exemptions 1 (Cias~ified Material); 3 (Intelligence Sources and Methods); and 5 (Deliberative/Attorney-Client Privilege) apply to each of the ten legal memoranda, and insist that these exemptions were not waived under the reasoning of the Second Circuit's decision, for various reasons, most of' which they urge in connection with all ten memoranda. The reader should assume that I have considered all three possible exemptions in making the determinations outlined below.
2

' '

Case 1:11-cv-09336-CM Documen! t 61 Filed 05/23/16 Page 3 of 21

(U) Five of the memo ran

Bies Exhibits r, 0,

H, I and J - need not be disclosed in whole or in part because as to them there has been

no waiver of any privilege or any exemption.

has been no waiver ofany privilege or any exemption relating thereto by virtue oftre Administration's public statements or its disclosure ofthe Draft White Paper. The Second Circuit agreed with this Court's conclusion, and took great pains to redact any reference

I I

(U) I have reviewed these five documents after reading

.

.!, '' I I

and ascertained that it would be

impossible to redact these memoranda in any way that would not prevent the disclosure

of highly classified information. They need not be disclosed.

3

Case 1:11-cv-09336-CMI Document 61 IFi,led 05/23/16 Page 4 of 21

BIES EXHIBITS A, B AND K

(U) Exhibits Band K: Bies Exhibits B, which is responsive to both FOIA

requests, is a memorandum prepared by OLC six months prior to its preparation of the

OLC-DoD memorandum and the Draft White Paper. It pertains specifically to the

proposed ai-Aulaqi operation that was the subject of the Draft White Paper and the OLC-

DoD Memorandum. Written by David J. Barron, it is entitled "Lethal Operation Against

Shaykh Anwar Aulaqi." I will refer to it hereafter either as Bies Exhibit B or as "The

First Barron Memorandum."

Exhibit B contains certain intelligence

il'{{ormation relating to Aulaqi and includes both strategic and legal analysis relating to

the proposed operation. No privilege has been waived as to the factual intelligence

information or the strategic analysis. Similarly, no privilege has been waived insofar as

the document contains

l

I I

I for

the reasons discussed in the preceding section, no such information can or should be

disclosed.

(U) Section VI of the OLC-DoD Memorandum, insofar as it has been disclosed

by order of the Second Circuit, discusses legal analysis taken from Bies Exhibit B

concerning (1) the constitutionality of the proposed al-Aulaqi operation due toT his

American citizenship, and (2) whether the proposed operation would run afoul of

Executive Order 12333, which contains the so-called "assassination ban.'' Plainly, the

OLC-DoD Memorandum not only relies on, but incorporates by reference, the legal analysis of Fourth and Fifth Amendment that is contained in Bies Exhibit B; as a matter

offact, the version of the OLC-DoD Memorandum that is appended to the Second

4

Case 1:11-cv-09336-CM Document 61 Filed 05/23/16 Page 5 of 21
Circuit's final redacted opinion openly refers to the "Barron Memorandum" (also referred to as "our earlier Memorandum") in at least one place (seep. 38). Similarly, the Draft White Paper (whose release, in the context of the Public Statements, caused the protection of the asserted FOIA exemptions to be waived, according to the Second Circuit) adverts to the legal arguments made in Bies Exhibit B- although, as one would expect with a white paper, it does not specifically identify Bies Exhibit B, or for that matter any source material on which it relies.
(U) The Government argues that the privilege has not been waived with regard to Bies Exhibit B -even though it and its contents are specifically referenced in documents already disclosed- because (l) the date, title and recipient of the analysis provided in the document relate to "entirely separate deliberative processes,'' and (2) "neither the draft white paper nor the public statements relied on by the Second Circuit refer to or otherwise disclose" its contents." (Bies Dec!. at 37, referencing 19). 1
(U) The Government's arguments are demonstrably untrue. There were no "separate deliberative processes" here; rather, the Government deliberated about whether or not it could and should kill al-Aulaqi over the course of many months, during which time it asked OLC to render advice on a number of occasions. There is no way to square the Government's argument that privileges still attach to Bies Exhibit B consistent with the Second Circu!t's reasoning when (1) both it and the OLC-DoD Memorandum were prepared (by the same person, no less) to answer legal questions posed during
5

.

. . . I
Case

1:11-cv-093! 36I -CM

Document 61

Filed 05/23/16

Page 6 of 21

deliberations over the proposed al-Aulaqi operation, and (2) the latter document not only references the former but expressly incorporates its legal analysis. Notably, the draft white paper also describes the Fourth and Fifth Amendment analysis that appears in Bies Exhibit B as well as the OLC-DoD Memorandum. See DOJ White Paper, Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qa'ida or an Associated Force (bearing NBC News Stamps), no date, at II.
(U) No doubt recognizing the weakness of its argument against disclosing Bies Exhibit B, the Government has also presented the court with a redacted version of the First Barron Memorandum (Bies Exhibit K), which it either intends to disclose or has already disclosed (I cannot tell from Mr. Bies' Declaration; Ms. Lutz's Declaration seems to suggest that Exhibit K is already in the public domain).
(U) I have reviewed Bies Exhibit K against Bies Exhibit B. Exhibit K redacts every reference that this court would have ordered in order to avoid disclosure of information as to which the protection of the asserted FOIA exemptions still exists.
(U) However, Exhibit K also redacts additional information from Bies Exhibit B; in order to assess the appropriateness of those redactions,

6

Case 1:11-cv-09336-CM Document 61 Filed 05/23/16 Page 7 of 21 7

Case 1:11-cv-09336-CM Document 61 Filed 05/23/16 Page 8 of 21
f
!-
8

···r
Case 1:11-cv-09336-CM Document 61 Filed 05/23/16 Page 9 of 21

(U) The issue raised by the Government's objection to disclosure is potentially

fascinating and incredibly complicated. In the regular course of the practice of law,

attorneys opine

Waiver of attorney~client privilege

as to a memorandum to Client A discussing, say, the legality of a non-compete clause in

an employment contract would never be held to waive the privilege in a memo from the

same lawyer

addressed to Client B. Nor is it

likely that·the waiver would extend to a

memorandtun from the same

lawyer (or from another lawyer at her firm) addressed to Client A, but prepared at a

different time and concerning an entirely different employee.

(U) On the other hand, if an attorney writes a memo addressed to Client A that

says, "As to the legality of the non~compete clause, please refer to our memorandum of

last year addressing that issue," deciding whether a waiver of privilege in this year's

memorandum also waives any privilege attaching to last year's memorandum becomes

trickier. Furthermore, the answer to that question may differ depending on whether last

year's memorandum is merely referenced in, but not attached to, this year's

memorandum- or whether this year's memorandum includes a "cut and paste" of last

year's legal advice (as ({frequently the case with OLC legal opinions).
(U)Yet another issue is presented when the two memoranda prepared for Client A

were prepared in the course of handling a single matter.

9

Case 1:11-cv-093I36-CM DocumenI t' 61 Filed 05/23/16 Page 10 of 21

I

(U) The Government's blithe assertion to the contrary, these waiver issues are not so easily resolved

(U) The two (and only two) precedents the Government cites are not, in my

opinion, entirely apposite or particularly persuasive. The privilege question is further

complicated by the peculiarities attendant to the work ofthe OLC, which responds to

unique legal questions and has developed its own research library consisting of prior

opinions

, I
I

iII '

II' I'
:

Wrestling with this thorny issue would require weeks of comprehensive analysis of its

endless permutations.

I'

10

I I•··

I

i

Case 1:11-cv-09336-CM Document 61 Filed 05/23/16 Page 11 of 21

I

(U) The Court of Appeals ruled only that the privilege had been waived as to legal analysis. New York Times Company v. United States, 756 F.3d 100, 117, 120 (2d Cir. 2014). It repeatedly rejected any contention that the protections ofFOIA Exemptions I, 3 and 5 had been waived as to operational details (other than the identity of the agency · that took out al-Aulaqi and the country from which that operation was launched, both of which had been made public by the Administration), or other intelligence information
11

Case 1:11-cvI-0'9336-CM Document 61 Filed 05/23/16 Page 12 of 21

(U) I will, therefore, not order OLC to disclose any portion ofBies Exhibit A, and I will'permit OLC to redact the references to Bies Exhibit A that have been made in
Bies Exhibit K?
(U) The redacted version of Bies Exhibit B, however, must be disclosed, because the test of waiver contained in Wilson v. CIA, 586 F.3d 171, 186 (2d Cir. 2009) is met: the legal analysis in Bies Exhibit B is "as specific as" the information in the draft white paper and the already-disclosed OLC-DoD Memorandum; it "matches" the legal analysis previously disclosed; and the information was made public through an official and documented disclosure (the release of the draft white paper). Accordingly, I direct that Bies Exhibit K, the redacted version ofBies Exhibit B, be disclosed forthwith if it has not already been disclosed.

through this exercise.

If that be true, I see no reason why I am even going 12

Case 1:11-cv-09336-CM Document 61 Filed 05/23I /16 Page 13 of 21
13

Case 1:11-cv-09336-CM Document 61 Filed 05/23/16 Page 14 of 21
14

Case 1:11-cv-09336-CM Document 61 Filed 05/23/16 Page 15 of 21
(U) Executive Order 12333 is mentioned in the draft white paper, which asserts that an operation against a U.S. citizen "would not violate the assassination ban in Executive Order No. 12333" because "a lawful killing in self-defense is not an assassination," (Draft White Paper at 15, Sec. HI). The. Second Circuit did not redact the one brief mention of Executive Order 12333 that appears in the OLC-DoD Memorandum
(in a footnote on page 14) when it ordered that document disclosed, and exactly the same
words that appear in the draft white paper appear in Bies Exhibit B, which I have ordered disclosed in the form ofBies Exhibit K. One can easily infer (and I do so infer) that the preparcrs of the draft white paper and Barron (who authored both Bies Exhibit B/K and
15

Case 1:1~ 1I -c' v-09336-CM DI o' cument 61 Filed 05/23/16 Page 16 of 21

·-·1

the OLC~DoD Memorandum) had access to and incorporated arguments from Bies Exhibit E in reaching the conclusion that the killing of al~Aulaqi would not qualify as an assassination.
(U) The question is whether these disclosures waive the protection of any applicable FOIA exemption for this document.
(U) I conclude that there has been no waiver with regard to Bies Exhibit E,
because this exhibit does not meet the conditions of the Wilson test. As all three prongs
are necessary, it requires only a discussion of the second prong to eliminate any claim that the protections ofthe FOIA exemptions have been waived by virtue of the disclosures relied on by the Second Circuit.
(U) The legal analysis in Bies Exhibit E does not "match" the analysis disclosed in the draft white paper (and in the two documents that have been or will be disclosed by order of the court), which is the second prong of the Wilson test.

16

Case 1:11-cv-09336-CM Document 61 Filed 05/23/16 Page 17 of 21

I !

however, that aspect ofBies Exhibit E does not correspond to any lef{al analysis (or, for that matter, factual analysis) in either the draft white paper and the two Barron memoranda that are or soon will be in the public domain.

(U) As a result, there is no "match" as required by Wilson, and hence no waiver of the protections of the relevant FOIA exemptions.

. :I

'

'

17

: I

..

-r 1
Case 1:11-cv-09336-CM Document 61 Filed 05/23/16 Page 18 of 21I '

BIES EXHIBIT L

(U) Also attached to the Bies memorandum is a twelfth exhibit, Exhibit L, which
is a November 8, 2011 draft ofthe white paper that eventually found its way to NBC News, following which the Government made what Mr. Bies refers to as "discretionary release [ofthe white paper] ... in light of the media report." Bies attaches this

memorandum to his affidavit principally so that he can make a record addressing a

question asked by the Second Circuit about the discretionary release of the white paper.
(Bies Dec. ,I 82 et seq.). These portions of Bies' Declaration are unclassified, The matters
discussed therein do not relate in the slightest particular to my n:andate, so I am ignoring

them.

, .. i I , I

.

·:

.

18

Case 1:11-cv-09336-CM Document 61 Filed 05/23/16 Page 19 of 21
19

Case 1:11-cv-09336-CM I Document 61 Filed 05/23/16 Page 20 of 21
Conclusion (U) This constitutes the decision and order of the court. Before releasing this decision to plaintiffs and to the public, I am providing a copy to the Government, to check classification status (which we have tried our best to get right on a paragraph by paragraph basis) and to propose redactions. (U) To the extent it should be necessary, the court certifies that an immediate entry of partial judgment as to this aspect of the case would be appropriate, pursuant to Fed. R. Civ. P. 54(b), because (1) this order finally disposes of a discrete and severable issue in this action, to wit: the disclosability of one specific type of legal document (legal opinions from the OLC) sought from one party defendant (the Department of Justice); and (2) there is no just reason for delay. These FOIA requests were made nearly three years ago, and it is in the public interest that any disclosable documents become public as without further delay. Also, there are many open issues in this case, which are completely severable from Remand Issue 3; and (if the parties' briefing schedule is any indication) it will take many months to resolve those issues. (U) The mandate directs that any appeal from this order and the partial judgment to be entered thereon be referred to a panel consisting of Judges Newman, Cabranes and Pooler.·
20

~ I
Case 1:11-cv-09336-CM Document 61 Filed 05/23/16 Page 21 of 21

May II, 20164

.·')
,•' I
,~,.
/'; .' .f I
·/)·1L/lv·(..
United States District Judge

,1
'

~ This decision amends the of Appeals. See New York

Court's decision of Times v. U.S. Dep 't

September ofJustice,

30, 806

20 I4, as ordered by the Second Circuit F.3d 682, 690 (2d Cir. 20 15), Mandate

Courl

Issued on Apri121, 2016.

21

 
 U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:11−cv−09336−CM

CLOSED,ECF

The New York Times Company et al v. United States Department of Justice Assigned to: Judge Colleen McMahon Related Case: 1:12−cv−00794−CM Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 12/20/2011 Date Terminated: 10/31/2014 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

The New York Times Company

represented by David Edward McCraw The New York Times Company (10018) 620 Eighth Avenue New York, NY 10018 (212) 556−4031 Fax: (212) 556−1009 Email: mccraw@nytimes.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Charlie Savage

represented by David Edward McCraw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Scott Shane

represented by David Edward McCraw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant United States Department of Justice

represented by Sarah Sheive Normand U.S. Attorney's Office, SDNY (86 Chambers St.) 86 Chambers Street New York, NY 10007 (212) 637−2200 Fax: (212) 637−2686 Email: sarah.normand@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/20/2011
12/20/2011 12/20/2011

# Docket Text
1 COMPLAINT against United States Department of Justice. (Filing Fee $ 350.00, Receipt Number 4996)Document filed by The New York Times Company, Charlie Savage, Scott Shane.(ama) (Entered: 12/22/2011)
SUMMONS ISSUED as to United States Department of Justice, U.S. Attorney and U.S. Attorney General. (ama) (Entered: 12/22/2011)
Magistrate Judge James C. Francis IV is so designated. (ama) (Entered: 12/22/2011)

12/20/2011 12/20/2011 01/10/2012 01/13/2012 01/23/2012 02/24/2012
04/09/2012
04/23/2012
04/23/2012
05/21/2012 06/19/2012 06/20/2012

Case Designated ECF. (ama) (Entered: 12/22/2011)
2 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Charlie Savage, Scott Shane, The New York Times Company.(ama) (Entered: 12/22/2011)
3 ORDER SCHEDULING AN INITIAL PRETRIAL CONFERENCE: Initial Conference set for 2/24/2012 at 11:30 AM in Courtroom 14C, 500 Pearl Street, New York, NY 10007 before Judge Colleen McMahon. Additional relief as set forth in this Order. (Signed by Judge Colleen McMahon on 1/10/12) (pl) (Entered: 01/10/2012)
4 NOTICE OF APPEARANCE by Sarah Sheive Normand on behalf of United States Department of Justice (Normand, Sarah) (Entered: 01/13/2012)
5 ANSWER to 1 Complaint. Document filed by United States Department of Justice.(Normand, Sarah) (Entered: 01/23/2012)
Minute Entry for proceedings held before Judge Colleen McMahon: Initial Pretrial Conference held on 2/24/2012. Decision: Initial conference held. A briefing schedule was entered. The Government must move before April 13, 2012; responses to its motion are due May 11, 2012, at which time the opponents are free to cross−move; and the Governments reply and, if appropriate, opposition to the cross−motion is due May 25, 2012. Cross−movants should not file a reply unless instructed to do so by the Court. (Submitted By Scott Danner). (mde) (Entered: 02/24/2012)
6 ENDORSED LETTER addressed to Judge Colleen McMahon from Sarah S Normand dated 4/9/2012 re: Request for a ten day extension of time to file a motion for summary judgment and to file a consolidated brief of up to 40 pages in both cases. ENDORSEMENT: Ok, but dont ask for any more time. If government official can give speeches about this matter without creating security problem, any involved agency can. (Signed by Judge Colleen McMahon on 4/9/2012) (cd) (Entered: 04/09/2012)
7 ENDORSED LETTER addressed to Judge Colleen McMahon from Stuart Delery and Preet Bharara dated 4/23/2012 re: We write respectfully on behalf of the Department of Justice, the Department of Defense and the Central Intelligence Agency (collectively, the "Government") to seek a further extension, until May 21, 2012, of the Government's deadline to file its consolidated motion for summary judgment. ENDORSEMENT: I have read Director Clapper's declaration (which must remain under seal − believe me, I appreciate the irony) and I will grant the extension requested by the government. The time to file its motion is extended to May 21, 2012. (Motions due by 5/21/2012.) (Signed by Judge Colleen McMahon on 4/23/2012) (rjm) (Entered: 04/23/2012)
8 ENDORSED LETTER addressed to Judge Colleen McMahon from Stuart Delery and Preet Bharara dated 4/23/12 re: Counsel for the defendant requests a further extension, until 5/21/12, of the Government's deadline to file his consolidated motion for summary judgment. ENDORSEMENT: I have read Director Clepper's declaration (which must remain under seal−believe me, I appreciate the irony) and I will grant the extension requested by the government. The time to file its motion is extended to May 21, 2012. ( Motions due by 5/21/2012.) (Signed by Judge Colleen McMahon on 4/23/2012) (mro) (Entered: 04/24/2012)
Minute Entry for proceedings held before Judge Colleen McMahon: Telephone Conference held on 5/21/2012. Decision: Phone conference held. Defendants must move on or before June 20, 2012. Plaintiffs have four weeks thereafter to file responses.(Submitted By Benjamin T. Alden). (mde) (Entered: 05/21/2012)
9 ENDORSED LETTER addressed to Judge Colleen McMahon from Susan S. Normand dated 6/18/12 re: Counsel for the Government seeks leave to file a consolidated brief of up to fifty pages in both cases in support of the Government's motion for summary judgment. ENDORSEMENT: Ok. (Signed by Judge Colleen McMahon on 6/19/2012) (mro) (Entered: 06/19/2012)
10 MOTION for Summary Judgment. Document filed by United States Department of Justice.(Normand, Sarah) (Entered: 06/20/2012)

06/20/2012 06/20/2012 06/21/2012 06/21/2012 06/21/2012 06/21/2012 06/21/2012 06/21/2012 07/18/2012 07/18/2012 07/18/2012 07/20/2012
08/08/2012 08/08/2012

11 DECLARATION of Sarah S. Normand in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Normand, Sarah) (Entered: 06/20/2012)
12 MEMORANDUM OF LAW in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Normand, Sarah) (Entered: 06/20/2012)
13 DECLARATION of John F. Hackett in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Normand, Sarah) (Entered: 06/21/2012)
14 DECLARATION of John Bennett in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Normand, Sarah) (Entered: 06/21/2012)
15 DECLARATION of John E. Bies in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Normand, Sarah) (Entered: 06/21/2012)
16 DECLARATION of Robert R. Neller in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Normand, Sarah) (Entered: 06/21/2012)
17 DECLARATION of Douglas R. Hibbard in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Normand, Sarah) (Entered: 06/21/2012)
18 NOTICE of Classified Filing re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Normand, Sarah) (Entered: 06/21/2012)
19 CROSS MOTION for Summary Judgment. Document filed by Charlie Savage, Scott Shane, The New York Times Company.(McCraw, David) (Entered: 07/18/2012)
20 MEMORANDUM OF LAW in Support re: 19 CROSS MOTION for Summary Judgment.. Document filed by Charlie Savage, Scott Shane, The New York Times Company. (McCraw, David) (Entered: 07/18/2012)
21 DECLARATION of NABIHA SYED in Support re: 19 CROSS MOTION for Summary Judgment.. Document filed by Charlie Savage, Scott Shane, The New York Times Company. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit)(McCraw, David) (Entered: 07/18/2012)
22 ENDORSED LETTER addressed to Judge Colleen McMahon from Sarah S. Normand dated 7/20/2012 re: We write respectfully on behalf of defendants the Department of Justice and its component, the Office of Legal Counsel; the Department of Defense and its component, the United States Special Operations Command; and the Central Intelligence Agency (collectively, the "Government") in the above−named related cases brought pursuant to the Freedom of Information Act ("FOIA") to request that the Court set a deadline of August 8, 2012, for the filing of the Government's reply and opposition to plaintiffs' respective cross−motions in these cases. ENDORSEMENT: OK., ( Responses due by 8/8/2012., Replies due by 8/8/2012.) (Signed by Judge Colleen McMahon on 7/20/2012) (lmb) (Entered: 07/20/2012)
23 REPLY MEMORANDUM OF LAW in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Normand, Sarah) (Entered: 08/08/2012)
24 DECLARATION of Douglas Hibbard in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Normand, Sarah)

08/09/2012 08/09/2012 08/09/2012 08/09/2012 08/27/2012 09/21/2012 10/02/2012 01/02/2013
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(Entered: 08/08/2012)
25 DECLARATION of Mark Herrington in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Normand, Sarah) (Entered: 08/09/2012)
26 MEMORANDUM OF LAW in Opposition re: 19 CROSS MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Normand, Sarah) (Entered: 08/09/2012)
27 DECLARATION of Mark Herrington in Opposition re: 19 CROSS MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Normand, Sarah) (Entered: 08/09/2012)
28 DECLARATION of Douglas Hibbard in Opposition re: 19 CROSS MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Normand, Sarah) (Entered: 08/09/2012)
29 REPLY MEMORANDUM OF LAW in Support re: 19 CROSS MOTION for Summary Judgment.. Document filed by Charlie Savage, Scott Shane, The New York Times Company. (McCraw, David) (Entered: 08/27/2012)
30 ENDORSED LETTER addressed to Judge Colleen McMahon from David McCraw dated 9/21/2012 re: Plaintiffs and Defendant respectfully ask for permission to submit on or before October 1, 2012 three−page letters discussing the significance of the new decision for the pending summary judgment motions. ENDORSEMENT: Excellent idea − we have been reading the decision carefully. (Signed by Judge Colleen McMahon on 9/21/2012) (rjm) (Entered: 09/21/2012)
31 ENDORSED LETTER addressed to Judge Colleen McMahon, from Sarah S. Normand, dated 10/1/2012, re: on behalf of defendants, request an unopposed extension of time, until October 10, 2012, for the parties to submit simultaneous supplemental letter briefs addressing the Second Circuit's recent decision in Brennan Center v. Department of Justice, No. 11−4599 (2d Cir. Sept. 20, 2012). ENDORSEMENT: OK. (Signed by Judge Colleen McMahon on 10/2/2012) (ja) (Entered: 10/02/2012)
32 ORDER: #102747 terminating 10 Motion for Summary Judgment; terminating 19 Motion for Summary Judgment. The Government's motion for summary judgment is granted except to the extent of permitting the DoD to submit a supplemental and more fulsome justification for why the deliberative process privilege applies to the two Unclassified Memos on its Vaughn Index. Plaintiffs' cross motions for summary judgment are denied except as to the open issue described above. This constitutes the decision and order of the Court. The Clerk of the Court is directed to remove the motions at Docket 11 Civ. 9336 # 10 and 19 and Docket 12 Civ. 794 # 24 and 34 from the Court's list of open motions.(Signed by Judge Colleen McMahon on 1/2/2013) (ago) (Additional attachment(s) added on 1/2/2013: # 1 Order) (mde). Modified on 1/7/2013 (jab). (Entered: 01/02/2013)
33 CORRECTED OPINION GRANTING THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS' CROSS MOTION FOR SUMMARY JUDGMENT: #102747 The Government's motion for summary judgment is granted except to the extent of permitting the DoD to submit a supplemental and more detailed justification for why the deliberative process privilege applies to the two Unclassified Memos on its Vaughn Index. Plaintiffs' cross motions for summary judgment are denied except as to the open issue described above. This constitutes the decision and order of the Court. The Clerk of the Court is directed to remove the motions at Docket 11 Civ. 9336 # 10 and 19 and Docket 12 Civ. 794 # 24 and 34 from the Court's list of open motions. (Signed by Judge Colleen McMahon on 1/3/2013) Copies Sent By ECF By Chambers. (cd) Modified on 1/7/2013 (jab). (Entered: 01/03/2013)
38 INTERNET CITATION NOTE: Material from decision with Internet citation re: 33 Memorandum & Opinion. (Attachments: # 1 Internet Citation, # 2 Internet Citation, # 3 Internet Citation, # 4 Internet Citation, # 5 Internet Citation, # 6 Internet Citation, # 7 Internet Citation, # 8 Internet Citation, # 9 Internet Citation, # 10 Internet Citation, # 11 Internet Citation, # 12 Internet Citation, # 13 Internet Citation, # 14 Internet

01/18/2013 01/22/2013
01/22/2013 01/24/2013
02/01/2013 02/01/2013 02/01/2013

Citation, # 15 Internet Citation) (sj) (Entered: 02/13/2013)
36 ORDER: The Government has until 6 PM on February 1, 2013 to submit supplemental declarations justifying the applicability of the deliberative process privilege to the two Unclassified Memos on the Department of Defense's Vaughn Index. (Signed by Judge Colleen McMahon on 1/18/2013) Copies Sent By ECF TO ALL COUNSEL (pl) (Entered: 01/30/2013)
34 DECISION AND ORDER: Accordingly, the Government's motion for summary judgment with respect to the Unclassified Memos is granted and Plaintiffs' cross motions for summary judgment are denied. The Clerk of the Court is directed to enter judgment for the Government and to close both cases. This constitutes the decision and order of the Court. (Signed by Judge Colleen McMahon on 1/22/2013) (djc) (Entered: 01/22/2013)
Transmission to Judgments and Orders Clerk. Transmitted re: 34 Order, to the Judgments and Orders Clerk. (djc) (Entered: 01/22/2013)
35 CLERK'S JUDGMENT That for the reasons stated in the Court's Decision and Order dated January 22, 2013, the Governments motion for summary judgment with respect to the Unclassified Memos is granted and Plaintiffs cross motions for summary judgment are denied; accordingly, both of the cases are closed. (Signed by Clerk of Court Ruby Krajick on 1/24/13) (Attachments: # 1 Notice of Right to Appeal)(dt) (Entered: 01/24/2013)
37 NOTICE OF APPEAL from 35 Clerk's Judgment, 33 Memorandum & Opinion,,, 34 Order,. Document filed by Charlie Savage, Scott Shane, The New York Times Company. Filing fee $ 455.00, receipt number 0208−8196082. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (McCraw, David) (Entered: 02/01/2013)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 37 Notice of Appeal,. (nd) (Entered: 02/01/2013)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 32 Order on Motion for Summary Judgment,,,,,,, 13 Declaration in Support of Motion filed by United States Department of Justice, 35 Clerk's Judgment, 11 Declaration in Support of Motion, filed by United States Department of Justice, 23 Reply Memorandum of Law in Support of Motion filed by United States Department of Justice, 21 Declaration in Support of Motion, filed by The New York Times Company, Scott Shane, Charlie Savage, 9 Endorsed Letter, 16 Declaration in Support of Motion, filed by United States Department of Justice, 15 Declaration in Support of Motion, filed by United States Department of Justice, 19 CROSS MOTION for Summary Judgment. filed by The New York Times Company, Scott Shane, Charlie Savage, 12 Memorandum of Law in Support of Motion filed by United States Department of Justice, 14 Declaration in Support of Motion, filed by United States Department of Justice, 22 Endorsed Letter, Set Deadlines,,,,,, 6 Endorsed Letter, 28 Declaration in Opposition to Motion filed by United States Department of Justice, 17 Declaration in Support of Motion, filed by United States Department of Justice, 3 Order for Initial Pretrial Conference, 27 Declaration in Opposition to Motion filed by United States Department of Justice, 24 Declaration in Support of Motion filed by United States Department of Justice, 7 Endorsed Letter, Set Deadlines,,,, 2 Rule 7.1 Corporate Disclosure Statement filed by The New York Times Company, Scott Shane, Charlie Savage, 36 Order, 8 Endorsed Letter, Set Deadlines,,,, 1 Complaint filed by The New York Times Company, Scott Shane, Charlie Savage, 5 Answer to Complaint filed by United States Department of Justice, 29 Reply Memorandum of Law in Support of Motion filed by The New York Times Company, Scott Shane, Charlie Savage, 10 MOTION for Summary Judgment. filed by United States Department of Justice, 26 Memorandum of Law in Opposition to Motion filed by United States Department of Justice, 37 Notice of Appeal, filed by The New York Times Company, Scott Shane, Charlie Savage, 25 Declaration in Support of Motion filed by United States Department of Justice, 4 Notice of Appearance filed by United States Department of Justice, 18 Notice (Other) filed by United States Department of Justice, 30 Endorsed Letter, 20 Memorandum of Law in Support of Motion filed by The New York Times Company, Scott Shane, Charlie Savage, 33 Memorandum & Opinion,,, 31 Endorsed Letter, 34 Order, were transmitted to the U.S. Court of Appeals. (nd)

05/03/2013 05/06/2013 04/21/2014
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06/30/2014
07/07/2014 07/08/2014

(Entered: 02/01/2013)
39 ENDORSED LETTER addressed to Judge Colleen McMahon from David McCraw dated 5/3/2013 re: The Times respectfully seeks the Court's permission to file a corrected version of the Syed Declaration in order to perfect the record for the purposes of the on−going appeal. All parties have consented to this request. ENDORSEMENT: Application granted. (Signed by Judge Colleen McMahon on 5/3/2013) (cd) (Entered: 05/03/2013)
40 DECLARATION of Nabiha Syed − Amended in Support re: 19 CROSS MOTION for Summary Judgment.. Document filed by Charlie Savage, Scott Shane, The New York Times Company. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(McCraw, David) (Entered: 05/06/2013)
41 OPINION of USCA as to 37 Notice of Appeal, filed by The New York Times Company, Scott Shane, Charlie Savage. USCA Case Number 13−422(L). Appeal from the January 24, 2013, judgment of the United States District Court for the Southern District of New York (Colleen McMahon, District Judge), dismissing, on motion for summary judgment, a suit under the Freedom of Information Act seeking documents relating to targeted killings of United States citizens carried out by drone aircraft. We conclude that (1) a redacted version of the OLC−DOD Memorandum must be disclosed, (2) a redacted version of the classified Vaughn index (described below) submitted by OLC must be disclosed, (3) [redacted], (4) the Glomar and "no number, no list" responses are insufficiently justified, (5) DOD and CIA must submit Vaughn indices to the District Court for in camera inspection and determination of appropriate disclosure and appropriate redaction, and (6) the OIP search was sufficient. We therefore affirm in part, reverse in part, and remand. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 04/21/2014. (nd) (Entered: 04/21/2014)
42 [PARTIAL] MANDATE of USCA (Certified Copy) as to 37 Notice of Appeal, filed by The New York Times Company, Scott Shane, Charlie Savage. USCA Case Number 13−422(L). The appeal in the above captioned case from a judgment of the United States District Court for the Southern District of New York was argued on the district court record and the parties' briefs. Upon consideration thereof, IT IS HEREBY ORDERED, ADJUDGED and DECREED that a partial judgment is entered and the matter is REMANDED as directed in the Court's order of June 26, 2014, and consistent with paragraph (3) of the "Conclusion" section of the Court's June 23, 2014, revised opinion. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 06/26/2014. (nd) Modified on 6/27/2014 (nd). (Additional attachment(s) added on 6/27/2014: # 1 Revised Opinion, # 2 Opinion of rehearing) (nd). (Entered: 06/27/2014)
43 ORDER: This court has received a partial mandate from the United States Court of Appeals for the Second Circuit, directing that, at this time: (3) other legal memoranda prepared by OLC and at issue here must be submitted to the District Court for in camera inspection and determination of waiver of privileges and appropriate redaction; New York Times Co. v. US. Dep't of Justice, 13−422 L, 2014 WL 2838861 (2d Cir. June 23, 2014) (Mandate issued on June 26, 2014). Accordingly, the Government is directed to comply with Paragraph 3 of the conclusion of the Second Circuit's amended opinion of June 23, 2014, by providing this court with the following requests as set forth herein this Order. The Government has 21 days to comply. SO ORDERED. (Signed by Judge Colleen McMahon on 6/30/2014) (ja) Modified on 6/30/2014 (ja). (Entered: 06/30/2014)
44 FIRST LETTER MOTION for Extension of Time to File Motion in Response to 6/30/14 Order addressed to Judge Colleen McMahon from AUSA Sarah S. Normand dated 07/07/14. Document filed by United States Department of Justice.(Normand, Sarah) (Entered: 07/07/2014)
45 LETTER REPLY to Response to Motion addressed to Judge Colleen McMahon from AUSA Sarah S. Normand dated 07/08/14 re: 44 FIRST LETTER MOTION for Extension of Time to File Motion in Response to 6/30/14 Order addressed to Judge Colleen McMahon from AUSA Sarah S. Normand dated 07/07/14. . Document filed by United States Department of Justice. (Normand, Sarah) (Entered: 07/08/2014)

07/09/2014
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46 ORDER denying 44 Letter Motion for Extension of Time: This court has already settled on a procedure for conducting the in camera review necessitated by the mandate; the June 30 order explains that procedure to the parties. That process gives the Government an opportunity to explain, under seal and in camera, why it has not waived potentially applicable privileges with respect to all or any portion of the documents that the court is required to review. It also permits the Government to suggest other redactions that may be necessary before the opinions can be produced to plaintiffs. I expect the Government to comply with the procedure set by the Court. The parties have apparently agreed to a short postponement of the date by which the Government must produce the documents contemplated by the mandate. I am agreeable to their chosen date, which is August 15, 2014. (Signed by Judge Colleen McMahon on 7/9/2014) (tn) (Entered: 07/09/2014)
47 OPINION of USCA as to 37 Notice of Appeal, filed by The New York Times Company, Scott Shane, Charlie Savage. USCA Case Number 13−422(L). Accordingly, with respect to the bifurcated issues concerning the Vaughn index, we will grant the petition in part by excluding from disclosure the titles and descriptions of listings 67, 105, 118, 119, 250, 262−65, and 271, and the titles of listings 57, 62, 66, 68, 69, 70, 78, 79, 80, 88, 92,93, 97, 100, 103, 104, 108, 123−28, and 130. We will remand the case to the District Court with directions, in addition to those ordered in our Revised Opinion (Conclusion 3), 2014 WL 2838861, at *20, to order the Appellee U.S. Department of Justice to file a public version of its Vaughn index in compliance with our Revised Opinion at 64−65 (Conclusion 2 (identifying listings not required to be disclosed)), 2014 WL 2838861, at *20, and this opinion. We will amend our Revised Opinion to delete listings 244, 246, 248, and 256 from page 62, lines 9−10. Apart from these rulings and those set forth in our opinion of June 23, 2014, on the bifurcated issues concerning the OLC−DOD Memorandum, the Petition for Rehearing is DENIED, and the case is REMANDED. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 07/10/2014. (nd) (Entered: 07/10/2014)
48 NOTICE of Lodging of Classified Documents. Document filed by United States Department of Justice. (Normand, Sarah) (Entered: 08/15/2014)
49 MANDATE of USCA (Certified Copy) as to 37 Notice of Appeal, filed by The New York Times Company, Scott Shane, Charlie Savage USCA Case Number 13−442(L). Ordered, Adjudged and Decreed that the final judgment is entered and the matter is REMANDED as directed in the Court's opinion of July 10, 2014. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 08/18/2014. (Attachments: # 1 Opinion of rehearing motion, # 2 Opinion)(nd) (Entered: 08/18/2014)
Transmission of USCA Mandate to the District Judge re: 49 USCA Mandate,. (nd) (Entered: 08/18/2014)
50 ENDORSED LETTER addressed to All Counsel in New York Times v. Department of Justice and ACLU v. Department of Justice from Judge McMahon dated 9/5/2014 re: Scheduling. ENDORSEMENT: I have begun work on carrying out the first mandate received from the Court of Appeals, relating to Item (3) of that court's Conclusion. I hope to have a decision well before the end of the month. Meanwhile, I have received a second mandate, this one relating to Item (5) of the Court's conclusion, which directs the production of Vaughn indices by the Department of Defense and the Central Intelligence Agency for in camera inspection. I expect to receive said Vaughn indices by September 25, 2014, together with any affidavits or briefs the agencies wish to file concerning the protectability or disclosability of particular listings on these indices. Finally, to the extent that the plaintiffs seek the production of any documents on the OLC Vaughn Index that was ordered to be disclosed in redacted form (See Item (2) of the Second Circuit's Conclusion), they must file a request for production, specifying the identifying number of each item they wish disclosed, by September 19, 2014. The Government may have until October 3, 2014 to provide the court with affidavits and briefs explaining the following herein. (Signed by Judge Colleen McMahon on 9/5/2014) (kgo) Modified on 9/5/2014 (kgo). (Entered: 09/05/2014)
51 ORDER DIRECTING RELEASE OF UNREDACTED VERSION OF REMAND OPINION #1 (RELATING TO ITEM 3): I have received and reviewed the October 17, 2014 ex parte submission from the Department of Justice following its classification review of the court's first decision on remand from the United State

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Court of Appeals for the Second Circuit. The decision was submitted to the Government on September 30, 2014. I disagree with the Government's redaction of the bulk of the first full paragraph and the second and third paragraphs on page 9, which as drafted by this court contain not a whit of classified material (the Government does not suggest otherwise), and which I do not believe would tend to reveal any classified information. In order to preserve that issuefor appellate review, I will release on the public docket the opinion with all the Government's proposed redactions today, along with this cover note indicating my conclusion about this material. Should the Second Circuit agree with the Government that the material was properly redacted, nothing will be lost; should it agree with my view that nothing the Government has redacted on page 9 should be redacted, it will so indicate. The full opinion will remain under seal. Looking to the future: I have before me the ACLU's letter of September 19, 2014, in which it indicates what additional documents from the OLC Vaughn Index it wishes disclosed, as well as the Government's sealed, ex parte response to that request and its motion for summary judgment with respect to the OLC documents. (Item 2 on Remand; Court's Order of September 5, 2014, Docket# 75; Motion for Summary Judgment dated October 3, 2014, Docket #79). Consistent with the parties' briefing schedule, I hope to have that decision out before Christmas. Finally, I will not be able to address Remand, Item 5, the Vaughn Indices from the Department of Defense and the CIA, until early next year, as briefing will not be complete until January 9. I had hoped to get all of this work done this year, as I have a heavy trial calendar for the first half of 2015. I will, therefore, not grant any extensions of the already generous briefing schedule with respect to these long−overdue Vaughn Indices. (Signed by Judge Colleen McMahon on 10/31/2014) (kgo) (Entered: 10/31/2014)
52 DECISION ON REMAND WITH RESPECT TO ISSUE (3)(REDACTED): (U) This constitutes the decision and order of the court. Before releasing this decision to plaintiffs and to the public, I am providing a copy to the Government, to check classification status (which we have tried our best to get right on a paragraph by paragraph basis) and to propose redactions. (U) To the extent it should be necessary, the court certifies that an immediate entry of partial judgment as to this aspect of the case would be appropriate, pursuant to Fed. R. Civ. P.54(b), because (1) this order finally disposes of a discrete and severable issue in this action, to wit the disclosability of one specific type of legal document (legal opinions from the OLC) sought from one party defendant (the Department of Justice); and (2) there is no just reason for delay. These FOIA requests were made nearly three years ago, and it is in the public interest that any disclosable documents become public as without further delay. Also, there are many open issues in this case, which are completely severable from Remand Issue 3; and (if the parties' briefing schedule is any indication) it will take many months to resolve those issues. (U) The mandate directs that any appeal from this order and the partial judgment to be entered thereon be referred to a panel consisting of Judges Newman, Cabranes, and Pooler. (Signed by Judge Colleen McMahon on 9/30/2014) (kgo) (Entered: 10/31/2014)
53 NOTICE OF INTERLOCUTORY APPEAL from 51 Order,,,,,,,,, 52 Order,,,,,. Document filed by Charlie Savage, Scott Shane, The New York Times Company. Filing fee $ 505.00, receipt number 0208−10354393. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (McCraw, David) (Entered: 11/26/2014)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 53 Notice of Interlocutory Appeal. (tp) (Entered: 11/26/2014)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 53 Notice of Interlocutory Appeal, filed by The New York Times Company, Scott Shane, Charlie Savage were transmitted to the U.S. Court of Appeals. (tp) (Entered: 11/26/2014)
54 OPINION of USCA as to 53 Notice of Interlocutory Appeal, filed by The New York Times Company, Scott Shane, Charlie Savage. USCA Case Number 14−4432−cv. Appeal from the October 31, 2014, decision and order of the United States District Court for the Southern District of New York (Colleen McMahon, District Judge), adjudicating, pursuant to a remand from this Court, Freedom of Information Act requests for documents prepared by the Office of Legal Counsel of the United States Department of Justice concerning targeted killings by drone aircraft. The District Court ordered disclosure of all or portions of some documents and denied disclosure of

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other documents. The appeal also concerns disclosure of redacted portions of the District Court's sealed opinion and disclosure of redacted portions of the transcript of the June 23, 2015, oral argument present by the Government to the Court ex parte and in camera. Judgment AFFIRMED; redacted portions of District Court opinion to remain UNDISCLOSED, except for three paragraphs (as redacted pursuant to Part IV of this opinion) that the District Court wishes to disclose; and redacted portions of transcript of June 23, 2015, oral argument to remain UNDISCLOSED; case REMANDED.. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 11/23/2015. (nd) (Entered: 11/23/2015)
55 LETTER MOTION for Extension of Time for Motion for Award of Fees addressed to Judge Colleen McMahon from David E. McCraw dated 12/07/2015. Document filed by Charlie Savage, Scott Shane, The New York Times Company.(McCraw, David) (Entered: 12/07/2015)
56 ORDER granting 55 Letter Motion for Extension of Time. So ordered. Please settle it. Motions due by 2/16/2016. (Signed by Judge Colleen McMahon on 12/7/2015) (kgo) (Entered: 12/08/2015)
57 CONSENT LETTER MOTION for Extension of Time to File Motion for Attorney's Fees addressed to Judge Colleen McMahon from David E. McCraw dated 02/09/2016. Document filed by Charlie Savage, Scott Shane, The New York Times Company.(McCraw, David) (Entered: 02/09/2016)
58 ORDER granting 57 Letter Motion for Extension of Time. Since I am hopeful you can settle this, I grant the adjournment. Motions due by 2/29/2016. (Signed by Judge Colleen McMahon on 2/9/2016) (kgo) (Entered: 02/10/2016)
59 STIPULATION AND ORDER REGARDING FEES: IT IS HEREBY STIPULATED AND AGREED, by and between the parties, as follows: 1. DOJ shall pay to Plaintiffs the sum of $100,000.00 (ONE HUNDRED THOUSAND DOLLARS) in attorneys' fees and litigation costs, pursuant to 5 U.S.C. § 552(a)(4)(E), which sum Plaintiffs agree to accept as full payment of any attorneys' fees and costs Plaintiffs have incurred or will incur in this action for services performed up to the date of this Stipulation and Order. 2. This Stipulation and Order does not constitute, and shall not be construed as, an admission by DOJ or any other agency or component of the United States that Plaintiffs are either eligible or entitled to recover attorneys' fees or costs in connection with this matter. 3. The parties understand and agree that this Stipulation and Order contains the entire agreement between them, and that no statements, representations, promises, agreements, or negotiations, oral or otherwise, between the parties or their counsel that are not included herein shall be of any force or effect. 4. Facsimile or pdf signatures shall have the same force and effect as original signatures on this Stipulation. (As further set forth in this Order.) (Signed by Judge Colleen McMahon on 2/29/2016) (kgo) (Entered: 02/29/2016)
60 MANDATE of USCA (Certified Copy) as to 53 Notice of Interlocutory Appeal, filed by The New York Times Company, Scott Shane, Charlie Savage. USCA Case Number 14−4432(L). IT IS HEREBY ORDERED, ADJUDGED and DECREED that the judgment of the district court is AFFIRMED. The matter is REMANDED and the district court is authorized to disclose the three redacted paragraphs on page 9 of its opinion (as redacted pursuant to Part IV of this court's opinion),and maintain undisclosed the redacted portions of the District Court's opinion and the June 23, 2015, transcript. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 04/21/2016. (nd) (Entered: 04/21/2016)
61 REVISED DECISION ON REMAND WITH RESPECT TO ISSUE (3): (U) This constitutes the decision and order of the court. Before releasing this decision to plaintiffs and to the public, I am providing a copy to the Government, to check classification status (which we have tried our best to get right on a paragraph by paragraph basis) and to propose redactions. (U) To the extent it should be necessary, the court certifies that an immediate entry of partial judgment as to this aspect of the case would be appropriate, pursuant to Fed. R. Civ. P.54(b), because (1) this order finally disposes of a discrete and severable issue in this action, to wit the disclosability of one specific type of legal document (legal opinions from the OLC) sought from one party defendant (the Department of Justice); and (2) there is no just reason for delay. These FOIA requests were made nearly three years ago, and it is in the public interest

that any disclosable documents become public as without further delay. Also, there are many open issues in this case, which are completely severable from Remand Issue 3; and (if the parties' briefing schedule is any indication) it will take many months to resolve those issues. (U) The mandate directs that any appeal from this order and the partial judgment to be entered thereon be referred to a panel consisting of Judges Newman, Cabranes, and Pooler. (As further set forth in this Order.) (Signed by Judge Colleen McMahon on 5/11/2016) (kgo) (Entered: 05/23/2016)

 
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1/ (b)(3) (b)(5)

I I

. (b)(1) (b )(3) (b)(5)

(b)( 1) (b )(3)

.~./ ((b~))((13))

·-1-. '
I

.(b)(1) •· (b)(3) ; (b)(5)
,1.-
i:
I
I

· ··· · ~

2

(b)( 1) {b){3)

.. ~ .. .(b)(1)
(~)(3)
' (b)( 1} .· (b)(3) {b)(S)
,.
'·

-~

3

(b )(1) (b )(3)

-.

-- pW .(b)(1)

-- . (b){3)

i(b)(1) •· (b)(3) .· (b)(5)

(b )(1)
(b)(3)

r

. --l c6nsistent with

(b)(S) the ass~inatl;n ban -~-Exec~tive Order-l2333J -- - ---·· - - -· -

J~Uings in.

i self:defense ar~ _not ~s~sinationsi

. - -- ---- -

i (b){1)

. (b)(3)

--

-- · ··· - ·-

. ..

. --

2 Section 2.11 of Executive Order 12333 provides that "(n]o person employed by or acting on behalf of the

United States Government shaU engage in, or conspire to engage in, assassination." 46 Fed Reg. 59941 (Dec. 4,

1981~

.

(b)(5)

4
(b )(1) (b )(3)

l: (b)(1) : (b)(3) /!(b)(S)

. constituTthieonqau[e.sfti~otna~thoantsr!}emlatawinosu}isdwQhreectlh.uedreA_!uhela_ pqri's~S~tsat~uslea!shaal_Uac.S~.onc:it[ !_~n ifl?,posesany

(b)( 1) (b)(3) i (b)(S)

·'

r (b)(1)
(b)(3) . constitutional ilnniunitY_from ~ck.
(b)( 5)

· · lbeing a U.S. person · -·
_Td00: not give a 01ef!lbe.~ of._al_Qa'i<la a

l . .1 (b)( 1)
. ;· (b)(:?)
i (b)(S)

•This conclusion

finds support inSupreme Court case-law addressing whether a U.s:·citizen who acts as an enemy
combatant may be subject to the use of certain types of military force. See Hamdi v. Rumsfeld, 542 U.S. 507; 52 1-24 (2004) (plurality opinion); cf also Ex parte Quirin, 317 U.S. 1, 37-38 (1942) ("[c]itizens who associate themselves with the military·ann of the enemy government,

~ 'T'I"Il !JDvR~ETL.:

•
..

.•.

5

(b)( 1)

(b ){3)

~TC_ _

- -~

- (b)( 1) .

1· and with its aid, guidance and direction enter {the Unit:!Xi S.~tesl!>ent ~~)~~kie acts," may be
treated as "enemy belligerents" under the law of war). :__ __ _ __ (b)( 1)

"

"(b)(3)

.

Because Aulaqi is a U.S. citizen, the Fifth Amendment's Due Process Clause, as well as

the Fourth Amendment, likely applies in some respects, even while he is abroad {in this case, in

Yemen). See Reid v. Covert, 354 U.S. 1, 5-6 (1957) (plurality opinion); United States v.

Verdugo- Urquidez, 494 U.S. 259, 269-70 (1990); see also In re Terrorist Bombings ofU.S.

Embassies in East Africa, 552 FJd 157, 167-68 (2d Cir. 2008). In Hamdi, a plurality of the

Supreme Court used the Mathews v. Eldridge balancing test to outline the due process rights of a

U.S. citizen captured on the battlefield in Afghanistan and detained in tlie United States,

explaining that "the process due in any given instance is determined by weighing 'the private

interest that v.-ill b-e affected by the official actiori,' against the Government's asserted interest,

'including the function involved' and the burdens the Goveniment would face·in providing

greater process." Hamdi, 542 U.~, at 5~9 (p!urality opinion) (quoting Mathews v. Eldridge, 424

U.S.319,335(1976)).[

!(b)(1)

·- -- .... - '(b)(3) -

-_

(b)( 1)
I.l· (b)(3)
(b)(S)

(b)(1) .

[ _

___ ___

in [the plurality Hamdi stated that

on (b )(3)
(b )(5)

"[t]he parties agr:ee that initial captures the -battlefield need not receive the process we discuss here; that process is due only when the detellllination is made to co-ntinue to hold those who have

been seized," and the plurality thus found it ''unlikely that this basic process will have the dire

impact on the centralJimcti~~ of~aJQ!lg th~!_the G~:vernm~~~ forecasts ." 542 U.S. at 534

(pluralityopinion).[ ___ ______ __ _ . _ _ ___ _ _ ____ pnthebattlefielcittlte . _:

(b)( 1)

a Government's interests an_Q_ ~ d~~s pre~~\lde off~ring a process ~o judgewhethei: detainee is

(b )(3)

truly in enemy combatanL_ __ _ . ___ __ j In the ease of a member, associate, or

_(b)(5)

affiliate of al-Qa'ida operating abroad in circumstances where cap~~ _is inf~!ble, at:l~·_it is· ,·· ····· · (b)(1)

known

tha~
--

th-·.e

individ~
-

.

·-

-- pontinued ana imf-uine--n·.t t-h-·--r·ea-t-f

i I

(b)(3)

(b )(5)

.

lgiv;~the w~ight ofth~-gove~ent's interest

means in ~ing "an" ~uthori~ed

oUorce to"iesponlto an imminent threat ~s~.!Jy the ac~~ities of

a person operating as a member, associate, or affiliate of an enemy force. ,______

! · (b)(1)

(b )(3)
. . [_ =__ ~~- - --=~- --~~-- ~~--- ~:--~ - Jto the extent Fo~ Amendment
(b)(1) principles are relevant in the context of operations against a U.S. person who lS a member of~­

(b)(3) Qa'ida and whose activities pqse a continued and imminent threat, the proposed lethal operation

(b)(5) would not .violate the Fourth Anlendffient,j - - [Verdugo- Urquidez, 494, U.S. at 273-74

~Ttl

"-· _tw

6

(b )(1) (b)(3)

. ~T~

·· ~b)(1)

(b)(3)

("Application ofthe Fourth Amendment to these circumstances [i.e., foreign policy operations]

bJl )( ) .
.

~uld ~gnificantl! ~pt ~e ~ility ~ft£le mvol~g our natio~mterest.");
. __ __ ..... .. .. __
support from the fact that, even in domestic

~li~cai branches ~respon.d to fo~ign situatio~ ·(b)( 1)

. ___ .. _ ....
_ ___ [This conclusion draws further
law enforcement operations, the Supreme Court

1

(bb)(53)

noted that "if the suspect threatens the officer with a weapon ot there is probable cause to believe

that he has committed a crime involving the infliction or threatened infliction of serious physical

harm, deadl~· force may be used if necessary to 'prevent escape and if, whe~eJ.easible, sorri~

i warninghasbeengiven,_~·

:

!wherel __

TeTgJesse~_ v.
. ....

1 G~mer,~7 1 U.S.l,l l -_l~p9.~;5):1 -~ . ~: .
_ _ ;acaptute operation ts infeastble an<t_

,
;the

(b)(1)
(b)(3)

(b)(1) targeted person·is part of a .dangerous enemy force and poses a continued and imminent threat to (b)(5)

.

(b )(3)
(b)(5)

[U.S.
..

Persons

or. interests.

th~

use

_Qf letQal

fo!rce

would

not

Violate

the

Fourth

Amendment.

.

.

- · -- ·

- - __;

.

.

li (b)(1) ' (b)(3)
(b )(5)

For'these reasons, and on these understandings, we do not believe the Constitution

prohibits the proposed lethal actionf~ . ~- ·

-=· . ·-

· ·

does not violate the assassination ban in Executive Order 12333.i

Please let us know if we can be of further assi$lncc. (U) ·

i (b)( 1)
:: (b )(3)
(b)(5}

Acting Assistant Attorney General

- - ~ .. . ···

7

(b)( 1)

(b )(3)

 
 .. ~T/_~_ _:·- · ~ ~-~·~·..__r·-:: ~ "usuce
(b)(1) · Office ofLegal Counsel (b )(3)

Office of the Assistant Attorney General

Washington. D.C 20$30

February 19, ~10 .

MEMORANDUM FOR THE ATIORNEY GENERAL

Re: Lethal Operation Against Shaykh Anwar Aulaqi [ ___

: (b )(1) ; (b)(3)

(b)(5) .

.. ·--1

.

the

legality

of

the

central

Intelligence

Agency's

. _jhas
-(''CIA") proposed use

against Qa'ida

Shaykh Anwar Aulaqi; a in the A.rabiai_LPe~a.

U.S.
~-

citizen --

who -

the .

CIA .. -

assesses_

.is

a

asked for your views on of lethal force in Yemen
sexll,or .leader ofAl-

i (b)(5)

.afdCopeIrpcAcilesicaiaoangbndamleiinnacsktothenAres,utmoiltanuaqtttieihonwenabaolslausllpdii.rsIonnoViotifadtIsteUViuodcinnohdstloa-eidtnreuuftseothh-rfetemroocaamoAstnsiuoadtlhnsiaet·s,-qi-io-cinIn'noastsute·iU·lol-SdlnQni-gridteebeanfadasnccoSetin·unt-C·aa·atbEioelpxps·y- uerc-.ce-cni-odtuuinitzncicevailtnetyuesd,Oshewiarp.dtseh._erabr.eT-tep1hlt-ri2hiees3evs3eeu3nstteoh~eradotafbanlyeytjt'hh·ael

memorandurn confirms oral advice setting forth this conclusion. ! . _

__.... j· .(b)( 1)

(b )(3)

I.

· . -· - --·T-- ~ ,.~.. ,.1 n~R- ET· r·

•(b)( 1)
1/ (b)(3) (b)(5)

I I

. (b)(1) (b )(3) (b)(5)

(b)( 1) (b )(3)

.~./ ((b~))((13))

·-1-. '
I

.(b)(1) •· (b)(3) ; (b)(5)
,1.-
i:
I
I

· ··· · ~

2

(b)( 1) {b){3)

.. ~ .. .(b)(1)
(~)(3)
' (b)( 1} .· (b)(3) {b)(S)
,.
'·

-~

3

(b )(1) (b )(3)

-.

-- pW .(b)(1)

-- . (b){3)

i(b)(1) •· (b)(3) .· (b)(5)

(b )(1)
(b)(3)

r

. --l c6nsistent with

(b)(S) the ass~inatl;n ban -~-Exec~tive Order-l2333J -- - ---·· - - -· -

J~Uings in.

i self:defense ar~ _not ~s~sinationsi

. - -- ---- -

i (b){1)

. (b)(3)

--

-- · ··· - ·-

. ..

. --

2 Section 2.11 of Executive Order 12333 provides that "(n]o person employed by or acting on behalf of the

United States Government shaU engage in, or conspire to engage in, assassination." 46 Fed Reg. 59941 (Dec. 4,

1981~

.

(b)(5)

4
(b )(1) (b )(3)

l: (b)(1) : (b)(3) /!(b)(S)

. constituTthieonqau[e.sfti~otna~thoantsr!}emlatawinosu}isdwQhreectlh.uedreA_!uhela_ pqri's~S~tsat~uslea!shaal_Uac.S~.onc:it[ !_~n ifl?,posesany

(b)( 1) (b)(3) i (b)(S)

·'

r (b)(1)
(b)(3) . constitutional ilnniunitY_from ~ck.
(b)( 5)

· · lbeing a U.S. person · -·
_Td00: not give a 01ef!lbe.~ of._al_Qa'i<la a

l . .1 (b)( 1)
. ;· (b)(:?)
i (b)(S)

•This conclusion

finds support inSupreme Court case-law addressing whether a U.s:·citizen who acts as an enemy
combatant may be subject to the use of certain types of military force. See Hamdi v. Rumsfeld, 542 U.S. 507; 52 1-24 (2004) (plurality opinion); cf also Ex parte Quirin, 317 U.S. 1, 37-38 (1942) ("[c]itizens who associate themselves with the military·ann of the enemy government,

~ 'T'I"Il !JDvR~ETL.:

•
..

.•.

5

(b)( 1)

(b ){3)

~TC_ _

- -~

- (b)( 1) .

1· and with its aid, guidance and direction enter {the Unit:!Xi S.~tesl!>ent ~~)~~kie acts," may be
treated as "enemy belligerents" under the law of war). :__ __ _ __ (b)( 1)

"

"(b)(3)

.

Because Aulaqi is a U.S. citizen, the Fifth Amendment's Due Process Clause, as well as

the Fourth Amendment, likely applies in some respects, even while he is abroad {in this case, in

Yemen). See Reid v. Covert, 354 U.S. 1, 5-6 (1957) (plurality opinion); United States v.

Verdugo- Urquidez, 494 U.S. 259, 269-70 (1990); see also In re Terrorist Bombings ofU.S.

Embassies in East Africa, 552 FJd 157, 167-68 (2d Cir. 2008). In Hamdi, a plurality of the

Supreme Court used the Mathews v. Eldridge balancing test to outline the due process rights of a

U.S. citizen captured on the battlefield in Afghanistan and detained in tlie United States,

explaining that "the process due in any given instance is determined by weighing 'the private

interest that v.-ill b-e affected by the official actiori,' against the Government's asserted interest,

'including the function involved' and the burdens the Goveniment would face·in providing

greater process." Hamdi, 542 U.~, at 5~9 (p!urality opinion) (quoting Mathews v. Eldridge, 424

U.S.319,335(1976)).[

!(b)(1)

·- -- .... - '(b)(3) -

-_

(b)( 1)
I.l· (b)(3)
(b)(S)

(b)(1) .

[ _

___ ___

in [the plurality Hamdi stated that

on (b )(3)
(b )(5)

"[t]he parties agr:ee that initial captures the -battlefield need not receive the process we discuss here; that process is due only when the detellllination is made to co-ntinue to hold those who have

been seized," and the plurality thus found it ''unlikely that this basic process will have the dire

impact on the centralJimcti~~ of~aJQ!lg th~!_the G~:vernm~~~ forecasts ." 542 U.S. at 534

(pluralityopinion).[ ___ ______ __ _ . _ _ ___ _ _ ____ pnthebattlefielcittlte . _:

(b)( 1)

a Government's interests an_Q_ ~ d~~s pre~~\lde off~ring a process ~o judgewhethei: detainee is

(b )(3)

truly in enemy combatanL_ __ _ . ___ __ j In the ease of a member, associate, or

_(b)(5)

affiliate of al-Qa'ida operating abroad in circumstances where cap~~ _is inf~!ble, at:l~·_it is· ,·· ····· · (b)(1)

known

tha~
--

th-·.e

individ~
-

.

·-

-- pontinued ana imf-uine--n·.t t-h-·--r·ea-t-f

i I

(b)(3)

(b )(5)

.

lgiv;~the w~ight ofth~-gove~ent's interest

means in ~ing "an" ~uthori~ed

oUorce to"iesponlto an imminent threat ~s~.!Jy the ac~~ities of

a person operating as a member, associate, or affiliate of an enemy force. ,______

! · (b)(1)

(b )(3)
. . [_ =__ ~~- - --=~- --~~-- ~~--- ~:--~ - Jto the extent Fo~ Amendment
(b)(1) principles are relevant in the context of operations against a U.S. person who lS a member of~­

(b)(3) Qa'ida and whose activities pqse a continued and imminent threat, the proposed lethal operation

(b)(5) would not .violate the Fourth Anlendffient,j - - [Verdugo- Urquidez, 494, U.S. at 273-74

~Ttl

"-· _tw

6

(b )(1) (b)(3)

. ~T~

·· ~b)(1)

(b)(3)

("Application ofthe Fourth Amendment to these circumstances [i.e., foreign policy operations]

bJl )( ) .
.

~uld ~gnificantl! ~pt ~e ~ility ~ft£le mvol~g our natio~mterest.");
. __ __ ..... .. .. __
support from the fact that, even in domestic

~li~cai branches ~respon.d to fo~ign situatio~ ·(b)( 1)

. ___ .. _ ....
_ ___ [This conclusion draws further
law enforcement operations, the Supreme Court

1

(bb)(53)

noted that "if the suspect threatens the officer with a weapon ot there is probable cause to believe

that he has committed a crime involving the infliction or threatened infliction of serious physical

harm, deadl~· force may be used if necessary to 'prevent escape and if, whe~eJ.easible, sorri~

i warninghasbeengiven,_~·

:

!wherel __

TeTgJesse~_ v.
. ....

1 G~mer,~7 1 U.S.l,l l -_l~p9.~;5):1 -~ . ~: .
_ _ ;acaptute operation ts infeastble an<t_

,
;the

(b)(1)
(b)(3)

(b)(1) targeted person·is part of a .dangerous enemy force and poses a continued and imminent threat to (b)(5)

.

(b )(3)
(b)(5)

[U.S.
..

Persons

or. interests.

th~

use

_Qf letQal

fo!rce

would

not

Violate

the

Fourth

Amendment.

.

.

- · -- ·

- - __;

.

.

li (b)(1) ' (b)(3)
(b )(5)

For'these reasons, and on these understandings, we do not believe the Constitution

prohibits the proposed lethal actionf~ . ~- ·

-=· . ·-

· ·

does not violate the assassination ban in Executive Order 12333.i

Please let us know if we can be of further assi$lncc. (U) ·

i (b)( 1)
:: (b )(3)
(b)(5}

Acting Assistant Attorney General

- - ~ .. . ···

7

(b)( 1)

(b )(3)