Friday, December 23, 2011
The New York Times and reporters Charlie Savage and Scott Shane sued the Department of Justice in the Southern District of New York this week to obtain any legal analysis from the Office of Legal Counsel authorizing the government's targeted killing of suspected terrorists. Courthouse News Service first reported here.
Recall that Savage reported on the government's legal justification for its targeted killing of Anwar al Alwaki, a United States citizen and alleged terrorist living in Yemen. But Savage relied on a government source, not an OLC memo or other formally released legal advice. According to Savage's story, the government's legal advice probably closely tracked State Department Legal Adviser Harold Koh's arguments to the American Society of International Law in May 2010. But still, the government had not released the actual legal advice.
Savage and Shane filed two separate FOIA requests with the Department of Justice for any legal advice that the Department offered to the administration on the legality of, or authority to commit, targeted killings. The DOJ rejected the requests, citing FOIA Exemption 1 (relating to national defense or foreign policy information classified under EO 13526), Exemption 3 (relating to information protected by statute), and Exemption 5 (relating to privileged information).
The complaint argues that Exemptions 1 and 3 do not apply, because the FOIA request seeks only legal analysis, and "[m]emoranda containing only legal analysis fail to meet the requirements for properly classified materials under Executive Order No. 13526 or other legal authority." (Para. 55.) It argues that Exemption 5 doesn't apply, because "[m]emoranda containing legal analysis relied upon by the government constitute final determination of policy by the government and therefore are not deliberative materials." (Para. 54.)
The complaint also cites the widespread calls for release of any memos--by Members of Congress and former OLC attorneys.
Given the widespread calls for release, the all-but-known legal advice that's in the memo, and the administration's stated commitment to transparency, the government's intransigence doesn't seem to make a lot of sense. (The government also succeeded in dismissing al Alwaki's father's case on the pleadings--and, alas, could probably succeed in dismissing any similar case on similar grounds--and so there doesn't appear to be a threat that release of any memo now would give up a litigation position later.) And now, in response to the Times's case, the government may feel like it has to dig in its heels to preserve the vitality of these exemptions in future cases.
The government should just release the memo publicly--something it should have done months ago, without the threat of a FOIA suit--and move to dismiss the Times's case as moot.