Wednesday, January 2, 2013
Judge McMahon (SDNY) ruled Wednesday in New York Times Co. v. U.S. Dep't of Justice that the government need not disclose its legal justification for targeted killings in response to the plaintiffs' FOIA requests. The ruling means that any OLC memo providing a legal justification for targeted killings (or any other government-issued legal justification) will remain under wraps unless and until the ruling is successfully appealed.
The case involves FOIA requests by the New York Times and Charlie Savage and Scott Shane, and the ACLU, for the government's legal justification for its targeted killing program--in particular, any OLC memos outlining the legal justification. We covered the Times's complaint here; we covered the ACLU's complaint here.
The court held that FOIA did not compel the disclosure of any government legal analysis of the program, but not before outlining in some detail why "there are indeed legitimate reasons, historical and legal, to question the legality of killings unilaterally authorized by the Executive . . . ." Op. at 17. The court also noted the troublesome nature of its holding:
However, this Court is constrained by law, and under the law, I can only conclude that the Government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States. The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules--a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with out Constitution and laws, while keeping the reasons for their conclusions a secret.
Op. at 3.
In this lengthy opinion, Judge McMahon also surveys the several statements by Administration officials on the legality of targeted killing, in order to address (and reject) the plaintiffs' waiver arguments.
The court declined in camera review of withheld documents (in order to evaluate the government's claims under Exemptions 1 and 3), concluding that it didn't need in camera review to fully evaluate Exemptions 1 and 3, because Exemption 5 applied. (Exemption 5 exempts disclosure of inter- or intra-agency documents that wouldn't be available to a party in litigation. The government argued, and the court agreed, that the requested documents were covered by attorney-client and deliberative process privileges.)
The court granted the government's motion for summary judgment in full, "except to the extent of permitting the DoD to submit a supplemental and more fulsome justification for why the deliberative process privilege applies to two Unclassified Memos on its Vaugh Index." Op. at 68.