American Civil Liberties Union v. United States Department of Ju

Filing

OPINION, affirmed on the appeal, reversed on the cross-appeal, and remanded for entry of a revised judgment., by JON, JAC, RSP, FILED.[1931481] [15-2956, 15-3122]

Case 15-2956, Document 187-1, 12/20/2016, 1931481, Page1 of 17

15-2956-cv(L)
American Civil Liberties Union v. United States Department of Justice

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2016
Argued:

October 25, 2016

Decided: December 20, 2016

Docket Nos. 15-2956(L), 15-3122(XAP)
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- - - - - - - - - - - - - - - - - - - - - AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION,
Plaintiffs-Appellants-Cross-Appellees,
v.
UNITED STATES DEPARTMENT OF JUSTICE, including
its component the Office of Legal Counsel, UNITED
STATES DEPARTMENT OF DEFENSE, including its
component U.S. Special Operations Command, CENTRAL
INTELLIGENCE AGENCY,
Defendants-Appellees-Cross-Appellants.
- - - - - - - - - - - - - - - - - - - - - Before:

NEWMAN, CABRANES, and POOLER, Circuit Judges.

Appeal

and

cross-appeal

from

the

July

23,

2015,

19

judgment of the District Court for the Southern District of

20

New

21

brought under the Freedom of Information Act. The judgment

22

granted in part and denied in part disclosure of documents

23

sought from the Office of Legal Counsel of the Department

York

(Colleen

McMahon,

now-Chief

1

Judge)

in

a

case

Case 15-2956, Document 187-1, 12/20/2016, 1931481, Page2 of 17

1

of

2

Department of Defense concerning drone strikes.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

the

Central

Intelligence

Agency,

and

the

Affirmed on the appeal, reversed on the cross-appeal,

3
4

Justice,

and remanded for entry of a revised judgment.
Brett Max Kaufman, New York, NY
(Jameel Jaffer, Hina Shamsi,
Matthew Spurlock, American Civil
Liberties Union Foundation, New
York, NY, Colin Wicker, Dorsey &
Whitney LLP, Minneapolis, MN, on
the
brief),
for
PlaintiffsAppellants-Cross-Appellees.
Sarah S. Normand, Asst. U.S. Atty.,
New York, NY (Preet Bharara,
U.S.
Atty.,
New
York,
NY,
Benjamin C. Mizer, Principal
Deputy
Asst.
Atty.
General,
Matthew
M.
Collette,
Sharon
Swingle, Civil Division, U.S.
Dep’t of Justice, Washington,
DC,
on
the
brief),
for
Defendants-Appellees-CrossAppellants.
JON O. NEWMAN, Circuit Judge:

28

This is the third appellate round of a case brought

29

under the Freedom of Information Act (“FOIA”). The case

30

began

31

requests

32

Counsel (“OLC”) of the Department of Justice (“DOJ”), the

33

Central Intelligence Agency (“CIA”), and the Department of

in

February
made

in

2012

to

October

challenge
2011

2

to

responses

the

Office

to
of

FOIA
Legal

Case 15-2956, Document 187-1, 12/20/2016, 1931481, Page3 of 17

1

Defense (“DOD”). The requests were made by the American

2

Civil

3

Foundation (collectively “ACLU”). The requests were also

4

made by The New York Times and two of its reporters, but

5

they are not parties in the pending appeal.

6

Liberties

Union

and

the

American

Civil

Liberties

ACLU appeals and DOJ cross-appeals from the July 23,

7

2015,

8

District of New York (Colleen McMahon, now-Chief Judge).

9

That judgment ruled that OLC, CIA, and DOD were entitled to

10

withhold from disclosure a number of documents concerning

11

drone strikes -- lethal attacks by unmanned aircraft. The

12

judgment also ruled that OLC must disclose all or portions

13

of four documents1 and CIA must disclose all or portions of

14

three documents2 concerning such strikes. ACLU has narrowed

15

its request to 59 documents,3 including the seven documents

16

ordered

17

challenges the District Court’s ruling to the extent it

18

upheld nondisclosure of 52 documents, and the Government’s

judgment

of

disclosed

the

in

District

full

or

Court

in

for

part.

the

ACLU’s

Southern

appeal

1

OLC 46, 50, 144, and 145.
CIA 59 tab C, 109, and 113.
3
OLC 1, 2, 8, 9, 46, 50, 64, 65, 66, 70, 71, 73, 75, 76,
83, 84, 90, 91, 95, 144, and 145; CIA 2, 3, 12, 15, 33, 34, 35,
36, 45, 59 tab C, 61, 62, 78, 94, 95, 96, 105, 106, 107, 109,
110, 111, 112, 113, 117, 118, 119, 120, 123, 124, 140, and 142;
DOD 1, 31, 38, 39, 46, and 55.
2

3

Case 15-2956, Document 187-1, 12/20/2016, 1931481, Page4 of 17

1

cross-appeal challenges the ruling to the extent it ordered

2

disclosure, in whole or in part, of seven documents.

3

We conclude that none of the 52 withheld documents must

4

be

5

disclosed may also be withheld. We therefore affirm on the

6

appeal, reverse on the cross-appeal, and remand for entry

7

of a revised judgment.

8

disclosed,

Litigation

and

that

history.

the

Our

seven

first

documents

encounter

ordered

with

this

9

litigation concerned consolidated appeals from the January

10

24, 2013, judgment of the District Court, dismissing on

11

motion

12

brought by The New York Times and two of its reporters and

13

another brought by ACLU. See New York Times Co. v. U.S.

14

Dep’t of Justice, 915 F. Supp. 2d 508 (S.D.N.Y. 2013),

15

modified by 2013 WL 238928 (S.D.N.Y. Jan. 22, 2013). On

16

those

17

redacted

18

document, prepared by OLC, arguing the legal justification

19

for the drone strikes that killed Anwar al-Awlaki, Samir

20

Khan, and al-Awlaki’s son, Abdulrahman al-Awlaki. See New

21

York Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100, 124

22

(Conclusion ¶ 1) (2d Cir. 2014) (revised opinion) (“NYTimes

for

summary

consolidated
version

of

judgment

appeals,
the

two

we

ordered

“OLC-DOD

4

consolidated

suits,

disclosure

Memorandum,”

a

one

of

a

41-page

Case 15-2956, Document 187-1, 12/20/2016, 1931481, Page5 of 17

1

I”). All three victims were United States citizens, either

2

by

3

appeal, NYTimes I also ordered:

birth

or

naturalization.

Pertinent

to

the

pending

4

• OLC to disclose some of the titles and descriptions

5

of documents listed on its Vaughn index,4 id. (Conclusion

6

¶ 2);

7

• OLC to submit various legal memoranda to the District

8

Court for “in camera inspection and determination of waiver

9

of privileges and appropriate redaction,” id. (Conclusion

10

¶ 3) (italics added); and

11

• CIA and DOD to submit Vaughn indices to the District

12

Court

13

appropriate

14

(Conclusion ¶ 5).

for

“in

camera

disclosure

inspection
and

and

appropriate

determination

of

redaction,”

id.

15

In response to the Government’s petition for rehearing

16

of NYTimes I, we made a slight revision of that opinion,

17

made slight further redactions of the OLC-DOD Memorandum,

18

and permitted the Government to withhold from disclosure

4

A Vaughn index is a list of documents, identified by
number, title, and description, that a Government agency
determines are responsive to an FOIA request. The index states
the one or more FOIA exemptions that the agency claims justify
withholding each document. The term derives from Vaughn v.
Rosen, 484 F.2d 820 (D.C. Cir. 1973).
5

Case 15-2956, Document 187-1, 12/20/2016, 1931481, Page6 of 17

1

the titles and descriptions of some documents listed on the

2

OLC Vaughn index, confirming a withholding authorized by an

3

order issued May 28, 2014. See New York Times Co. v. U.S.

4

Dep’t of Justice, 756 F.3d 97, 99 (2d Cir. 2014) (first

5

opinion on Government’s petition for rehearing of NYTimes

6

I). We also bifurcated for later decision the Government’s

7

request

8

additional titles and descriptions of documents listed on

9

the OLC Vaughn index. See id. at 98-99.

10

for

Later,

permission

completing

to

withhold

our

ruling

from

on

the

disclosure

Government’s

11

petition

for

12

withhold

from

13

additional documents listed on the OLC Vaughn index and the

14

titles of other documents listed on that index. See New

15

York Times Co. v. U.S. Dep’t of Justice, 758 F.3d 436, 441

16

(2d Cir. 2014) (second opinion on Government’s petition for

17

rehearing of NYTimes I). We also ordered DOJ to make public

18

its previously classified OLC Vaughn index, as permissibly

19

redacted.

20

rehearing completely adjudicated, the

21

left with the task, as directed in NYTimes I, to consider

22

in camera whether several undisclosed OLC documents, sought

See

rehearing,
disclosure

id.

With

we

permitted

the

the

6

titles

the
and

Government

to

descriptions

of

Government’s

petition

for

District Court was

Case 15-2956, Document 187-1, 12/20/2016, 1931481, Page7 of 17

1

in the original FOIA requests, should be disclosed. See

2

NYTimes I, 756 F.3d at 124 (Conclusion ¶ 3).

3

On remand, the District Court ruled that ten of eleven

4

OLC

5

official, could be withheld from disclosure. See No. 1:11-

6

cv-09336-CM,

7

Court

8

paragraphs from its opinion.

9

Court certified its rulings for immediate appeal under Rule

10

54(b) of the Federal Rules of Civil Procedure. See id. Dkt.

11

No. 52.

12

documents,

identified

Dkt.

rejected

No.

the

52

in

an

(Oct.

Government’s

affidavit

31,

2014).

request

to

of

The

an

OLC

District

redact

three

See id., Dkt. No. 51. The

Those rulings precipitated the second appellate round

13

of

14

documents could be withheld. See New York Times Co. v. U.S.

15

Dep’t

16

(“NYTimes II”). We also ruled that the District Court could

17

make public, except for a few words, the three paragraphs

18

of

19

undisclosed. See id. Finally, we upheld the Government’s

20

request to redact a small portion of the transcript of the

21

Government’s ex parte and in camera oral argument before

22

this Court. See id.

this

of

its

litigation.

Justice,

opinion

We

806

the

ruled

F.3d

682,

Government

7

that

the

690-91

had

ten

(2d

sought

identified

Cir.

to

2015)

keep

Case 15-2956, Document 187-1, 12/20/2016, 1931481, Page8 of 17

1

NYTimes II left for the District Court the laborious

2

task of examining the numerous OLC, CIA, and DOD documents

3

that the Government claimed were exempt from disclosure.

4

The Government had identified the OLC documents in its OLC

5

Vaughn index, which was originally classified. NYTimes I

6

ordered a redacted version of that index disclosed. 756

7

F.3d at 124 (Conclusion ¶ 2). The Government had identified

8

the CIA and DOD documents in its classified CIA and DOD

9

Vaughn indices. NYTimes I had ordered preparation of those

10

indices and their consideration by the District Court in

11

camera

12

redaction. Id. (Conclusion ¶ 5).

for

determination

of

appropriate

disclosure

and

13

Undertaking this task, the District Court examined the

14

documents listed on the OLC, CIA, and DOD Vaughn indices.

15

In a sealed unredacted draft opinion filed on May 13, 2015,

16

and superseded by a sealed unredacted final opinion filed

17

on June 23, 2015,5 the District Court required disclosure of

18

redacted versions of three OLC documents, OLC 46, OLC 144,

5

The District Court explained in its July 17, 2015, order
concluding the litigation that the June 23, 2015, opinion
“completely superseded” the Court’s May 13, 2015, draft opinion.
The July 17, 2015, order slightly amended the June 23, 2015,
unredacted opinion and also reported that a redacted version of
the June 23, 2015, opinion had been filed “yesterday,” i.e.,
July 16, 2015. SPA 162-64.
8

Case 15-2956, Document 187-1, 12/20/2016, 1931481, Page9 of 17

1

and OLC 145; the complete text of OLC 50;6 the complete text

2

of Tab C to CIA 59; and redacted versions of CIA 109 and

3

CIA 113. See ACLU v. U.S. Dep’t of Justice, No. 12 Civ.

4

794(CM), 2015 WL 4470192, at *13-14, *23, *27, *39, *42-43,

5

*45 (S.D.N.Y. July 16, 2015) (redacted opinion).

6

In its redacted opinion, the District Court identified

7

six facts, Nos. 1-5 and 7, that it ruled (with one slight

8

qualification of No. 7 not material to this appeal) had

9

been officially acknowledged. See id. *4-5. The Court also

10

identified

11

consideration

12

officially acknowledged, see id. at *6. The District Court

13

ruled that the six acknowledged facts must be disclosed “to

14

the extent that these specific facts appear in documents on

15

the Agencies’ Vaughn Indices and can be segregated from

16

other, properly exempt information.” Id. at *5. The Court

a

seventh
by

this

fact

(No.

Court

as

6),
to

see

id.

whether

at
it

*5,
had

for
been

6

Both the District Court’s June 23, 2015, draft opinion and
its July 16, 2015, revised opinion identified this OLC document
as No. 50. See SPA 58, 59. However, the District Court’s July
17, 2015, order, recapitulating its rulings, see SPA 164, and
the judgment, see SPA 166, identified the document as No. 150.
The Government’s brief identified the document as No. 50. See
Br. for Government at 60-62.
We are satisfied that 50 is the correct number and that 150
is a typographical error. This is clear from the description of
the document in the District Court’s draft and revised opinion
and the fact that there is no OLC No. 150.
9

Case 15-2956, Document 187-1, 12/20/2016, 1931481, Page10 of 17

1

stated that disclosure of these six facts is “[a]pplicable

2

to

3

statement

4

does not apply to any document reviewed by the Court in

5

camera, “because the [C]ourt took those facts into account

6

when

7

exception of the seven documents ordered to be disclosed,

8

the District Court ruled that all other requested documents

9

need not be disclosed.

[a]ll

10

[d]ocuments,”
to

make

reviewing

With

clear

the

respect

id.

at

that

the

document,”

to

the

*2,

six

but

qualified

disclosure

id.

facts,

at

requirement

*15.

the

that

With

District

the

Court

11

ordered OLC, CIA, and DOD to make a “segregability review”

12

of each document that the Court had not reviewed in camera

13

and then represent either that the six facts had not been

14

officially acknowledged, or, if so acknowledged, that the

15

facts

16

exempt from disclosure. See id. at *6-7. The Government

17

responded with classified declarations from OLC, CIA, and

18

DOD,

19

could not be made.

20

the

cannot

which

reasonably

contended

District

Court

be

that

segregated

segregation

of

information

all

six

facts

[CSA 492, 516, 544] On July 16, 2015,
issued

an

10

from

order

agreeing

with

the

Case 15-2956, Document 187-1, 12/20/2016, 1931481, Page11 of 17

1

agencies’ contention. See No. 1:12-cv-00794-CM, Dkt. No.

2

129 (July 16, 2015).7

3

Uncertain as to the status of three documents -- CIA

4

61, CIA 96, and DOD 1, this Court requested the Government

5

to produce them ex parte for our in camera inspection. No.

6

15-2956, Dkt. No. 166 (2d Cir. Oct. 21, 2016). We have

7

examined them.

8

The District Court’s ruling that 52 documents should be

9

withheld and that all or part of seven documents should be

10

disclosed is now fully submitted for our review.

11

Discussion

12

Although the history of this litigation is regrettably

13

complicated, disposition of the pending appeal and cross-

14

appeal

15

withholding of documents challenged on ACLU’s appeal and

16

reversal

17

challenged on the Government’s cross-appeal are warranted

18

either

is

fairly

of

because

the

straightforward.

District

disclosure

In

Court’s

would

general,

disclosure

reveal

continued

rulings

information

that

7

After an inquiry from this Court, see No. 15-2956, Dkt.
136 (2d Cir. Aug. 30, 2016), a response from the District Court,
see No. 1:12-cv-00794-CM, Dkt. No. 142 (Oct. 20, 2016), and a
further inquiry from this Court, see No. 15-2956, Dkt. No. 168
(2d Cir. Oct. 21, 2016), the District Court confirmed this
conclusion, see No. 1:12-cv-00794-CM, Dkt. No. 144 (Oct. 21,
2016).
11

Case 15-2956, Document 187-1, 12/20/2016, 1931481, Page12 of 17

1

should

2

predecisional

3

Brennan Center for Justice v. U.S. Dep’t of Justice, 697

4

F.3d

5

Transportation Safety Board, 569 F.3d 964, 981-84 (9th Cir.

6

2009); Abdelfattah v. U.S. Dep’t of Homeland Security, 488

7

F.3d 178, 183-84 (3d Cir. 2007).

8

remain

184,

ACLU’s

secret
drafts

206-07

or

because

protected

(2d

appeal.

Cir.

We

by

the

FOIA

2012);

documents

Exemption

Lahr

v.

5.

are
See

National

appreciate

the

difficulty

ACLU

9

encounters in challenging the District Court’s decision to

10

withhold from disclosure 52 documents. ACLU has not seen

11

either

12

District Court’s opinion explaining the Court’s reasons.

13

the

documents

or

the

redacted

portions

of

the

Having carefully considered each of these documents, we

14

conclude

15

decisions was correct. The documents are protected by one

16

or

17

occurred with respect to any of them. Our ruling does not

18

turn on the issue of so-called “working law,” an issue

19

contested by ACLU.

more

that

FOIA

each

of

the

exemptions

District

and

no

Court’s

waiver

of

withholding

secrecy

has

20

The seven facts. At oral argument, it became clear that

21

the issue as to the seven facts identified by the District

22

Court

in

its

July

16,

2015
12

opinion

was

whether

the

Case 15-2956, Document 187-1, 12/20/2016, 1931481, Page13 of 17

1

Government

2

documents because these facts were contained in them. To

3

assist in resolving that issue the District Court directed

4

the relevant agencies to make a segregability review to

5

determine if the six acknowledged facts could be segregated

6

from protected portions of the documents in which they are

7

contained.

8

that

9

segregation could not be made. We agree with that ruling.

10

the

was

As

asserting

explained

agencies’

the

above,

submissions

right

the

to

withhold

District

persuasively

any

Court

ruled

showed

that

No further consideration of these six facts is needed.

11

With regard to the seventh fact, which the District

12

Court left for our consideration, we conclude that it is

13

unnecessary for the resolution of this appeal to determine

14

whether it has been officially acknowledged. The Government

15

did not assert the right to withhold any of the documents

16

at issue in this appeal on the ground that those documents

17

contained the seventh fact. Accordingly, even if we were to

18

conclude

19

seventh fact, we would not order disclosure of any document

20

on that basis. No further consideration of the seventh fact

21

is required.

that

the

Government

13

publicly

acknowledged

the

Case 15-2956, Document 187-1, 12/20/2016, 1931481, Page14 of 17

1

Government’s cross-appeal. The seven documents ordered

2

disclosed

3

consideration.

4

by

the

District

Court

require

individual

OLC 46: This document, ordered disclosed in redacted

5

form,

6

meeting at which legal advice was discussed. Indicating the

7

preliminary nature of the memo, the agency staff member who

8

prepared it asked the recipients to correct anything that

9

the

is

an

writer

informal

had

tried

memo,

to

attempting

summarize.

to

The

summarize

document

a

is

10

predecisional under Exemption 5 and therefore need not be

11

disclosed.

12

OLC 50: This document is a draft of two paragraphs that

13

the document preparer suggested might be included in the

14

DOJ

15

officially

16

justification for drone strikes. See NYTimes I, 756 F.3d at

17

110. Ultimately, the two paragraphs were not included in

18

the

19

paragraphs similar to the legal advice contained in the

20

White

21

privileges had been waived by disclosure. We acknowledge

22

some similarities, but agree with the Government that the

White

White

Paper,

the

disclosed,

Paper.

Paper

and

The

the

document,
which

District

OLC-DOD

14

first

provided

Court

leaked
a

brief

considered

Memorandum,

and

as

then
legal

the

to

two

which

Case 15-2956, Document 187-1, 12/20/2016, 1931481, Page15 of 17

1

document is demonstrably a draft. ACLU previously explained

2

that it is not seeking “drafts in this litigation,” and

3

stated

4

description of OLC 50 as a draft is] accurate, [then it] no

5

longer seeks th[at] document.” Reply Br. for ACLU at 17

6

n.11.

7

Exemption 5 as predecisional and no longer sought by ACLU,

8

OLC 50 need not be disclosed.

that

“[i]f

Accordingly,

the

Court

because

OLC

determines

is

a

draft

that

[the

protected

by

9

OLC 144: This document, ordered disclosed in part, is a

10

set of suggested talking points concerning the legal basis

11

for drone strikes. We agree with the Government that the

12

document

13

Government

14

Exemption

15

legal analysis.

16

is

predecisional
officials

5

by

do

and
not

considering

need
lose

not
the

informally

how

be

disclosed.

protection
to

present

of
a

OLC 145: This is an internal outline of classified

17

facts

18

prepared in connection with the drafting of legal advice.

19

Although the District Court properly redacted portions of

20

the

21

protected as predecisional under Exemption 5. The document

22

need not be disclosed.

and

some

document,

fragmentary

the

discussion

remainder

is

15

also

of

legal

entitled

to

advice,

remain

Case 15-2956, Document 187-1, 12/20/2016, 1931481, Page16 of 17

1

CIA 59 tab C: This is a draft of a proposed op-ed

2

article

3

Government’s legal reasoning in support of drone strikes.

4

It was never published. Although it reveals some of the

5

unnamed

6

drone

7

predecisional. It need not be disclosed.

that

suggested

writer’s
strikes,

8

CIA

9

District

109

thinking
it

and

Court

some

is

CIA

about

a

explaining

justification

and

These
in

of

legal

draft

113:

disclosed

ways

for

that

documents,

part,

are

the

for

reason

which

the

informal

and

10

preliminary. The second is unsigned and undated. Despite

11

the redactions, some phrases entitled to secrecy remain.

12

Although both appear to have been written after the action

13

they comment on, they are nonetheless predecisional with

14

respect to the formulation of a policy or a clear legal

15

position. Neither document need be disclosed.

16

Conclusion

17

Chief Judge McMahon ably performed the burdensome task

18

of

19

litigation, which now appears to be concluded. Despite our

20

slight disagreement with her assessment of a few of these

21

documents,

22

explanations in her sealed opinion.

examining

we

scores

of

appreciate

documents

her

16

in

diligence

this

and

protracted

the

helpful

Case 15-2956, Document 187-1, 12/20/2016, 1931481, Page17 of 17

1

On

ACLU’s

appeal,

the

judgment

is

affirmed;

2

Government’s cross-appeal, the judgment

3

case is remanded for entry of a revised judgment.

17

on

the

is reversed; the