First Amendment Coalition v. U.S. Department of Justice

Filing 86

ORDER by Judge Claudia Wilken GRANTING DEFENDANTS 63 MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS 66 CROSS-MOTION FOR SUMMARY JUDGMENT. (ndr, COURT STAFF) (Filed on 4/11/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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FIRST AMENDMENT COALITION,

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Plaintiff,

United States District Court
For the Northern District of California

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ORDER GRANTING
DEFENDANT’S MOTION
FOR SUMMARY
JUDGMENT AND
DENYING
PLAINTIFF’S CROSSMOTION FOR SUMMARY
JUDGMENT

v.
U.S. DEPARTMENT OF JUSTICE,

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No. C 12-1013 CW

Defendant.
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The parties have filed cross-motions for summary judgment in

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this Freedom of Information Act (FOIA) case.

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the parties’ papers and oral argument on the motion, the Court

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GRANTS Defendant’s motion for summary judgment and DENIES

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Plaintiff’s cross-motion.1

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Having considered

BACKGROUND
In September 2011, Anwar al-Awlaki, a United States citizen
and a supporter and propagandist for Al Qaeda in the Arabian

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Both parties raise evidentiary objections to the other
side’s submissions.
Plaintiff makes a variety of evidentiary objections to the
declarations filed in support of Defendant’s motion for summary
judgment. The objections are set out in list form, stating the
Federal Rule of Evidence and a list of the paragraphs to which
those objections apply. To the extent that the Court relies on
the paragraphs listed, the Court OVERRULES the objections. To the
extent the Court does not rely on the paragraphs listed, it
OVERRULES the objections as moot. Plaintiff also objects to
Defendant’s lodging of classified information for the Court’s
review. The Court did not rely on any of the classified
information. Accordingly, the objection is OVERRULED as moot.
Defendant objects to Plaintiff’s submission of declarations
from Erwin Chemirinsky and journalist Scott Armstrong. The Court
OVERRULES that objection as moot because the Court did not rely on
the declarations.

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Peninsula, was killed.

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alleges that his death was the result of a United States drone

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strike.

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officials to have taken on an operational role in organizing

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terrorist attacks against the United States.

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¶ 3.

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Awlaki had been killed.

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killing of al-Awlaki was a “success” that is a “tribute to our

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intelligence community.”

Compl. ¶ 3.

Compl. ¶ 3; Answer ¶ 3.

Plaintiff

Al-Awlaki was believed by United States

Compl. ¶ 3; Answer

President Obama, in multiple statements, confirmed that alCompl. ¶ 3.

The President said that the

Bies Dec., Ex. E at 1.

The President

United States District Court
For the Northern District of California

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also said of the attack on al-Awlaki, “[W]e were able to remove

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him from the field.”

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Bies Dec., Ex. T at 4.

In October 2011, the New York Times, Washington Post and

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other news organizations reported on a purported DOJ legal

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memorandum, written in early or mid-2010, concerning legal issues

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raised by the government’s targeted killing of terrorists who were

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United States citizens.

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sanctioned killing of Aulaqi, Washington Post (September 30,

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2011), available online at

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http://www.washingtonpost.com/world/national-security/aulaqi-

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killing-reignites-debate-on-limits-of-executive-

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power/2011/09/30/gIQAx1bUAL_story.html (last accessed April 3,

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2014); Charlie Savage, Secret U.S. Memo Made Legal Case to Kill a

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Citizen, New York Times (October 8, 2011), available online at

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http://www.nytimes.com/2011/10/09/world/middleeast/secret-us-memo-

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made-legal-case-to-kill-a-citizen.html?pagewanted=all (last

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accessed April 3, 2014).

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memorandum was prepared by DOJ’s Office of Legal Counsel (OLC) and

See, e.g., Peter Finn, Secret U.S. memo

According to news reports, the

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provided a legal analysis and justification for the government’s

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targeted killing of al-Awlaki.

Compl. ¶ 4.

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A.

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On October 5, 2011, Plaintiff made a written FOIA request to

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United States District Court
For the Northern District of California

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Procedural Background

Defendant, seeking
A legal memorandum prepared by OLC concerning the
legality of the lethal targeting of Anwar al-Aulaqi, an
American-born radical cleric who, according to federal
government officials, was killed September 30, 2011 in a
U.S. drone strike in Yemen. The memorandum was the
subject of a story (“Secret U.S. memo sanctioned killing
of Aulaqi”) in the September 30, 2011 Washington Post,
in which multiple (albeit unnamed) administration
officials discussed the memorandum and internal
government debates on the legal issues addressed in it.

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Compl. ¶ 11, Ex. A, 1.

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almost certainly classified,” and noted that it was “not

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interested in factual information about intelligence sources and

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methods or US military capabilities,” but rather “only in the

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Plaintiff acknowledged, “The memorandum is

memorandum's discussion of the legal issues posed by prospective
military action against a dangerous terrorist who also happens to

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be a US citizen.”

Id.

It asked that “all sensitive factual

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information” be redacted and that the “discussion of legal issues”
be released.

Id.

On October 25, 2011, Defendant responded to Plaintiff’s

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request.

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nor denies the existence of the document described in your

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Compl. ¶ 12, Ex. B.

It said that it “neither confirms

request, . . . because the very fact of the existence or

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nonexistence of such a document is itself classified, protected
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from disclosure by statute, and privileged.”
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Id.

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On December 12, 2011, Plaintiff filed an administrative

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appeal of Defendant’s denial of its FOIA request.

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Defendant did not respond within the time allowed by statute.

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Compl. ¶ 14.

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Compl. ¶ 13.

On February 29, 2012, Plaintiff filed this case, seeking
release of the OLC memorandum.

Docket No. 1.

The parties filed

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cross-motions for summary judgment and the Court stayed ruling on
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the motions until the Southern District of New York (SDNY) ruled

United States District Court
For the Northern District of California

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on pending cross-motions for summary judgment in two earlier-filed

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related cases.

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before it, declining to order the disclosure of the memorandum at

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issue in this suit.2

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In January 2013, the SDNY ruled on the motions

Docket No. 43.

The parties here filed

supplemental briefs addressing the SDNY ruling.

Docket No. 46.

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Subsequently, on May 22, 2013, Defendant withdrew its motion
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for summary judgment.

Docket No. 59.

In its notice of

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withdrawal, Defendant stated that, on that day, “at the direction

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of the President, the Attorney General officially confirmed that

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the United States Government targeted Anwar al-Aulaqi and

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conducted an operation that resulted in his death.”

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Accordingly, Defendant no longer sought to keep that fact

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classified.

Id. at 1-2.

Id.

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On June 21, 2013, Defendant issued a modified response to
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Plaintiff’s FOIA request, acknowledging the existence of one
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The SDNY case is summarized below.
appeal to the Second Circuit.
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It is currently on

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responsive OLC opinion pertaining to the Department of Defense

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(DOD Memo) and refusing to confirm or deny the existence of

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responsive records related to any other agency.

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F.

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disclosure pursuant to FOIA Exemptions One, Three and Five.

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Bies Decl., Ex.

Defendant asserted that the OLC opinion was exempt from
The

parties agreed that the modified response did not resolve their

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dispute.

Docket No. 61.

Accordingly, the parties filed the

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instant cross motions for summary judgment.

United States District Court
For the Northern District of California

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B.

SDNY Cases

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The first SDNY case, filed on December 20, 2011, involved two

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FOIA requests by the New York Times.

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United States Dept. of Justice, Case No. 11-9336 (S.D.N.Y.) (NY

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Times case).

See New York Times Co. v.

The first FOIA request, originally made on June 11,

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2010, sought release of “copies of all Office of Legal Counsel
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opinions or memoranda since 2001 that address the legal status of
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targeted killing, assassination, or killing of people suspected of

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ties to Al Qaeda or other terrorist groups by employees or

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contractors of the United States government.”

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Compl. ¶ 37.

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October 7, 2011, sought a copy of “all Office of Legal Counsel

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NY Times Case

The second New York Times FOIA request, made on

memorandums analyzing the circumstances under which it would be

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lawful for United States armed forces or intelligence community
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assets to target for killing a United States citizen who is deemed

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to be a terrorist.”

Id. ¶ 44.

DOJ originally denied both

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requests on October 27, 2011, stating that it neither confirmed
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nor denied the existence of documents described in the requests.
Id. at ¶¶ 38-40, 45-46.

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The second SDNY case, filed on February 1, 2012, involved a

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FOIA request the ACLU filed with DOJ, DOD, and the Central

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Intelligence Agency (CIA).

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See American Civil Liberties Union v.

United States Dept. of Justice, Case No. 12-794 (S.D.N.Y.) (ACLU

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case).

In that request, made on October 19, 2011, the ACLU sought

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multiple categories of documents, including records related to the

United States District Court
For the Northern District of California

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“legal authority and factual basis for the targeted killing” of

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al-Awlaki and two other United States citizens.

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¶ 30.

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not be able to respond to the request within the statutory

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ACLU case Compl.

On October 27, 2011, DOJ informed the ACLU that it would

deadline.

Id. at ¶ 33.

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After the NY Times and ACLU cases were filed, and after
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public statements by government officials regarding the use of
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drones and targeted killings, the OLC and the DOJ’s Office of

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Information Policy (OIP) produced three Vaughn Indices,3 listing

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unclassified documents and the reasons they were being withheld.

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The CIA produced the text of public speeches by Attorney General

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Eric Holder and John Brennan, Assistant to the President for

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Homeland Security and Counterterrorism.

The SDNY noted, “None of

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these disclosures added anything to the public record.”

New York

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A Vaughn Index is a filing, including detailed affidavits
or declarations identifying the records withheld and explaining
the reasons for withholding them. See Vaughn v. Rosen, 484 F.2d
820 (D.C. Cir. 1973) (requiring the production of such a filing).
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Times Co. v. U.S. Dep’t of Justice, 915 F. Supp. 2d 508, 518
The CIA further asserted a Glomar response,4

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(S.D.N.Y. 2013).

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refusing to confirm or deny the existence of other responsive

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documents.

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one classified legal opinion, but asserted that it was properly

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In addition, the DOD and OLC admitted the existence of

withheld from disclosure pursuant to Exemptions One, Three and

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Five to the FOIA.

This is the same document that was described

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and withheld in the government’s modified response to the FOIA

United States District Court
For the Northern District of California

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request at issue in the present case.

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partially superseded its original Glomar response to both the NY

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Times and ACLU requests with “No Number, No List responses,” which

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acknowledged the existence of responsive documents, but withheld

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Finally, the government

information about the number or nature of those documents pursuant

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to Exemptions One and Three to the FOIA.
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The ACLU and NY Times cases were administratively related in
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the SDNY and the DOJ filed a single motion for summary judgment in

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both cases.

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document at issue in this case; however, both of the SDNY cases

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also encompass a great deal of other material.

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the government’s motion for summary judgment and denied the ACLU’s

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The requests at issue in the SDNY cases encompass the

and NY Times’ cross-motions.

The SDNY granted

The SDNY declined to conduct an in

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The refusal to confirm or deny the existence of responsive
records is called a Glomar response. See Phillippi v. CIA, 546
F.2d 1009, 1013 (D.C. Cir. 1976) (discussing issue of whether CIA
could refuse to confirm or deny its ties to Howard Hughes’
submarine retrieval ship, the Glomar Explorer).
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camera review of the withheld documents.

The ACLU and the NY

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Times both filed notices of appeal on February 1, 2013.

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Second Circuit ordered the submission of withheld documents for in

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camera review.

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123.

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The

ACLU v. United States, 2d Cir. 13-445, Docket No.

Oral arguments were heard on October 1, 2013.

Id. at Docket

No. 133.

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C.

Public Discussion of Drones and Targeted Killings

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Various government officials have publicly discussed the

United States District Court
For the Northern District of California

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government’s use of drones and targeted killings.

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public comments have referred to the legal justifications for

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targeted killings, but none has provided extensive legal analysis

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or discussion of the statutes and cases that underpin that

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analysis.

Some of these

The primary comments relied upon by Plaintiff are

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summarized below.
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April 30, 2012 Speech by John Brennan, then
Assistant to the President for Homeland Security
and Counterterrorism

John Brennan delivered a speech at the Wilson Center on April
30, 2012 in which he discussed post-9/11 counterterrorism
efforts.

In that speech, he made several general comments about

the fact that those efforts “are rooted in, and are strengthened
by, adherence to the law, including the legal authorities that
allow us to pursue members of al-Qaida, including U.S. citizens,
and to do so using technologically advanced weapons.”
Dec., Ex. G at 7.

Burke

Mr. Brennan opined that “the United States

government has never been so open regarding its counterterrorism

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policies and their legal justification.”

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on to discuss the legality of drone attacks more specifically:

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Id.

Mr. Brennan went

First, these targeted strikes are legal. Attorney
General Holder, Harold Koh, and Jeh Johnson have all
addressed this question at length. To briefly recap,
as a matter of domestic law, the Constitution empowers
the president to protect the nation from any imminent
threat of attack. The Authorization for Use of
Military Force, the AUMF, passed by Congress after the
September 11th attacks authorized the president “to use
all necessary and appropriate forces” against those
nations, organizations and individuals responsible for
9/11. There is nothing in the AUMF that restricts the
use of military force against al-Qaida to Afghanistan.

United States District Court
For the Northern District of California

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As a matter of international law, the United
States is in an armed conflict with al-Qaida, the
Taliban, and associated forces, in response to the 9/11
attacks, and we may also use force consistent without
inherent right of national self-defense. There is
nothing in international law that bans the use of
remotely piloted aircraft for this purpose or that
prohibits us from using lethal force against our
enemies outside of an active battlefield, at least when
the country involved consents or is unable or unwilling
to take action against the threat.

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Id. at 8-9.

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analysis.

Mr. Brennan did not provide any more detailed legal

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2.
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March 5, 2012 Speech by Attorney General Eric
Holder

Attorney General Eric Holder gave a speech at Northwestern

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University School of Law on March 5, 2012.

In that speech, he

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also discussed the “tools [the government uses] to identify

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suspected terrorists and to bring captured terrorists to justice.”

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Burke Dec., Ex. H at 4.

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justification for using lethal force, including drone attacks.

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Like Mr. Brennan, the Attorney General noted that “Congress has

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authorized the President to use all necessary and appropriate

He then went on to discuss the legal

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force against those groups,” referring to “al-Qaeda, the Taliban,

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and associated forces.”

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state,

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United States District Court
For the Northern District of California

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The Attorney General went on to

Because the United States is in an armed conflict, we
are authorized to take action against enemy belligerents
under international law. The Constitution empowers the
President to protect the nation from any imminent threat
of violent attack. And international law recognizes the
inherent right of national self-defense. None of this
is changed by the fact that we are not in a conventional
war.

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Id.

Id.
The most specific statements the Attorney General made about
drone attacks on U.S. citizens were as follows:
Now, it is an unfortunate but undeniable fact that
some of the threats we face come from a small number
of United States citizens who have decided to commit
violent attacks against their own country from abroad.
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. But it does
mean that the government must take into account all
relevant constitutional considerations with respect to
United States citizens – even those who are leading
efforts to kill innocent Americans. Of these, the
most relevant is the Fifth Amendment’s Due Process
Clause, which says that the government may not deprive
a citizen of his or her life without due process of
law.
The Supreme Court has made clear that the Due Process
Clause does not impose one-size-fits-all requirements,
but instead mandates procedural safeguards that depend
on specific circumstances. In cases arising under the
Due Process Clause – including in a case involving a
U.S. citizen captured in the conflict against al Qaeda
– the Court has applied a balancing approach, weighing
the private interest that will be affected against the
interest the government is trying to protect, and the
burdens the government would face in providing
additional process. Where national security
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operations are at stake, due process takes into
account the realities of combat.
Here, the interests on both sides of the scale are
extraordinarily weighty. An individual’s interest in
making sure that the government does not target him
erroneously could not be more significant. Yet it is
imperative for the government to counter threats posed
by senior operational leaders of al Qaeda, and to
protect the innocent people whose lives could be lost
in their attacks.

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United States District Court
For the Northern District of California

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Any decision to use lethal force against a United
States citizen--even one intent on murdering Americans
and who has become an operational leader of al-Qaeda
in a foreign land--is among the gravest that
government leaders can face. The American people can
be--and deserve to be--assured that actions taken in
their defense are consistent with their values and
their laws. So, although I cannot discuss or confirm
any particular program or operation, I believe it is
important to explain these legal principles publicly.
Let me be clear: an operation using 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, would be lawful at least
in the following circumstances: First, 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.
The evaluation of whether an individual presents an
“imminent threat” 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. As we learned on
9/11, al Qaeda has demonstrated the ability to strike
with little or no notice--and to cause devastating
casualties. Its leaders are continually planning
attacks against the United States, and they do not
behave like a traditional military--wearing uniforms,
carrying arms openly, or massing forces in preparation
for an attack. Given these facts, the Constitution
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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. Such a requirement would create an
unacceptably high risk that our efforts would fail,
and that Americans would be killed.

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United States District Court
For the Northern District of California

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Whether the capture of a U.S. citizen terrorist is
feasible is a fact-specific, and potentially timesensitive, question. 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.
Given the nature of how terrorists act and where they
tend to hide, it may not always be feasible to capture
a United States citizen terrorist who presents an
imminent threat of violent attack. In that case, our
government has the clear authority to defend the
United States with lethal force.
Of course, any such use of lethal force by the United
States will comply with the four fundamental law of
war principles governing the use of force. The
principle of necessity requires that the target have
definite military value. The principle of distinction
requires that only lawful targets--such as combatants,
civilians directly participating in hostilities, and
military objectives--may be targeted intentionally.
Under the principle of proportionality, the
anticipated collateral damage must not be excessive in
relation to the anticipated military advantage.
Finally, the principle of humanity requires us to use
weapons that will not inflict unnecessary suffering.
These principles do not forbid the use of stealth or
technologically advanced weapons. In fact, the use of
advanced weapons may help to ensure that the best
intelligence is available for planning and carrying
out operations, and that the risk of civilian
casualties can be minimized or avoided altogether.
Some have argued that the President is required to get
permission from a federal court before taking action
against a United States citizen who is a senior
operational leader of al Qaeda or associated forces.
This is simply not accurate. “Due process” and
“judicial process” are not one and the same,
particularly when it comes to national security. The

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Constitution guarantees due process, not judicial
process.

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Id. at 4-5.

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legal analysis that the Attorney General made in that speech was,

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The only other statement that could be construed as

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.

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That is not to say that the Executive Branch has--or
should ever have--the ability to target any such
individuals without robust oversight. Which is why, in
keeping with the law and our constitutional system of
checks and balances, the Executive Branch regularly
informs the appropriate members of Congress about our
counterterrorism activities, including the legal
framework, and would of course follow the same practice
where lethal force is used against United States
Citizens.

United States District Court
For the Northern District of California

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Now, these circumstances are sufficient under the
Constitution for the United States to use lethal force
against a U.S. citizen abroad—-but it is important to
note that the legal requirements I have described may
not apply in every situation—-such as operations that
take place on traditional battlefields.

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Id. at 5-6.
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February 22, 2012 Speech by Jeh Johnson, General
Counsel of the Department of Defense

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Jeh Johnson gave a speech at Yale Law School on February 22,

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2012 in which he set out “some of the basic legal principles that

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form the basis for the U.S. military’s counterterrorism efforts

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against Al Qaeda and its associated forces.”

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5.

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national security lawyers in our Administration broadly agree.”

Burke Dec., Ex. I at

Mr. Johnson stated, “These are principles with which the top

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He cautioned that his “comments are general in nature.”

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Johnson set out the following seven principles:

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United States District Court
For the Northern District of California

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Id.

First: in the conflict against an unconventional
enemy such as al Qaeda, we must consistently apply
conventional legal principles. We must apply, and we
have applied, 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 statutory construction.
. . .
Second: in the conflict against al Qaeda and
associated forces, the bedrock of the military’s
domestic legal authority continues to be the
Authorization for the Use of Military Force passed by
the Congress one week after 9/11.
. . .
But, the AUMF, the statutory authorization from 2001,
is not open-ended. It does not authorize military
force against anyone the Executive labels a
“terrorist.” Rather, it encompasses only those
groups or people with a link to the terrorist attacks
on 9/11, or associated forces.
Nor is the concept of an “associated force” an openended one, as some suggest. This concept, too, has
been upheld by the courts in the detention context,
and it is based on the well-established concept of
co-belligerency in the law of war. The concept has
become more relevant over time, as al Qaeda has, over
the last 10 years, become more de-centralized, and
relies more on associates to carry out its terrorist
aims.

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An “associated force,” as we interpret the phrase,
has two characteristics to it: (1) an organized,
armed group that has entered the fight alongside al
Qaeda, and (2) is a co-belligerent with al Qaeda in
hostilities against the United States or its
coalition partners. In other words, the group must
not only be aligned with al Qaeda. It must have also
entered the fight against the United States or its
coalition partners. Thus, an “associated force” is
not any terrorist group in the world that merely
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Mr.

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embraces the al Qaeda ideology. More is required
before we draw the legal conclusion that the group
fits within the statutory authorization for the use
of military force passed by the Congress in 2001.

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United States District Court
For the Northern District of California

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Third: there is nothing in the wording of the 2001
AUMF or its legislative history that restricts this
statutory authority to the “hot” battlefields of
Afghanistan. Afghanistan was plainly the focus when
the authorization was enacted in September 2001, but
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, this legal conclusion too has its limits.
It should not be interpreted to mean that we believe
we are in any “Global War on Terror,” or that we can
use military force whenever we want, wherever we
want. 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: I want to spend a moment on what some people
refer to as “targeted killing.” Here I will largely
repeat Harold [Koh]’s much-quoted address to the
American Society of International Law in March 2010.
In an armed conflict, lethal force against known,
individual members of the enemy is a long-standing
and long-legal practice. What is new is that, with
advances in technology, we are able to target
military objectives with much more precision, to the
point where we can identify, target and strike a
single military objective from great distances.
Should the legal assessment of targeting a single
identifiable military objective be any different in
2012 than it was in 1943, when the U.S. Navy targeted
and shot down over the Pacific the aircraft flying
Admiral Yamamoto, the commander of the Japanese navy
during World War Two, with the specific intent of
killing him? Should we take a dimmer view of the
legality of lethal force directed against individual
members of the enemy, because modern technology makes
our weapons more precise? As Harold stated two years
ago, the rules that govern targeting do not turn on
15

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

the type of weapon system used, and there is no
prohibition under the law of war on the use of
technologically advanced weapons systems in armed
conflict, so long as they are employed in conformity
with the law of war. Advanced technology can ensure
both that the best intelligence is available for
planning operations, and that civilian casualties are
minimized in carrying out such operations.
On occasion, I read or hear a commentator loosely
refer to lethal force against a valid military
objective with the pejorative term “assassination.”
Like any American shaped by national events in 1963
and 1968, the term is to me one of the most repugnant
in our vocabulary, and it should be rejected in this
context. 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: as I stated at the public meeting of the ABA
Standing Committee on Law and National Security,
belligerents who also happen to be U.S. citizens do
not enjoy immunity where non-citizen belligerents are
valid military objectives. Reiterating principles
from Ex Parte Quirin in 1942, the Supreme Court in
2004, in Hamdi v. Rumsfeld, stated that “[a] citizen,
no less than an alien, can be ‘part of or supporting
forces hostile to the United States or coalition
partners’ and ‘engaged in an armed conflict against
the United States.’”
Sixth: contrary to the view of some, targeting
decisions are not appropriate for submission to a
court. In my view, 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. I
agree with Judge Bates of the federal district court
in Washington, who ruled in 2010 that the judicial
branch of government is simply not equipped to become
involved in targeting decisions.
As I stated earlier in this address, within the
Executive Branch the views and opinions of the
lawyers on the President’s national security team are
debated and heavily scrutinized, and a legal review
of the application of lethal force is the weightiest
judgment a lawyer can make. (And, when these
16

1
2
3
4
5
6

judgments start to become easy, it is time for me to
return to private law practice.)
Finally: as a student of history I believe that those
who govern today must ask ourselves how we will be
judged 10, 20 or 50 years from now. Our applications
of law must stand the test of time, because, over the
passage of time, what we find tolerable today may be
condemned in the permanent pages of history tomorrow.
Id. at 5-9.

7
8
9

LEGAL STANDARD
FOIA determinations are generally resolved on summary
judgment.

See Nat’l Wildlife Fed’n v. U.S. Forest Service, 861

United States District Court
For the Northern District of California

10

F.2d 1114 (9th Cir. 1998).

11

when no genuine and disputed issues of material fact remain, and

12

when, viewing the evidence most favorably to the non-moving party,

13

the movant is clearly entitled to prevail as a matter of law.

14

Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

15

(1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89

16

(9th Cir. 1987).

17

Summary judgment is properly granted

The moving party bears the burden of showing that there is no

18

material factual dispute.

19

true the opposing party's evidence, if supported by affidavits or

20

other evidentiary material.

21

815 F.2d at 1289.

22
23
24

Therefore, the Court must regard as

Celotex, 477 U.S. at 324; Eisenberg,

The Court must draw all reasonable inferences

in favor of the party against whom summary judgment is sought.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952
F.2d 1551, 1558 (9th Cir. 1991).

25
Material facts which would preclude entry of summary judgment
26
are those which, under applicable substantive law, may affect the
27
outcome of the case.

The substantive law will identify which

28
17

1

facts are material.

2

242, 248 (1986).

Anderson v. Liberty Lobby, Inc., 477 U.S.

DISCUSSION

3
4

“FOIA entitles private citizens to access government

5

records.”

6

Supreme Court has interpreted the disclosure provisions broadly,

7

noting that the act was animated by a ‘philosophy of full agency

8

disclosure.’”

9

1072, 1079 (9th Cir. 2004) (quoting John Doe Agency v. John Doe

United States District Court
For the Northern District of California

10
11
12
13

Minier v. CIA, 88 F.3d 796, 800 (9th Cir. 1996).

“The

Lion Raisins v. U.S. Dep’t of Agriculture, 354 F.3d

Corp., 493 U.S. 146, 152 (1989).

However, to prevent disclosure

of a limited number of sensitive government documents, FOIA
contains nine statutory exemptions.

5 U.S.C. § 552(b)(1)-(9).

“Unlike the disclosure provisions of FOIA, its statutory
exemptions ‘must be narrowly construed.’”

Lion Raisins, 354 F.3d

14
at 1079, (quoting John Doe Agency, 493 U.S. at 152).
15
The Court reviews the government’s withholding of agency
16
records de novo, and the government bears the burden of justifying
17
18
19

non-disclosure.

5 U.S.C. § 552(a)(4)(B).

“To prevail on summary

judgment in a FOIA Action, the government must establish that its
search for responsive documents was reasonable and that it has

20

described with reasonable specificity the nature of the responsive

21

documents and its justification for any non-disclosure.”

22

v. Dep’t of Def., 521 F. Supp. 2d 1047, 1054 (N.D. Cal. 2007).

23

“The agency may meet its burden by submitting a detailed affidavit

24

showing that the information ‘logically falls within one of the

25

claimed exemptions.’”

26

government may not rely upon conclusory and generalized

27

allegations of exemptions.”

28

Cir. 1995).

Minier, 88 F.3d at 800.

Hilken

“However, the

Kamman v. IRS, 56 F.3d 46, 48 (9th

18

1
2
3

A.

Reasonableness of Defendant’s Search
1.

Defendant’s Interpretation of Plaintiff’s Request

Plaintiff first argues that Defendant adopted an improperly

4

narrow interpretation of its FOIA request when Defendant construed

5

the request as asking for a single document.

6

this as a challenge to the reasonableness of Defendant’s search.

7
8
9

United States District Court
For the Northern District of California

10
11
12

The Court interprets

Plaintiff contends that it seeks “all ‘agency records that
address the government’s use of targeted lethal force against U.S.
citizens abroad who are believed to have joined forces with
terrorist organizations engaged in attacks against Americans.’”
Plaintiff’s Cross-Motion at 7 (quoting Complaint ¶ 1).

Plaintiff

further argues, “To the extent that the Government has prepared
multiple documents reciting the legal arguments and policy on the

13
targeted killing of U.S. citizens such as al-Awlaki, those
14
documents also should be disclosed as part of this litigation.”
15
Plaintiff’s Cross-Motion at 7-8.
16
17
18

However, Plaintiff’s request specifically asked for “the
following document: A legal memorandum prepared by OLC concerning
the legality of the lethal targeting of Anwar al-Aulaqi.”

Bies

19

Dec., Ex. B.

“An agency has a duty to construe a FOIA request

20

liberally.”

Lawyers Comm. for Civ. Rights of the San Francisco

21

Bay Area v. U.S. Dep’t of the Treasury, 534 F. Supp. 2d 1126, 1130

22

(N.D. Cal. 2008) (citing Truitt v. U.S. Dep’t of State, 897 F.2d

23

540, 544-45 (D.C. Cir. 1990)).

24

memorandum prepared by OLC.

25

discuss “the memorandum” and asks that OLC produce “the redacted

26

memorandum.”

27

statement that it would accept “a copy of the DoD memo that is

28

wholly redacted, save for the legal citations and authority use to

Plaintiff has asked for a legal

Indeed, the request goes on to

Plaintiff’s position is also undermined by its

19

1

support its contentions.”

2

contradicts its own argument about the scope of the request.

Plaintiff’s Cross-Motion at 6.

This

3

Defendant further argues that it already interpreted the

4

request as broader than drafted when it responded that it had

5

found one document responsive to Plaintiff’s request to the extent

6

it “pertains to the Department of Defense” and refused to confirm

7

or deny the existence of responsive records with respect to any

8

other agencies.

9

United States District Court
For the Northern District of California

10
11
12

Bies Dec., Ex. F.

According to Defendant, if it

had interpreted Plaintiff’s request as seeking a single
memorandum, it would not have included the refusal to confirm or
deny the existence of any memoranda with respect to other
agencies.
Although Defendant is required to interpret FOIA requests

13
liberally, the plain language of Plaintiff’s request conflicts
14
with its characterization of what it seeks.

Defendant’s

15
interpretation of the request as seeking one or more OLC memoranda
16
17
18
19

regarding the targeted killing of al-Awlaki is reasonable.
B.

DOD Memorandum

Defendant claims that it is exempt from disclosing the DOD
memorandum pursuant to Exemptions One, Three and Five.

20

1.

21

Exemption One to the FOIA protects from disclosure records

Exemption One

22

that are “(A) specifically authorized under criteria established

23

by an Executive Order to be kept secret in the interest of

24

national defense or foreign policy and (B) are in fact properly

25

classified pursuant to such Executive Order.”

26

§ 552(b)(1).

27

in Executive Order 13526 (E.O. 13526), 75 Fed. Reg. 707.

28

§ 1.1 of E.O. 13526 information may be classified if

5 U.S.C.

The relevant standard for classification is set out

20

Under

(1) an original classification authority is classifying
the information;

1
2

(2) the information is owned by, produced by or for, or
is under the control of the United States Government;

3

(3) the information falls within one or more of the
categories of information listed in section 1.4 of this
order; and

4
5

(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.

6
7
8
9

75 Fed. Reg. 707.

Section 1.4 provides that information may only

United States District Court
For the Northern District of California

10

be considered for classification if it pertains to one or more of

11

the following categories:

12

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

13

(b) foreign government information;

14

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

15
(d) foreign relations or foreign activities of the
United States, including confidential sources;

16
17

(e) scientific, technological, or economic matters
relating to the national security;

18
(f) United States Government programs for safeguarding
nuclear materials or facilities;

19
20

(g) vulnerabilities or capabilities of systems,
installations, infrastructures, projects, plans, or
protection services relating to the national security;
or

21
22

(h) the development, production, or use of weapons of
mass destruction.

23
24
25

Id.
“Though an executive agency's classification decisions are

26

accorded substantial weight, the FOIA permits challenges to

27

Exemption 1 withholdings, requires the district court to review

28

the propriety of the classification, and places the burden on the
21

1

withholding agency to sustain its Exemption 1 claims.”

2

FBI, 943 F.2d 972, 980 (9th Cir. 1991) (internal citations

3

omitted).

4

officials that it argues establish that an original classifying

5

authority has determined that information in the DOD memorandum is

6

currently and properly classified and pertains to the categories

7

identified in §§ 1.4(a), (c) and (d) of E.O. 13526.

8

the declarations provide explanations of how the material in the

9

United States District Court
For the Northern District of California

10
11
12

Wiener v.

Defendant provides declarations from various government

In addition,

memorandum could harm future intelligence-gathering efforts.
“[T]he text of Exemption 1 itself suggests that little proof
or explanation is required beyond a plausible assertion that
information is properly classified.”
1108, 1124 (D.C. Cir. 2007).

Morley v. CIA, 508 F.3d

Indeed Plaintiff does not directly

13
challenge the classified nature of the memorandum as a whole.
14
Plaintiff counters that it is only seeking “legal analysis,” and
15
goes so far as to say that it would accept a copy of the
16
17
18

memorandum, “wholly redacted, save for the legal citations and
authority used to support its contents, whatever they may be.”
Plaintiff argues that such analysis and citations are not

19

“information” as contemplated by E.O. 13526.

20

provide any authority for its contention that legal analysis and

21

citations are not covered by Exemption One.

22

Plaintiff does not

Defendant responds that E.O. 13526 contains no exception for

23

legal analysis, relying on the SDNY court’s analysis in the N.Y.

24

Times and ALCU litigation.

25

argued that “legal analysis is not the proper subject of

26

classification.”

27

noted that E.O. 13526 applies to any information that “pertains

28

to” the categories listed in Section 1.4 and found that “legal

The plaintiffs in those cases also

NY Times Co., 915 F. Supp. 2d at 535.

22

The SDNY

1

analysis that ‘pertains to’ military plans or intelligence

2

activities (including covert action), sources or methods--all of

3

which are classified matters--can indeed be classified.”

4

Id.

Plaintiff further argues that the government has already

5

officially confirmed the information contained in the withheld

6

memorandum.

7

or in part, to third parties has sometimes been held to waive FOIA

8

exemptions for those documents.”

9

United States District Court
For the Northern District of California

10
11
12

“Voluntary disclosure of documents, either in whole

F.2d 698, 700 (9th Cir. 1989).

Mobil Oil Corp. v. U.S. EPA, 879

Plaintiff bears the “initial

burden of pointing to specific information in the public domain
that appears to duplicate that being withheld.”

Afshar v. Dep’t

of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983).
As summarized above, Plaintiff points to various press

13
conferences, speeches and interviews given by executive branch
14
officials.

While some of these speeches and interviews discuss

15
the general topic of drones and targeted killings and some even
16
17
18
19
20
21
22
23
24

mention legal analyses regarding the propriety of such killings,
none of the speeches or interviews reaches the level of
specificity required for a waiver.

The Ninth Circuit has held,

A fact is deemed “officially acknowledged” only if it
meets three criteria: First, the information requested
must be as specific as the information previously
released. Second, the information requested must match
the information previously disclosed; we noted, for
example, that official disclosure did not waive the
protection to be accorded information that pertained to
a later time period. Third, we held that the
information requested must already have been made public
through an official and documented disclosure.

25

Pickard v. DOJ, 653 F.3d 782, 786 (9th Cir. 2011) (internal

26

quotation marks omitted).

27

requested includes more detail than that contained in the speeches

Here it appears that the document

28
23

1

and interviews cited by Plaintiff.

For example, the Attorney

2

General’s March 5, 2012 speech at Northwestern University referred

3

to “[i]nternational legal principles,” “generations-old legal

4

principles and Supreme Court decisions handed down during World

5

War II, as well as during the current conflict.”

6

H at 4.

Burke Dec., Ex.

However, the only specific legal citations in the speech

7
are to the Due Process Clause of the Constitution, § 702 of the
8
9

Foreign Intelligence Surveillance Act, and a general reference to

United States District Court
For the Northern District of California

10

the National Defense Authorization Act.

11

Moreover, legal citations are not “facts” that can be

12

acknowledged.

13

waived if an official discusses the “general subject matter” of

14

Burke Dec., Ex. H.

The D.C. Circuit has held that Exemption One is not

the records requested.

Public Citizen v. Dep’t of State, 11 F.3d

15
198, 201 (D.C. Cir. 1993).

Plaintiff makes much of the fact that

16
the unclassified White Paper prepared for Congress has been leaked
17
18
19

and acknowledged by the government.

However, there has been no

“official disclosure” of the White Paper.
Accordingly, the Court finds that the classified information

20
21

in the DOD memorandum is exempt from disclosure under Exemption

22

One.

23

However, because Plaintiff has stated that it only seeks

citations to understand the legal analysis underpinning the

24
memorandum, the next question is whether there is any segregable
25
26

non-classified information in the memorandum that would provide

27

Plaintiff with the information it seeks without disclosing any

28

classified information.
24

Defendant contends that there is not.

1

Plaintiff counters

2

that the only way to make this determination is through in camera

3

review.

4

applies to the DOD memorandum.

5

review the memorandum in camera.

As discussed below, Exemption Five to the FOIA clearly

6

2.

Accordingly, the Court declines to

Exemption Three

7
Exemption Three to the FOIA provides that matters that are
8
9

“specifically exempted from disclosure by statute” need not be

United States District Court
For the Northern District of California

10

disclosed.

11

withheld documents are exempted from disclosure by two statutes,

12

§ 1-2Ai(1) of the National Security Act (NSA), as amended, 50

13

U.S.C. § 3024(i)(1), and the CIA Act of 1949, 50 U.S.C. § 3035 et

14

5 U.S.C. § 552(b)(3).

Defendant asserts that the

seq.

15
The relevant portion of the NSA provides, “The Director of
16
National Intelligence shall protect intelligence sources and
17
18

methods from unauthorized disclosure.”

50 U.S.C. § 3024(i)(1).

19

It is well settled that this provision is an exempting statute

20

within the meaning of Exemption Three.

21

159, 167 (1985) (discussing prior version of NSA); Minier v. CIA,

22

88 F.3d 796, 801 (9th Cir. 1996) (same); Larson v. Dept. of State,

23

See CIA v. Sims, 471 U.S.

565 F.3d 857, 865 (D.C. Cir. 2009) (discussing current version of

24
NSA).

Defendant cites the declaration of Jennifer Hudson,

25
26

Director of the Information Management Division for the Office of

27

the Director of National Intelligence in support of its argument

28

that the DOD memorandum includes intelligence activities, sources
25

1

and/or methods.

The declaration states, “In reviewing the OLC

2

memorandum pertaining to DOD, I have determined that the

3

information constitutes intelligence sources and methods of IC

4

agencies--information that falls squarely within the scope of” the

5

NSA.

6

Hudson Dec. ¶ 29.

The CIA Act exempts from disclosure the

“functions” of its personnel.

50 U.S.C. § 3507.

Defendant

7
asserts that the CIA’s core functions “plainly include clandestine
8
9

intelligence activities and the utilization of intelligence

United States District Court
For the Northern District of California

10

sources and methods.”

11

been recognized as an exemption statute for purposes of Exemption

12

Three.

13
14

Hudson Dec. ¶ 25.

The CIA Act has also

Fitzgibbon v. CIA, 911 F.2d 755, 761 (D.C. Cir. 1990).

As in its response with respect to Exemption One, Plaintiff’s
primary opposition to Defendant’s claim under Exemption Three is

15
that Plaintiff seeks only legal citations that cannot be exempt.
16
Although there might be legal analysis that is segregable from the
17
18

exempt information, there is no way to make such a determination,

19

except through in camera review.

20

such a review because it finds that Exemption Five applies to the

21

DOD memorandum.

22
23

3.

The Court declines to conduct

Exemption Five

Exemption Five to the FOIA provides that “inter-agency or

24
intra-agency memorandums or letters which would not be available
25
26

by law to a party other than an agency in litigation with the

27

agency.”

5 U.S.C. § 552(b)(5).

The Exemption protects from

28

disclosure “those documents, and only those documents, normally
26

1

privileged in the civil discovery context.”

NLRB v. Sears,

2

Roebuck & Co. (Sears), 421 U.S. 132, 149 (1975).

3

that the DOD memorandum is wholly exempt from disclosure under

4

Exemption Five because it is subject to the deliberative process

5

privilege and the attorney-client privilege.

6

Defendant argues

a. Deliberative Process Privilege

7
The purpose of the deliberative process privilege “is to
8
9

allow agencies freely to explore possibilities, engage in internal

United States District Court
For the Northern District of California

10

debates, or play devil's advocate without fear of public

11

scrutiny.”

12

F.2d 916, 920 (9th Cir. 1992).

13

deliberative process privilege, such a document must be both

14

Assembly of State of Cal. v. Dep’t of Commerce, 968
“In order to be protected by the

‘predecisional’ and ‘deliberative.’”

Id. (citing National

15
Wildlife Fed'n v. U.S. Forest Service, 861 F.2d 1114, 1117 (9th
16
Cir. 1988)).
17
18
19
20
21
22
23
24
25
26
27

A “predecisional” document is one prepared in order
to assist an agency decisionmaker in arriving at his
decision, and may include recommendations, draft
documents, proposals, suggestions, and other
subjective documents which reflect the personal
opinions of the writer rather than the policy of the
agency. A predecisional document is a part of the
“deliberative process,” if the disclosure of the
materials would expose an agency's decisionmaking
process in such a way as to discourage candid
discussion within the agency and thereby undermine
the agency's ability to perform its functions.
Id. (internal quotation marks omitted).
Defendant submits the declarations of John Bies, Deputy
Assistant Attorney General in the Office of Legal Counsel, and

28
27

1

Kurt Tidd, Director of Operations for the Joint Staff at the

2

Pentagon, in support of its argument that the DOD memorandum is

3

protected by the deliberative process privilege.

4

declares, “The document is predecisional because it was prepared

5

in advance of Executive Branch decisions regarding a potential

6

Mr. Bies

military operation in a foreign country, and it is deliberative

7
because it contains confidential legal advice by OLC attorneys to
8
9

other Executive Branch officials in connection with potential

United States District Court
For the Northern District of California

10

decisions regarding such an operation.”

11

Tidd Dec. ¶ 13 (same).

12

disclosure of this document would undermine the deliberative

13

processes of the Government and chill the candid and frank

14

Bies Dec. ¶ 17.

See also

Mr. Bies further declares that “compelled

communications necessary for effective governmental decision-

15
making.”

Bies Dec. ¶ 17; Tidd Dec. ¶ 13.

16
Plaintiff counters that the government has actually adopted
17
18

the reasoning in the DOD memorandum and therefore cannot withhold

19

it pursuant to the deliberative process privilege.

20

exception to the privilege applies only “if an agency chooses

21

expressly to adopt or incorporate by reference an intra-agency

22

memorandum previously covered by Exemption 5 in what would

23

otherwise be a final opinion.”

However, this

Sears, 421 U.S. at 161.

24
Plaintiff relies on the Second Circuit’s decisions in
25
26

National Council of La Raza v. DOJ, 411 F.3d 250 (2d Cir. 2005),

27

to support its argument that the DOD memorandum is not protected

28

from disclosure by Exemption Five.
28

La Raza involved the DOJ’s

1

2002 decision that local law enforcement entities had the

2

authority to enforce the civil provisions of federal immigration

3

law.

4

repeated references to the reasoning and conclusions of an OLC

5

memorandum as the legal basis for the change in policy.

6

In that case, the Attorney General and his staff made

For

example, in response to a letter, the Attorney General stated that

7
he would “state clearly the policy of the Department on this
8
9

issue” and referred directly to opinions from the OLC.

Id. at

United States District Court
For the Northern District of California

10

353-54.

11

basis of the policy change in various press conferences.

12

Accordingly, the Second Circuit concluded that “the references to

13

the OLC Memorandum demonstrate that the Department regarded the

14

The Attorney General also cited the memorandum as the

Memorandum as the exclusive statement of, and justification for,

15
its new policy on the authority of states to enforce the civil
16
provisions of immigration law.”

Id. at 357.

17
18

In contrast, the speeches, press conferences and interviews

19

cited by Plaintiff do not refer to specific OLC advice.

20

the only time OLC is mentioned in Plaintiff’s exhibits is in a

21

“press gaggle” by the White House Press Secretary, Jay Carney.

22

that “press gaggle,” Mr. Carney discussed the President’s decision

23

In fact,

At

to provide to Congress “classified Office of Legal Counsel advice

24
related to the subject of the Department of Justice white paper.”
25
26

Burke Dec., Ex. KK at 2.

At most, this might support an argument

27

that the government has expressly relied on the leaked White Paper

28

because it has referred the press and the public to that document.
29

1

Stating that the President has provided Congress with OLC advice

2

“related to the subject of” the White Paper is far from an express

3

adoption of the analysis in the DOD memorandum.

4

Plaintiff provides no other public statements regarding OLC

5

memoranda prepared for the DOD or any other agency.

6

Moreover,

Accordingly, the Court finds that the requested memorandum is

7
protected by the deliberative process privilege.
8
b. Attorney-Client Privilege

9

United States District Court
For the Northern District of California

10

Exemption Five also incorporates the attorney-client

11

privilege.

12

established

13
14
15
16

Sears 421 U.S. at 154.

Such a privilege is

(1) When legal advice of any kind is sought (2) from
a professional legal adviser in his or her capacity
as such, (3) the communications relating to that
purpose, (4) made in confidence (5) by the client,
(6) are, at the client's instance, permanently
protected (7) from disclosure by the client or by the
legal adviser (8) unless the protection be waived.

17
18

United States v. Martin, 278 F.3d 988, 999 (9th Cir. 2002).

19

Defendant submits declarations stating that the DOD Memorandum

20

“reflects confidential communications between OLC and Executive

21

Branch clients made for the purpose of obtaining legal advice.”

22

Bies Dec. ¶ 18.

23

Plaintiff does not dispute that the attorney-client privilege

24
applies to the DOD memorandum.

Instead, it reiterates its

25
26

argument that the government has waived the privilege because it

27

has adopted the memorandum as policy.

28

the government waived the privilege when it disclosed the
30

Plaintiff also argues that

1

memorandum to Congress.

However, the standard of adoption for

2

purposes of waiving the attorney-client privilege is the same as

3

for the deliberative process privilege.

4

Justice v. DOJ, 697 F.3d 184, 207 (2d Cir. 2012) (“The reasons

5

underlying the absence of Exemption 5 protection for such a

6

See Brennan Ctr. for

document otherwise covered by the deliberative-process exemption

7
also underlie the agency's loss of the protection of the attorney8
9

United States District Court
For the Northern District of California

10
11

client privilege.”)

As discussed above, the government has not

adopted the DOD memorandum as policy.
Plaintiff’s argument with respect to the disclosure of the

12

DOD memorandum to Congress is also unavailing.

13

Circuit observed in Murphy v. Department of Army, if disclosure of

14

As the D.C.

classified information to Congress were to be considered a waiver

15
of privileges and exemptions, “executive agencies would inevitably
16
become more cautious in furnishing sensitive information to the
17
18

legislative branch.”

613 F.2d 1151, 1156 (D.C. Cir. 1979).

The

19

Murphy court concluded that this would be “at odds with public

20

policy which encourages broad congressional access to governmental

21

information.”

22

the extent that Congress has reserved to itself in section 552(c)

23

Id.

Accordingly, the D.C. Circuit held that “to

the right to receive information not available to the general

24
public, and actually does receive such information pursuant to
25
26
27

that section (whether in the form of documents or otherwise), no
waiver occurs of the privileges and exemptions which are available

28
31

1
2

to the executive branch under the FOIA with respect to the public
at large.”

3

5

Id.

The Court finds that the requested memorandum is protected by

4

the attorney-client privilege.

5

FOIA protects the DOD memorandum from disclosure on the basis of

6

Accordingly, Exemption Five to the

the deliberative process privilege and the attorney-client

7
privilege.
8
C.

9

Defendant further claims that it is exempt from disclosing

10
United States District Court
For the Northern District of California

Glomar Response

11

whether there are responsive documents with respect to any

12

agencies other than the DOD pursuant to Exemptions One and Three.

13

When responding to FOIA requests, the government may “provide a

14

Glomar response, refusing to confirm or deny the existence of

15
records where to answer the FOIA inquiry would cause harm
16
cognizable under a FOIA exception.”

Pickard v. DOJ, 653 F.3d 782

17
18

(9th Cir. 2011) (internal quotation marks and alteration marks

19

omitted).

20

agency may refuse to confirm or deny the existence or nonexistence

21

of requested records whenever the fact of their existence or

22

nonexistence is itself classified under this order or its

23

Section 3.6 of E.O. 13526 specifically provides, “An

predecessors.”

75 Fed. Reg. 707.

24
25
26
5

27

Section 552(c) is a provision of FOIA which provides, “This
section is not authority to withhold information from Congress.”

28
32

1.

1

Exemption One

With respect to Exemption One, Defendant presents evidence

2
3

that OLC opinions are requested “only when there is some practical

4

need for the advice.”

5

Attorneys of the Office from David J. Barron, Re: Best Practices

6

Bies Dec. ¶ 4 (citing Memorandum for

for OLC Legal Advice and Written Opinions (2010), available at

7
www.justice.gov/olc/pdf/olc-legal-advice-opinions.pdf (last
8
9

accessed April 3, 2014)).

Accordingly, Defendant contends that

United States District Court
For the Northern District of California

10

disclosing whether or not OLC provided a legal opinion to a

11

specific agency itself discloses which agencies considered

12

targeting al-Awlaki, were involved in the decision to do so, or

13

carried out the operation.

14

Defendant contends that such a

disclosure would tend to reveal “intelligence activities

15
(including covert action), intelligence sources or methods” and
16
“foreign relations or foreign activities of the United States,
17
18

including confidential sources.”

75 Fed. Reg. 707.

Information

19

pertaining to these topics can be properly classified pursuant to

20

E.O. 13526 §§ 1.4(c) and (d).

21
22
23

Plaintiff counters that it is not seeking classified
information and “it is willing to accept any document without
knowing what agency requested analysis, or what agency received

24
it.”

Plaintiff’s Cross-Motion at 24.

However, Plaintiff does not

25
26

provide any authority to support its proposal and the government

27

does not respond to the argument.

28

disclosure of the existence or non-existence of any documents
33

Moreover, the production of or

1

aside from the DOD memorandum, even if redacted as Plaintiff

2

describes, would disclose the number of agencies that received OLC

3

advice regarding the killing of al-Awlaki.

4
5
6

Accordingly, the Court finds that Defendant’s partial Glomar
response was justified under Exemption One.
2.

Exemption Three

7
Defendant further argues that Exemption Three applies because
8
9

the partial Glomar response is justified by the NSA and, to the

United States District Court
For the Northern District of California

10

extent the Glomar response concerns the CIA, the CIA Act.

11

discussed above, the NSA protects information that could

12

improperly reveal “intelligence sources and methods from

13

unauthorized disclosure.”

14

50 U.S.C. § 3024(i)(1).

As

The CIA Act

protects from disclosure the “functions” of the CIA, which

15
Defendant asserts include “clandestine intelligence activities and
16
the utilization of intelligence sources and methods.”

50 U.S.C.

17
18

§ 3507; Hudson Dec. ¶ 25.

19

As discussed above, with respect to the CIA, disclosing

20

whether the CIA received an OLC memorandum regarding the targeting

21

of al-Awlaki would disclose whether the CIA considered targeting

22

al-Awlaki, was involved in the decision to do so, or was involved

23

in the operation.

This could be considered a clandestine

24
intelligence activity.
25
26
27

Plaintiff counters that the CIA has acknowledged its
involvement in the killing of al-Awlaki.

28
34

Plaintiff cites a

1

statement made by Leon Panetta while he was Secretary of Defense.

2

While visiting troops, then-Secretary Panetta stated, “Having

3

moved from the CIA to the Pentagon, obviously I have a hell of a

4

lot more weapons available to me in this job than I had in the

5

CIA, although the Predators aren’t bad.”

6

Burke Dec., Ex. M at 2.

The implication that Predators (drones) were “available” to Mr.

7
Panetta when he was Director of the CIA is far from official
8
9

United States District Court
For the Northern District of California

10
11

confirmation that the CIA was involved in the targeted killing of
al-Awlaki.
Plaintiff also cites a February 10, 2013 appearance by

12

Representative Mike Rogers on Face the Nation.

13

program, when asked, “[H]as the administration been straight with

14

During that

Congress in sharing information on what the rules are about using

15
[drones],” Representative Rogers stated,
16
17
18
19
20
21
22
23
24
25
26
27

I think they have. . . . there’s a change in 2008 in
July under the previous administration, George Bush,
that changed the way we could use air strikes to target
belligerents or al Qaeda, who are planning to kill
Americans. That changed in July of ’08. And it ramped
up. And that was taken over when Barack Obama became
president. And as the chairman of the House
Intelligence Committee, even as a member, [I] was aware
and part of those discussions. And now as chairman,
even before they conducted that first air strike that
took Awlaki--and remember this is the guy that was
trying to kill some--a whole bunch of U.S. citizens over
Detroit on Christmas Day. This guy was a bad guy. So
our options were limited. This was a tool that we could
use to stop further terrorist attacks against Americans.
I supported it then. Monthly, I have my committee go to
the CIA to review them. I as chairman review every
single air strike that we use in the war on terror, both
from the civilian and the military side when it comes to
terrorist strikes. There is plenty of oversight here.
There’s not an American list somewhere overseas for
targeting. That does not exist.

28
35

1

Burke Dec., Ex. QQ at 7.

This statement does nothing to confirm

2

that the CIA was involved in the decision-making leading to the

3

killing of al-Awlaki.

4

by a Member of Congress does not constitute official disclosure by

5

an Executive Branch agency.

6

Moreover, as Defendant argues, a statement

See Frugone v. CIA, 169 F.3d 772, 774

(D.C. Cir. 1999) (“[W]e do not deem ‘official’ a disclosure made

7
by someone other than the agency from which the information is
8
9

United States District Court
For the Northern District of California

10

being sought.”).
Finally, Plaintiff asserts that the D.C. Circuit has found

11

that “the Government has already confirmed the CIA’s involvement

12

in the use of drones.”

13

ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013)).

14

Plaintiff’s cross motion at 25 (citing
In ACLU, the D.C.

Circuit addressed whether the CIA properly issued a Glomar

15
response to a request for any records held by it “pertaining to
16
the use of unmanned aerial vehicles (‘drones’) to carry out
17
18

targeted killings.”

710 F.3d at 425.

The CIA justified its

19

Glomar response under Exemptions One and Three, arguing that any

20

response would reveal whether the CIA “at least had an

21

intelligence interest in drone strikes.”

22

government declaration).

23

Id. at 429 (quoting

The D.C. Circuit held that public

statements cited by the ACLU “do not acknowledge that the CIA

24
itself operates drones” but found that the statements indicate
25
26

that the CIA “has an interest in drone strikes.”

27
28
36

Id. at 429-430.

1
2

Accordingly, the D.C. Circuit held that the Glomar response was
not “untenable.”

3

Id. at 432.

However, in this case, Plaintiff is seeking information

4

specifically related to the killing of al-Awlaki.

5

that the CIA has made public statements sufficient to disclose a

6

The finding

general “intelligence interest in drone strikes” is far from an

7
official disclosure that the CIA received OLC advice regarding the
8
9

decision to target al-Awlaki.

Accordingly, to the extent that the

United States District Court
For the Northern District of California

10

Glomar response pertains to the CIA, the Court finds that it is

11

also justified by the CIA Act under Exemption Three.

12
13
14

It is not clear how disclosure of which agencies received
advice from the OLC regarding the targeted killing of al-Awlaki
could improperly disclose intelligence sources and method

15
protected by the NSA.

However, as discussed above, the Court

16
finds that the Glomar response is justified in full by Exemption
17
18
19

One.

Accordingly, the Court need not decide whether it is also

justified by the NSA under Exemption Three.

20

D.

21

Plaintiff requests that the Court review in camera any

22

responsive memoranda Defendant identifies, noting that the Second

23

In Camera Review

Circuit ordered the government to make documents available to it

24
for such review.

The request is based on Plaintiff’s argument

25
26

that an in camera review “would conclusively prove the absurdity

27

of the Government’s claims that national security is jeopardized

28

by public knowledge--not of its general role in al-Awlaki’s death,
37

1

which has already been publicly admitted, nor of the precise

2

nature of that role, which could not possibly be deduced--but of

3

certain statutes and case law references.”

4
5
6

As discussed above, Defendant bears the burden of
establishing any claimed exemptions and Defendant may rely upon
declarations or affidavits to satisfy that burden “so long as the

7
evidence offered enables the court to make an independent
8
9

assessment of the government’s claim of exemption.”

Church of

United States District Court
For the Northern District of California

10

Scientology v. U.S. Dep’t of Army, 611 F.2d 738, 742 (9th Cir.

11

1979) (citing EPA v. Mink, 410 U.S. 73, 93 (1973)).

12

court finds the affidavits or testimony submitted too generalized

13

to establish eligibility for an exemption” may it exercise its

14

Only if “the

discretion to “examine the disputed documents in camera for a

15
first-hand determination of their exempt status.”

Church of

16
Scientology, 611 F.2d at 742 (citing 5 U.S.C. § 552(a)(4)(B)).
17
18

Defendant counters that in camera review is not appropriate

19

because its affidavits are sufficient to establish that the DOD

20

Memorandum was exempt from disclosure under the FOIA.

21

discussed above, the Court finds that any OLC memoranda are

22

protected from disclosure by Exemption Five.

23

As

Accordingly, in

camera review of the memorandum is not required.

24
CONCLUSION
25
26
27

For the reasons stated above, the Court GRANTS Defendant’s
motion for summary judgment (Docket No. 63) and DENIES Plaintiff’s

28
38

1
2
3

cross-motion for summary judgment (Docket No. 66).

The Clerk of

the Court shall enter judgment and close the file.
IT IS SO ORDERED.

4
5
6

Dated:

4/11/2014

CLAUDIA WILKEN
United States District Judge

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9

United States District Court
For the Northern District of California

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