THE NEW YORK TIMES COMPANY, CHARLIE SAVAGE, SCOTT SHANE, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Plaintiffs-Appellants,
UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF DEFENSE, CENTRAL INTELLIGENCE AGENCY, Defendants-Appellees
Argued June 23, 2015
Appeal from the October 31, 2014, decision and order of the United States District Court for the Southern District of New York (Colleen McMahon, District Judge), adjudicating, pursuant to a remand from this Court, Freedom of Information Act requests for documents prepared by the Office of Legal Counsel of the United States Department of Justice concerning targeted killings by drone aircraft.The District Court ordered disclosure of all or portions of some documents and denied disclosure of other documents. The appeal also concerns disclosure of redacted portions of the District Court's sealed opinion and disclosure of redacted portions of the transcript of the June 23, 2015, oral argument present by the Government to the Court ex parte and in camera.
Judgment AFFIRMED; redacted portions of District Court opinion to remain UNDISCLOSED, except for three paragraphs (as redacted pursuant to Part IV of this opinion) that the District Court wishes to disclose; and redacted portions of transcript of June 23, 2015, oral argument to remain UNDISCLOSED; case REMANDED.
David E. McCraw, The New York Times Company, New York, N.Y. (Jeremy A. Kutner, New York, N.Y., on the brief), for Plaintiffs-Appellants The New York Times Company, Charlie Savage, and Scott Shane.
Jameel Jaffer, American Civil Liberties Union Foundation, New York, N.Y. (Hina Shamsi, Dror Ladin, American Civil Liberties Union Foundation, New York, N.Y., Eric Ruzicka, Colin Wicker, Michael Weinbeck, Dorsey & Whitney LLP, Minneapolis, Minn., on the brief), for Plaintiffs-Appellants American Civil Liberties Union and American Civil Liberties Union Foundation.
Sarah S. Normand, Asst. U.S. Atty., New York, N.Y. (Preet Bharara, U.S. Atty., New York, NY, Benjamin C. Mizer, Acting Asst. U.S. Atty. General, Matthew M. Collette, Sharon Swingle, Thomas Pulham, Civil Division, U.S. Dep't of Justice, Washington, D.C., on the brief), for Defendants-Appellees.
Lawrence S. Lustberg, Joseph A. Pace, Gibbons P.C., Newark NJ, for amici curiae Senators Ron Wyden, Rand Paul, Jeff Merkley, and Martin Heinrich, in support of Plaintiffs-Appellants.
Before: NEWMAN, CABRANES, and POOLER, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
This appeal from the October 31, 2014, decision and order of the District Court for the Southern District of New York (Colleen McMahon, District Judge) concerns the second round in a protracted Freedom of Information Act (" FOIA" ) litigation seeking disclosure of documents related to targeted killings by the use of drone aircraft. On the prior appeal, see New York Times Co. v. U.S. Dep't of Justice, 756 F.3d 100 (2d Cir. 2014) (" NYTimes I " ), we ordered disclosure of a 2010 document known as the " OLC27 DOD Memorandum,"
a 41-page legal opinion prepared by the Office of Legal Counsel (" OLC" ) in the Department of Justice for the Department of Defense (" DOD" ), advising as to the legality of targeted drone attacks. See id. at 112-21. We ruled that prior disclosures by senior officials of the Government, plus the release of what was referred to as " the White Paper," resulted in waiver of all applicable exemptions for protection of the OLC3 DOD Memorandum.
We also remanded the case to the District Court to review in camera several other documents prepared by the OLC that the Government had identified as responsive to the pending FOIA requests but had withheld on various grounds. We remanded for " determination of waiver of privileges and appropriate redaction." Id. at 124. The District Court ruled, in a partially redacted opinion, that the Government had properly invoked Exemption 1 (documents classified by executive order), Exemption 3 (intelligence sources and methods protected by statute), and Exemption 5 (document protected by the deliberative process or attorney-clients privilege), and that most of these documents should not be disclosed. That ruling is challenged on the pending appeal. The appeal also concerns disclosure of the redacted portions of the District Court's opinion, including three paragraphs that the District Court wishes to disclose, and disclosure of redacted portions of the transcript of the June 23, 2015, oral argument presented by the Government to this Court ex parte and in camera.
The background of the litigation was extensively set forth in NYTimes I, 756 F.3d at 104-11, and need not be repeated here. We recount only developments since our prior decision.
Paragraph (3) of the " Conclusion" of NYTimes I provided that " other legal memoranda prepared by OLC and at issue here must be submitted to the District Court for in camera inspection and determination of waiver of privileges and appropriate redaction." Id. at 124. In conformity with that direction, the District Court examined in camera eleven sealed documents, identified as Exhibits A, B, C, E, F, G, H, I, J, K, and L to a sealed affidavit submitted by John E. Bies, Deputy Assistant Attorney General in the OLC. Exhibit D is the OLC-DOD Memorandum, already disclosed.
On October 31, 2014, the District Court filed under seal its opinion adjudicating claims for disclosure of these documents. The District Court's opinion was sealed because, in discussing the reasons for refusing
disclosure of most of the documents at issue, the Court necessarily discussed matters entitled to remain secret. The Court submitted its opinion to the Government ex parte for classification review. The Government requested redaction of several portions of the District Court's opinion. The District Court agreed to all of the redactions proposed by the Government with the exception of three paragraphs on page 9 of the Court's opinion. Judge McMahon continued those paragraphs under seal, however, to abide the outcome of appellate review of her decision to disclose them. We will recount below the District Court's rulings with respect to each of the eleven documents. The District Court certified its rulings for immediate entry of a partial judgment under Rule 54(b) of the Federal Rules of Civil Procedure.
After the Appellants and four United States Senators, as amici curiae, filed their briefs, the Government filed a redacted version of its brief and filed an unredacted version ex parte and in camera. The Government later sought the opportunity to present oral argument to the Court ex parte and in camera. We granted that request and heard Government counsel ex parte and in camera on June 23, 2015, just prior to hearing both sides in open court. On June 25, we entered two sealed orders, both sent to the Government ex parte. These orders afforded the Government an opportunity to submit ex parte and in camera a brief and a supplemental declaration concerning matters that the Court had raised with Government counsel at the June 23 ex parte and in camera hearing. On July 7, the Government filed ex parte and in camera a transcript of the June 23 argument, together with a redacted version of that transcript, which was filed in the normal course (" June 23 redacted tr." ). See Dkt. No. 119. On July 17, the Government filed its response to our June 25 ...