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American Civil Liberties Union v. United States Department of Justice

United States Court of Appeals, Second Circuit

December 20, 2016

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.

          Argued: October 25, 2016

         Appeal and cross-appeal from the July 23, 2015, judgment of the District Court for the Southern District of New York (Colleen McMahon, now-Chief Judge) in a case brought under the Freedom of Information Act. The judgment granted in part and denied in part disclosure of documents sought from the Office of Legal Counsel of the Department of Justice, the Central Intelligence Agency, and the Department of Defense concerning drone strikes.

         Affirmed on the appeal, reversed on the cross-appeal, 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 Plaintiffs-Appellants-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-Cross-Appellants.

          Before: NEWMAN, CABRANES, and POOLER, Circuit Judges.

          JON O. NEWMAN, Circuit Judge.

         This is the third appellate round of a case brought under the Freedom of Information Act ("FOIA"). The case began in February 2012 to challenge responses to FOIA requests made in October 2011 to the Office of Legal Counsel ("OLC") of the Department of Justice ("DOJ"), the Central Intelligence Agency ("CIA"), and the Department of Defense ("DOD"). The requests were made by the American Civil Liberties Union and the American Civil Liberties Foundation (collectively "ACLU"). The requests were also made by The New York Times and two of its reporters, but they are not parties in the pending appeal.

         ACLU appeals and DOJ cross-appeals from the July 23, 2015, judgment of the District Court for the Southern District of New York (Colleen McMahon, now-Chief Judge). That judgment ruled that OLC, CIA, and DOD were entitled to withhold from disclosure a number of documents concerning drone strikes -- lethal attacks by unmanned aircraft. The judgment also ruled that OLC must disclose all or portions of four documents[1] and CIA must disclose all or portions of three documents[2] concerning such strikes. ACLU has narrowed its request to 59 documents, [3] including the seven documents ordered disclosed in full or in part. ACLU's appeal challenges the District Court's ruling to the extent it upheld nondisclosure of 52 documents, and the Government's cross-appeal challenges the ruling to the extent it ordered disclosure, in whole or in part, of seven documents.

         We conclude that none of the 52 withheld documents must be disclosed, and that the seven documents ordered disclosed may also be withheld. We therefore affirm on the appeal, reverse on the cross-appeal, and remand for entry of a revised judgment.

         Litigation history. Our first encounter with this litigation concerned consolidated appeals from the January 24, 2013, judgment of the District Court, dismissing on motion for summary judgment two consolidated suits, one brought by The New York Times and two of its reporters and another brought by ACLU. See New York Times Co. v. U.S. Dep't of Justice, 915 F.Supp.2d 508 (S.D.N.Y. 2013), modified by 2013 WL 238928 (S.D.N.Y. Jan. 22, 2013). On those consolidated appeals, we ordered disclosure of a redacted version of the "OLC-DOD Memorandum, " a 41-page document, prepared by OLC, arguing the legal justification for the drone strikes that killed Anwar al-Awlaki, Samir Khan, and al-Awlaki's son, Abdulrahman al-Awlaki. See New York Times Co. v. U.S. Dep't of Justice, 756 F.3d 100, 124 (Conclusion ¶ 1) (2d Cir. 2014) (revised opinion) ("NYTimes I"). All three victims were United States citizens, either by birth or naturalization. Pertinent to the pending appeal, NYTimes I also ordered:

• OLC to disclose some of the titles and descriptions of documents listed on its Vaughn index, [4] id. (Conclusion 2);
•OLC to submit various legal memoranda to the District Court for "in camera inspection and determination of waiver of privileges and appropriate redaction, " id. (Conclusion ¶3) (italics added); and
• CIA and DOD to submit Vaughn indices to the District Court for "in camera inspection and determination of appropriate disclosure and appropriate redaction, " id. (Conclusion 5).

         In response to the Government's petition for rehearing of NYTimes I, we made a slight revision of that opinion, made slight further redactions of the OLC-DOD Memorandum, and permitted the Government to withhold from disclosure the titles and descriptions of some documents listed on the OLC Vaughn index, confirming a withholding authorized by an order issued May 28, 2014. See New York Times Co. v. U.S. Dep't of Justice, 756 F.3d 97, 99 (2d Cir. 2014) (first opinion on Government's petition for rehearing of NYTimes I). We also bifurcated for later decision the ...


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