13-422-cv The New York Times Company V. United States
Case: 13-422Document: 229Page: 106/23/201412546599713-422-cvThe New York Times Company v. United StatesUNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUITAugust Term 2013Submitted: October 1, 2013Decided: June 23, 2014Docket Nos. 13-422(L), 13-445(Con)- - - - - - - - - - - - - - - - - - - - - -THE NEW YORK TIMES COMPANY, CHARLIE SAVAGE,SCOTT SHANE, AMERICAN CIVIL LIBERTIES UNION,AMERICAN CIVIL LIBERTIES UNION FOUNDATION,Plaintiffs-Appellants,v.UNITED STATES DEPARTMENT OF JUSTICE, UNITEDSTATES DEPARTMENT OF DEFENSE, CENTRALINTELLIGENCE AGENCY,Defendants-Appellees.- - - - - - - - - - - - - - - - - - - - - Before: NEWMAN, CABRANES, and POOLER, Circuit Judges.Appeal from the January 24, 2013, judgment of the UnitedStates District Court for the Southern District of New York(Colleen McMahon, District Judge), dismissing, on motion forsummary judgment, a suit under the Freedom of Information Actseeking documents relating to targeted killings of United Statescitizens carried out by drone aircraft.We conclude that (1) a redacted version of the OLC-DOD1
Case: 13-422Document: 229Page: 206/23/2014125465997Memorandum must be disclosed, (2) a redacted version of theclassified Vaughn index (described below) submitted by OLC mustbe disclosed, (3) other legal opinions prepared by OLC must besubmitted to the District Court for in camera inspection anddetermination of waiver of privileges and appropriate ponsesareinsufficiently justified, (5) DOD and CIA must submit Vaughnindices to the District Court for in camera inspection ateredaction, and (6) the OIP search was sufficient.We thereforeaffirm in part, reverse in part, and remand.David E. McCraw, The New York TimesCompany, New York, N.Y. (StephenN. Gikow, New York, N.Y., on thebrief), for e Savage, and Scott Shane.Jameel1Jaffer,AmericanCivilThe double underlined portions of this sealed opinion arepassages that have been redacted from the publicly availableopinion filed today.These portions appear with doubleunderlining to assist those involved in any further review ineasily identifying the redactions from the publicly availableopinion that were made at the request of the Government topreserve its opportunities for further appellate review.2
Case: 13-422Document: 229Page: 306/23/2014125465997Liberties Union Foundation, NewYork, N.Y. (Hina Shamsi, Brett MaxKaufman, American Civil LibertiesUnion Foundation, New York, N.Y.,Joshua Colangelo-Bryan, Dorsey &Whitney LLP, New York, N.Y., EricRuzicka, Colin Wicker, Dorsey &Whitney LLP, Minneapolis, M.N., berties Union and American CivilLiberties Union Foundation.Sharon Swingle, U.S. Appellate StaffAtty., Washington, D.C. (PreetBharara, U.S. Atty., Sarah S.Normand, Asst. U.S. Atty., NewYork, N.Y., Stuart F. Delery,Acting Asst. U.S. Atty. General,Washington, D.C., on the brief),for Defendants-Appellees.(Bruce D. Brown, Mark Caramanica,AaronMackey,TheReportersCommittee for Freedom of Press,Arlington, V.A., for amicus curiaeTheReportersCommitteeforFreedom of Press, in support ofPlaintiffs-Appellants.)(Marc Rotenberg, Alan Butler, vacyInformation Center, Washington,D.C., for amicus curiae ElectronicPrivacy Information Center, insupport of Plaintiffs-Appellants.)JON O. NEWMAN, Circuit Judge:This appeal of a judgment dismissing challenges to “FOIA”)
Case: 13-422Document: 229Page: 406/23/2014125465997presents important issues arising at the intersection of rgovernment's activities and the legitimate interests of theExecutive Branch in maintaining secrecy about matters of ausetheinformation sought concerns targeted killings of United Statescitizens carried out by drone aircraft.Plaintiffs-AppellantsThe New York Times Company and New York Times reporters CharlieSavage and Scott Shane (sometimes collectively “N.Y. Times”), ilLiberties Union Foundation (collectively “ACLU”) appeal from theJanuary 24, 2013, judgment of the United States District Courtfor the Southern District of New York (Colleen McMahon, nt,theirconsolidated FOIA suits. See New York Times Co. v. U. S. Dep’tof Justice (“Dist. Ct. Op.”), 915 F. Supp. 2d 508 (S.D.N.Y.2013).The suits were brought against the Defendants-AppelleesUnited States Department of Justice (“DOJ”), the United StatesDepartment of Defense (“DOD”), and the Central Intelligence4
Case: 13-422Document: 229Page: 506/23/2014125465997Agency (“CIA”) (sometimes collectively the “Government”).We emphasize at the outset that the Plaintiffs’ lawsuits seattacks, notably, documents prepared by DOJ’s Office of LegalCounsel (“OLC”) setting forth the Government’s reasoning as tothe lawfulness of the attacks.The issues primarily concern the validity of FOIA responsesthat (a) decline to reveal even the existence of any documentsresponsive to particular requests (so-called “Glomar responses”(described below)), (b) acknowledge the existence of responsivedocuments but decline to reveal either the number or descriptionof such documents (so-called “no number, no-list” mptionsorprivileges claimed to prohibit disclosure of various OLC-DODMemorandum and other OLC legal opinions, and (d) challenge theadequacy of a FOIA search conducted by one office of DOJ.We conclude that (1) a redacted version of the OLC-DOD5
Case: 13-422Document: 229Page: 606/23/2014125465997Memorandum must be disclosed, (2) a redacted version of theclassified Vaughn index (described below) submitted by OLC mustbe disclosed, (3) other legal opinions prepared by OLC must besubmitted to the District Court for in camera inspection anddetermination of waiver of privileges and appropriate onsesareinsufficiently justified, (5) DOD and CIA must submit Vaughnindices to the District Court for in camera inspection ateredaction, and (6) the Office of Information Policy (“OIP”)search was sufficient.We therefore affirm in part, reverse inpart, and remand.BackgroundThe FOIA requests at issue in this case focus primarily onthe drone attacks in Yemen that killed Anwar al-Awlaki2 and SamirKhan in September 2011 and al-Awlaki’s teenage son, Abdulrahmanal-Awlaki, in October 2011. All three victims were United States2This spelling, which we adopt (except in quotations), is usedby the District Court and in the Government’s brief. The briefs ofN.Y. Times and ACLU and numerous documents in the record render thename “al-Aulaqi.”6
Case: 13-422Document: 229Page: 706/23/2014125465997citizens either by birth or naturalization.Statutory Framework. FOIA provides, with exceptions notrelevant to this case, that an “agency, upon any request forrecords which (i) reasonably describes such records and (ii) ismade in accordance with published rules . . . , shall make therecordspromptlyavailable§ 552(a)(3)(A) (2013).toanyperson.”5U.S.C.FOIA contains several exemptions, threeof which are asserted in this case.Exemption 1 exempts records that are “(A) specificallyauthorized under criteria established by an Executive order tobe kept secret in the interest of national defense or foreignpolicy and (B) are in fact properly classified pursuant to suchExecutive order.” 5 U.S.C. § 552(b)(1) (2013).Executive Order13526 allows an agency to withhold information that (1) “pertainsto” one of the categories of information specified in theExecutive order, including “intelligence activities (includingcovert action),” “intelligence sources or methods,” or “foreignrelations or foreign activities of the United States” and (2) if“unauthorized disclosure of the information could reasonably be7
Case: 13-422Document: 229Page: 806/23/2014125465997expected to cause identifiable and describable damage to thenational security.”Executive Order No. 13526 § 1.1(a)(3)-(4),1.4(c)-(d), 75 Fed. Reg. 708, 709 (Dec. 29, 2009).Exemption 3 exempts records that are “specifically exemptedfrom disclosure by [another] statute” if the relevant statuteeither “requires that the matters be withheld from the public insuch a manner as to leave no discretion on the issue” or“establishes particular criteria for withholding or refers be(2013).potentially relevant here.withheld.”Twosuch5U.S.C.statutesareThe Central Intelligence Agency Actof 1949, as amended, provides that the Director of NationalIntelligence “shall be responsible for protecting intelligencesources or methods,” and exempts CIA from “any other law whichrequire[s] the publication or disclosure of the es,ornumbersofpersonnel employed by the Agency.” 50 U.S.C. § 3507 (2013). TheNational Security Act of 1947, 50 U.S.C. § 3024-1(i)(1) (2013),exempts from disclosure “intelligence sources and methods.”8
Case: 13-422Document: 229Exemption5Page: agencymemorandums or letters which would not be available by law to aparty other than an agency in litigation with the agency.” 5U.S.C. § 552(b)(5) (2013).Exemption 5 encompasses traditionalcommon law privileges against disclosure, including the attorneyclient and deliberative process privileges.See NationalCouncil of La Raza v. Dep't of Justice, 411 F.3d 350, 356 (2dCir. 2005).The N.Y. Times FOIA requests and Government responses.Shane and Savage, New York Times reporters, submitted separateFOIA requests to OLC.Shane’s request, submitted in June 2010,sought:all Office of Legal Counsel opinions or memoranda since2001 that address the legal status of targetedkillings, assassination, or killing of people suspectedof ties to Al-Qaeda or other terrorist groups byemployees or contractors of the United Statesgovernment.Joint Appendix (“JA”) 296-97.Savage’s request, submitted in October 2010, sought:a copy of all Office of Legal Counsel memorandumsanalyzing the circumstances under which it would belawful for United States armed forces or intelligence9
Case: 13-422Document: 229Page: 1006/23/2014125465997community assets to target for killing a United Statescitizen who is deemed to be a terrorist.JA 300-01.OLC denied Shane’s request.With respect to the portion ofhis request that pertained to DOD, OLC initially submitted a socalled “no number, no list” response3 instead of submitting theusual Vaughn index,4 numbering and identifying by title anddescription documents that are being withheld and specifying request, but neither numbers nor identifies them by title ordescription.OLC said that the requested documents pertainingto DOD were being withheld pursuant to FOIA exemptions 1, 3, and5.As to documents pertaining to agencies other than DOD, OLC3The term was apparently coined by CIA, see Bassiouni v. CIA, 392F.3d 244, 246 (7th Cir. 2004), and the CIA’s use of no number, no listresponses to FOIA requests has been considered by district courts inthe District of Columbia. See National Security Counselors v. CIA, 898F. Supp. 2d 233, 284-85 (D.D.C. 2012); Jarvik v. CIA, 741 F. Supp. 2d106, 123 (D.D.C. 2010).4The term derives from Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.1973).10
Case: 13-422Document: 229Page: 1106/23/2014submitted a so-called “Glomar response.”5125465997This type of responseneither confirms nor denies the existence of documents responsiveto the request. See Wilner v. National Security Agency, 592 F.3d60, 68 (2d Cir. 2009).OLC stated that the Glomar response wasgiven “because the very fact of the existence or nonexistence ofsuch documents is itself classified, protected from disclosureby statute, and privileged” under 5 U.S.C. § 552(b)(1), (3), (5).CIA confirmed that it requested DOJ to submit a Glomar responseon its behalf.6OLC also denied Savage’s request.Declining to submiteither a Vaughn index or even a no number, no list response, OLCsubmitted a Glomar response, stating that, pursuant to Exemptions1, 3, and 5, it was neither confirming nor denying the existence5The term derives from the Hughes Glomar Explorer, a vessel builtto recover a sunken Soviet submarine. See Phillippi v. CIA, 546 F.2d1009, 1010-12 (D.C. Cir. 1976). A Glomar response was first used in1992 in a case challenging a Government agency’s refusal to confirm ordeny the existence of certain materials requested under FOIA, seeBenavides v. DEA, 968 F.2d 1243, 1245 (D.C. Cir. 1992).6CIA made one exception to its request that OLC submit a Glomarresponse. Because CIA’s involvement in the operation that resulted inthe death of Osama bin Laden had been acknowledged and was notclassified, the agency asserted that any OLC documents related to theagency’s involvement in that operation would not be covered by aGlomar response, but added that there were no such documents.11
Case: 13-422Document: 229Page: 1206/23/2014125465997of documents described in the request. Unlike its letter denyingthe Shane request, OLC’s response to the Savage request did notidentify any responsive documents relating to DOD.During the course of thelitigation, OLC modified itsresponses to the Shane and Savage requests by identifying theexistence of one document pertaining to DOD, what the DistrictCourt and the parties have referred to as the OLC-DOD Memorandum,but claimed that this document was exempt from disclosure underExemption 5.Because the OLC-DOD Memorandum was classified, itwas presumably also withheld under Exemption 1.As to all otherDOD documents, it is not clear whether OLC was continuing toassert a Glomar response, as it had made to Shane, or a nonumber, no list response, as it had made to Savage.The ACLU FOIA requests and Government responses. In es:DOJ(including two of DOJ’s component agencies, OIP and OLC), . All records created after September 11, 2001, pertainingto the legal basis in domestic, foreign, and internationallaw upon which U.S. citizens can be subjected to targetedkillings, whether using unmanned aerial vehicles (“UAVs” or12
Case: 13-422Document: 229Page: 1306/23/2014125465997“drones) or by other means.2. All records created after September 11, 2001, pertainingto the process by which U.S. citizens can be designated fortargeted killings, including who is authorized to make suchdeterminations and what evidence is needed to support them.3. All memoranda, opinions, drafts, correspondence, andother records produced by the OLC after September 11, 2001,pertaining to the legal basis in domestic, foreign, andinternational law upon which the targeted killing of Anwaral-Awlaki was authorized and upon which he was killed,including discussions of:A. The reasons why domestic-law prohibitions on murder,assassination, and excessive use of force did notpreclude the targeted killing of al-Awlaki;B. The protection and requirements imposed by the FifthAmendment Due Process Clause;C. The reasons why International-law prohibitions onextrajudicial killing did not preclude the targetedkilling of al-Awlaki;D. The applicability (or non-applicability) of theTreason Clause to the decision whether to target alAwlaki;E. The legal basis authorizing the CIA, JSOC, or otherU.S. Government entities to carry out the targetedkilling of Anwar Al-Awlaki;F. Any requirement for proving that al-Awlaki posed animminent risk of harm to others, including anexplanation of how to define imminence in this context;andG. Any requirement that the U.S. Government firstattempt to capture Al-Awlaki before killing him.13
Case: 13-422Document: 229Page: 1406/23/20141254659974. All documents and records pertaining to the factual basisfor the targeted killing of Al-Awlaki, including:A. Facts supporting a belief that al-Awlaki posed animminent threat to the United States or United Statesinterests;B. Facts supporting a belief that al-Awlaki could notbe captured or brought to justice using justification for killings persons other than alAwlaki, including other U.S. citizens, while attemptingto kill al-Awlaki himself;D. Facts supporting the assertion that al-Awlaki wasoperationally involved in al Qaeda, rather than beinginvolved merely in propaganda activities; andE. Any other facts relevant to the decision toauthorize and execute the targeted killings of alAwlaki.5. All documents and records pertaining to the factual basisfor the killing of Samir Khan, including whether he wasintentionally targeted, whether U.S. Government personnelwere aware of his proximity to al-Awlaki at the time themissiles were launched at al-Awlaki’s vehicle, whether theUnited States took measures to avoid Khan’s death, and anyother facts relevant to the decision to kill Khan or thefailure to avoid causing his death.6. All documents and records pertaining to the factual basisfor the killing of Abdulrahman al-Awlaki, including whetherhe was intentionally targeted, whether U.S. Governmentpersonnel were aware of his presence when they launched amissile or missiles at his location, whether he was targetedon the basis of his kinship with Anwar al-Awlaki, whetherthe United States took measures to avoid his death, and any14
Case: 13-422Document: 229Page: 1506/23/2014125465997various documents concerning the targeted killings of UnitedStates citizens in general and al-Awlaki, his son, and Khan inparticular.Both OLC and CIA initially submitted Glomar ponsivedocuments, pursuant to Exemptions 1, 3, and 5.DOD initially stated that it could not respond to therequest within the statutory time period because of the scope andcomplexity of the request.During the course of the litigation, the Government agenciesmodified their original responses in light of statements bysenior Executive Branch officials on the legal and policy issuespertaining to United States counterterrorism operations and thepotential use of lethal force by the United States Governmentagainst senior operational leaders of al-Qaeda who are UnitedStates citizens.OLC provided ACLU with a Vaughn index of sixty unclassifiedother factors relevant to the decision to kill him or thefailure to avoid causing his death.JA 252-53.15
Case: 13-422responsiveDocument: 229documents,Page: eflecting internal deliberations concerning the legal basis forthe use of lethal force against United States citizens in aforeign country in certain circumstances.OLC withheld thesedocuments pursuant to Exemption 5.OLC also submitted a no number, no list response as toclassified documents, stating that it could not provide thenumber or description of these documents because that informationwas protected from disclosure by Exemptions 1 and 3.OLC diddescribe one of these documents as an “OLC opinion related to istantAttorney General, OLC ¶ 38 (“Bies Decl.”), JA 279, which itwithheld in its entirety under Exemptions 1 and 3.This isapparently not the OLC-DOD Memorandum, which OLC said was exemptfrom disclosure under Exemption 5. That this document is not theOLC-DOD Memorandum is confirmed by OLC’s assertion that thisdocument “cannot be further identified or described on the underExemptions 1 and 5.OIP located one responsive document, a set of talking
August Term 2013 Submitted: October 1, 2013 Decided: June 23, 2014 . Normand, Asst. U.S. Atty., New York, N.Y., Stuart F. Delery, . not challenge the lawfulness of drone attacks or targeted killings. I
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