New York Times Co. v. United States Deparment of Justice

13-422-cv
The New York Times Company v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2013
Submitted: October 1, 2013 Decided: June 23, 2014
Docket Nos. 13-422(L), 13-445(Con)
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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, UNITED
STATES DEPARTMENT OF DEFENSE, CENTRAL
INTELLIGENCE AGENCY,
Defendants-Appellees.
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Before: NEWMAN, CABRANES, and POOLER, Circuit Judges.
Appeal from the January 24, 2013, judgment of the United
States District Court for the Southern District of New York
(Colleen McMahon, District Judge), dismissing, on motion for
summary judgment, a suit under the Freedom of Information Act
seeking documents relating to targeted killings of United States
citizens carried out by drone aircraft.
We conclude that (1) a redacted version of the OLC-DOD
1
Memorandum must be disclosed, (2) a redacted version of the
classified Vaughn index (described below) submitted by OLC must
be disclosed, (3) other legal opinions prepared by OLC must be
submitted to the District Court for in camera inspection and
determination of waiver of privileges and appropriate redaction,1
(4) the Glomar and “no number, no list” responses are
insufficiently justified, (5) DOD and CIA must submit Vaughn
indices to the District Court for in camera inspection and
determination of appropriate disclosure and appropriate
redaction, and (6) the OIP search was sufficient. We therefore
affirm in part, reverse in part, and remand.
David E. McCraw, The New York Times
Company, New York, N.Y. (Stephen
N. Gikow, New York, N.Y., on the
brief), for Plaintiffs-Appellants
The New York Times Company,
Charlie Savage, and Scott Shane.
Jameel Jaffer, American Civil
1
The double underlined portions of this sealed opinion are
passages that have been redacted from the publicly available
opinion filed today. These portions appear with double
underlining to assist those involved in any further review in
easily identifying the redactions from the publicly available
opinion that were made at the request of the Government to
preserve its opportunities for further appellate review.
2
Liberties Union Foundation, New
York, N.Y. (Hina Shamsi, Brett Max
Kaufman, American Civil Liberties
Union Foundation, New York, N.Y.,
Joshua Colangelo-Bryan, Dorsey &
Whitney LLP, New York, N.Y., Eric
Ruzicka, Colin Wicker, Dorsey &
Whitney LLP, Minneapolis, M.N., on
the brief), for Plaintiffs-
Appellants American Civil
Liberties Union and American Civil
Liberties Union Foundation.
Sharon Swingle, U.S. Appellate Staff
Atty., Washington, D.C. (Preet
Bharara, U.S. Atty., Sarah S.
Normand, Asst. U.S. Atty., New
York, 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,
Aaron Mackey, The Reporters
Committee for Freedom of Press,
Arlington, V.A., for amicus curiae
The Reporters Committee for
Freedom of Press, in support of
Plaintiffs-Appellants.)
(Marc Rotenberg, Alan Butler, Ginger
McCall, David Brody, Julia
Horwitz, Electronic Privacy
Information Center, Washington,
D.C., for amicus curiae Electronic
Privacy Information Center, in
support of Plaintiffs-Appellants.)
JON O. NEWMAN, Circuit Judge:
This appeal of a judgment dismissing challenges to denials
of requests under the Freedom of Information Act (“FOIA”)
3
presents important issues arising at the intersection of the
public's opportunity to obtain information about their
government's activities and the legitimate interests of the
Executive Branch in maintaining secrecy about matters of national
security. The issues assume added importance because the
information sought concerns targeted killings of United States
citizens carried out by drone aircraft. Plaintiffs-Appellants
The New York Times Company and New York Times reporters Charlie
Savage and Scott Shane (sometimes collectively “N.Y. Times”), and
the American Civil Liberties Union and the American Civil
Liberties Union Foundation (collectively “ACLU”) appeal from the
January 24, 2013, judgment of the United States District Court
for the Southern District of New York (Colleen McMahon, District
Judge) dismissing, on motions for summary judgment, their
consolidated FOIA suits. See New York Times Co. v. U. S. Dep’t
of Justice (“Dist. Ct. Op.”), 915 F. Supp. 2d 508 (S.D.N.Y.
2013). The suits were brought against the Defendants-Appellees
United States Department of Justice (“DOJ”), the United States
Department of Defense (“DOD”), and the Central Intelligence
4
Agency (“CIA”) (sometimes collectively the “Government”).
We emphasize at the outset that the Plaintiffs’ lawsuits do
not challenge the lawfulness of drone attacks or targeted
killings. Instead, they seek information concerning those
attacks, notably, documents prepared by DOJ’s Office of Legal
Counsel (“OLC”) setting forth the Government’s reasoning as to
the lawfulness of the attacks.
The issues primarily concern the validity of FOIA responses
that (a) decline to reveal even the existence of any documents
responsive to particular requests (so-called “Glomar responses”
(described below)), (b) acknowledge the existence of responsive
documents but decline to reveal either the number or description
of such documents (so-called “no number, no-list” responses
(described below)), (c) assert various FOIA exemptions or
privileges claimed to prohibit disclosure of various documents
that have been publicly identified, notably the OLC-DOD
Memorandum and other OLC legal opinions, and (d) challenge the
adequacy of a FOIA search conducted by one office of DOJ.
We conclude that (1) a redacted version of the OLC-DOD
5
Memorandum must be disclosed, (2) a redacted version of the
classified Vaughn index (described below) submitted by OLC must
be disclosed, (3) other legal opinions prepared by OLC must be
submitted to the District Court for in camera inspection and
determination of waiver of privileges and appropriate redaction,
(4) the Glomar and “no number, no list” responses are
insufficiently justified, (5) DOD and CIA must submit Vaughn
indices to the District Court for in camera inspection and
determination of appropriate disclosure and appropriate
redaction, and (6) the Office of Information Policy (“OIP”)
search was sufficient. We therefore affirm in part, reverse in
part, and remand.
Background
The FOIA requests at issue in this case focus primarily on
the drone attacks in Yemen that killed Anwar al-Awlaki2 and Samir
Khan in September 2011 and al-Awlaki’s teenage son, Abdulrahman
al-Awlaki, in October 2011. All three victims were United States
2
This spelling, which we adopt (except in quotations), is used
by the District Court and in the Government’s brief. The briefs of
N.Y. Times and ACLU and numerous documents in the record render the
name “al-Aulaqi.”
6
citizens either by birth or naturalization.
Statutory Framework. FOIA provides, with exceptions not
relevant to this case, that an “agency, upon any request for
records which (i) reasonably describes such records and (ii) is
made in accordance with published rules . . . , shall make the
records promptly available to any person.” 5 U.S.C.
§ 552(a)(3)(A) (2013). FOIA contains several exemptions, three
of which are asserted in this case.
Exemption 1 exempts records that are “(A) specifically
authorized under criteria established by an Executive order to
be kept secret in the interest of national defense or foreign
policy and (B) are in fact properly classified pursuant to such
Executive order.” 5 U.S.C. § 552(b)(1) (2013). Executive Order
13526 allows an agency to withhold information that (1) “pertains
to” one of the categories of information specified in the
Executive order, including “intelligence activities (including
covert action),” “intelligence sources or methods,” or “foreign
relations or foreign activities of the United States” and (2) if
“unauthorized disclosure of the information could reasonably be
7
expected to cause identifiable and describable damage to the
national 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 exempted
from disclosure by [another] statute” if the relevant statute
either “requires that the matters be withheld from the public in
such a manner as to leave no discretion on the issue” or
“establishes particular criteria for withholding or refers to
particular types of matters to be withheld.” 5 U.S.C.
§ 552(b)(3)(A)(i), (ii) (2013). Two such statutes are
potentially relevant here. The Central Intelligence Agency Act
of 1949, as amended, provides that the Director of National
Intelligence “shall be responsible for protecting intelligence
sources or methods,” and exempts CIA from “any other law which
require[s] the publication or disclosure of the organization,
functions, names, official titles, salaries, or numbers of
personnel employed by the Agency.” 50 U.S.C. § 3507 (2013). The
National Security Act of 1947, 50 U.S.C. § 3024-1(i)(1) (2013),
exempts from disclosure “intelligence sources and methods.”
8
Exemption 5 exempts “inter-agency or intra-agency
memorandums or letters which would not be available by law to a
party other than an agency in litigation with the agency.” 5
U.S.C. § 552(b)(5) (2013). Exemption 5 encompasses traditional
common law privileges against disclosure, including the attorney-
client and deliberative process privileges. See National
Council of La Raza v. Dep't of Justice, 411 F.3d 350, 356 (2d
Cir. 2005).
The N.Y. Times FOIA requests and Government responses.
Shane and Savage, New York Times reporters, submitted separate
FOIA requests to OLC. Shane’s request, submitted in June 2010,
sought:
all Office of Legal Counsel opinions or memoranda since
2001 that address the legal status of targeted
killings, assassination, or killing of people suspected
of ties to Al-Qaeda or other terrorist groups by
employees or contractors of the United States
government.
Joint Appendix (“JA”) 296-97.
Savage’s request, submitted in October 2010, sought:
a copy of all Office of Legal Counsel memorandums
analyzing the circumstances under which it would be
lawful for United States armed forces or intelligence
9
community assets to target for killing a United States
citizen who is deemed to be a terrorist.
JA 300-01.
OLC denied Shane’s request. With respect to the portion of
his request that pertained to DOD, OLC initially submitted a so-
called “no number, no list” response3 instead of submitting the
usual Vaughn index,4 numbering and identifying by title and
description documents that are being withheld and specifying the
FOIA exemptions asserted. A no number, no list response
acknowledges the existence of documents responsive to the
request, but neither numbers nor identifies them by title or
description. OLC said that the requested documents pertaining
to DOD were being withheld pursuant to FOIA exemptions 1, 3, and
5.
As to documents pertaining to agencies other than DOD, OLC
3
The term was apparently coined by CIA, see Bassiouni v. CIA, 392
F.3d 244, 246 (7th Cir. 2004), and the CIA’s use of no number, no list
responses to FOIA requests has been considered by district courts in
the District of Columbia. See National Security Counselors v. CIA, 898
F. Supp. 2d 233, 284-85 (D.D.C. 2012); Jarvik v. CIA, 741 F. Supp. 2d
106, 123 (D.D.C. 2010).
4
The term derives from Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.
1973).
10
submitted a so-called “Glomar response.”5 This type of response
neither confirms nor denies the existence of documents responsive
to the request. See Wilner v. National Security Agency, 592 F.3d
60, 68 (2d Cir. 2009). OLC stated that the Glomar response was
given “because the very fact of the existence or nonexistence of
such documents is itself classified, protected from disclosure
by statute, and privileged” under 5 U.S.C. § 552(b)(1), (3), (5).
CIA confirmed that it requested DOJ to submit a Glomar response
on its behalf.6
OLC also denied Savage’s request. Declining to submit
either a Vaughn index or even a no number, no list response, OLC
submitted a Glomar response, stating that, pursuant to Exemptions
1, 3, and 5, it was neither confirming nor denying the existence
5
The term derives from the Hughes Glomar Explorer, a vessel built
to recover a sunken Soviet submarine. See Phillippi v. CIA, 546 F.2d
1009, 1010-12 (D.C. Cir. 1976). A Glomar response was first used in
1992 in a case challenging a Government agency’s refusal to confirm or
deny the existence of certain materials requested under FOIA, see
Benavides v. DEA, 968 F.2d 1243, 1245 (D.C. Cir. 1992).
6
CIA made one exception to its request that OLC submit a Glomar
response. Because CIA’s involvement in the operation that resulted in
the death of Osama bin Laden had been acknowledged and was not
classified, the agency asserted that any OLC documents related to the
agency’s involvement in that operation would not be covered by a
Glomar response, but added that there were no such documents.
11
of documents described in the request. Unlike its letter denying
the Shane request, OLC’s response to the Savage request did not
identify any responsive documents relating to DOD.
During the course of the litigation, OLC modified its
responses to the Shane and Savage requests by identifying the
existence of one document pertaining to DOD, what the District
Court and the parties have referred to as the OLC-DOD Memorandum,
but claimed that this document was exempt from disclosure under
Exemption 5. Because the OLC-DOD Memorandum was classified, it
was presumably also withheld under Exemption 1. As to all other
DOD documents, it is not clear whether OLC was continuing to
assert a Glomar response, as it had made to Shane, or a no
number, no list response, as it had made to Savage.
The ACLU FOIA requests and Government responses. In October
2011, ACLU submitted FOIA requests to three agencies: DOJ
(including two of DOJ’s component agencies, OIP and OLC), DOD,
and CIA. The requests, quoted in the margin,7 sought
7
1. All records created after September 11, 2001, pertaining
to the legal basis in domestic, foreign, and international
law upon which U.S. citizens can be subjected to targeted
killings, whether using unmanned aerial vehicles (“UAVs” or
12
“drones) or by other means.
2. All records created after September 11, 2001, pertaining
to the process by which U.S. citizens can be designated for
targeted killings, including who is authorized to make such
determinations and what evidence is needed to support them.
3. All memoranda, opinions, drafts, correspondence, and
other records produced by the OLC after September 11, 2001,
pertaining to the legal basis in domestic, foreign, and
international law upon which the targeted killing of Anwar
al-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 not
preclude the targeted killing of al-Awlaki;
B. The protection and requirements imposed by the Fifth
Amendment Due Process Clause;
C. The reasons why International-law prohibitions on
extrajudicial killing did not preclude the targeted
killing of al-Awlaki;
D. The applicability (or non-applicability) of the
Treason Clause to the decision whether to target al-
Awlaki;
E. The legal basis authorizing the CIA, JSOC, or other
U.S. Government entities to carry out the targeted
killing of Anwar Al-Awlaki;
F. Any requirement for proving that al-Awlaki posed an
imminent risk of harm to others, including an
explanation of how to define imminence in this context;
and
G. Any requirement that the U.S. Government first
attempt to capture Al-Awlaki before killing him.
13
4. All documents and records pertaining to the factual basis
for the targeted killing of Al-Awlaki, including:
A. Facts supporting a belief that al-Awlaki posed an
imminent threat to the United States or United States
interests;
B. Facts supporting a belief that al-Awlaki could not
be captured or brought to justice using nonlethal
means;
C. Facts indicating that there was a legal
justification for killings persons other than al-
Awlaki, including other U.S. citizens, while attempting
to kill al-Awlaki himself;
D. Facts supporting the assertion that al-Awlaki was
operationally involved in al Qaeda, rather than being
involved merely in propaganda activities; and
E. Any other facts relevant to the decision to
authorize and execute the targeted killings of al-
Awlaki.
5. All documents and records pertaining to the factual basis
for the killing of Samir Khan, including whether he was
intentionally targeted, whether U.S. Government personnel
were aware of his proximity to al-Awlaki at the time the
missiles were launched at al-Awlaki’s vehicle, whether the
United States took measures to avoid Khan’s death, and any
other facts relevant to the decision to kill Khan or the
failure to avoid causing his death.
6. All documents and records pertaining to the factual basis
for the killing of Abdulrahman al-Awlaki, including whether
he was intentionally targeted, whether U.S. Government
personnel were aware of his presence when they launched a
missile or missiles at his location, whether he was targeted
on the basis of his kinship with Anwar al-Awlaki, whether
the United States took measures to avoid his death, and any
14
various documents concerning the targeted killings of United
States citizens in general and al-Awlaki, his son, and Khan in
particular.
Both OLC and CIA initially submitted Glomar responses,
refusing to confirm or deny the existence of responsive
documents, pursuant to Exemptions 1, 3, and 5.
DOD initially stated that it could not respond to the
request within the statutory time period because of the scope and
complexity of the request.
During the course of the litigation, the Government agencies
modified their original responses in light of statements by
senior Executive Branch officials on the legal and policy issues
pertaining to United States counterterrorism operations and the
potential use of lethal force by the United States Government
against senior operational leaders of al-Qaeda who are United
States citizens.
OLC provided ACLU with a Vaughn index of sixty unclassified
other factors relevant to the decision to kill him or the
failure to avoid causing his death.
JA 252-53.
15
responsive documents, each described as an e-mail chain
reflecting internal deliberations concerning the legal basis for
the use of lethal force against United States citizens in a
foreign country in certain circumstances. OLC withheld these
documents pursuant to Exemption 5.
OLC also submitted a no number, no list response as to
classified documents, stating that it could not provide the
number or description of these documents because that information
was protected from disclosure by Exemptions 1 and 3. OLC did
describe one of these documents as an “OLC opinion related to DoD
operations,” Declaration of John E. Bies, Deputy Assistant
Attorney General, OLC ¶ 38 (“Bies Decl.”), JA 279, which it
withheld in its entirety under Exemptions 1 and 3. This is
apparently not the OLC-DOD Memorandum, which OLC said was exempt
from disclosure under Exemption 5. That this document is not the
OLC-DOD Memorandum is confirmed by OLC’s assertion that this
document “cannot be further identified or described on the public
record.” Id. The OLC-DOD Memorandum was withheld under
Exemptions 1 and 5.
OIP located one responsive document, a set of talking points
16
prepared for the Attorney General and others related to
“hypothetical questions about Anwar al-Aulaqi’s death,”
Declaration of Douglas R. Hibbard, Deputy Chief of the Initial
Request Staff, OIP ¶ 8, JA 441, which it released to ACLU. OIP
also issued a Vaughn index listing four unclassified records
withheld under Exemptions 3, 5, and 6.8 OIP also submitted a no
number, no list response to various classified documents withheld
under Exemptions 1 and 3.
DOD’s revised response disclosed a speech given by Jeh
Johnson, then-DOD General Counsel, at Yale Law School on February
22, 2012. DOD also provided ACLU with a Vaughn index listing ten
unclassified records, withheld pursuant to Exemption 5. Seven
of those documents were e-mail traffic regarding drafts of the
speech given by Johnson at Yale Law School and a speech delivered
by Attorney General Holder at Northwestern University School of
Law. One of the withheld unclassified records was a presentation
by Johnson in February 2012, regarding international law
8
Exemption 6, which is not in issue in this appeal, applies to
“personnel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy.”
5 U.S.C. § 552(b)(6) (2013).
17
principles, to officers who had recently obtained the rank of O-
7. The remaining two withheld unclassified records were
described as “memoranda from the Legal Counsel to the Chairman
of the Joint Chiefs of Staff to the White House’s National
Security Council Legal Advisor addressing the legal basis for
conducting military operations against U.S. citizens in general.”
Declaration of Robert E. Neller, Lt. General, United States
Marine Corp, Director of Operations for the Joint Staff at the
Pentagon, ¶ 16 (“Neller Decl.”). JA 334.
DOD also located responsive classified records. One of
these was the previously mentioned OLC-DOD memorandum, which DOD
withheld under Exemptions 1 and 5. As to the other classified
documents, DOD submitted a no number, no list response.
CIA modified its initial Glomar responses in June 2012 by
confirming the existence of “responsive records reflecting a
general interest” in two areas described in the ACLU’s request:
(1) “‘the legal basis . . . upon which U.S. citizens can be
subjected to targeted killing’” and (2) “‘the process by which
U.S. citizens can be subjected to targeted killing.’” Declaration
18
of John Bennett, Director, National Clandestine Service, CIA,
¶ 27 (quoting ACLU request). In these two categories, CIA
submitted a no number, no list response, relying on Exemptions
1 and 3, with the exception that CIA acknowledged that it
possessed copies of speeches given by the Attorney General at
Northwestern University Law School on March 5, 2012, and by the
Assistant to the President for Homeland Security and
Counterterrorism on April 30, 2012. See id.
The pending lawsuit and District Court opinions. In
December 2011, N.Y. Times filed a lawsuit challenging the denials
of the Shane and Savage requests. ACLU filed its suit in
February 2012. After the suits were consolidated, both
Plaintiffs and the Government filed cross-motions for summary
judgment. In January 2013, the District Court denied both
Plaintiffs’ motions for summary judgment and granted the
Defendants’ motion in both cases, with one exception, which
required DOD to submit a more detailed justification as to why
the deliberative process exemption (asserted through Exemption
5) applied to two unclassified memos listed in its Vaughn index.
19
See Dist. Ct. Op., 915 F. Supp. 2d at 553. Later in January
2013, after receiving a supplemental submission from DOD, the
District Court granted the Defendants’ motion for summary
judgment with respect to the two unclassified DOD memos. See New
York Times Co. v. U. S. DOJ (“Dist. Ct. Supp. Op.”), Nos. 11 Civ.
9336, 12 Civ. 794, 2013 WL 238928 (S.D.N.Y. Jan. 22, 2013).
In its principal opinion, which we discuss in more detail in
Parts III and IV, below, the Court first ruled that the
Government had conducted an adequate search for responsive
documents. See Dist. Ct. Op., 915 F. Supp. 2d at 532-33. The
Court then considered separately each of the Government’s claims
to an exemption.
As to Exemption 1, concerning properly classified documents,
the Court first ruled that there was no evidence that any of the
documents withheld pursuant to Exemption 1 had not been properly
classified. See id. at 535. The Court specifically considered
the Plaintiffs’ claim that legal analysis could not be classified
and rejected the claim. See id.
Turning to the Plaintiffs’ claim of waiver, the Court,
20
citing Wilson v. CIA, 586 F.3d 171, 186 (2d Cir. 2009), first
ruled that waiver of Exemption 1 had not occurred with respect
to classified documents containing operational details of
targeted killing missions. See Dist. Ct. Op., 915 F. Supp. 2d at
535-37. The Court then specifically considered whether waiver
of Exemption 1 had occurred with respect to the OLC-DOD
Memorandum and rejected the claim. See id. at 538.
As to Exemption 3, which protects records exempted from
disclosure by statute, the District Court first noted that
section 102A(i)(1) of the National Security Act, now codified at
50 U.S.C. § 3024(i)(1) (2013), is an exempting statute within the
meaning of Exemption 3, and that this provision protects from
disclosure “intelligence sources and methods.” Id. at 539. The
Court then reckoned with ACLU’s contention that placing
individuals on kill lists does not fall within the category of
intelligence sources and methods. Agreeing with a decision of
a district court in the District of Columbia, ACLU v. Dep’t of
Justice, 808 F. Supp. 2d 280, 290-92 (D.D.C. 2011) (“Drone Strike
Case”), which was later reversed on appeal, see ACLU v. CIA, 710
21
F.3d 422 (D.C. Cir. 2013), the District Court here rejected
ACLU’s argument. See Dist. Ct. Op., 915 F. Supp. 2d at 540. The
District Court then specifically focused on the issue whether
legal analysis could fall within the category of intelligence
sources and methods. Acknowledging that it is “entirely logical
and plausible” that intelligence sources and methods could be
redacted from legal analysis upon in camera inspection, the Court
declined to make such inspection or resolve the issue because it
concluded that Exemption 5 “plainly applies” to the legal
analysis that is sought here. See id.
The District Court then determined that section 6 of the CIA
Act, 50 U.S.C. § 403g, now codified at 50 U.S.C. § 3507 (2013),
is an exempting statute within the meaning of Exemption 3 and
that section 6 protects from disclosure information concerning
the “functions” of CIA. See id. at 541. Again, following the
district court decision in the Drone Strike Case, before it was
reversed, the District Court here ruled that Exemption 3
permitted CIA, in response to ACLU’s request, to refuse to reveal
the existence of records concerning drone strikes. See id.
22
As to Exemption 5, covering “inter-agency or intra-agency
memorandums or letters which would not be available by law to a
party other than an agency in litigation with the agency,” the
District Court noted that this exemption applies to documents
withheld “under the deliberative process privilege (a.k.a., the
executive privilege) and the attorney-client privilege,” citing
this Court’s decision in Tigue v. U.S. Dep’t ofJustice, 312 F.3d
70, 76 (2d Cir. 2002). See Dist. Ct. Op., 915 F. Supp. 2d at 541-
42. OLC relied on the deliberative process privilege to withhold
the classified OLC-DOD Memorandum, which both Plaintiffs sought,
and DOD relied on this privilege to withhold the two unclassified
documents on its Vaughn index that ACLU requested. These two,
numbered 9 and 10, were described as “Memorandum from Legal
Counsel to Chairman of the Joint Chiefs of Staff to the National
Security Legal Advisor with legal analysis regarding the effect
of U.S. citizenship on targeting enemy belligerents.” JA 409.
With respect to the OLC-DOD Memorandum, the District Court,
accepting N.Y. Times’s concession that this document at one time
might have been properly withheld under the deliberative process
23
and/or attorney-client privileges, see id. at 544, rejected the
Plaintiffs’ contentions that these privileges had been lost
because of one or more of the following principles: waiver,
adoption, or working law, see id. at 546-50.
As to documents 9 and 10 on DOD’s Vaughn index, the Court
initially found DOD’s justification for invoking Exemption 5
inadequate, see id. at 545, but ruled that a subsequent
submission sufficiently supported the application of the
deliberative process privilege and hence Exemption 5 to these
documents, see Dist. Ct. Supp. Op., 2013 WL 238928, at *1.
Finally, the District Court considered the Glomar and no
number, no list responses that were given by DOJ, DOD, and CIA.
Apparently accepting the sufficiency of the affidavits submitted
by officials of these agencies to justify the responses under
Exemptions 1 and 3, the Court turned its attention to the
Plaintiffs’ claims that these protections had been waived.
Again, following the district court opinion in the Drone Strike
Case, before it was reversed, the District Court here concluded
that none of the public statements of senior officials waived
24
entitlement to submit Glomar or no number, no list responses
because “[i]n none of these statements is there a reference to
any particular records pertaining to the [targeted killing]
program, let alone the number or nature of those records.” Dist.
Ct. Op., 915 F. Supp. 2d at 553 (emphases in original).
Information made public after the District Court opinions.9
9
As a general rule, a FOIA decision is evaluated as of the time
it was made and not at the time of a court's review. See, e.g.,
Bonner v. U.S. Dep’t of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991)
(“To require an agency to adjust or modify its FOIA responses based on
post-response occurrences could create an endless cycle of judicially
mandated reprocessing.”). On this basis, the Government argues that
we cannot consider any official disclosures made after the District
Court's opinion.
We disagree. Although we are not required to consider such
evidence, the circumstances of this case support taking judicial
notice of the statements here. See Fed. R. Evid. 201(b)(2). The
Government's post-request disclosures “go[] to the heart of the
contested issue,” Powell v. U.S. Bureau of Prisons, 927 F.2d 1239,
1243 (D.C. Cir. 1991) (internal quotation marks omitted), and, as
discussed below, are inconsistent with some of its prior claims,
including that the Government has never acknowledged CIA’s operational
involvement. Taking judicial notice of such statements is the same
course taken by the Court of Appeals for the D.C. Circuit in its
recent ACLU v. C.I.A. decision. 710 F.3d at 431. We conclude that it
is the most sensible approach to ongoing disclosures by the Government
made in the midst of FOIA litigation.
Moreover, the Government’s request for an opportunity to submit
new material concerning public disclosures made after the District
Court’s decision was honored by affording the Government an
opportunity, after oral argument, to submit such material ex parte for
in camera inspection, which the Government has done.
25
After the District Court entered judgment for the Defendants, one
document and several statements of Government officials that the
Plaintiffs contend support their claims became publicly
available. The document is captioned “DOJ White Paper” and
titled “Lawfulness of a Lethal Operation Directed Against a U.S.
Citizen Who Is a Senior Operational Leader of Al-Qa’ida or an
Associated Force” (“DOJ White Paper”). As the Government
acknowledges, see Br. for Appellees at 25, the 16-page, single-
spaced DOJ White Paper was leaked to the press and subsequently
officially disclosed by DOJ.10 The leak occurred on February 4,
10
The DOJ White Paper was leaked to Michael Isikoff, a reporter
with NBC News, according to a report available at
http://nbcnews.to/U1ZII3; the text of the leaked document is available
via a link at that website. (Hard copies of the documents available
at this and all other websites cited in this opinion, as well as
copies of videos available at websites cited in this opinion, to the
extent they can be copied, have been docketed with the Clerk of Court
for public reference.) The official disclosure, acknowledged by the
Government, see Br. for Appellees at 25, was made by OIP on Feb. 4,
2013, in response to an FOIA request submitted by Truthout, according
to a report available at http://www.truth-out.org/news/item/14585-
targeted-killing-white-paper-leaked-to-nbc-news-turned-over-to-
truthout-by-doj-in-response-to-a-six-month-old-foia-request-four-days-
later; the text of the officially disclosed document is available via
a link at that website and also at
https://www.documentcloud.org/documents/602342-draft-white-paper.html.
The document disclosed to Truthout is marked “draft”; the document
leaked to Isikoff is not marked “draft” and is dated November 8, 2011.
The texts of the two documents are identical, except that the document
26
2013; the official disclosure occurred four days later.
The statements are those of John O. Brennan, Attorney
General Eric Holder, and President Obama. Brennan, testifying
before the Senate Select Committee on Intelligence on February
7, 2013, on his nomination to be director of CIA, said, among
other things, “The Office of Legal Counsel advice establishes the
legal boundaries within which we can operate.” Open Hearing on
the Nomination of John O. Brennan to be Director of the Central
Intelligence Agency Before the S. Select Comm. on Intelligence,
leaked to Isikoff is not dated and not marked “draft.”
ACLU contends that DOJ did not release the DOJ White Paper in
response to its FOIA request, nor list it on its Vaughn index. See Br.
for ACLU at 21 n.7. The Government responds that ACLU had narrowed
its request to exclude “draft legal analyses,” Letter from Eric A.O.
Ruzicka to Sarah S. Normand (Apr. 3, 2012), and that the DOJ White
Paper was “part of document number 60 on the Vaughn index submitted by
the Office of Legal Counsel as an attachment to a responsive e-mail.
See Br. for Appellees at 25 n.8. The OLC’s Vaughn index describes
document number 60 as “E-mail circulating draft legal analysis
regarding the application of domestic and international law to the use
of lethal force in a foreign country against U.S. citizens in certain
circumstances, and discussion regarding interagency deliberations
concerning the same” and invokes Exemption 5. Apparently, OLC
expected ACLU to understand “circulating” to mean “attachment.”
The Government offers no explanation as to why the identical text
of the DOJ White Paper, not marked “draft,” obtained by Isikoff, was
not disclosed to ACLU, nor explain the discrepancy between the
description of document number 60 and the title of the DOJ White
Paper.
27
113 Cong. 57 (Feb. 7, 2013) (“Brennan Hearing”), available at
http://www.intelligence.senate.gov/130207/transcript.pdf. Holder
sent a letter to Senator Patrick J. Leahy, Chairman of the Senate
Judiciary Committee on May 22, 2013 (“Holder Letter”).11 In that
letter Holder stated, “The United States . . . has specifically
targeted and killed one U.S. citizen, Anwar al-Aulaqi,” Holder
Letter at unnumbered second page, and acknowledged that United
States counterterrorism operations had killed Samir Khan and
Abdulrahman al-Awlaki, who, he states, were not targeted by the
United States, see id. He also stated, “[T]he Administration has
demonstrated its commitment to discussing with the Congress and
the American people the circumstances in which it could lawfully
use lethal force in a foreign country against a U.S. citizen who
is a senior operational leader of al-Qa’ida or its associated
forces, and is actively engaged in planning to kill Americans.”
Id. He also stated, “The decision to target Anwar al-Aulaki was
lawful . . . .” Id. at fourth unnumbered page. President Obama
delivered an address at the National Defense University on May
11
The Holder Letter is available at http://www.justice.gov/ag/AG-
letter-5-22-13.pdf.
28
23, 2013.12 In that address, the President listed al-Awlaki’s
terrorist activities and acknowledged that he had “authorized the
strike that took him out.”
Discussion
I. FOIA Standards.
FOIA calls for “broad disclosure of Government records.” CIA
v. Sims, 471 U.S. 159, 166 (1985). The disclosure obligation is
subject to several exemptions. However, “consistent with the
Act’s goal of broad disclosure, these exemptions have
consistently been given a narrow compass.” Dep’t of Interior v.
Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001)
(internal quotation marks omitted). Exemptions 1 (classified
documents), 3 (documents protected by statute), and 5 (privileged
documents), outlined above, have been invoked in this litigation.
“The agency asserting the exemption bears the burden of proof,
and all doubts as to the applicability of the exemption must be
resolved in favor of disclosure.” Wilner, 592 F.3d at 69. To
meet its burden of proof, the agency can submit “[a]ffidavits or
12
The President’s address is available via a link at
http://wh.gov/hrTq.
29
declarations giving reasonably detailed explanations why any
withheld documents fall within an exemption.” ACLU v. Dep’t of
Justice, 681 F.3d 61, 69 (2d Cir. 2012) (internal quotation marks
omitted).
We review de novo a district court’s grant of summary
judgment in FOIA litigation. See Wilner, 592 F.3d at 69. When
an agency claims that a document is exempt from disclosure, we
review that determination and justification de novo. See id.
When the claimed exemptions involve classified documents in the
national security context, the Court must give “substantial
weight to an agency's affidavit concerning the details of the
classified status of the disputed record.” ACLU, 681 F.3d at 69
(emphasis in original) (internal quotation marks omitted).
II. Appellants’ Claims
Narrowing the scope of the Shane request (OLC opinions that
address the legal status of targeted killings) and the Savage
request (OLC memoranda analyzing the circumstances under which
it would be lawful to kill a United States citizen who is deemed
to be a terrorist), Appellant N.Y. Times presses on appeal its
30
request to OLC for disclosure of the OLC-DOD memorandum. N.Y.
Times also requests a Vaughn index of all withheld documents,
instead of the no number, no list and Glomar responses it has
received. See Br. for N.Y. Times at 51-52. ACLU seeks disclosure
of the OLC-DOD memorandum; what it refers to as “the Unclassified
Memos,” Br. for ACLU at 50, 61, which are documents nos. 9 and
10 on DOD’s Vaughn index, see Dist. Ct. Op., 915 F. Supp. 2d at
545; and “certain OLC memoranda that the agencies have not
addressed in this litigation but whose existence they have
officially acknowledged in public statements,” Br. for ACLU at
50. ACLU also requests Vaughn indices and asks that OIP be
required “to renew its search for responsive documents.” Br. for
ACLU at 61.
III. The OLC-DOD Memorandum
The OLC-DOD Memorandum, as described by OLC, is an “OLC
opinion pertaining to the Department of Defense marked classified
. . .[t]hat . . . contains confidential legal advice to the
Attorney General, for his use in interagency deliberations,
regarding a potential military operation in a foreign country.”
31
Bies Decl. ¶ 30.
OLC withheld the OLC-DOD Memorandum as protected from
disclosure by Exemption 5 “because it is protected by the
deliberative process and attorney-client privileges.” Id. DOD
withheld the document under Exemptions 1 and 5 “because the
content of the document contains information about military
operations, intelligence sources and methods, foreign government
information, foreign relations, and foreign activities.” Neller
Decl. ¶ 17. General Neller stated that the classified
information in the OLC-DOD Memorandum “is not reasonably
segregable.” Id.
In upholding the application of Exemption 1 to the OLC-DOD
Memorandum, the District Court first ruled that the affidavits
supplied by senior Government officials demonstrated that
classification had been properly made. See Dist. Ct. Op., 915 F.
Supp. 2d at 535. The Court then ruled that legal analysis may
be classified, citing three district court opinions.13 See id.
13
New York Times Co. v. U.S. Dep’t of Justice, 872 F. Supp. 2d
309, 312-13, 317-18 (S.D.N.Y. 2012), ACLU v. Office of the Director of
National Intelligence, No. 10 Civ. 4419, 2011 WL 5563520, at *8
(S.D.N.Y. Nov. 15, 2011), and Center for International Environmental
32
After pointing out that Exemption 1 applies to documents properly
classified pursuant to an Executive Order and that Executive
Order No. 13526 “applies to any information that ‘pertains to’
military plans or intelligence activities (including covert
action), sources or methods,” id., the Court stated, “I see no
reason why legal analysis cannot be classified pursuant to E.O.
13526 if it pertains to matters that are themselves classified,”
id.
In considering the application of Exemption 5 to the OLC-DOD
Memorandum, the District Court noted the Government’s claim that
both the deliberative process and attorney-client privileges
protected the document, and observed that N.Y. Times did not
disagree that the document might at one time have been withheld
under both privileges. See id. at 544.
After determining that Exemptions 1 and 5 applied to the
OLC-DOD Memorandum, the Court considered and rejected the
Plaintiffs’ claims that the Government had waived application of
these exemptions. With respect to waiver of Exemption 1, the
Law v. Office of the U.S. Trade Representative, 505 F. Supp. 2d 150,
154 (D.D.C. 2007).
33
Court stated that waiver occurs only where the government has
“officially” disclosed the information sought, Dist. Ct. Op., 915
F. Supp. 2d at 536 (citing Halpern v. FBI, 181 F.3d 279, 294 (2d
Cir. 1989)), and that official disclosure of classified
information occurs only if the classified information is “‘as
specific as the information previously released,’” “‘match[es]
the information previously disclosed,’” and was “‘made public
through an official and documented disclosure,’” id. (quoting
Wilson, 586 F.3d at 186). The District Court ruled that no
official disclosure had been made concerning documents containing
operational details of targeted killings, sought by ACLU, see
id., and that none of the public pronouncements cited by the
Plaintiffs “reveals the necessary detailed legal analysis that
supports the Administration’s conclusion that targeted killing,
whether of citizens or otherwise, is lawful,” id. at 538
(footnote omitted).
With respect to waiver of Exemption 5, the District Court
ruled that the deliberative process privilege had not been waived
because “there is no evidence that the Government continually
34
relied upon and repeated in public the arguments made
specifically in the OLC-DOD Memo,” id. at 549 (emphasis in
original) (internal quotation marks omitted), and that “it is
sheer speculation that this particular OLC memorandum . . .
contains the legal analysis that justifies the Executive Branch’s
conclusion that it is legal in certain circumstances to target
suspected terrorists, including United States citizens, for
killing away from a ‘hot’ field of battle,” id. The Court saw
no need to consider the plaintiffs’ claim of waiver in the
context of the attorney-client privilege because the deliberative
process privilege protected the OLC-DOD Memorandum under
Exemption 5. See id.
We agree with the District Court’s conclusions that the OLC-
DOD Memorandum was properly classified and that no waiver of any
operational details in that document has occurred. With respect
to the document’s legal analysis, we conclude that waiver of
Exemptions 1 and 5 has occurred.14 “Voluntary disclosures of all
14
We therefore need not consider the Appellants’ claim that the
legal analysis in the OLC-DOD Memorandum was not subject to
classification.
35
or part of a document may waive an otherwise valid FOIA
exemption,” Dow Jones & Co. v. U.S. Dep’t of Justice, 880 F.
Supp. 145, 150-51 (S.D.N.Y. 1995) (citing Mobil Oil Corp. v.
E.P.A., 879 F.2d 698, 700 (9th Cir. 1989)), vacated in part on
other grounds, 907 F. Supp. 79 (S.D.N.Y. 1995), and the attorney-
client and deliberative privileges, in the context of Exemption
5, may be lost by disclosure, see Brennan Center for Justice v.
U.S. Dep’t of Justice, 697 F.3d 184, 208 (2d Cir. 2012).
(a) Loss of Exemption 5. Exemption 5 “‘properly construed,
calls for disclosure of all opinions and interpretations which
embody the agency’s effective law and policy, and the withholding
of all papers which reflect the agency's group thinking in the
process of working out its policy and determining what its law
shall be.’” Id. at 196 (quoting NLRB v. Sears, Roebuck & Co., 421
U.S. 132, 153 (1975)). At the same time, we recognize that “the
law extends the privilege to legal advice given by a lawyer to
his client [because] statements by the lawyer often reveal –
expressly or by necessary implication – assumptions of fact
based on statements by the client,” George A. Davidson & William
36
H. Voth, Waiver of the Attorney-Client Privilege, 64 Oregon L.
Rev. 637, 650 (1986).
In considering waiver of the legal analysis in the OLC-DOD
Memorandum, we note initially the numerous statements of senior
Government officials discussing the lawfulness of targeted
killing of suspected terrorists, which the District Court
characterized as “an extensive public relations campaign to
convince the public that [the Administration’s] conclusions
[about the lawfulness of the killing of al-Awlaki] are correct.”
Dist. Ct. Op., 915 F. Supp. 2d at 524. In a March 25, 2010,
speech at the annual meeting of the American Society of
International Law in Washington, D.C., then-Legal Adviser of the
State Department Harold Hongju Koh said, “U.S. targeting
practices, including lethal operations conducted with the use of
unmanned aerial vehicles, comply with all applicable law,
including the laws of war.” JA 113, 124. In a February 22, 2012,
speech at the Yale Law School, Jeh Johnson, then-General Counsel
of DOD, “summarize[d] . . . some of the basic legal principles
that form the basis for the U.S. military’s counterterrorism
37
efforts against Al Qaeda and its associated forces,” JA 399, and
referring explicitly to “targeted killing,” said, “In an armed
conflict, lethal force against known, individual members of the
enemy is a long-standing and long-legal practice,” JA 402.
In a March 5, 2012, speech at Northwestern University,
Attorney General Holder said, “[I]t is entirely lawful – under
both United States law and applicable law of war principles – to
target specific senior operational leaders of al Qaeda and
associated forces.” JA 449. He discussed the relevance of the Due
Process Clause, id., and maintained that killing a senior al
Qaeda leader would be lawful at least in circumstances where
[f]irst, 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.
JA 450. Amplifying this last point, he stated that “use of
lethal force by the United States will comply with the four
fundamental law of war principles governing the use of force:
. . . necessity[,] . . . distinction[,] . . . proportionality[,]
. . . [and] humanity.” Id. As the District Court noted, “The
38
Northwestern Speech [by the Attorney General] discussed the legal
considerations that the Executive Branch takes into consideration
before targeting a suspected terrorist for killing” and “the
speech constitutes a sort of road map of the decision-making
process that the Government goes through before deciding to
‘terminate’ someone ‘with extreme prejudice.’” Dist. Ct. Op., 915
F. Supp. 2d at 537.
In an April 30, 2012, speech at the Wilson Center in
Washington D.C., John O. Brennan, then-Assistant to the President
for Homeland Security and Counterterrorism, said, “Yes, in full
accordance with the law, and in order to prevent terrorist
attacks on the United States and to save American lives, the
United States Government conducts drone strikes against specific
al-Qaida terrorists, sometimes using remotely piloted aircraft,
often referred to publicly as drones.” JA 95. On Feb. 7, 2013,
Brennan, testifying on his nomination to be director of CIA,
said, “The Office of Legal Counsel advice establishes the legal
boundaries within which we can operate.” Brennan Hearing at 57.
Even if these statements assuring the public of the
39
lawfulness of targeted killings are not themselves sufficiently
detailed to establish waiver of the secrecy of the legal analysis
in the OLC-DOD Memorandum, they establish the context in which
the most revealing document, disclosed after the District Court’s
decision, should be evaluated. That document is the DOJ White
Paper, officially released on Feb. 4, 2013. See note 9, above.
Before considering the relevance of the DOJ White Paper to the
Government’s claim to continued secrecy and privilege of the
legal analysis in the OLC-DOD Memorandum, we describe that
Memorandum, which we have examined in camera, in some detail.
The OLC-DOD Memorandum is a 41-page classified document,
dated July 16, 2010, captioned:
MEMORANDUM FOR THE ATTORNEY GENERAL
Re: Applicability of Federal Criminal Laws and the
Constitution to
Contemplated Lethal Operations Against Shykh Anwar al-Aulaki15
It was prepared on the letterhead of OLC and signed by David J.
Barron, Acting Assistant Attorney General.
The OLC-DOD Memorandum has several parts. After two
15
We have deleted classification codes from the caption and
throughout the document.
40
introductory paragraphs, Part I(A) reports intelligence that OLC
has received concerning the relationship between Al-Qaida in the
Arabian Peninsula (“AQAP”) and al-Qaida, the organization and
operation of AQAP, and the role al-Awlaki performs with AQAP.
Parts I(B) and I(C) describe the manner in which government
agencies would perform the targeted killing of al-Awlaki. Part
II(A) considers Title 18 U.S.C. § 1119 (2013), entitled “Foreign
murder of United States nationals” and explains why section 1119
does not proscribe killings covered by a traditionally recognized
justification. Part II(B) explains why section 1119 incorporates
one such justification, the public authority justification. Part
III(A) explains why the public authority justification
encompasses DOD’s role in the contemplated targeted killing, and
Part III(B) explains why that justification encompasses another
agency’s role in the killing. Part IV explains why the
contemplated killing would not violate 18 U.S.C. § 956(a) (2013),
entitled “Conspiracy to kill, maim, or injure persons or damage
property in a foreign country.” Part V explains why the
contemplated killing would not violate 18 U.S.C. § 2441 (2013),
41
entitled “War crimes.” Part VI explains why the contemplated
killing would not violate the Fourth or Fifth Amendments of the
Constitution.
The 16-page, single-spaced DOJ White Paper virtually
parallels the OLC-DOD Memorandum in its analysis of the
lawfulness of targeted killings. Like the Memorandum, the DOJ
White Paper explains why targeted killings do not violate 18
U.S.C. §§ 1119 or 2441, or the Fourth and Fifth Amendments to the
Constitution, and includes an analysis of why section 1119
encompasses the public authority justification. Even though the
DOJ White Paper does not discuss 18 U.S.C. § 956(a), which the
OLC-DOD Memorandum considers, the substantial overlap in the
legal analyses in the two documents fully establishes that the
Government may no longer validly claim that the legal analysis
in the Memorandum is a secret. After the District Court’s
decision, Attorney General Holder publicly acknowledged the close
relationship between the DOJ White Paper and previous OLC advice
on March 6, 2013, when he said at a hearing of the Senate
Committee on the Judiciary that the DOJ White Paper’s discussion
42
of imminence of threatened action would be “more clear if it is
read in conjunction with the underlying OLC advice.”16 Oversight
of the U.S. Department of Justice Before the Senate Committee on
the Judiciary, 113th Cong. (Mar. 6, 2013).
After senior Government officials have assured the public
that targeted killings are “lawful” and that OLC advice
“establishes the legal boundaries within which we can operate,”
and the Government makes public a detailed analysis of nearly all
the legal reasoning contained in the OLC-DOD Memorandum, waiver
of secrecy and privilege as to the legal analysis in the
Memorandum has occurred.
The recent opinion of the District Court for the Northern
District of California, First Amendment Coalition v. U.S. Dep’t
of Justice, No. 4:12-cv-01013-CW (N.D. Cal. April 11, 2014),
denying an FOIA request for the OLC-DOD Memorandum, is readily
distinguishable because the Court, being under the impression
that “there has been no ‘official disclosure’ of the White
Paper,” id., slip op. at 24, did not assess its significance,
16
The statement was made in a response to a question from Senator
Mike Lee. A webcast of the hearing is available via a link at
http://www.judiciary.senate.gov/hearings/hearing.cfm?id=e0c4315749c1
0b084028087a4aa80a73, at 1:51:30.
43
whereas in our case, the Government has conceded that the White
Paper, with its detailed analysis of legal reasoning, has in fact
been officially disclosed, see footnote 10, supra.
In resisting disclosure of the OLC-DOD Memorandum, the
Government contends that making public the legal reasoning in the
document will inhibit agencies throughout the Government from
seeking OLC’s legal advice. The argument proves too much. If
this contention were upheld, waiver of privileges protecting
legal advice could never occur. In La Raza, we explained that
“[l]ike the deliberative process privilege, the attorney-client
privilege may not be invoked to protect a document adopted as,
or incorporated by reference into, an agency’s policy.” 411 F.3d
at 360. Here, the Government has done so by publicly asserting
that OLC advice “establishes the legal boundaries within which
we can operate”; it “cannot invoke that relied-upon authority and
then shield it from public view.” Brennan Center, 697 F.3d at
207-08. Agencies seeking OLC legal advice are surely
sophisticated enough to know that in these circumstances
attorney/client and deliberative process privileges can be waived
and the advice publicly disclosed. We need not fear that OLC
44
will lack for clients.
The Government also argues that because the OLC-DOD
Memorandum refers to earlier OLC documents that remain
classified, those assessing the legal reasoning in the OLC-DOD
Memorandum might find the reasoning deficient without an
opportunity to see the previous documents. However, the
reasoning in the OLC-DOD Memorandum is rather elaborate, and
readers should have no difficulty assessing the reasoning on its
own terms. Moreover, the Government had no similar concern when
it released the DOJ White Paper, the reasoning of which cannot
be properly assessed, on the Government’s argument, without
seeing the OLC-DOD Memorandum. Finally, the Government always
has the option of disclosing redacted versions of previous OLC
advice.
The loss of protection for the legal analysis in the OLC-DOD
Memorandum does not mean, however, that the entire document must
be disclosed. FOIA provides that “[a]ny reasonably segregable
portion of a record shall be provided to any person requesting
such record after deletion of the portions which are exempt under
45
this subsection.” 5 U.S.C. § 552b. The Government’s waiver
applies only to the portions of the OLC-DOD Memorandum that
explain legal reasoning. These are Parts II, III, IV, V, and VI
of the document, and only these portions will be disclosed. Even
within those portions of the document, there are matters that the
Government contends should remain secret for reasons set forth
in the Government’s classified ex parte submission, which we have
reviewed in camera.
One of those reasons concerns [redacted] the Government
persuasively argues warrants continued secrecy. [redacted] We
will redact all references to that [redacted].17
Two arguments concern facts mentioned within the legal
reasoning portions of the OLC-DOD Memorandum that no longer merit
secrecy. One is the identity of the country in which al-Awlaki
was killed. However, numerous statements by senior Government
officials identify that country as Yemen. On September 30, 2011,
DOD released a transcript reporting then-Secretary of Defense
Panetta stating, “[W]e’ve been working with the Yemenis over a
17
The redactions made in this paragraph implement section 2(a)
of our order of May 28, 2014.
46
long period of time to be able to target Awlaki, and I want to
congratulate them on their efforts, their intelligence
assistance, their operational assistance to get the job done.”
JA 799. On October 25, 2011, President Obama, appearing on a
network television program, said, referring to al-Awlaki, “[I]t
was important that, working with the [Yemenis,]18 we were able to
remove him from the field.” Transcript of “The Tonight Show with
Jay Leno (Oct. 25, 2011). JA 556. On the day al-Awlaki was
killed, September 3, 2011, DOD’s Armed Forces Press Service
reported, “A U.S. airstrike that killed Yemeni-based terrorist
Anwar al-Awlaki early this morning is a testament to the close
cooperation between the United States and Yemen, Defense
Secretary Leon E. Panetta said today.” JA 651. The report
continued, “Obama and Panetta congratulated the Yemenis on their
intelligence and operational assistance in targeting [al-]
Awlaki.” Id. It is no secret that al-Awlaki was killed in Yemen.
However, the OLC-DOD Memorandum contains some references to the
Yemeni government that are entitled to secrecy and will be
18
The Tonight Show transcript erroneously rendered this word
“enemies,” an error the Government acknowledged at oral argument.
47
redacted.
The other fact within the legal reasoning portion of the
OLC-DOD Memorandum that the Government contends merits secrecy
is the identity of the agency, in addition to DOD, that had an
operational role in the drone strike that killed al-Awlaki. Both
facts were deleted from the April 21 public opinion, but have
been restored in this opinion. Apparently not disputing that
this fact has been common knowledge for some time, the Government
asserts the importance of concealing any official recognition of
the agency’s identity. The argument comes too late.
A March 18, 2010, Wall Street Journal article quotes
Panetta, then CIA Director:
“Anytime we get a high value target that is in the top
leadership of al Qaeda, it seriously disrupts their
operations,” Mr. Panetta said. “It sent two important
signals,” Mr. Panetta said. “No. 1 that we are not
going to hesitate to go after them wherever they try to
hide, and No. 2 that we are continuing to target their
leadership.”
“Drone Kills Suspect in CIA Suicide Bombing,” The Wall Street
Journal (Mar. 18, 2010). Although the reference to “we” is not
unequivocally to CIA and might arguably be taken as a reference
to the Government generally, any doubt on this score was
eliminated three months later.
48
In a June 27, 2010, interview with Jake Tapper of ABC News,
Panetta said:
[W]e are engaged in the most aggressive operations in
the history of the CIA in that part of the world, and
the result is that we are disrupting their leadership.
We’ve taken down more than half of their Taliban
leadership, of their Al Qaida leadership. We just took
down number three in their leadership a few weeks ago.
. . .
Awlaki is a terrorist and yes, he’s a United States
citizen, but he is first and foremost a terrorist and
we’re going to treat him like a terrorist. We don’t
have an assassination list, but I can tell you this.
We have a terrorist list and he’s on it.
Tr. of This Week telecast, available at
http://abcnews.go.com/ThisWeek/week-transcript-
panetta/story?id=11025299&singlePage=true.
On October 7, 2011, Panetta, then Secretary of Defense, was
quoted as saying in a speech to sailors and Marines at the United
States Navy’s 6th Fleet headquarters in Naples, “Having moved
from the CIA to the Pentagon, obviously I have a hell of a lot
more weapons available to me in this job than I had at the CIA,
although the Predators aren’t bad.” “U.S.: Defense secretary
refers to CIA drone use,” Los Angeles Times (Oct. 7, 2011).
On January 29, 2012, the following occurred when Secretary
of Defense Panetta was interviewed by Scott Pelley on the CBS
49
television program “60 Minutes”:
Asked, “You killed al-Awlaki?” Panetta “nodded
affirmatively,” as described by the District Court, see Dist. Ct.
Op., 915 F. Supp. 2d at 530. Then, when asked about identifying
for killing a person who has been identified as an enemy
combatant, Panetta says, “It’s a recommendation we make, it’s a
recommendation the CIA director makes in my prior role . . . the
President of the United States has to sign off.” Web Extra
p r e s e n t a t i o n , a v a i l a b l e a t
http://www.cbsnews.com/video/watch/?id=7396830n, at 0:01, 2:30.
CIA’s former director has publicly acknowledged CIA’s role in the
killing of al-Awlaki.
On February 7, 2014, Rep. Mike Rogers, chairman of the House
Select Committee on Intelligence, disclosed that his committee
has overseen the CIA’s targeted-killing strikes since “even
before they conducted that first air strike that took Awlaki.”
Transcript, Face the Nation, CBS News (Feb. 10, 2013),
http://cbsn.ws/ZgB9R.
On February 11, 2014, the following exchange occurred
between Senator Bill Nelson and James R. Clapper, Director of
National Intelligence, at a hearing of the Senate Armed Services
Committee:
50
Senator NELSON. It is – you tell me if this is
correct – the administration’s policy that they are
exploring shifting the use of drones, unmanned aerial
vehicle strikes, from the CIA to the DOD. Is that an
accurate statement?
Mr. CLAPPER. Yes, sir. it is.
Testimony on Current and Future Worldwide Threats to the National
Security of the United States, Hearing Before the Senate Armed
Services Comm., 113th Cong. 37 (2014), available at
http://www.armed-services.senate.gov/imo/media/doc.14-07%20-%202-
11-14.pdf. It is no secret that CIA has a role in the use of
drones.
(b) Loss of Exemption 1. Much of the above discussion
concerning loss of Exemption 5 is applicable to loss of Exemption
1. As the District of Columbia Circuit has noted, “Ultimately,
an agency’s justification for invoking a FOIA exemption is
sufficient if it appears ‘logical’ or ‘plausible.’” Wolf v. CIA,
473 F.3d 370, 374-75 (D.C. Cir. 2007) (quoting Gardels v. CIA,
689 F.2d 1100, 1105 (D.C. Cir. 1982)). But Gardels made it clear
that the justification must be “logical” and “plausible” “in
protecting our intelligence sources and methods from foreign
discovery.” 689 F.2d at 1105.
51
The District Court noted the Government’s contention that
“‘[i]t is entirely logical and plausible that the legal opinion
contains information pertaining to military plans, intelligence
activities, sources and methods, and foreign relations.’ (Gov’t
Memo. in Opp’n/Reply 6).” Dist. Ct. Op., 915 F. Supp. 2d at 540.
But the Court then astutely observed, “[T]hat begs the question.
In fact, legal analysis is not an ‘intelligence source or
method.’” Id.
We recognize that in some circumstances the very fact that
legal analysis was given concerning a planned operation would
risk disclosure of the likelihood of that operation, but that is
not the situation here where drone strikes and targeted killings
have been publicly acknowledged at the highest levels of the
Government. We also recognize that in some circumstances legal
analysis could be so intertwined with facts entitled to
protection that disclosure of the analysis would disclose such
facts. Aware of that possibility, we have redacted, as explained
above, the entire section of the OLC-DOD Memorandum that includes
any mention of intelligence gathering activities. The only other
52
facts mentioned in the pure legal analysis portions of the OLC-
DOD Memorandum – the identification of the country where the
drone strike occurred and CIA’s role – have both already been
disclosed, also as explained above. With respect to disclosure
of CIA’s role, we can be confident that neither Senator Dianne
Feinstein, Chairman of the Senate Select Committee on
Intelligence, nor Representative Mike Rogers, Chairman of the
House Select Committee on Intelligence, thought they were
revealing a secret when they publicly discussed CIA’s role in
targeted killings by drone strikes.19
The three-part test for “official” disclosure, relevant to
19
Although “the law will not infer official disclosure of
information classified by the CIA from . . . release of
information by another agency, or even by Congress,” Wilson, 586
F.3d at 186-87, these members of Congress have made public
statements on this matter. Senator Feinstein has praised CIA for
conducting drone strikes with less collateral damage than strikes
conducted by the military. See “Senator Dianne Feinstein on
Drones, Assault Weapons Ban,” The Takeaway (Mar. 20, 2013),
available at http:www.thetakeaway.org/story/276926-sen-dianne-
feinstein-drones-assault-weapons-ban/, at 2:00. Representative
Rogers told CBS that his committee has overseen CIA’s targeted
killing strikes “even before they conducted that first strike
that took [al-]Awlaki.” Transcript, Face the Nation, CBS News
(Feb. 10, 2013), available at http://www.cbsnews.com/news/face-
the-nation-transcripts-february-10-2013-graham-reed-and-
rogers/4/.
53
Exemption 1, which the District Court took from Wilson, 586 F.3d
at 536, has been sufficiently satisfied. The legal analysis in
the OLC-DOD Memorandum is “‘as specific as the information
previously released’” in the DOJ White Paper, it “‘match[es] the
information previously disclosed,’” and was “‘made public through
an official and documented disclosure.’” Dist. Ct. Op., 915 F.3d
at 536 (quoting Wilson, 586 F.3d at 186). In reaching this
conclusion, we do not understand the “matching” aspect of the
Wilson test to require absolute identity. Indeed, such a
requirement would make little sense. A FOIA requester would have
little need for undisclosed information if it had to match
precisely information previously disclosed.20
20
Although we conclude that the three-part test of Wilson has
been satisfied, and Wilson remains the law of this Circuit, we note
that a rigid application of it may not be warranted in view of its
questionable provenance. Wilson took the test from Wolf v. CIA, 473
F.3d 370, 378 (D.C. Cir. 2007), which took the test from Fitzgibbon v.
CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). Fitzgibbon purported to find
the test in Afshar v. Dep’t of State, 702 F.2d 1125, 1133 (D.C. Cir.
1983). The issue in Afshar was whether several books submitted to CIA
for clearance contained official disclosure of details of CIA’s
relationship with SAVAK, Iran’s intelligence service prior to 1979 and
the existence of a CIA station in Tehran prior to 1979. Afshar
rejected the claim of official disclosure for three reasons: (1) none
of the books revealed a continuing relationship between CIA and SAVAK
after 1963, the date of the earliest withheld document; (2) the books
provided only a general outline of such a relationship; and (3) none
54
With the redactions and public disclosures discussed above,
it is no longer either “logical” or “plausible” to maintain that
disclosure of the legal analysis in the OLC-DOD Memorandum risks
disclosing any aspect of “military plans, intelligence
activities, sources and methods, and foreign relations.” The
release of the DOJ White Paper, discussing why the targeted
killing of al-Awlaki would not violate several statutes, makes
this clear. The additional discussion of 18 U.S.C. § 956(a) in
the OLC-DOD Memorandum adds nothing to the risk. Whatever
of the books was an official and documented disclosure. The second
reason was supported by a citation to Lamont v. Dep’t of Justice, 475
F. Supp. 761, 772 (S.D.N.Y. 1979), with a parenthetical stating that
the withheld information must have “already been specifically revealed
to the public” (emphasis in Afshar). Lamont did not assert specific
revelation as a requirement for disclosure; it observed that the
plaintiff had raised a factual issue as to whether the information
sought had been specifically revealed. More important, Afshar, the
ultimate source of the three-part test, does not mention a requirement
that the information sought “match[es] the information previously
disclosed.”
Wilson also cited Hudson River Sloop Clearwater, Inc. v. Dep’t of
the Navy, 891 F.2d 414 (2d Cir. 1989). Clearwater also cited
Fitzgibbon and Afshar and drew from those opinions more rigidity than
was warranted. The issue in Clearwater was simply whether the Navy
had previously disclosed, as the plaintiff claimed, that it was
planning to deploy nuclear weapons at the New York Harbor Homeport.
The Court rejected the claim, pointing out that the Navy had said only
that the ships to be stationed at the Homeport were capable of
carrying nuclear weapons. See id. at 421.
55
protection the legal analysis might once have had has been lost
by virtue of public statements of public officials at the highest
levels and official disclosure of the DOJ White Paper.
IV. Legal Analysis in Other Withheld Documents21
In addition to seeking at least the legal analysis in the
OLC-DOD Memorandum, ACLU also seeks disclosure of the legal
analysis in documents numbered 9 and 10 on DOD’s unclassified
Vaughn index and in other OLC legal memoranda the existence of
which ACLU contends have been officially acknowledged in public
statements. See Br. for ACLU at 50. ACLU contends that Senator
Feinstein said at the confirmation hearing of Brennan to be CIA
director that there are eleven such memoranda, see id. at 50
n.25, of which four were provided to the Senate Select Committee
on Intelligence, see id. at 24 & n.9.
21
Other than the legal analysis in the documents considered in
this section, it is unclear whether the Appellants are seeking on
appeal any other withheld documents. See, e.g., Br. for ACLU at 50
(“Plaintiffs do not challenge the bulk of those withholdings.”). In
any event, except as to the OLC-DOD Memorandum discussed in Section
III, above, the documents discussed in this Section IV, and the
indices discussed in Section V, below, on the current record, we
affirm the District Court’s decision to withhold all other documents
sought. After the Government submits its classified Vaughn indices on
remand, the District Court may, as appropriate, order the release of
any documents that are not properly withheld.
56
Documents numbered 9 and 10 are DOD legal memoranda, which
were made available to this Court ex parte for in camera
inspection. As to these documents, we agree with the District
Court that the declaration of Richard C. Gross, Brigadier
General, United States Army, JA 863, adequately supports the
application of Exemption 5. See Dist. Ct. Supp. Op., 2013 WL
238928, at *1. As General Gross pointed out, these brief
documents (two and four pages respectively) are informal and
predecisional. One does not even identify the sender or the
receiver. They mention legal authorities, but in no way resemble
the detailed, polished legal analysis in the disclosed DOJ White
Paper. At most, they are “part of a process by which
governmental decisions and policies are formulated, [or] the
personal opinions of the writer prior to the agency’s adoption
of a policy.” Public Citizen, Inc. v. Office of Management and
Budget, 598 F.3d 865, 875 (D.C. Cir. 2010) (alteration in
original) (internal quotation marks omitted). See also Judicial
Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006)
(protecting as deliberative “the give-and-take of the
consultative process”) (internal quotation marks omitted). No
waiver of Exemption 5 has occurred with respect to these two
documents.
57
The other OLC legal memoranda have not been submitted to
this Court for in camera inspection, and we are therefore unable
to adjudicate the waiver issue as to these memoranda, nor
determine, if waiver has occurred, what portions of these
documents must be redacted. It is possible that waiver of any
claimed privileges applies to the legal reasoning in these
documents for the same reasons applicable to the OLC-DOD
Memorandum. On remand, these memoranda must be produced to the
District Court for in camera examination and determination of
waiver and appropriate redaction, in light of our rulings with
respect to disclosure and redaction of the legal reasoning in the
OLC-DOD Memorandum.
V. Glomar and No Number, No List Responses
As set forth above, OLC, DOD, and CIA submitted either
Glomar or no number, no list responses to the N.Y. Times and ACLU
requests, in addition to Vaughn indices. For clarification, we
set forth in the margin a chart showing the revised responses of
the three agencies.22 An agency may withhold information on the
22
OLC: DOD: CIA:
58
number of responsive documents and a description of their
contents if those facts are protected from disclosure by a FOIA
exemption. See Wilner, 592 F.3d at 67-69; Hayden v. National
Security Agency, 608 F.2d 1381, 1384 (D.C. Cir. 1979). However,
we agree with the D.C. Circuit that “[s]uch a response would only
be justified in unusual circumstances, and only by a particularly
persuasive affidavit.” ACLU, 710 F.3d at 433.
The Government’s core argument to justify the Glomar and no
number, no list responses, as it was with the effort to withhold
the OLC-DOD Memorandum, is that identification of any document
that provides legal advice to one or more agencies on the
legality of targeted killings “would tend to disclose the
identity of the agency or agencies that use targeted lethal force
against certain terrorists who are U.S. citizens . . . .” Br. for
Appellees at 37. If one of those agencies is CIA, the
Government’s argument continues, disclosure of any information
Glomar to NYTimes; no number, no list to Glomar to NYTimes; no
no number, no list to Shane, Glomar to number, no list to
ACLU as to classified Savage, except OLC- ACLU
documents, except DOD Memorandum; no
OLC-DOD Memorandum number, no list to
ACLU as to classified
documents, except
OLC-DOD Memorandum
59
in a Vaughn index that “would tend to disclose the identity” of
that agency must be protected because, the Government claims,
“[T]he government has never disclosed (with the exception of the
Bin Laden operation) whether the CIA has an operational role in
the use of targeted lethal force or is authorized to use such
force.” Id. at 38.
As was true of waiver of privileges that might originally
have protected the legal reasoning in the OLC-DOD Memorandum, the
statements of Panetta when he was Director of CIA and later
Secretary of Defense, set forth above, have already publicly
identified CIA as an agency that had an operational role in
targeted drone killings.23 With CIA identified, the Appellees’
main argument for the use of Glomar and no number, no list
responses evaporates. The Vaughn index submitted by OLC in
camera must be disclosed, and DOD and CIA must submit classified
Vaughn indices to the District Court on remand for in camera
inspection and determination of appropriate disclosure and
appropriate redaction.
As was also true of the OLC-DOD Memorandum, however, the
requirement of disclosing the agencies’ Vaughn indices does not
23
For purposes of the issues on this appeal, it makes no
difference whether the drones were maneuvered by CIA or DOD personnel
so long as CIA has been disclosed as having some operational role in
the drone strikes.
60
necessarily mean that either the number or the listing of all
documents on those indices must be disclosed. The Appellees
argue persuasively that with respect to documents concerning a
contemplated military operation, disclosure of the number of such
documents must remain secret because a large number might alert
the enemy to the need to increase efforts to defend against
attacks or to avoid detection and a small number might encourage
a lessening of such efforts. Accordingly, all listings after
number 271 on OLC’s Vaughn index will remain secret. See Wilner,
592 F.3d at 70 (upholding Glomar response as to identification
of documents that would reveal “details of [a] program’s
operations and scope”). The descriptions of listing numbers 1-4,
6, 69, 72, 80-82, 87, 92, 103-04, 244-49, and 256 reveal
information entitled to be protected. Listing numbers 10-49, 51-
56, 84-86, 94, 101, 106-09, 111-12, 114-15, 251, 255, 257-61, and
266-67 describe email chains (or copies of chains). Because the
Plaintiffs informed the District Court that they were not seeking
these items, see Dist. Ct. Op., 915 F. Supp. 2d at 545, these
listings need not be disclosed.
No reason appears why the number, title, or description of
the remaining listed documents needs to be kept secret. Listing
number 5 is the OLC-DOD Memorandum; listing numbers 7-9, 50, 250,
262-65, and 269-71 describe documents and attorney notes
61
concerning legal advice; listing numbers 57-68, 70-71, 73-79, 83,
88-91, 93, 95-100, 102, 105, 110, 113, 116-22, and 144-45 are
described as including factual information concerning al-Awlaki;
listing numbers 123-30 are described as unclassified open source
materials; listing numbers 131-43 and 148-237 are described as
drafts of the OLC-DOD Memorandum; listing numbers 238-43 are
described as drafts of other documents; listing numbers 146-47
are described as drafts of Document 86A, a listing that does not
appear on the OLC’s Vaughn index; and listing numbers 244, 246,
248, 252-54, 256, and 268 are described as including [redacted]24.
Some, perhaps all, of the information in many of these
documents might be protected as classified intelligence
information or predecisional. If the Plaintiffs challenge the
applicability of a cited exemption, the District Court, after in
camera inspection, will be able to determine which of these
documents need to be withheld and which portions of these
documents need to be redacted as subject to one or more
exemptions that have not been waived. At this stage, we decide
only that the number, title, and description of all documents
listed on OLC’s classified Vaughn index must be disclosed, with
the exception of listing numbers 1-4, 6, 69, 72, 80-82, 87, 92,
24
This redaction implements section 2(a) of our order of May 28,
2014.
62
103-04, 244-49; 10-49, 51-56, 84-86, 94, 101, 106-09, 111-12,
114-15, 251, 252-54, 255-61, 266-67, 268; and all listings after
listing number 271.
Unlike OLC, DOD and CIA did not provide this Court with
classified Vaughn indices, and we are unable to distinguish among
listed document numbers, which titles or descriptions merit
secrecy. We will therefore direct that, upon remand, DOD and CIA
will provide the District Court with classified Vaughn indices
listing documents responsive to the Plaintiffs’ requests. From
these indices, the District Court, with the guidance provided by
this opinion, should have little difficulty, after examining
whatever further affidavits DOD and CIA care to submit to claim
protection of specific listings, to determine which listings on
these indices may be disclosed. See ACLU, 710 F.3d at 432
(prescribing a similar procedure after rejecting a Glomar
response).
VI. Adequacy of OIP’s Search
Finally, ACLU argues that OIP did not make an adequate
search because it did not disclose thirty e-mail chains with
other DOJ offices that were found during OLC’s search for
responsive records. See Br. for ACLU at 60. However, as this
Court has recognized, a search is not inadequate merely because
63
it does not identify all responsive records. See Grand Central
Partnership, Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir. 1999).
The adequacy of a search is not measured by its results, but
rather by its method. See Weisberg v. U.S. Dep’t of Justice, 745
F.2d 1476, 1485 (D.C. Cir. 1984). To show that a search is
adequate, the agency affidavit “must be relatively detailed and
nonconclusory, and submitted in good faith.” Grand Central
Partnership, 166 F.3d at 489 (internal quotation marks omitted).
The affidavit submitted by an OIP official, JA 412-419 ¶¶ 7-34,
easily meets these requirements, and the November 3, 2011, cut-
off date was reasonable as the date on which the search was
commenced. See Edmonds Institute v. U.S. Dep’t of Interior, 383
F. Supp. 2d 105, 110-11 (D.D.C. 2005).
Conclusion
For the reasons stated above, we conclude that:
(1) a redacted version of the OLC-DOD Memorandum
(attached as Appendix A to this opinion) must be
disclosed;
(2) a redacted version of the classified Vaughn
index submitted by OLC must be disclosed, including
64
the number, title, and description of all documents,
with the exception of listing numbers 1-4, 6, 10-49,
51-56, 69, 72, 80-82, 84-87, 92, 94, 101, 103-04,
106-09, 111-12, 114-15, 244-49, 251, 252-54, 255-61,
266-67, 268; and all listings after listing number
271;
(3) 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;
(4) the Glomar and “no number, no list” responses
are insufficiently justified;
(5) DOD and CIA must submit Vaughn indices to the
District Court for in camera inspection and
determination of appropriate disclosure and
appropriate redaction; and
(6) the OIP search was sufficient.
We therefore affirm in part, reverse in part, and remand.25
Appendix A
25
Prior to filing, we have made this opinion available to the
Government in camera to afford an opportunity to advise whether any
classified information, not intended to be disclosed by this opinion,
has been inadvertently disclosed.
65
OLC-DOD Memorandum after appropriate redactions and deletion
of classification codes (redactions in the OLC-DOD Memorandum
are indicated by white spaces)
66