THOMAS R. BURKE (State Bar No. 141930)American citizen Anwar al-Awlaki using a CIA-directed drone....

Case No. CV 12-01013-CW FAC’S CROSS-MOTION FOR SUMMARY JUDGMENT DWT 20444299v5 0200441-000001

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THOMAS R. BURKE (State Bar No. 141930) JEFF GLASSER (State Bar No. 252596) JONATHAN L. SEGAL (State Bar No. 264238) DAVIS WRIGHT TREMAINE LLP 505 Montgomery Street, Suite 800 San Francisco, California 94111 Telephone: (415) 276-6500 Facsimile: (415) 276-6599 Email: [email protected]; [email protected];

[email protected] Attorneys for Plaintiff FIRST AMENDMENT COALITION

IN THE UNITED STATES DISTRICT COURT

THE NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

FIRST AMENDMENT COALITION, Plaintiff, vs. U.S. DEPARTMENT OF JUSTICE, Defendant.

))))))))))) )) ))))

Case No. CV 12-01013-CW Assigned to the Hon. Claudia Wilken PLAINTIFF FIRST AMENDMENT COALITION’S CROSS-MOTION FOR SUMMARY JUDGMENT AND OMNIBUS OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Hearing Date: TBD Time: TBD Place: Oakland Courthouse Courtroom 2

Case4:12-cv-01013-CW Document31 Filed10/05/12 Page1 of 30


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TABLE OF CONTENTS

Page 1. INTRODUCTION AND SUMMARY OF FACTS ................................................ 1

2. DOJ IMPROPERLY REFUSED TO CONFIRM THE EXISTENCE OF LEGAL ANALYSES SUPPORTING THE KILLING OF AL-AWLAKI. ............ 4

A. FAC Asks DOJ To Disclose The Legal Arguments From All Documents Reflecting Legal Analysis Justifying The Extrajudicial Killing Of al-Awlaki. .................................................................................... 4

B. Release Of The Legal Analyses Supporting Targeted Killing Of al-Awlaki Would Not Compromise National Security. .................................... 5

1. Disclosing The Existence Of Legal Analysis On The Targeted Killing Of U.S. Citizens Does Not Reveal Intelligence Sources or Methods. ....................................................... 5

2. The Government’s Many Official Acknowledgments Preclude A Glomar Response In This Litigation. .............................. 8

3. EXEMPTION 1 DOES NOT APPLY BECAUSE THE GOVERNMENT HAS FAILED TO SHOW THAT LEGAL ANALYSIS IS PROPERLY CLASSIFIED. ........................................................................................................ 13

A. Legal Analysis Is Categorically Improper For Classification. ................... 13

B. The Government’s Declarations Do Not Satisfy Their Burden Of Establishing That Exemption 1 Applies. .................................................... 14

4. UNDER EXEMPTION 3, THE GOVERNMENT HAS FAILED TO DEMONSTRATE HOW LEGAL ANALYSIS “LOGICALLY FALLS” WITHIN THE CATEGORY OF “INTELLIGENCE SOURCES AND METHODS.” .......................................................................................................... 17

5. EXEMPTION 5 DOES NOT APPLY HERE. ....................................................... 19

A. The Deliberative Process Privilege Does Not Justify The Secrecy Urged By The Government Here. ............................................................... 19

B. The Attorney-Client Privilege Does Protect The Requested Records. ....... 22

6. THE COURT SHOULD REVIEW THE OLC LEGAL ANALYSES IN CAMERA TO DETERMINE WHETHER THEY MAY BE REDACTED. ......... 24

7. CONCLUSION ...................................................................................................... 25



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TABLE OF AUTHORITIES

Page(s) CASES

ACLU v. DOD, 389 F. Supp. 2d 547 (S.D.N.Y. 2005) ................................................................................... 6, 7

Assembly of California v. DOC, 968 F.2d 916 (1992) ............................................................................................................ 2, 20

Brennan Ctr. for Justice v. DOJ, 2011 U.S. Dist. LEXIS 99121 (S.D.N.Y. Aug. 29, 2011), aff’d in part, 2012 U.S. App. LEXIS 19685 (2d Cir. September 19, 2012) .......................................................................... 24

Brennan Ctr. for Justice v. DOJ, 2012 U.S. App. LEXIS 19685 (2d Cir. September 19, 2012) .......................................... 21, 22

Bronx Defenders v. DHS, 2005 U.S. Dist. LEXIS 33364 (S.D.N.Y. Dec. 19, 2005) ................................................ 21, 24

Caplan v. ATF, 587 F.2d 544 (2d Cir. 1978) .................................................................................................... 20

Carpenter v. DOJ, 470 F.3d 434 (1st Cir. 2006) ................................................................................................... 25

Church of Scientology v. Dep’t of the Army, 611 F.2d 738 (9th Cir. 1979) ...................................................................................... 14, 24, 25

CIA v. Sims, 471 U.S. 159 (1987) ................................................................................................................ 18

Coastal States Gas Corp. v. DOE, 617 F.2d 854 (D.C. Cir. 1980) .......................................................................................... 20, 22

Ctr. for Biological Diversity v. OMB, 625 F. Supp. 2d 885 (N.D. Cal. 2009) .................................................................................... 23

Eslaminia v. FBI, 2011 U.S. Dist. LEXIS 125261 (N.D. Cal. 2011) .................................................................. 25

Gordon v. FBI, 388 F. Supp. 2d 1028 (N.D. Cal. 2005) .................................................................................. 23

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ................................................................................................................ 14

Irons v. Gottschalk, 548 F.2d 992 (D.C. Cir. 1976) ................................................................................................ 25


2 Case No. CV 12-01013-CW FAC’S CROSS-MOTION FOR SUMMARY JUDGMENT DWT 20444299v5 0200441-000001

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Islamic Shura Council of Southern California v. FBI, 635 F.3d 1160 (9th Cir. 2011) .......................................................................................... 19, 25

Jefferson v. DOJ, 284 F.3d 172 (D.C. Cir. 2002) .................................................................................................. 6

Judicial Watch, Inc. v. U.S. Secret Serv., 579 F. Supp. 2d 182 (D.D.C. 2008) .......................................................................................... 6

King v. DOJ, 830 F.2d 210 (D.C. Cir. 1987) ................................................................................................ 15

Lamont v. DOJ, 475 F. Supp. 761 (S.D.N.Y. 1979) .......................................................................................... 15

Lawyers’ Committee for Civil Rights of the San Francisco Bay Area v. DOT, 2008 U.S. Dist. LEXIS 87624 .................................................................................................. 4

Lawyers’ Committee for Civil Rights of the San Francisco Bay Area v. DOT, 534 F. Supp. 2d 1126 (N.D. Cal. 2008) .................................................................................... 4

Lion Raisins v. USDA, 354 F.3d 1072 (9th Cir. 2004) .................................................................................................. 4

Mead Data Central v. Dep't of the Air Force, 566 F.2d 242 (D.C. Cir. 1977) ................................................................................................ 22

Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981) ................................................................................................ 18

Nat’l Council of La Raza v. DOJ, 411 F.3d 350 (2d Cir. 2005) (“La Raza”) ........................................................................ passim

Nat’l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (“Sears”) ........................................................................................ 2, 4, 20

Nat’l Security Archive v. DOJ, No. 99-1160, at 17 (D.D.C. July 31, 2000) (Ex. N) .................................................................. 6

National Day Laborer Org. Network v. Immigration and Customs Enforcement 827 F. Supp. 2d 242 (S.D.N.Y. 2011) ..................................................................................... 24

Navasky v. CIA, 499 F. Supp. 269 (S.D.N.Y. 1980) .......................................................................................... 18

NRDC v. DOD, 388 F. Supp. 2d 1086 (C.D. Cal. 2005) .................................................................................. 23

Phillippi v. CIA, 546 F.2d 1009 (1976) ................................................................................................................ 6



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Phillippi v. CIA, 655 F.2d 1325 (D.C. Cir. 1981) ............................................................................................ 5, 6

Pickard v. DOJ, 653 F.3d 782 (9th Cir. 1996) ................................................................................................ 8, 9

Safeway v. IRS, 2006 U.S. Dist. LEXIS 81078 (N.D. Cal. Oct. 24, 2006) ....................................................... 23

Schulze v. FBI, 2010 U.S. Dist. LEXIS 74360 (E.D. Cal. July 22, 2010) ......................................................... 6

Washington Post v. DOD, 766 F. Supp. 1 (D.D.C. 1991) ................................................................................................. 15

Wiener v. FBI, 943 F.2d 972 (9th Cir. 1991) ............................................................................................ 15, 25

Winter v. NSA, 569 F. Supp. 545 (S.D. Cal. 1983) .......................................................................................... 25

STATUTES

5 U.S.C. § 552(a)(4)(B) ................................................................................................................ 21

5 U.S.C. § 552(b)(3) ..................................................................................................................... 17

50 U.S.C. § 403-1(1) ..................................................................................................................... 17

50 U.S.C. § 1541 (2001) ............................................................................................................... 14

OTHER AUTHORITIES

U.S. CONST. art. 2 § 2 ................................................................................................................... 14



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1. INTRODUCTION AND SUMMARY OF FACTS

One year ago, on September 30, 2011, the United States and Yemen killed terrorist and

American citizen Anwar al-Awlaki using a CIA-directed drone. In public remarks that day at an

event marking the retirement of Navy Adm. Mike Mullen, President Barack Obama called the

killing of al-Awlaki “a tribute to the U.S. intelligence community and the efforts of leaders in

Yemen.” See Declaration of Thomas R. Burke, Exs. D, E. In subsequent months, President

Obama, Attorney General Eric Holder, counterterrorism adviser John Brennan, FBI Director Robert

Mueller, and many other United States officials began a public relations campaign on college

campuses and other well-attended venues in which they defended the United States’ targeted

killings of terrorists, including American citizens, insisting that these extrajudicial killings are

authorized by law and are subject to strict standards of proof. Exs. G, H.

For example, counterterrorism adviser Mr. Brennan claimed in an April 2012 speech that

“these targeted strikes are legal.” He cited legal opinions from the Departments of Justice,

Defense, and State, and argued that both domestic and international law permitted the Government

to engage in extrajudicial killings, including of American citizens. Ex. G. Similarly, in March

2012, Attorney General Holder gave a speech at Northwestern University in which he declared that

“it is entirely lawful – under both United States law and the applicable law of war principles – to

target specific senior operational leaders of al-Qaeda and associated force.” Ex. H. He stated that

these “generations-old legal principles and Supreme Court decisions handed down during World

War II, as well as during this current conflict,” make “clear that United States citizenship alone

does not make such individuals immune from being targeted.” Id.

President Obama built on these public statements in a September 5, 2012 interview with

CNN, stating there is “no doubt that when an American has made the decisions to affiliate itself

with al-Qaeda and target fellow Americans that there is a legal justification for us to try to stop

them from carrying out plots. What is also true though is that as an American citizen they are

subject to the protections of the constitution and due process.” Burke Decl. ¶ 11, Ex. J.

The marketing campaign, prominently featuring the President of the United States and the

country’s Attorney General to justify the targeted killing program by insisting that it is authorized



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by law, provides ample evidence of the highest Government officials publicly acknowledging that

the country has adopted a legal position in support of this program. Yet despite these repeated and

prominent public statements, the United States Department of Justice (“DOJ” or the “Government”)

refuses in this Freedom of Information Act (“FOIA”) lawsuit to acknowledge the existence of the

governing legal analyses providing the Government’s rationale for the extrajudicial killings of

American citizens, including al-Awlaki. See DOJ Answer ¶ 3. The Government’s secreting of the

law that it insists legally justifies its targeted killing program not only is antithetical to basic notions

of accountability in this democratic society, but also contravenes settled case law holding that

FOIA requires public disclosure of records that set forth or clarify the Government’s substantive

and/or procedural legal positions. See Nat’l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S.

132, 152-153 (1975) (“Sears”); Assembly of California v. DOC, 968 F.2d 916, 921 (1992); Nat’l

Council of La Raza v. DOJ, 411 F.3d 350, 360 (2d Cir. 2005) (“La Raza”). Here, release of the

records sought by FAC will serve to enlighten and amplify what President Obama, Attorney

General Holder, and other top officials already have stated in public speeches. It also would allow

the public to scrutinize the actual legal authority and doctrines that the Government is invoking to

take the ultimate sanctions against American citizens without due process.

FAC is not asking for disclosure of any of the Government’s intelligence sources or

methods, which distinguishes this case from almost all of the other cases that the Government cited

in its motion for summary judgment. FAC simply seeks the legal reasoning by the DOJ Office of

Legal Counsel (“OLC”) justifying the targeted killing program that legally sanctions the

Government’s killing of American citizens engaged in terrorist activity: the legal justification that

President Obama and United States Attorney Holder have repeatedly referenced in their prominent

public comments in which they tout the legality of the Government’s actions. For example,

whether the Government found that al-Awlaki and others similarly situated enjoyed constitutional

rights under the First, Fourth, Fifth or other amendments would not reveal any intelligence sources

or methods, but is a question of profound public concern, as the former head of OLC, Jack

Goldsmith, has noted. Ex. K. Similarly, if al-Awlaki and others similarly situated did possess such

constitutional rights, then the public surely has an interest in knowing the Government’s argument



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for why and when such rights may be overcome. See id. The Government’s analysis of the

President’s powers in this context and any limits on his powers also would contribute to public

debate and enhanced understanding of the Government’s position on executive power in the War

on Terror. See id. The Government may have excellent arguments that justify its actions, but

keeping secret their legal basis while simultaneously insisting that the program is legal does not

serve the public interest, as the former head of the House Intelligence Committee, Jane Harman,

and former OLC head Goldsmith have recognized. Exs. K, L. At the very least, disclosure of the

case law and statutes cited by the Government would not creditably jeopardize national security;

and yet, the Government has swept in this innocuous material as part of its overbroad withholding

and refusal even to acknowledge the legal analyses written by OLC. These are documents that the

Government cannot plausibly deny exist in the aftermath of the Government’s public relations

offensive to justify the killing of al-Awlaki by claiming it was authorized by the secret law

analyzed by the Government’s legal braintrust.

As this Memorandum explains in detail below, neither the Government’s Glomar response

nor its assertions of FOIA Exemptions 1, 3, and 5 justify withholding the documents requested by

Plaintiff First Amendment Coalition (“FAC”). First, the government’s Glomar response refusing

to acknowledge or deny the existence of the legal memorandum prepared by OLC on the legal

rationale for targeting al-Awlaki is unjustified in light of the Government’s previous disclosure.

Second, the Government assertion of Exemption 1 fails because the Government can offer no

authority to support its novel claim that legal analysis – as opposed to operational details or other

factual materials – may be properly classified as secret through an executive order that does not

mention legal analysis as a classified category. Third, the Government has no basis for asserting

Exemption 3 because the Government’s conclusory declarations fail to show how the

Government’s legal analyses would reveal “intelligence sources or methods” or why the legal

argument in the analyses cannot be segregated from any classified factual material that would

qualify for this exemption. Fourth, the Government improperly invokes the deliberative process

and attorney-client privileges (FOIA Exemption 5), but these privileges do not shield records that

have been adopted as, or incorporated by reference into, the Government’s policy. Where, as here,



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the Government – at its highest levels – has publicly admitted its reliance on the contents of legal

analyses as legal authority to justify its actions in a public relations effort to sell the policy to the

public, the courts have held that these privileges do not apply, and must yield to the public’s right

to know the laws under which the Government is operating. See Sears, 421 U.S. at 152-153; La

Raza, 411 F.3d at 359-360. Finally, because the Government offers speculative and conclusory

declarations, the Court should exercise its discretion to review the disputed legal analyses in

camera to determine if the Government’s refusal to disclose these analyses comports with FOIA.

For all these reasons, FAC respectfully requests that the Court grant this cross-motion for

summary judgment, and direct DOJ to disclose the OLC legal analyses pertinent to the killing of al-

Awlaki, with redactions for any operational detail.

2. DOJ IMPROPERLY REFUSED TO CONFIRM THE EXISTENCE OF LEGAL ANALYSES SUPPORTING THE KILLING OF AL-AWLAKI. A. FAC Asks DOJ To Disclose The Legal Arguments From All Documents

Reflecting Legal Analysis Justifying The Extrajudicial Killing Of al-Awlaki.

The Government “has a duty to construe a FOIA request liberally.” Lawyers’ Committee

for Civil Rights of the San Francisco Bay Area v. DOT, 534 F. Supp. 2d 1126, 1130, 1135-1136

(N.D. Cal. 2008) (“LCCR I”) (“given the mandate that FOIA requests be interpreted liberally,”

construing requests for “number” and “nature” of complaints and inquiries to the Treasury

Department about the terrorist watch list as requests for copies of these complaints and inquiries

even though request did not specify that it is seeking copies of these inquiries and complaints as

opposed to numerical information); Lawyers’ Committee for Civil Rights of the San Francisco Bay

Area v. DOT, 2008 U.S. Dist. LEXIS 87624, 36 Media L. Rptr. 2505, at *18-*19 (N.D. Cal. Sept.

30, 2008) (“LCCR II”) (“declin[ing] to reconsider [court’s] prior conclusion that even though

LCCR’s FOIA requests 5 and 6 may have been inartfully written, liberally construed, the requests

encompass the delisting petitions” filed by people seeking to be removed from the Treasury

terrorist watch list). As the Ninth Circuit stated in Lion Raisins v. USDA, 354 F.3d 1072, 1079 (9th

Cir. 2004), FOIA disclosure provisions must be “broadly construed, and exemptions “must be

narrowly construed.”

Here, instead of broadly construing FAC’s FOIA request, the Government has narrowly



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construed it as asking for a single document – “an alleged memorandum” pertaining to the killing

of al-Awlaki (DOJ MSJ at 1). FAC did not and could not know whether OLC analyzed the legal

ramifications of killing al-Awlaki in one document or multiple documents; that information is

uniquely in the hands of the Government. But FAC’s request is for the legal analysis authorizing

the lethal targeting of al-Awlaki, whether the Government drafted one memorandum or parsed it

out in multiple memoranda for different government agencies. See Compl. ¶ 1 (stating that FAC is

asking for all “agency records that address the government’s use of targeted lethal force against

U.S. citizens abroad who are believed to have joined forces with terrorist organizations engaged in

attacks against Americans”); Compl., Ex. A (FAC FOIA request seeking the legal analysis

authorizing the lethal targeting of al-Awlaki, as described in a September 30, 2011 Washington

Post article). To the extent that the Government has prepared the latter (multiple documents) that

recite these legal arguments setting out the Government’s policy on the targeted killing of U.S.

citizens such as al-Awlaki, those documents also should be disclosed as part of this litigation.

In the New York Times v. DOJ FOIA litigation that is pending in the Southern District of

New York, the Government initially refused to acknowledge whether it had any documents

pertaining to the legality of killing U.S. citizens such as al-Awlaki. See Request for Judicial

Notice, Ex. A, ¶ 11. But DOJ eventually conceded that OLC had prepared a memorandum for the

Department of Defense that pertains to the killing of al-Awlaki in Yemen. See id., ¶ 21. This

admission forecloses the Government from pretending that this document does not exist in this

litigation. Because DOJ did not make a Glomar response as to the OLC memorandum it prepared

for the Defense Department in the New York Times v. DOJ case, it should not be allowed to make a

Glomar response as to this memorandum here.

B. Release Of The Legal Analyses Supporting Targeted Killing Of al-Awlaki Would Not Compromise National Security. 1. Disclosing The Existence Of Legal Analysis On The Targeted

Killing Of U.S. Citizens Does Not Reveal Intelligence Sources or Methods.

A “Glomar response” refers to the decision in Phillippi v. CIA, 655 F.2d 1325 (D.C. Cir.

1981), where the court stated that the Government could refuse to acknowledge or disclose whether



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the CIA was involved with a ship called the Glomar Explorer.1 The Glomar response is a limited

and narrow exemption to FOIA’s policy of disclosure. As one district court recently observed,

“When an agency invokes the Glomar response it withholds essentially all information from the

requesting party including information as to whether the requested records exist. The response is

therefore the functional equivalent of a non-response and represents the most extreme departure

from the policy purpose of the FOIA to inform and promote transparency in governmental affairs.”

Schulze v. FBI, 2010 U.S. Dist. LEXIS 74360, at *57 (E.D. Cal. July 22, 2010) (emphasis added)

(quoting Lame v. DOJ, 654 F.2d 917, 921 (3d Cir. 1981) (Glomar response is a significant

departure from the usual duty of the agency to at least produce index of withheld records and

reasons each element of record qualifies for exemption pursuant to Vaughn)).2

In the case brought by the ACLU seeking access to records reflecting the Government’s use

of enhanced interrogation techniques after 9/11 (the one in which photographs of abuse of Abu

Ghraib prisoners were disclosed), the court also was confronted with Glomar responses provided by

the Government as to several OLC memoranda. The district court commented that “[t]he danger of

Glomar responses is that they encourage an unfortunate tendency of government officials to over-

classify information, frequently keeping secret that which the public already knows, or that which

is more embarrassing than revelatory of intelligence sources or methods.” ACLU v. DOD, 389 F.

Supp. 2d 547, 561 (S.D.N.Y. 2005). The ACLU v. DOD district court quoted from the late Senator

Daniel Patrick Moynihan’s book Secrecy, in which Senator Moynihan wrote:

A huge proportion of the government’s effort at classifying is futile anyway. Let [George F.] Kennan have the last word. In a letter of March 1997 he writes: ‘It is my conviction, based on some 70 years of experience, first as a government official

1 Even in this first case that recognized the possibility of a Glomar response, the D.C.

Circuit found the CIA’s response to be inadequate and remanded the matter with instructions that the CIA provide a detailed public declaration substantiating its response. Phillippi v. CIA, 546 F.2d 1009, 1015 (D.C. Cir. 1976) (“Phillippi I”). On remand, the CIA changed its position and disclosed requested records. Phillippi v. CIA, 655 F.2d 1325, 1328 (D.C. Cir. 1981) (“Phillippi II”).

2 See also Judicial Watch, Inc. v. U.S. Secret Serv., 579 F. Supp. 2d 182, 186 (D.D.C. 2008) (rejecting Secret Service’s Glomar response because its “argument that knowledge of the mere existence or absence of [records] poses a security risk does not hold water”); Jefferson v. DOJ, 284 F.3d 172, 178 (D.C. Cir. 2002) (“the Department cannot rely on a bare assertion to justify invocation of an exemption from disclosure”); Nat’l Security Archive v. DOJ, No. 99-1160, at 17 (D.D.C. July 31, 2000) (“national security can only be harmed by the lack of trust engendered by a government denial of information that it has already admitted”) (slip op.) (Ex. N).



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and then in the past 45 years as an historian, that the need by our government for secret intelligence about affairs elsewhere in the world has been vastly over-rated.… A case can be made … that secrecy is for losers. For people who don’t know how important information really is. The Soviet Union realized this too late. Openness is now a singular, and singularly American, advantage. We put it in peril by poking along in the mode of an age now past. It is time to dismantle government secrecy, this most pervasive of Cold War-era regulations. It is time to begin building the supports for the era of openness that is already upon us.

Id. at 562 (emphasis and brackets in original) (quoting Daniel Patrick Moynihan, Secrecy

226-227 (Yale Univ. Press 1998)); see generally Rep. of the Comm’n on Protecting and Reducing

Gov’t Secrecy (1997). After explaining these dangers of overbroad Glomar responses, the district

court held that a memorandum from DOJ to CIA interpreting the Convention Against Torture

“reveals nothing about the agency’s practices or concerns or its ‘intelligence sources or methods.’”

Id. at 566. Accordingly, the court rejected the Government’s Glomar response and ordered the

Government to produce the record or a Vaughn Index with claimed exemptions as to the record.

As these cases make clear, the Government bears a high burden to justify a Glomar

response, especially where the Government fails to show how revealing the existence of the OLC

memorandum would “damage” national security. DOJ MSJ at 7. The Government’s argument

here is exactly the kind of overbroad and conclusory claim that does not satisfy the Government’s

burden of establishing the propriety of a Glomar response. The Government generically insists that

acknowledging the very existence of an OLC memorandum would reveal “some detail regarding

specific alleged operations, particularly in light of the specificity of the request (seeking legal

analysis about an alleged ‘U.S. drone strike’ against Aulaqi) and Aulaqi’s death.” DOJ MSJ at 7

(citing Hackett Decl. ¶¶ 19-20, Tidd Decl. ¶ 12). See also FAC’s Evidentiary Objections to the

legal conclusions in these declarations. But the Government already has acknowledged in the New

York Times v. DOJ litigation that the OLC prepared a legal memorandum for DOD pertaining to the

killing of al-Awlaki in Yemen. RJN, Exs. A, ¶ 21; B, at 7. (Bies Decl. ¶ 21 in New York Times v.

DOJ – NYT Memo. At 7). Given the Government’s admission in open court, it cannot reasonably

claim here that it would damage national security for the Government to acknowledge the existence

of a legal analysis or analyses pertaining to the legality of killing al-Awlaki.

The government also fails to establish how revealing the existence of legal analysis would



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jeopardize intelligence sources and methods. To the extent that the Government claims that

confirming the mere existence of legal analysis would reveal that the Government participated in a

drone strike, this argument is a red herring. The Government can easily redact the method used to

kill al-Awlaki while still providing the public with the claimed legal justification for extrajudicial

killings of American citizens. Such redactions would be unwarranted here, though, because the

Government already has prominently acknowledged in public statements that the targeted killing

program through which al-Awlaki was killed employs drones. Exs. F, J, M, R, S, V. In addition,

the Glomar response is about the existence of written legal analysis regarding the legality of killing

U.S. citizen al-Awlaki, not about the content of any such analysis or analyses. The OLC might well

have written memoranda but concluded in them that Government agencies lacked the legal

authority to engage in targeted killing. Or it might have found such authority exists in some

circumstances but not others; or the memoranda might simply contain a summary of the law. Just

knowing that the OLC issued written legal analysis on the killing of a U.S. citizen and al Qaeda

leader reveals nothing to the world about what it says. It does not inform the public whether OLC

advised for or against targeted killing, whether any agency heeded OLC advice, or whether any

agency actually participated in such activities. Because revealing the existence of OLC memoranda

on the propriety of killing U.S. citizens, including al-Awlaki, could not possibly damage United

States security, the Government’s Glomar response is inappropriate, and should be rejected.

2. The Government’s Many Official Acknowledgments Preclude A Glomar Response In This Litigation.

In Pickard v. DOJ, 653 F.3d 782, 786 (9th Cir. 1996), the Ninth Circuit set forth a three-part

test for determining whether the Government’s Glomar response is invalid: whether (1) the

information sought is “as specific as the information previously released”; (2) the two sets of

information “match”; and (3) the prior facts were made public “through an official and documented

disclosure.” Id. In Pickard, a federal prison inmate made a FOIA request for records pertaining to

an alleged confidential informant in his case, Gordon Todd Skinner. The court applied its three-

part test and concluded that, once prosecutors “intentionally elicited” facts from Skinner in open

court about his role as a confidential informant, the government could no longer issue a Glomar



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response refusing to confirm or deny that Mr. Skinner was a confidential informant. Pickard, 653

F.3d at 787-788. The Ninth Circuit confirmed that for something to be officially “confirmed” or

“acknowledged,” the plaintiff in a FOIA action need not establish that the Government issued a

press release or show that the statements came from “the director of a federal law enforcement

agency personally.” Id. Instead, the disclosure only has to be “an intentional, public disclosure

made by or at the request of a government officer acting in an authorized capacity by the agency in

control of the information at issue.” Id.

Here, FAC satisfies the Ninth Circuit’s definition of an official disclosure precluding a

Glomar response. First, the Government already acknowledged that an OLC legal analysis

prepared for DOD that pertains to the killing of al-Awlaki exists in the New York Times v. DOJ

litigation. Thus, the Government cannot claim here that revealing the existence of legal analysis of

the propriety of the extrajudicial killing of al-Awlaki would harm anything, since the Government

already has disclosed this fact as part of open court proceedings. See Pickard, 653 F.3d at 787-788.

Second, contrary to the Government’s erroneous claim that FAC has identified “only

unsourced, unofficial statements and media reports” (DOJ MSJ at 7), the highest levels of the

United States Government have repeatedly acknowledged in official speeches and statements that

the Government is engaged in a targeted killing program and has established legal parameters for

this program, including the killing of al-Awlaki. For example, in March 2012, Attorney General

Holder testified before the House Senate Judiciary Committee. After Sen. Pat Leahy stated, “I still

want to see the Office of Legal Counsel memorandum. And I would urge you to keep working on

that. I realize – I realize it’s a matter of some debate within the administration–,” Attorney General

Holder responded, “That would be true.” Ex. O. That same month, Attorney General Holder gave

a speech at Northwestern University (a public transcript is available at

http://www.justice.gov/iso/opa/ag/speeches/2012/ag-speech1203051.html). Attorney General

Holder claimed that the program was consistent with American “values” and “laws.” He explained:

Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent



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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.

Ex. H. Recently, in an interview with CNN, President Obama echoed these same criteria

for lethal action against U.S. citizens abroad believed to be acting as terrorists. He stated that

“drones are one tool we use, and our criteria for using them is very tight and very strict.” Burke

Decl. ¶¶ 11-12, Ex. J. He explained: “It has to be a target that is authorized by our laws. It has to

be a threat that is serious and not speculative. It has to be a situation in which we can’t capture the

individual before they move forward on some sort of operational plot against the United States.”

Id.

Both President Obama and Attorney General Holder also have claimed that the Government

is following due process in the targeting of U.S. citizens who are believed to be terrorists acting

abroad. When asked about the targeting of United States citizens as part of the drone program,

President Obama stated in the CNN interview, “There’s no doubt that when an American has made

the decision to affiliate itself with al Qaeda and target fellow Americans that there is a legal

justification for us to try to stop them from carrying out plots. What is also true, though, is as

American citizens they are subject to the protections of the Constitution and due process.” Id. In

the Northwestern speech, Attorney General Holder explained that “due process,” to the

Government, is not the same as judicial process:

Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda and associated forces. This is simply not accurate. ‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process. … The Constitution’s guarantee of due process is ironclad, and it is essential – but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a U.S. citizen.

Ex. H. In addition to acknowledging the use of drones in the targeted killing program, the

OLC legal analysis on that program,3 and the substance of the Government’s legal position as to its

3 Other top officials have acknowledged the existence of legal analysis developed by the

Government on the targeted killing program. For example, counterterrorism adviser Brennan gave a speech in April 2012 in which he extolled the Government’s publicity campaign, including



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authority to enter into the targeted killing program,4 top Government officials also have admitted

the Government’s specific involvement in the killing of al-Awlaki. For example, FBI director

Robert Mueller told the House Judiciary Committee at a hearing on December 14, 2011: “Due to

the coordinated efforts of our military, the intelligence community, law enforcement, and our

international partners, we have captured or killed many al Qaeda leaders and operatives, including

Osama bin Laden and Anwar al-Awlaki….” Ex. O. Similarly, on October 25, 2011, President

Obama volunteered during an appearance on the The Tonight Show with Jay Leno that al-Awlaki

“was probably the most important al Qaeda threat that was out there after bin Laden was taken out,

and it was important that, working with the Yemenis, we were able to remove him from the field.”

Ex. T. And Secretary of Defense and former CIA Director Leon Panetta stated in September 2011

when asked about the killing of al-Awlaki, “we’ve been working with the Yemenis over a 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 this job done.” Ex. U. Secretary Panetta

also admitted one month later the CIA’s involvement in the Predator drone targeted killing

program, stating: “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 in the CIA, although the Predators aren’t bad.”

Attorney General Holder’s discussion of “the legal authorities that allow us to pursue members of al-Qaeda – including U.S. citizens – and to do so using technologically advanced weapons.” Ex. G. He also noted that the general counsels of DOD and the CIA had given speeches on “the legal basis for our military efforts against al-Qaeda,” and “how the agency operates under U.S. law.” Id. Similarly, Harold Koh, chief legal adviser to the Department of State, gave a speech in March 2010 asserting that “this Administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles.” Ex. P.

4 In addition to the above remarks, President Obama acknowledged the drone program in a Google+ Hangout, claiming that “we are very careful in terms of how it’s been applied.” Ex. Q. Counterterrorism adviser Brennan also has stated that “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 targeted strikes against specific al-Qaeda terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones.” Ex. G. State Department legal adviser Koh has made the same admissions in public statements. Ex. P. Then-CIA Director Panetta also responded at a public appearance to a question on “remote drone strikes” by stating that “these operations have been very effective because they have been very precise in terms of the targeting … and, very frankly, it’s the only game in town in terms of confronting and trying to disrupt the al-Qaeda leadership.” Ex. R. The news website ProPublica has assembled a collection of statements from National Intelligence Director Dennis Blair, former CIA Director Michael Hayden, and others with their many statements discussing the drone program. Ex. S.



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Ex. M. He said he was “very familiar” with “the use of Predators” from his “past job.” Id.5

These multiple public acknowledgments by the highest levels of the Government undermine

the legitimacy of DOJ’s Glomar response in this litigation. The Government’s central argument is

the claim that revealing the existence of OLC legal analyses on the killing of U.S. citizens,

including al-Awlaki, would reveal that Yemen cooperated with the United States in the operation to

kill al-Awlaki. See DOJ MSJ at 8. But President Obama and Secretary of Defense (and former

CIA Director) Panetta have already repeatedly acknowledged in the above public statements that

the United States Government worked with the Yemenis to kill al-Awlaki. The fact that OLC

analyses exist that pertain to the killing of al-Awlaki does not reveal any intelligence sources or

methods when these top officials already have prominently touted the targeted killing of al-Awlaki

and the cooperation of Yemen.6

Moreover, contrary to the Government’s claims, it hardly a secret that the Government has

asked the OLC for legal analysis on the targeted killing program, including the killing of United

States citizens such as al-Awlaki. Attorney General Holder admitted as much in testimony before

Congress, and DOJ also has admitted in the New York Times v. DOJ case that the Government

prepared the OLC analysis for DOD that pertains to killing al-Awlaki without making a Glomar

response. RJN Ex. A, ¶ 21. President Obama, Attorney General Holder and other top officials

also have made clear publicly that they are following a legal and procedural framework for the

targeted killing program. Revealing that the Government wrote something down about the legal

and procedural tests for targeting U.S. citizens that President Obama and the others have announced

as part of their public relations efforts would not reveal anything that reasonably could be construed

as damaging national security. To the contrary, such disclosure would serve to bolster the

5 When interviewed by CBS’s 60 Minutes, Secretary Panetta nodded in response to the

statement “You killed al-Awlaki, American citizen, no trial, no due process, you just executed the death penalty,” and then discussed the legal basis for killing U.S. citizens. Burke Decl., ¶ 27, Ex. Y.

6 In similar situations, other governments without the tradition of the First Amendment have released legal memoranda on the legality of going to war. For example, in 2005, the government of British Prime Minister Tony Blair released on the U.K. government’s website the full advice that Attorney General Lord Goldsmith gave to the prime minister before the Iraq war, even though the memoranda explored skepticism about the British government’s authority to join the Iraq war under international law and British law. Exs.W & X.



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Government’s credibility on this vitally important issue faced by the world’s leading democracy.

Finally, to the extent that the Government is trying to claim that disclosing the existence of

legal analyses would reveal that the CIA played a role in the targeted killing program using drones,

Secretary Panetta already has disclosed that fact in his public remarks. Ex. M. Because the

Government acknowledged the CIA’s participation in the drone program, it would not harm

intelligence sources or methods for the public to learn that the Government analyzed the legality of

the CIA’s (and other government agencies’) participation in the targeted killing program. Even if

that were the case, the Government could redact the affected agency’s name and still reveal the

existence of the analyses without making a Glomar response.

For all these reasons, the Government’s Glomar response should be rejected, and the

Government should be required to file a Vaughn index with its claimed exemptions from

disclosure, so that FAC can meaningfully respond to the specific claimed exemptions.

3. EXEMPTION 1 DOES NOT APPLY BECAUSE THE GOVERNMENT HAS FAILED TO SHOW THAT LEGAL ANALYSIS IS PROPERLY CLASSIFIED. A. Legal Analysis Is Categorically Improper For Classification.

One might be confused reading the Government’s papers as to the nature of this lawsuit. The

Government hyperbolically raises the specter of disclosures revealing “confidential sources,”

“covert action,” “intelligence activities,” or intelligence tradecraft. DOJ MSJ at 7. But Plaintiff

FAC merely seeks disclosure of the Government’s legal analyses pertaining to the targeted killing

of U.S. citizen and al Qaeda member al-Awlaki, which the Government has repeatedly assured the

public of its legality in a widespread campaign. See Section 2.B.2, infra. As it has done in the New

York Times v. DOJ litigation, the Government conflates operational detail and legal analysis. The

latter, legal analysis, is not covered by Exemption 1, which includes the limited national security

information delineated in Executive Order 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009). Tellingly,

the Government does not cite a single case where a court upheld the complete withholding of legal

analyses on the grounds that such analyses would reveal covert action, intelligence activities, or

confidential sources in violation of this or similar executive orders. Nor does it explain why any



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operational detail, which FAC is not seeking, may not be redacted, and the legal analyses released.7

The fundamental nature of legal analysis makes it unsuitable for wholesale classification.

Legal analysis consists of statutes, cases and other sources of law, bound together as a set of ideas

about how individual rights and governmental powers should be organized. Based on Attorney

General Holder’s speech at Northwestern University and President Obama’s remarks on CNN (Exs.

H, J), OLC’s legal analyses likely refer to the Authorization for Use of Military Force, 50 U.S.C. §

1541 (2001), the Commander in Chief Clause of the U.S. Constitution, U.S. CONST. art. 2 § 2, and

the provision in U.N. Charter art. 51 recognizing an inherent right of national self-defense. The

analyses might also refer to Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court case that

came closest to deciding whether the Due Process Clause protects American citizens abroad. It

cannot be argued that any of these pieces of law alone – a statute, a constitutional provision, a

Supreme Court case – is a government secret. Nor can they be kept secret when taken in

combination, and severed from intelligence, military or foreign affairs information. How these

pieces of law interact, and what powers they collectively imply for the United States Government,

are utterly innocuous from a national security standpoint. To say otherwise is to contend that ideas

are inherently dangerous, which is contrary to the American democratic order.

B. The Government’s Declarations Do Not Satisfy Their Burden Of Establishing That Exemption 1 Applies.

The Executive Order cited by the Government does not provide the Government with a

blank check to withhold information by claiming classification. The Government bears the burden

to establish that records are made exempt from disclosure by the Executive Order. Church of

Scientology v. Dep’t of the Army, 611 F.2d 738, 742 (9th Cir. 1979). Under Exemption 1, a

document must be declassified unless the Government can show that disclosure is expected to

7 It defies credulity for the Government to claim in this litigation that disclosing the legal

analysis on the legality of killing al-Awlaki would inform al Qaeda that the Government has collected intelligence on this al Qaeda leader (DOJ MSJ at 8) when President Obama and many other officials have admitted the United States was involved with Yemen in killing al-Awlaki. See Section 2.B.2, infra. It is abundantly evident to al Qaeda and everybody else that the killing of al-Awlaki was preceded by intelligence as to al-Awlaki’s whereabouts. The first (intelligence on his location) was the predicate for the second (killing him). Disclosing the legal analysis on the United States’ authority to engage in the targeted killing program need not reveal any operational details that American leaders have not already repeatedly disclosed to the public.



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cause harm and can specify the harm that will result from disclosure. King v. DOJ, 830 F.2d 210,

224 (D.C. Cir. 1987). Thus, in King, the D.C. Circuit rejected DOJ’s assertion of Exemption 1,

finding that the FBI’s affidavit “neither adequately describes redacted material nor explains, with

sufficient specificity to enable meaningful review, how its disclosure would likely impair national

security.” Id. at 219-220. Similarly, in Wiener v. FBI, 943 F.2d 972 (9th Cir. 1991), the Ninth

Circuit concurred with King in finding FBI affidavits inadequate in support of Exemption 1. The

court called the affidavits “boilerplate,” and explained that “[n]o effort is made to tailor the

explanation to the specific document withheld.” Id. at 978-979. Because in this case the

Government is seeking to withhold information that is already public, the Government also bears

the burden here of establishing how additional disclosure, beyond what top officials already have

disclosed, would damage national security. Washington Post v. DOD, 766 F. Supp. 1, 9-12

(D.D.C. 1991) (stating that “[i]t is a matter of common sense that the presence of information in the

public domain makes the disclosure of that information less likely to ‘cause damage to the national

security.’ … [S]uppression of ‘already well publicized’ information would normally ‘frustrate the

pressing policies of the Act without even arguably advancing countervailing considerations”)

(citation omitted). See also Lamont v. DOJ, 475 F. Supp. 761, 772 (S.D.N.Y. 1979) (if the subject

of the FOIA request has “already been specifically revealed to the public …, there is no reason such

material cannot now be disclosed to [the plaintiff]. The ‘sunshine’ purposes of the FOIA would be

thwarted if information remained classified after it became part of the public domain”).

Here, Executive Order 13,526 carefully limits the executive branch’s power to withhold

information as classified. The Government may classify information only if it comes within the

narrowly tailored categories of Section 1.4 of the Executive Order.8 Even then, information may be

classified only where “disclosure of the information reasonably could be expected to result in

8 Section 1.4 of the Executive Order sets out the following categories of information that

may be classified: (a) military plans, weapons systems, or operations; (b) foreign government information; (c) intelligence activities (including covert action), intelligence sources or methods, or cryptology; (d) foreign relations or foreign activities of the United States, including confidential sources; (e) scientific, technologic or economic matters relating to the national security; (f) United States Government programs for safeguarding nuclear materials or facilities; (g) vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relation to the national security; (h) the development, production, or use of weapons of mass destruction.



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damage to the national security,” and the agency is “able to identify or describe the damage.” Id. §

1.1. Notably absent from the categories of information that the Executive Order states may be

classified is legal analysis, which appears nowhere in the Executive Order. Instead, the Executive

Order plainly is directed to actual secrets, such as weapon systems, covert action, intelligence about

weapons of mass destruction, confidential sources, and the like, none of which is at issue in this

litigation. See id. § 1.4.

The Government offers boilerplate declarations that recite the standards for classifying

information under Exemption 1 and then make improper legal conclusions as to the propriety of

withholding the requested records. See DOJ MSJ at 7-9 (citing Hackett and Tidd Declarations).9

For example, the Government argues that disclosure of legal analysis by OLC would “allow

terrorists to ‘analyze this information in conjunction with publicly available information in order to

gain insight into the nature and extent of U.S. military or intelligence collection efforts at a specific

point in time’” and “‘develop tradecraft around what they believe to be U.S. collection gaps or take

countermeasures to avoid U.S. counterterrorism efforts.’” DOJ MSJ at 8-9 (quoting Hackett Decl.

¶ 27). This argument cannot withstand bare scrutiny. The Government is claiming that release of

the legal analyses would allow terrorists to gain insight into U.S. military and intelligence efforts.

But the information that the public or “terrorists” would “analyze” consists of the legal cases and

statutes such as the Authorization for Use of Military Force cited by the Government on its

authority to engage in the extrajudicial killing of U.S. citizens identified as terrorists. It is simply

not credible that revealing the Government’s analysis of case law, statutes, and the common law

would aid terrorist organizations in any way or otherwise damage national security. If that were in

any way remotely possible, then President Obama, Secretary Panetta, Attorney General Holder, and

the myriad other officials would not have made the disclosures of the Government’s involvement in

9 The Government’s submissions are replete with conclusory statements such as: “Revealing

such information would provide valuable information to those seeking to frustrate U.S. counterterrorism efforts and harm national security” (DOJ MSJ at 8 (citing Tidd Decl. ¶¶ 15-16; Hackett Decl. ¶ 21)); “[s]uch disclosures of intelligence activities, sources and methods could cause serious damage to national security” (DOJ MSJ at 8 (citing Hackett Decl. ¶¶ 27-28); a non-Glomar response “would reveal information relating to intelligence sources or methods that are protected by the [NSA] and therefore exempt from disclosure” (Hackett Decl. ¶¶ 24-25).



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the killing of al-Awlaki and its claimed legal rationale for why the Government had authority to kill

U.S. citizens such as al-Awlaki extrajudicially. See Section 1.B.2, infra.10

The Government’s other major argument in the declarations is that disclosure of the OLC

legal analyses would damage national security by revealing that the United States is cooperating

with the Yemeni government and vice versa as part of its targeted killing program, and that the two

countries cooperated on the killing of al-Awlaki. See DOJ MSJ at 9 (citing Hackett Decl. ¶ 23;

Tidd Decl. ¶ 12). But as explained above, President Obama and Secretary Panetta, among others,

already revealed those facts to the public. See Section 1.B.2, infra. In addition, official cables from

the U.S. embassy in Yemen have surfaced and been published to the public detailing how General

David Petraeus met with then-President Ali Abdullah Saleh to discuss an agreement between the

United States and Yemen allowing the United States to carry out targeted killing missile strikes in

Yemen. Ex. Z. In light of these prominent disclosures, the Government cannot reasonably claim

that disclosure of the same information again (that U.S. and Yemen cooperated in killing al-Awlaki

– see DOJ MSJ at 9) would harm relations with Yemen.

4. UNDER EXEMPTION 3, THE GOVERNMENT HAS FAILED TO DEMONSTRATE HOW LEGAL ANALYSIS “LOGICALLY FALLS” WITHIN THE CATEGORY OF “INTELLIGENCE SOURCES AND METHODS.”

Exemption 3 applies only to records that are “specifically exempted from disclosure by

statute, … provided that such statute (a) requires that the matters be withheld from the public in

such a manner as to leave no discretion on the issue, or (b) establishes particular criteria for

withholding or refers to the particular types of matter to be withheld.” 5 U.S.C. § 552(b)(3). The

Government asserts the National Security Act (“NSA”) applies through Exemption 3 to justify

withholding the records. See DOJ MSJ at 10. The NSA bans the “unauthorized disclosure of

‘intelligence sources and methods.’” 50 U.S.C. § 403-1(1).

10 The Government makes an odd argument that “a disclosure could reveal whether the U.S.

Government had collected military or intelligence information on a specific individual at a particular point in time.” DOJ MSJ at 8. To the extent that any legal analyses discuss operational details regarding when information was collected on al-Awlaki, that information obviously can be redacted, if truly necessary to protect national security. But this hypothetical does not justify complete withholding of the documents reflecting the Government’s legal analysis of its authority to kill al-Awlaki.



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Courts reviewing Exemption 3 claims have noted “a paucity of information regarding the

phrase ‘intelligence sources and methods.’” Navasky v. CIA, 499 F. Supp. 269, 274 (S.D.N.Y.

1980). Nevertheless, the Government bears the burden of justifying nondisclosure, and its power to

invoke the NSA is not without limits. Id. Thus, in Navasky, the Court held the CIA could not use

the “intelligence sources and methods” language to protect from disclosure authors, publishers and

books involved in clandestine propaganda activities. Id. Only if the Government establishes that

the OLC legal analyses “logically fall” within the scope of the NSA’s bar on revealing “intelligence

sources or methods” would Exemption 3 apply in this case. See Military Audit Project v. Casey,

656 F.2d 724, 738 (D.C. Cir. 1981).

The first case cited by the Government regarding Exemption 3, CIA v. Sims, 471 U.S. 159

(1987), actually supports FAC’s position. In Sims, the Supreme Court defined “intelligence sources

and methods” as protecting “all sources of intelligence that provide, or are engaged to provide,

information the Agency needs to perform its statutory duties with respect to foreign intelligence.”

471 U.S. at 169-170. In turn, the Court quoted the definition of “foreign intelligence” coined by

one-time CIA Director, General Arthur Vandenberg: “foreign intelligence [gathering] consists of

securing all possible data pertaining to foreign governments or the national defense and security of

the United States.” Id. at 170. The Court also stated that an “intelligence source” is any person or

entity, whether confidential or not, that provides, has provided or has been engaged to provide the

CIA with information the CIA needs to fulfill its statutory obligations with respect to foreign

intelligence. Id. at 178.

Under the Supreme Court’s own definitions in Sims, the legal analyses prepared by OLC on

the CIA’s targeted killing program would not qualify. FAC is not seeking to “secur[e] all possible

data pertaining to foreign governments or the national defense and security of the United States.”

Nor is it asking for any information pertaining to persons who have provided the CIA with

information regarding foreign intelligence. Legal analysis – citations of cases and statutes on the

issue of the Government’s authority to extrajudicially kill citizens – is not the type of “intelligence

sources and methods” that the NSA covers. The dictionary definition only reinforces that the

meaning of “intelligence sources and methods” was not about legal analysis. Webster’s Dictionary



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defines intelligence as: “information concerning an enemy or possible enemy or an area; also: an

agency engaged in obtaining such information.” See http://www.merriam-

webster.com/dictionary/intelligence. The dictionary definition does not include the targeted killing

of American citizens identified as terrorists. It extends only to information gathering regarding the

enemy or territory. The Government is attempting to put the proverbial square peg in a round hole

with its argument on Exemption 3.

Rather than focus on actual intelligence gathering in its declarations, the Government

submits a hypothetical parade of horribles, all of which would purportedly result from the release of

a redacted memorandum showing the Government’s analysis of the legality of targeted killings of

American citizens. However, this parade of horribles exists only in the Government’s nightmares,

as none of the consequences outlined in the Government’s papers flow reasonably from the release

of a redacted version of the OLC legal analyses FAC seeks. FAC has specifically disclaimed that it

seeks any intelligence information, and invites the Government to produce the analyses with any

such information redacted. Legal analysis taken on its own does not logically connect to

“intelligence sources and methods.” It is likely that redacted analyses would collect the statutes

and cases, and record the legal test referred to by President Obama and Attorney General Holder in

their public speeches that the Government uses to determine if a United States citizen abroad is a

legitimate target. This information is a world away from information that would disclose the

methods and identities of spies. The government bears the burden to show otherwise. Islamic

Shura Council of Southern California v. FBI, 635 F.3d 1160, 1165 (9th Cir. 2011).

5. EXEMPTION 5 DOES NOT APPLY HERE. A. The Deliberative Process Privilege Does Not Justify The Secrecy Urged

By The Government Here.

The Government claims that its Glomar response is justified by the deliberative process

privilege (Exemption 5). DOJ MSJ at 17. In making this argument, the Government fails to cite a

single case supporting its claim that the deliberative process privilege allows the Government to

make a Glomar response refusing to confirm or deny the existence of an OLC opinion. The

Government’s argument also is logically infirm – revealing the existence of an OLC legal opinion

does not reveal anything about the “content or type of any advice sought,” and hence does not



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“reveal sensitive information about the deliberative process.” See DOJ MSJ at 17. It sheds no light

on what legal advice was given, the specifics of the CIA’s targeting of American citizens abroad

based on this legal authority, or anything else that could be considered a legitimate national security

secret. Disclosure of this basic information is akin to a privilege log’s description of a legal

memorandum, which is a common facet of most civil litigations. Since the deliberative process

privilege in FOIA cases is derived from the common law of privilege (see DOJ MSJ at 16, quoting

Carter v. DOC, 307 F.3d 1084, 1088 (9th Cir. 2002)), the Court should require DOJ to produce the

equivalent of a privilege log in FOIA cases – a Vaughn Index – setting forth the documents at issue

and the claimed exemptions.

Even if the Government had properly filed a Vaughn Index and acknowledged the legal

memoranda justifying the extrajudicial killing of al-Awlaki, the deliberative process privilege does

not apply to exempt the legal arguments in these documents, which can be provided with redactions

for legitimate national security information. The Supreme Court calls records that “supply the basis

for an agency policy actually adopted … working law,” and the Government cannot withhold

documents reflecting working law under FOIA Exemption 5’s deliberative process privilege.

Sears, 421 U.S. at 152-153. This rule “ensures that the agency does not operate on the basis of

‘secret law,’” the Ninth Circuit explained in Assembly of California, 968 F.2d at 921. “Even if the

document is predecisional at the time it is prepared, it can lose that status if it is adopted, formally

or informally, as the agency position on an issue or is used by the agency in its dealings with the

public.” Coastal States Gas Corp. v. DOE, 617 F.2d 854, 866 (D.C. Cir. 1980). The ban on secret

law reflects our society’s distaste for “wink-and-a-nod” governance, whereby public officials know

the law they are following but do not have to share the details of this law with the public. As the

Second Circuit stated long ago, “We agree with Professor Davis’ observation that ‘secret law is an

abomination.’” Caplan v. ATF, 587 F.2d 544, 548 (2d Cir. 1978) (noting that an agency record that

“sets forth or clarifies an agency’s substantive or procedural law should be made available” to stop

the agency from using secret law).11

11 Courts repeatedly have rejected the Government’s efforts to have the courts adopt a

bright-line test in which a document is not adopted unless the agency uses the “specific explicit



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The Second Circuit has rejected the position adopted by DOJ in this litigation as to the

deliberative process privilege. In La Raza, 411 F.3d at 359-360, DOJ claimed Exemption 5

shielded an OLC memorandum concerning local law enforcement of the civil provisions of federal

immigration law. The Court found this reasoning to be unpersuasive, stating “[t]he record makes

clear that the Department embraced the OLC’s reasoning as its own.” Id. The Court explained the

OLC analysis was “used by the agency in its dealings with the public” as part of its public relations

efforts to claim that the “new policy had a basis in the law; indeed, the Department repeatedly

invoked the OLC Memorandum to assure those outside of the agency that its policy was lawful and

to encourage states and localities to take actions that the Department desired.” Id. The Court

recognized “the public can only be enlightened by knowing what the [agency] believes the law to

be.” Id. (quoting Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997)). The Second Circuit

joined the district court in concluding, “The Department’s view that it may adopt a legal position

while shielding from public view the analysis that yielded that position is offensive to FOIA.” Id.

(quoting Nat’l Council of La Raza v. DOJ, 337 F. Supp. 2d 524, 537 (S.D.N.Y. 2004)).

Here, President Obama and Attorney General Holder have made claims as part of their

public relations campaign that the Government’s targeted killing policy has a basis in the law.

They have outlined a three-part test for determining targets within the program, and have claimed

language of adoption of incorporation.” La Raza, 411 F.3d at 357 n.5. The refusal to adopt such a test is based on the fact that “courts must examine all relevant facts and circumstances in determining whether express adoption or incorporation by reference has occurred,” the Second Circuit has stated. Id. Other courts have reaffirmed that adoption does not require an explicit statement, and that there is no requirement that “absent some sort of magic language where the decision-making agency admits reliance on the reasoning in addition to the conclusions of a document, the standard has not been met.” Bronx Defenders v. DHS, 2005 U.S. Dist. LEXIS 33364, at *19 (S.D.N.Y. Dec. 19, 2005). Instead, courts have looked at the Government’s actual statements, and determined whether those statements amount to an implicit acknowledgment that the agency has adopted reasoning and analysis from the OLC, making it the agencies’ working law. Id. See also Brennan Ctr. for Justice v. DOJ, 2012 U.S. App. LEXIS 19685 (2d Cir. September 19, 2012) (“[i]f an agency’s memorandum or other document has become its ‘effective law and policy,’ it will be subject to disclosure as the ‘working law’ of the agency, much the same as it would be if expressly adopted or incorporated by reference into a nonexempt document) (citing Sears, 421 U.S. at 153). Here, President Obama, Attorney General Holder and the other leaders of the Government have adopted the reasoning and rationale developed by DOJ as part of Government policy, which means that the OLC analyses have become the government’s working law. To the extent that there is any question as to whether the OLC analyses track what President Obama, Attorney General Holder, and others have stated, the Court can and should conduct an in camera review of the analyses under 5 U.S.C. § 552(a)(4)(B).



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that they have authority under domestic and international law to use force against American

citizens identified as terrorists. See Section 1.B.2, infra (Burke Decl. ¶¶ 11-12, Exs. H & J). Their

public remarks show that the highest officials have adopted the legal rationale developed by DOJ,

namely the OLC memoranda that tell the Government what processes agencies must follow for the

killing of al-Awlaki and others to be legal. See Brennan, 2012 U.S. App. LEXIS 19685, at

*22,*36-*37 (if a document promulgates the Government’s “effective law and policy,” it must be

disclosed as “working law”) (quoting Sears, 421 U.S. at 153). Because secret law is anathema to

democratic values, the Court should reject the Government’s assertion of the deliberative process

privilege, and release a redacted version of the law under which the Government is operating the

targeted killing program in which al-Awlaki was killed.12 At a minimum, the Court should review

the materials in camera to determine whether, as FAC contends, it sets forth the test for agencies to

follow and the legal analyses supporting the Government’s statements that the killing of al-Awlaki

complies with the law – that is, the working law under which the Government is operating.

B. The Attorney-Client Privilege Does Not Protect The Requested Records.

Exemption 5 also incorporates the attorney-client privilege, which applies to confidential

communications by the attorney to the client “only if that communication is based on confidential

information provided by the client.” Mead Data Central v. Dep't of the Air Force, 566 F.2d 242,

254 (D.C. Cir. 1977). “Like all privileges, … attorney-client privilege is narrowly construed and is

limited to those situations in which its purposes will be served. The Supreme Court has stated that

the privilege protects only those disclosures necessary to obtain informed legal advice that might

not have been made absent the privilege.” Coastal States Gas Corp., 617 F.2d at 862-863.

Generally, the Government shows the privilege applies using either a Vaughn index or

declarations. In the context of a Vaughn Index, the Government has the burden “‘to show that these

documents involved the provision of specifically legal advice or that they were intended to be

12 Brennan, 2012 U.S. App. LEXIS 19685, at*44-*53, reinforces that the burden remains on

the Government to show that Exemption 5 applies. In sustaining this burden, the Government must present detailed evidence about the process by which the legal analyses were created and employed by government agencies. Id. In contrast to Brennan, here the Government has provided a wholly conclusory declaration attempting to attest that Exemption 5 applies without providing any of the process details that the Second Circuit says are required. See DOJ’s Colburn Decl. ¶¶ 3-4.



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confidential,’ and were kept confidential.” NRDC v. DOD, 388 F. Supp. 2d 1086, 1104 (C.D. Cal.

2005). In Ctr. for Biological Diversity v. OMB, 625 F. Supp. 2d 885, 892-893 (N.D. Cal. 2009),

the Court rejected an Exemption 5 attorney-client privilege defense because the Government’s

Vaughn index and declarations were insufficiently detailed, stating “the Vaughn Index is intended

to partially relieve the distortion of our legal system caused by the lack of knowledge by the party

seeking disclosure. … To remedy this problem, the agency must disclose “as much information as

possible without thwarting the claimed exemption’s purpose. Here, as elsewhere, [the

Government] has not disclosed all it could.”

The Government has to put forth “evidence” to gain the benefit of the privilege. Gordon v.

FBI, 388 F. Supp. 2d 1028, 1039 (N.D. Cal. 2005) (where the government did not show that an

attorney was a party to an email, and provided no explanation as to why it was privileged, it did not

present sufficient evidence to show that the document was privileged). Similarly, in Safeway v.

IRS, 2006 U.S. Dist. LEXIS 81078, at *23-*29 (N.D. Cal. Oct. 24, 2006), the Court denied the

Government’s motion for summary judgment based on attorney-client privilege when “the IRS’

declarations contain[ed] what appears to be boilerplate language, and no detail whatsoever about

the nature of the supposedly privileged communications.” The Court concluded that “memoranda

from agency attorneys to auditors containing ‘neutral, objective analyses of agency regulations’

have been held to fall outside the attorney-client privilege because they do not contain private

information intended to assist the agency in protecting its interests.”

It is unclear how the Government could show that the mere admission of the existence of a

document seeking legal advice on a subject could be exempt. The Government in the New York

Times v. DOJ case did not seek to justify its Glomar response under Exemption 5, relying only on

exemptions 1 and 2. RJN, Ex. C, at 25. In this case, although the Government argues the attorney-

client privilege shields it from having to disclose the existence of the al-Awlaki legal analyses, it

does not cite any case law for this proposition. FAC knows of no case where a Glomar response

was justified based upon Exemption 5 alone.

Like 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. In such



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circumstances, the principal rationale behind the attorney-client privilege – ‘to promote open

communication between attorneys and their clients so that fully informed legal advice may be

given,’ like the principal rationale behind the deliberative process privilege, evaporates; for once an

agency adopts or incorporates document, frank communication will not be inhibited. Indeed, once

an attorney’s (or employee’s) recommendation becomes agency law, the agency is then responsible

for defending that policy, and the attorney (or employee) ‘will generally be encouraged rather than

discouraged’ by public knowledge that their policy suggestions or legal analysis have been adopted

by the agency.” La Raza, 411 F.3d at 360-61. In La Raza, the Court found the Government used

the contents of a memorandum as legal authority to justify its actions, yet refused to release the

memorandum itself. The Court rejected that approach, stating that “[w]e cannot allow the

Department to make public use of the Memorandum when it serves the Department’s ends but

claim the attorney-client privilege when it does not.” La Raza, 411 F.3d at 361. When a legal

memorandum is turned into policy, then it is no longer exempt from disclosure under

FOIA. Brennan Ctr. for Justice v. DOJ, 2011 U.S. Dist. LEXIS 99121, at *20 (S.D.N.Y. Aug. 29,

2011) (because the government “incorporated the OLC Memoranda into HHS’s and USAID’s

official policy, the attorney-client privilege cannot be invoked to bar the OLC Memoranda’s

disclosure”), aff’d in part, 2012 U.S. App. LEXIS 19685 (2d Cir. September 19, 2012).13

6. THE COURT SHOULD REVIEW THE OLC LEGAL ANALYSES IN CAMERA TO DETERMINE WHETHER THEY MAY BE REDACTED.

The Government claims “there are no relevant documents for the court to examine

other than the affidavits which explain the Agency’s refusal.” DOJ MSJ at 11. Contrary to the

Government’s position, it is well established that where a court finds that such declarations are “too

generalized to establish eligibility for an exemption, it may, in its discretion, proceed to examine

the disputed documents in camera for a first-hand determination of their exempt status.” Church of

Scientology, 611 F.2d at 743. In camera review of the OLC legal analyses is appropriate here to

13 Accord Bronx Defenders, 2005 U.S. Dist. LEXIS 33364 at *7 (“[b]ecause the deliberative

privilege has evaporated ... the attorney-client privilege may not be invoked to protect” it) (quoting La Raza); National Day Laborer Org. Network v. Immigration and Customs Enforcement 827 F. Supp. 2d 242, 252 (S.D.N.Y. 2011).



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“compensate for th[e] imbalance of knowledge as between the plaintiffs and the government.”

Islamic Shura Council of Southern California, 635 F.3d 1160 at 1166. It is also proper because, as

in Church of Scientology, the dispute is over a defined set of records – OLC legal analyses on the

legality of killing United States citizens, including al-Awlaki. Even where the Government

maintained a Glomar response that it could not confirm or deny whether documents exist, courts

have viewed disputed documents in camera and resolved the issue. Carpenter v. DOJ, 470 F.3d

434, 437 (1st Cir. 2006) (“[a]lthough the Government officially continues to refuse to confirm or

deny the existence of any materials or documents responsive to the FOIA request, both the district

court and this Court have conducted an in camera review of the materials”).

Here, regardless of the Government’s Glomar position, because the Government offers only

generalized and conclusory declarations, this Court should exercise its discretion to examine the

disputed legal analyses in camera to determine if the Government’s blocking of these analyses

from public view complies with FOIA. If the documents do contain legal analysis that is

segregable from exempt information, the proper remedy is for the Court to order redactions of the

offending material and to release the rest. See Winter v. NSA, 569 F. Supp. 545, 549 (S.D. Cal.

1983) (in camera review is appropriate when defendants have to justify segregability).14

7. CONCLUSION

Whatever due process means for citizen-terrorists abroad, regardless of whether Obama’s

procedure for targeted killing is constitutionally adequate, Americans are entitled to know the law

they live under. This Court should require the Government to reveal the working law for the

targeted killing program in which al-Awlaki was killed.

DATED: This 5th day of October 2012 By: /s/ Thomas R. Burke Thomas R. Burke Attorneys for Plaintiff FIRST AMENDMENT COALITION

14 Accord Eslaminia v. FBI, 2011 U.S. Dist. LEXIS 125261, at *10 (N.D. Cal. 2011) (court

can “sua sponte order such segregable portions disclosed”); Wiener, 943 F.2d at 988 (court must make a “specific finding that no information contained in each document or substantial portion of a document withheld is segregable”); Irons v. Gottschalk, 548 F.2d 992 (D.C. Cir. 1976) (agencies must divulge all portions of documents not specifically exempted from disclosure by statute).


THOMAS R. BURKE (State Bar No. 141930)American citizen Anwar al-Awlaki using a CIA-directed drone....

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Transcript of THOMAS R. BURKE (State Bar No. 141930)American citizen Anwar al-Awlaki using a CIA-directed drone....