THOMAS R. BURKE (State Bar No....

Case No. CV 12-01013-CW FAC’S CROSS-MOTION FOR SUMMARY JUDGMENT DWT 22640469v4 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: November 7, 2013 Time: 2 p.m. Place: Oakland Courthouse Courtroom 2

Case4:12-cv-01013-CW Document66 Filed10/03/13 Page1 of 31

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TABLE OF CONTENTS

Page

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

2. DOJ MUST CONSTRUE FAC’S REQUEST LIBERALLY. ........................................... 7

3. THE COURT SHOULD ORDER IN CAMERA REVIEW OF ANY RESPONSIVE DOCUMENT ............................................................................................. 8

4. THE GOVERNMENT FAILS TO DEMONSTRATE THAT THE DOD MEMO CONTAINS NO SEGREGABLE INFORMATION ................................ 10

5. THE MATERIALS CONTAINED IN THE OLC MEMORANDA ARE NOT PROTECTED BY EXEMPTION 5. ............................................................... 13

A. The Deliberative Process Privilege Does Not Justify Secrecy Here. ...................................................................................................................... 13

B. The Attorney-Client Privilege Does Not Protect The OLC Memoranda. .......................................................................................................... 16

6. NEITHER EXEMPTION 1 NOR EXEMPTION 3 JUSTIFY WITHHOLDING THE OLC MEMORANDA IN THEIR ENTIRETY. ......................... 18

7. THE GOVERNMENT’S GLOMAR RESPONSE IS IMPROPER. ................................ 22

A. The Government’s Sole Remaining Argument Against Disclosure Fails ..................................................................................................... 23

8. EVIDENTIARY OBJECTIONS....................................................................................... 25

9. CONCLUSION ................................................................................................................. 25


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TABLE OF AUTHORITIES

Page(s)

Cases

ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013) ................................................................................................ 25

ACLU v. DoD, 389 F. Supp. 2d 547 (S.D.N.Y. 2005) ..................................................................................... 23

Assembly of California v. United States Dep’t of Treasury, 968 F.2d 916 (1992) .......................................................................................................... 12, 13

Bay Area Lawyers Alliance for Nuclear Arms Control v. Department of State, 818 F. Supp. 1291 (N.D. Cal. 1992) ................................................................................. 10, 11

Brennan Ctr. for Justice v. DOJ, 2011 U.S. Dist. LEXIS 99121 (S.D.N.Y. Aug. 29, 2011), aff’d in part, 697 F.3d 184 (2d Cir. 2012) .................................................................................................................... 15, 17

Bronx Defenders v. United States Dep’t of Homeland Security, 2005 U.S. Dist. LEXIS 33364 (S.D.N.Y Dec. 19, 2005) ....................................................... 17

Brooks v. IRS, 1997 U.S. Dist. LEXIS 13678 (E.D. Cal. 1997) ..................................................................... 10

Caplan v. ATF, 587 F.2d 544 (2d Cir. 1978) .................................................................................................... 13

Church of Scientology v. United States Dep’t of Army, 611 F.2d 738 (9th Cir. 1979) .......................................................................................... 8, 9, 11

CIA v. Sims, 471 U.S. 159 (1985) ................................................................................................................ 20

Citizens for Responsibility & Ethics v. Office of Admin., 249 F.R.D. 1 (D.D.C., 2008) ................................................................................................... 14

Coastal States Gas Corp. v. DOE, 617 F.2d 854 (D.C. Cir. 1980) .......................................................................................... 13, 16

Ctr. for Biological Diversity v. OMB, 625 F. Supp. 2d 885 (N.D. Cal. 2009) .................................................................................... 16

Cuneo v. Schlesinger, 484 F.2d 1086 (D.C. Cir. 1973) .............................................................................................. 12


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Electronic Frontier Foundation v. Department of Justice, 892 F.Supp.2d 95 (D.D.C., 2012) ........................................................................................... 14

Electronic Privacy Information Center v. Department of Justice, 584 F.Supp.2d 65 (D.D.C., 2008) ........................................................................................... 14

First Heights Bank, F.S.B. v. United States, 46 Fed.Cl. 312 (Fed. Cl. 2000) ........................................................................................... 8, 17

Gordon v. FBI, 388 F. Supp. 2d 1028 (N.D. Cal. 2005) ...................................................................... 10, 11, 16

Hiken v. DoD, 521 F. Supp. 2d 1047 (N.D. Cal. 2007) ................................................................................ 8, 9

In re Subpoena Duces Tecum, 738 F.2d 1367 (D.C. Cir. 1984) .............................................................................................. 18

Jefferson v. DOJ, 284 F.3d 172 (D.C. Cir. 2002) ................................................................................................ 23

Judicial Watch, Inc. v. U.S. Secret Serv., 579 F. Supp. 2d 182 (D.D.C. 2008) ........................................................................................ 23

Klamath Siskiyou Wildlands Center v. U.S. Dept. of the Interior, 2007 WL 4180685 (D.Or., 2007) ............................................................................................ 13

Krikorian v. Department of State, 984 F.2d 461 (D.C. Cir. 1993) ................................................................................................ 21

Lame v. DOJ, 654 F.2d 917 (3d Cir. 1981) .................................................................................................... 22

Lamont v. DOJ, 475 F. Supp. 761 (S.D.N.Y. 1979) .......................................................................................... 21

Lawyers’ Comm. for Civil Rights of the San Francisco Bay Area v. United States Dep’t of the Treasury, 534 F. Supp. 2d 1126 (N.D. Cal. 2008) .................................................................................... 7

Lawyers’ Committee for Civil Rights of the San Francisco Bay Area v. United States Dep’t of the Treasury, 2008 U.S. Dist. LEXIS 87624 ............................................................................................ 7, 10

Lion Raisins v. USDA, 354 F.3d 1072 (9th Cir. 2004) .................................................................................................. 7

Mead Data Cent., Inc. v. United States Dep’t of the Air Force, 566 F.2d 242 (D.C. Cir. 1977) .......................................................................................... 10, 16


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Memphis Publishing Co. v. FBI, 879 F. Supp. 2d 1, 2012 WL 269900 (D.D.C. 2012) ................................................................ 8

Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981) ................................................................................................ 19

Morrison v. U.S. Dept. of Justice, 1998 WL 47662 (D.D.C., April 29, 1988) ........................................................................ 14, 15

Nat’l Council of La Raza v. Dep’t of Justice, 411 F.3d 250 (2d. Cir. 2005) ............................................................................................ passim

Nat’l Council of La Raza v. DOJ, 337 F. Supp. 2d 524 (S.D.N.Y. 2004) ............................................................................... 12, 14

Nat’l Security Archive v. DOJ, No. 99-1160, at 17 (D.D.C. July 31, 2000) (Ex. N) ................................................................ 23

National Day Laborer Org. Network v. Immigration and Customs Enforcement, 827 F. Supp. 2d 242 (S.D.N.Y. 2011) ..................................................................................... 17

National Sec. Archive Fund, Inc. v. C.I.A., 402 F.Supp.2d 211 (D.D.C., 2005) ......................................................................................... 13

Navasky v. CIA, 499 F. Supp. 269 (S.D.N.Y. 1980) .......................................................................................... 19

NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) ................................................................................................ 6, 12, 13, 15

NRDC v. DoD, 388 F. Supp. 2d 1086 (C.D. Cal. 2005) .................................................................................. 16

Oglesby v. United States Dept. of Army, 79 F.3d 1172 (D.C. Cir. 1996) .......................................................................................... 21, 22

Phillippi v. CIA, 655 F.2d 1325 (D.C. Cir. 1981) .............................................................................................. 22

Pickard v. DOJ, 653 F.3d 782 (9th Cir. 2011) .................................................................................................. 24

Powell v. United States Dep’t of Justice, 584 F. Supp. 1508 (N.D. Cal. 1984) ......................................................................................... 8

Safeway v. IRS, 2006 U.S. Dist. LEXIS 81078 (N.D. Cal. Oct. 24, 2006) ....................................................... 16

Schulze v. FBI, 2010 U.S. Dist. LEXIS 74360 (E.D. Cal. July 21, 2010) ....................................................... 22


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Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997) ................................................................................................ 14

Washington Post v. DoD, 766 F. Supp. 1 (D.D.C. 1991) ................................................................................................. 21

Wiener v. FBI, 943 F.2d 972 (9th Cir. 1991) ............................................................................................ 11, 22

Willamette Indus., Inc. v. United States, 689 F.2d 865 (9th Cir. 1982) ............................................................................................ 10, 11

Statutes

5 U.S.C. § 552(b) ............................................................................................................................... 9, 10 § 552(b)(3) .............................................................................................................................. 19

50 U.S.C. § 403-1(1) ..................................................................................................................... 19

Freedom of Information Act. ................................................................................................. passim

National Security Act .......................................................................................................... 9, 19, 20

Rules

Federal Rule of Evidence 402 ........................................................................................................................................... 25 602 ........................................................................................................................................... 25 701 ........................................................................................................................................... 25 702 ........................................................................................................................................... 25 801 ........................................................................................................................................... 25 802 ........................................................................................................................................... 25 1002 ......................................................................................................................................... 25

Local Rule 7-5(b) .......................................................................................................................... 25

Regulations

Executive Order 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009) ......................................................... 18

Constitutional Provisions

United States Constitution, First Amendment ................................................................................ 1


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1. INTRODUCTION AND SUMMARY OF FACTS.

After reading the Government’s Motion for Summary Judgment, it would be easy for a

reader to be confused into thinking that First Amendment Coalition is seeking disclosure of the

very intelligence – and methods and sources – that allowed the Government to locate and kill

Anwar al-Awlaki, and the identities of the agencies and individuals involved with the killings.

After all, the Government’s briefing relentlessly emphasizes that the nation’s security is at stake –

that the Government cannot confirm or deny the existence of any more than one document respon-

sive to FAC’s request, and cannot release even a word of that one document, lest national security

be irreparably harmed. The Government’s brief is more John LeCarre than John Roberts, referring

to “intelligence sources” approximately 15 times, and “covert action” four times, in addition to

references to “clandestine sources,” and “clandestine intelligence activities.” But the impression

that FAC seeks any intelligence information at all is – and has always been – wholly incorrect.

From the beginning of this case, when it first made its FOIA request on Oct. 5, 2011, FAC

has sought only legal analysis and legal citation. It explicitly disclaimed any desire or request to

acquire intelligence information, stating, as part of its request and in paragraph 5 of its Complaint,

that “FAC does not seek disclosure of information revealing intelligence sources and methods,

military capabilities, or other sensitive and properly classified matters that may be included

in the OLC memo.”1 Indeed, FAC does not seek to know what individuals or agencies were

involved in the strike against al-Awlaki, what agency or agency requested or received advice about

his targeting or his killing, the intelligence information that allowed the Government to locate and

1 In its initial FOIA request, FAC stated as much:

I am not interested in factual information about intelligence sources and methods or US military capabilities. I am interested only in the memorandum’s discussion of the legal issues posed by prospective military action against a dangerous terrorist who also happens to be a US citizen. I believe the requested memorandum, redacted to remove all sensitive factual information, but retaining most or all of the memorandum’s discussion of legal issues--can be released without causing or threatening any harm to national security. A legal explanation or justification for the targeting of ai-Aulaqi need not say anything about the technology used in the operation (e.g. drones or something else), the country or countries involved, the extent of foreign governments’ cooperation, or the identity of participating US government agencies. Compl., Ex. A (emphasis added).



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justify killing him, or the sources of that intelligence. All FAC seeks in this FOIA action is the

legal argument that was provided to justify the killing, what the Government itself says it cannot

possibly disclose as the “general legal justification” for its targeted killing program. MSJ at 2.

Any information that is contained in the unclassified White Paper should be segregated and

released. And if, improbably, providing that is impossible without revealing vital intelligence, the

Court should at least order the release of bare-bones legal authorities, statutes, case citations, and

scholarly articles cited in any responsive memoranda. As the concurrently filed Chemerinsky and

Armstrong declarations attest, such remainders offer valuable insights about the program.

Chemerinsky Decl. ¶¶ 4, 7-9; Armstrong Decl. ¶¶ 5-8, 10-11. FAC seeks no national security

information, or methods or sources – it seeks only legal information on par with the “general legal

justifications” that the Government concedes can be publicly revealed. MSJ at 2:3-8.

It is curious that the Government would maintain such a fierce and prolonged effort to keep

such innocuous, but invaluable, information, secret. In the two years that have passed since

September 30, 2011, when a United States drone killed terrorist and American citizen Anwar al-

Awlaki, the Government has often professed that it, too, seeks transparency on the issue of targeted

killings of American citizens, putting up what amounts to a public relations campaign aimed at

showing the American public that the strikes were entirely legal. President Obama, A.G. Eric

Holder, now CIA Dir. John Brennan, FBI Dir. Robert Mueller, and many other U.S. officials have

conducted this campaign on Capitol Hill, college campuses and communications outlets.

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

that “these targeted strikes are legal.” He cited legal opinions from the DoD, DOJ and State Depts.,

and argued that both domestic and international law permitted the Government to engage in

extrajudicial killings, including of U.S. citizens. Ex. G. Similarly, in March 2012, A.G. Holder

gave a speech at Northwestern University in which he declared that “it is entirely lawful – under

both U.S. 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 U.S. citizenship alone does not make such individuals immune from



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being targeted.” Id. A.G. Holder acknowledged to Congress that a memo addressing the killing of

al-Awlaki existed, and its release was a matter of debate in the Administration. Ex. CC

In May 2012, in response to public pressure surrounding the confirmation of Mr. Brennan

as CIA chief, the Government’s “transparency” campaign stepped up again. A source released an

unclassified DOJ “White Paper” containing a detailed discussion of a legal framework for targeted

killing of Americans. Ex. DD. The 16-page White Paper lays out in a discussion and

rationalization for the Government’s targeted killing of U.S. citizens abroad. Id. At the time, the

President’s spokesman confirmed that the White Paper was authentic, that it was the official

position of the Government, and that it was adapted from classified memoranda which had been

provided to Congress already. Exs. EE-KK. He stated, explicitly, that the Administration has

given Congress access to information and classified memoranda which “is classified Office of

Legal Counsel advice related to the subject of targeted attacks that was discussed in the

Department of Justice white paper.” Exs. JJ-KK.

Shortly afterward, a letter to the Senate Judiciary Committee from A.G. Holder confirmed,

without doublespeak or the passive voice, that the Government is responsible for killing al-Awlaki,

and other Americans, with drones. Ex. TT. The letter confirmed the existence and contents of the

documents sought in this case, writing that:

[T]he Administration’s legal views on this weighty issue have been clear and consistent over time. The analysis in my speech at Northwestern University Law School is entirely consistent with not only the analysis found in the unclassified white paper the Department of Justice provided to your Committee soon after my speech, but also with the classified analysis the Department shared with other congressional committees in May 2011 – months before the operation that resulted in the death of Anwar al-Aulaqi. The analysis in my speech is also entirely consistent with the classified legal advice on this issue the Department of Justice has shared with your Committee more recently… Ex. TT.

Thus, under the pressure of a Mr. Brennan’s nomination fight, the Attorney General confirmed

what most already knew: that the DOJ provided legal justification to the Government for the killing

of al-Awlaki. And in a speech, on May 23, 2013, the President again admitted the drone killings as

he declared a shift in the War on Terror, toward transparency and the rule of law. Ex. UU. He

stated that “Of course, the targeting of any American raises constitutional issues that are not

present in other strikes – which is why my administration submitted information about Awlaki to



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the Department of Justice months before Awlaki was killed, and briefed the Congress before this

strike as well.” Id.

Despite these admissions, the Government’s position in this case has been steadfast against

disclosure. Even after releasing an unclassified document that it has acknowledged is derived

directly from the materials sought in this case; after confirming in another case that substantially

more responsive documents exist,2 the Government here confirms the existence of only one

document, and claims, implausibly, that not a word of that document, not a bit of legal analysis, not

even a case citation, could be disclosed without damaging national security, or destroying the

Government’s ability to conduct serious deliberations. The justification? “The Government has

carefully considered how best to provide the American people as much information as possible

about sensitive counterterrorism operations consistent with the protection of our national security.”

MSJ at 1. Put another way, the Government says, “Trust us, we know best.” The Government does

not even mention the White Paper in these proceedings, despite the fact that it was twice

acknowledged by the White House to be official, and authentic, and despite the fact that it, along

with copious other pieces of official evidence, has already been submitted to this Court. Most

importantly, the Government does not offer a single case in support of the idea that the contents of

the DoD Memo are not segregable under Exemptions 1 and 3, and does not, and cannot, cite a

single case where legal analysis was withheld under those exemptions.

While the Government’s case for withholding these documents in full is baseless, there is

much to be gained from disclosing the purely legal information FAC seeks. For example, whether

2 In the Government’s Brief in the Second Circuit case involving similar document requests by the New York Times and the ACLU, the Government wrote that:

Specifically, DOJ can now disclose that there are a significant number of responsive classified records, consisting of legal advice and analysis (including about al-Awlaki), requests for legal advice, internal Executive Branch legal deliberations (including legal and factual input and comments on draft legal advice and analysis), summaries of legal advice and analysis, internal attorney work product (such as draft legal advice and analysis, preliminary outlines of the same, and related questions and notes), and confidential factual information regarding terrorist organizations and individuals potentially involved in such organizations received from Executive Branch clients. Ex. SS.



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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

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. Even those who have been privy to the documents sought in this case, such as

Sens. Patrick Leahy, Al Franken, and Dick Durban, and former State Dept. Counsel Harold Hongju

Koh, believe that the documents should be released, and that the Government should do more to

facilitate a national dialogue on these subjects. Exs. MM-OO. For example, Sen. Leahy stated that

“although I cannot share the substance of these classified documents, I can say that I spent

considerable time scrutinizing these opinions and remain concerned about the constitutional and

legal underpinnings that justify the targeted killing of American citizens overseas.” Ex. NN.

The Government may have excellent arguments that justify its actions in the war on terror,

but keeping secret their legal basis while simultaneously, prominently insisting that the program is

legal does not serve the public interest, as many inside the Government have recognized. Indeed,

the Government does not cite a single case that is good law where a court rules that legal reasoning

and citation should be withheld under Exemptions 1 or 3. Thus, at the very least, there can be no

argument that 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 – that it insists is “meaningless” (MSJ at 15-16) – 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 May 2013 release of information by

the Government, which now appears to be a cynical push to help Mr. Brennan secure approval.

While FAC believes that, at the very least, any contents of the DoD memorandum and other

documents that are contained in, or reflected by, the White Paper are properly released, it is willing



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to accept a copy of the DoD memo that is wholly redacted, save for the legal citations and authority

used to support its contents, whatever they may be.

As this Memorandum explains in detail below, the Government’s assertions of FOIA

Exemptions 1, 3, and 5 do not justify withholding the documents requested by FAC. Indeed, the

Government’s assertion that the DoD Memo contains no segregable information is implausible,

given that even the release of the information that is reflected in the White Paper, or, at the very

least, the citations and authority cited in the memorandum would be of great use to both the public

and to the community of legal scholars. Chemerinsky Decl. ¶¶ 4, 7-9; Armstrong Decl. ¶¶ 5-8, 10-

11; Exs. K, P. The Government’s withholding of the DoD memo and its Glomar response refusing

to acknowledge or deny the existence of other legal memos prepared by OLC on the legal rationale

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

of the limited scope of FAC’s request. Where, as here, the Government – at its highest levels – has

publicly admitted its reliance on the contents of legal analyses to tout the legality of its

controversial actions 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 NLRB v. Sears, Roebuck & Co., 421 U.S.

132, 152-153 (1975); Nat’l Council of La Raza v. Dep’t of Justice, 411 F.3d 250, 359-360 (2d. Cir.

2005).

None of the issues outlined above should come as a surprise to the Court. The parties have

already filed six briefs, and several other submissions, totaling hundreds of pages, hashing out these

issues in the first set of cross motions for summary judgment. At this point in the case,

begrudgingly, the Government has made myriad public disclosures: the fact of al-Awlaki’s killing

by the U.S., the method, and several legal justifications, which it has acknowledged came from

classified OLC materials – the same materials sought here. But the Government still refuses to

release the actual documents that FAC seeks. With the confirmation of Mr. Brennan complete and

this issue largely out of the public consciousness, this lawsuit offers one of the only remaining

chances to open the Government’s legal process and reasoning to public scrutiny. Whatever one’s

opinion is regarding the propriety or legality of drone strikes against United States citizens, accused



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of terrorism, located outside the U.S., it cannot be denied that this is a vital issue in need of fulsome

public discourse.

2. DOJ MUST CONSTRUE FAC’S REQUEST LIBERALLY.

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

Civil Rights of the San Francisco Bay Area v. United States Dep’t of the Treasury, 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. United States Dep’t of the Treasury, 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). FOIA disclosure provisions

must be “broadly” construed, and exemptions “must be narrowly construed.” Lion Raisins v.

USDA, 354 F.3d 1072, 1079 (9th Cir. 2004).

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

construed it as asking for a single document – “a 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 or multiple documents; that information is uniquely in

Government hands. Indeed, it is extremely likely that there are multiple responsive documents, as

the Government has identified in other litigation and has been reported by reputable news sources.

Exs. SS at 47; XX. But FAC’s request is for the legal analysis authorizing the lethal targeting of al-

Awlaki, regardless of how many memos were used to parse out the issue. 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. To the extent that the Government has



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prepared multiple documents reciting the legal arguments and policy on the targeted killing of U.S.

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

3. THE COURT SHOULD ORDER IN CAMERA REVIEW OF ANY RESPONSIVE DOCUMENT.

FAC respectfully requests that the Court undertake an in camera review of any responsive

memoranda the Government identifies in order to locate, segregate and order the public release of

the legal analysis.3 The Second Circuit already required the Government to submit the relevant

documents for in camera review in the New York case. Ex. RR.

The Ninth Circuit has held that, “[t]hough the burden remains at all times on the

government to establish exempt status, in camera inspection may supplement an otherwise sketchy

set of affidavits.” Church of Scientology v. United States Dep’t of Army, 611 F.2d 738, 742-43 (9th

Cir. 1979). An in camera review here would conclusively prove the absurdity of the Government’s

claims that national security is jeopardized by public knowledge – not of the its general role in al-

Awlaki’s death, which is already publicly admitted, nor of the precise nature of that role, which

could not possibly be deduced – but of certain statutes and case law references.

To determine whether to undertake in camera review, courts in the Northern District of

California have applied a four-factor test from the Sixth Circuit. This analysis asks the court to

consider: (1) the burden which in camera review will impose upon themselves and the appellate

courts; (2) evidence of agency bad faith; (3) the strength of the public interest involved in the

particular case; and (4) the request of the parties for court review. Hiken v. DoD, 521 F. Supp. 2d

1047, 1055-56 (N.D. Cal. 2007); Powell v. United States Dep’t of Justice, 584 F. Supp. 1508, 1512-

15 (N.D. Cal. 1984). In both Hiken and Powell, as in the instant case, the factors favor disclosure.

First, conducting in camera review here will not place a significant burden on the Court, as

FAC only seeks the memoranda that were used as the legal basis for al-Awlaki’s killing; given the

Government’s disclosures thus far, there are only a handful of documents responsive to this request.

3 The Government should also be required to provide a Vaughn index just as it provided in

the New York cases, complete with the dates and length of responsive memoranda. See Memphis Publishing Co. v. FBI, 879 F. Supp. 2d 1, 2012 WL 269900 at *23 (D.D.C. 2012).



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Second, although there is no evidence here of agency bad faith, the Government has largely

resorted to boilerplate declarations to support its claims of privilege. Additionally, the underlying

activity at issue – the extra-judicial killing of a United States citizen, the legality of which was

questioned extensively by the New York Court – is sufficient to turn this prong in FAC’s favor, as

“[e]ven where there is no evidence that the agency acted in bad faith with regard to the FOIA action

itself there may be evidence of bad faith or illegality with regard to the underlying activities which

generated the documents at issue.” Hiken, 521 F. Supp. 2d at 1056. Third, there is clearly intense

public interest in the legal justification for the Government’s targeted killing of U.S. citizens, as the

subject touches on basic civil rights issues, the appropriate balance of power between the branches

of Government, and the actions necessary to keep the public safe from terrorism. The fourth factor

also weighs for review, as FAC is requesting in camera review while the Government is making

submissions of classified material to the Court.

Given that the factors in totality weigh in favor of in camera review of the OLC

memoranda, this Court should undertake such a review to satisfy FOIA’s requirement that “any

reasonably segregable portion of a record shall be provided to any person requesting such record

after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552(b). The

requisite in camera review of these memoranda would reveal case names and legal citations that are

utterly innocuous, yet invaluable to the national conversation on targeted killing. Congress

expressly affirmed that the courts are empowered to conduct in camera review, even in national

security cases, for just this reason: The Government’s knee-jerk assertion of a national security

interest must not cut short a judicial inquiry into the propriety of an overbroad public records

withholding. Church of Scientology 611 F.2d at 741-744.

Indeed, regarding the DoD Memo, “[t]here is probably no way, short of in camera

inspection, to determine whether the legal analysis that is not statutorily protected by the NSA is

inextricably intertwined with material that is protected from disclosure by statute.” SDNY Op. at

45, Dkt. 43. Where the Government here has provided scant information beyond boilerplate

declarations stating legal conclusions, there is little to be lost and much to be gained from

conducting an in camera review. Judicial action is needed to help the Government achieve its



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stated goals of transparency and compliance with the rule of law; the release of any segregable

information from the OLC memoranda may provide the only meaningful opportunity for evaluation

and public oversight of the Government’s targeted killing program.

4. THE GOVERNMENT FAILS TO DEMONSTRATE THAT THE DOD MEMO CONTAINS NO SEGREGABLE INFORMATION.

FOIA requires that “any reasonably segregable portion of a record shall be provided to any

person requesting such record after deletion of the portions which are exempt under this

subsection.” 5 U.S.C. § 552(b). “(N)on-exempt portions of a document must be disclosed unless

the court finds that they are inextricably intertwined with exempt portions to such a degree that

separating the two would “impose significant costs on the agency and produce an edited document

with little informational value.” Lawyers’ Comm. for Civ. Rights of S.F. Bay Area v. United States

Dep’t of the Treasury, 2008 U.S. Dist. LEXIS 87624, 35-63 (N.D. Cal. Sept. 30, 2008) (quoting

Willamette Indus., Inc. v. United States, 689 F.2d 865, 867-68 (9th Cir. 1982) (citing Mead Data

Cent., Inc. v. United States Dep’t of the Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977))). In

Lawyer’s Comm., the Court held that the Treasury Department was supposed to provide “the court

with a description of “what proportion of the information in a document is non-exempt, and how

that material is dispersed throughout the document.” Accordingly, “It is the agency’s burden of

showing the nonexempt portions [*9] of the documents are not “reasonably segregable.” Brooks v.

IRS, 1997 U.S. Dist. LEXIS 13678, 8-9 (E.D. Cal. 1997).

Courts will scrutinize an agency’s withholding of an entire document, as in Gordon v. FBI,

388 F. Supp. 2d 1028, 1036-1037 (N.D. Cal. 2005), where the Court forced the FBI to disclose

information in a document that included “the legal basis for detaining someone whose name

appears on a watch list” because the “FBI has not adequately explained how this information could

be used to circumvent agency regulations.” Additionally, in Bay Area Lawyers Alliance for

Nuclear Arms Control v. Department of State, 818 F. Supp. 1291, 1300-1301 (N.D. Cal. 1992), the

Court held that it was insufficient to just state that “national security” was the reason to withhold an

entire document, and that a detailed Vaughan index was required, stating that “The boilerplate,

conclusory statement ‘no segregation of non-exempt, meaningful information can be made for



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disclosure’ at the end of each index provides no facts from which the Court can evaluate that

assertion, and thus fails to provide the Court with the information necessary for it to make its

decision. Boilerplate, conclusory statements such as this fail the essential purpose of a Vaughn

index.” Accordingly, the Court denied the Government’s motion for summary judgment.

In Church of Scientology v. United States Dep’t of Army, 611 F.2d 738, 741-744 (9th Cir.

1979), the Ninth Circuit held that “[t]here is no longer any question that the doctrine of

segregability applies to the national security exemption as well as to the exemptions under the

Freedom of Information Act. . . . Accordingly, it is error for a district court to simply approve the

withholding of an entire document without entering a finding on segregability, or the lack thereof.”

See also Wiener v. FBI, 943 F.2d 972, 988 (9th Cir. 1991) (“It is reversible error for the district

court “to simply approve the withholding of an entire document without entering a finding on

segregability, or the lack thereof,” with respect to that document.”)

Paring down a blanket denial such as the Government’s is indeed part of the judicial

mandate: “Non-exempt portions of a document must be disclosed unless they are inextricably

intertwined with exempt portions” to such a degree that separating the two “would impose

significant costs on the agency and produce an edited document with little informational value.”

Willamette Indus., Inc. v. United States, 689 F.2d 865, 867-68 (9th Cir. 1982). Courts will

scrutinize an agency’s withholding of an entire document, as in Gordon v. FBI, 388 F. Supp. 2d

1028, 1036-37 (N.D. Cal. 2005), where the FBI was compelled to disclose information in a

document that included “the legal basis for detaining someone whose name appears on a watch list”

because the “FBI has not adequately explained how this information could be used to

circumvent agency regulations.” See also Bay Area Lawyers Alliance for Nuclear Arms Control v.

Department of State, 818 F. Supp. 1291, 1298, 1300 (N.D. Cal. 1992) (rejecting bald assertion of a

national security interest and requiring more particularized Vaughn indexes).

The Court’s review of the DoD Memo should conclusively prove the absurdity of the

Government’s claims that national security is jeopardized by public knowledge – not of the

Government’s general role in al-Awlaki’s death, which is already publicly admitted, nor of the

precise nature of that role, which could not possibly be deduced – but of certain statutes and case



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law references. A citation to Hamdi v. Rumsfeld is no more a risk to national security as it resides

in an OLC memo than it is being mentioned in this brief. Indeed, the Government has released the

unclassified White Paper, which contains 16 pages of legal analysis, and confirmed that the White

Paper reflects the contents of classified OLC analyses that are the policy of the United States

government. Exs. DD-KK. At the very least, during its in camera inspection, the Court should be

able to take the DoD Memo and compare it with the White Paper, releasing the contents of the DoD

memo reflected in the White Paper, i.e. the general legal justification for the program. MSJ at 2.

If, improbably, the Court determines that remaining information is still protected under one

of the exemptions, FAC requests the release of the DoD memo, only legal citations remain. As

illustrated by the demonstrative version of the White Paper attached as Exhibit PP to this Cross-

Motion, even a list of legal authorities can give valuable insight into what the government

depended on to justify its decision to kill al-Awlaki. Such a disclosure would show to what extent

the killing may have been justified by case law, statute. And make no mistake, the subject of the

memoranda is of extreme import. Indeed, before (erroneously) finding in favor of the Government,

the New York court explicitly acknowledged the constitutional significance of the legal questions

addressed in the memoranda. Determining the legal basis for the Government’s positions is

FOIA’s core purpose. See Sears, 421 U.S. at 152 (“[T]he public is vitally concerned with the

reasons which did supply the basis for an agency policy actually adopted.”); La Raza, 411 F.3d at

360 (2d Cir. 2005) (“… the public can only be enlightened by knowing what the [agency] believes

the law to be.”) (citing Sears, 421 U.S. at 152); Assembly of California v. United States Dep’t of

Treasury, 968 F.2d 916, 923 (1992) (“the core purpose of the FOIA is to allow the public to know

‘what the government is up to.’”); Cuneo v. Schlesinger, 484 F.2d 1086, 1091 (D.C. Cir. 1973) (“It

is well established that information which either creates of provides a way of substantive rights and

liabilities constitutes a form of the law that cannot be withheld from the public.”); Nat’l Council of

La Raza v. DOJ, 337 F. Supp. 2d 524, 537 (S.D.N.Y. 2004) (“‘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.’”).

In comparison to these core tenets of FOIA, and the facts of the present case, the authority



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relied upon by the Government to argue against segregability is clearly distinguishable, in that none

of them involve legal memoranda, and that none of them involve the level of public disclosure that

occurred in this case. For example, in National Sec. Archive Fund, Inc. v. C.I.A. 402 F.Supp.2d

211, 219 (D.D.C., 2005), the plaintiff sought disclosure of a national intelligence estimate that

contained “discussion and analysis of current and potential conditions in Iraq” during a time when

the United States was at war. Similarly, in Klamath Siskiyou Wildlands Center v. U.S. Dept. of the

Interior, 2007 WL 4180685 (D.Or., 2007), the Plaintiff sought Bureau of Land Management

communications and documents concerning a project, and had already received segregable

information. The case does not discuss any waiver of segregated materials by public disclosure.

5. THE MATERIALS CONTAINED IN THE OLC MEMORANDA ARE NOT PROTECTED BY EXEMPTION 5. A. The Deliberative Process Privilege Does Not Justify Secrecy Here.

The deliberative process privilege does not apply to exempt the legal arguments in these

withheld 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[.]’” 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 disclose its details. 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

prevent use of secret law); Armstrong Decl. ¶ 8.

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



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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)). The

holding of La Raza has been further refined in Brennan Center v. U.S. DOJ, 697 F.3d 184, 199-201

(2d Cir. 2012) to clarify the distinction between working law and express adoption and

incorporation, holding that there are “two paths” to waiver of Exemption 5. A document, even if

not used as an agency’s working law, may still lose protection under Exemption 5 if it is expressly

adopted, or incorporated by reference, as the documents sought here were. Id. at 207-208.

None of the disclosures in the cases relied upon by the Government match the level of

public disclosure in this case. In Electronic Frontier Foundation v. Department of Justice, 892

F.Supp.2d 95 (D.D.C., 2012), the court did not consider any argument whatsoever that public

disclosure waived the deliberative process privilege, nor was there any consideration of the

argument that the memorandum at issue was “working law.” In Citizens for Responsibility &

Ethics v. Office of Admin. 249 F.R.D. 1, 7 (D.D.C., 2008), in contrast to the clear facts here, the

Court found that “the Executive Branch has certainly not relied upon the OLC Memo in

discharging regulatory duties and, as discussed below, has not used the OLC Memo in its dealings

with the public.” In Electronic Privacy Information Center v. Department of Justice, 584

F.Supp.2d 65, 78 (D.D.C., 2008), plaintiff produced “no evidence” to support its assertion that an

OLC opinion was adopted in public dealings. And in Morrison v. U.S. Dept. of Justice, 1998 WL



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47662 (D.D.C., April 29, 1988), the court rejected the plaintiff’s argument that a government

officials waived the deliberative process privilege by disclosing memoranda in two newspaper

articles because “[n]othing in the two articles even remotely suggests that the two documents or

their contents were disclosed.”

Here, President Obama, A.G. Holder and others have made claims as part of a public

relations campaign that the Government’s targeted killing policy has a basis in the law. Exs. H-K,

DD, JJ-KK, TT-UU. Going forward, they have outlined a three-part test for determining targets

within the program, claiming authority under domestic and international law to use force against

American citizens identified as terrorists. 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. Id. Most importantly, the White Paper, the most explicit outline of the Government’s legal

reasoning in this area, has been acknowledged publicly by the White House as an official document

which was drawn from the classified legal arguments in the OLC Memo. Exs. JJ-KK. It is clear

that the contents and analysis of the OLC memoranda have been adopted and trumpeted by the

Government – therefore, they do not receive Exemption 5’s protections. 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.4

4 Brennan makes clear “The litigation posture of Exemption 5 cases . . . focuses on the

government proving the applicability of an exemption rather than the plaintiff proving applicability of one of the affirmative provisions because the burden rests on the government to shield documents from disclosure otherwise to be disclosed under FOIA” so, “[W]hether a particular document is exempt ... depends not only on the intrinsic character of the document itself, but also on the role it played in the administrative process.” Id. at 195, 202. In Brennan, the Government had already provided copious amounts of information about the nature of the requests for advice and the process by which the advice was obtained, including correspondence, in order to attempt to meet its burden under Exemption 5; yet the Government still failed. 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 e.g. Bies Decl.



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B. The Attorney-Client Privilege Does Not Protect The OLC Memoranda.

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. The

Government generally 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 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. 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.”

In La Raza, the Court held that, as with deliberative process, the attorney-client privilege:

may not be invoked to protect a document adopted as, or incorporated by reference



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into, an agency’s policy. In such 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.

The La Raza Court found the Government used the contents of a memo as legal authority to justify

its actions, yet refused to release the memo. The Court rejected that approach, stating “[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.” Id. at 361 (emphasis added).

Thus, 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, 697 F.3d 184 (2d Cir. 2012).5 In Brennan, the Second

Circuit found that the Government waived the attorney-client privilege when its contents were

“adopted, formally or informally as the agency position on an issue or … used by the agency in its

dealings with the public” even if its contents were predecisional. Id. at 195. Although the OLC

memo at issue in Brennan did not qualify as “working law” it was still not exempt from disclosure

under either the attorney-client privilege or the deliberative process privilege because agency

officials public referred to the opinions as justifications for their actions. Id. at 203.

Additionally, the Government has disclosed the memoranda to Congress and has disclosed

their contents publicly. Such disclosure clearly waives the attorney-client privilege. For example,

in First Heights Bank, F.S.B. v. United States, 46 Fed.Cl. 312, 319 (Fed. Cl. 2000), the Court held

that when “the Government chose to disclose the advice it received from its attorneys in an effort to

5 Accord Bronx Defenders v. United States Dep’t of Homeland Security, 2005 U.S. Dist.

LEXIS 33364 at *7 (S.D.N.Y Dec. 19, 2005) (“[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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bolster the credibility of its request for Congress to ‘clarify’ the law . . . such disclosure waives the

attorney-client privilege…” See also In re Subpoena Duces Tecum, 738 F.2d 1367, 1371-74 (D.C.

Cir. 1984) (voluntary disclosure by private party of information to one agency waived attorney

work-product and attorney-client privileges when same information was sought by second agency).

The OLC memoranda have been disclosed to Congress, and are the basis for the materials that have

been released in the White Paper. Exs. DD-KK. Accordingly, the attorney-client privilege in these

documents has been waived.

6. NEITHER EXEMPTION 1 NOR EXEMPTION 3 JUSTIFY WITHHOLDING THE OLC MEMORANDA IN THEIR ENTIRETY.

From the beginning of this case, FAC has disclaimed any intention of receiving any

national-security or intelligence-related materials through its FOIA request. Despite this generous

latitude, and without citing a single case or making any in-depth argument, the Government asserts

that the DoD Memo should be withheld in its entirety under Exemptions 1 and 3. Again, FAC

seeks the “general legal justifications” for the targeted killing program. MSJ at 2. One might be

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

repeatedly, hyperbolically, raises the specter of disclosures revealing “clandestine sources,” “covert

action,” “intelligence activities,” or intelligence tradecraft. E.g. MSJ at 10, 13, 18. The

Government conflates operational detail and legal analysis in order to create confusion. However,

there is no justification to withhold legal analysis and citation as intelligence information. Indeed,

the Government cannot offer authority for the proposition that legal citation and authority should be

withheld for national security reasons, and it is nearly impossible to imagine that the release of

material already in the White Paper, or citations of laws and cases, and dry discussion of those

authorities’ import could result in dangerous disclosures. Every case cited in the Government’s

sections on Exemptions 1 and 3 deals with intelligence information, not legal analysis.

General legal analysis and citations to legal authority are 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). Here, Executive Order 13,526 carefully limits the executive

branch’s power to withhold information as classified. The Government may classify information



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only if it comes within the narrowly tailored categories of Section 1.4 of the Executive Order.6

Even then, information may be classified only where “disclosure of the information reasonably

could be expected to result in damage to the national security,” and the agency is “able to identify

or describe the damage.” Id. § 1.1. The EO plainly is directed to actual secrets, such as weapon

systems, covert action, intelligence about WMDs, confidential sources, and the like, none of which

is at issue in this litigation. See id. § 1.4. Legal analysis, which appears nowhere in the Executive

Order, is notably absent from the categories of information that may be classified.

Nor does legal analysis implicate Exemption 3. 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. MSJ at 19. The NSA bans the

“unauthorized disclosure of ‘intelligence sources and methods.’” 50 U.S.C. § 403-1(1). 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 stop the writing and publication of books about

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

6 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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724, 738 (D.C. Cir. 1981).

In CIA v. Sims, 471 U.S. 159 (1985), 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 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, legal analyses prepared by OLC on the

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 information regarding

foreign intelligence. General legal analysis – including citations of cases and statutes cited by the

Government as authority to extrajudicially execute citizens – is not the type of “intelligence sources

and methods” that the NSA covers. However, 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. It cannot be argued that any of pieces of law alone – a statute, a constitutional

provision, a Supreme Court case – are government secrets. 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.

As explained throughout this Memorandum, the Government has waived the ability to

classify or withhold portions of the DoD Memo and similar OLC documents by numerous public

disclosures. Of these public disclosures, which include, notably, A.G. Holder’s speech at



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Northwestern University, his letter to Congress, and Pres. Obama’s speech, the most important is

the release, and subsequent official acknowledgement, of the White Paper. The White Paper,

which is an unclassified document, was released anonymously, but was adopted by the

Administration in two successive White House briefings, where official spokesman Jay Carney

confirmed that it was an authentic government document, that it was drawn from classified OLC

sources, and that those OLC sources had been made available to members of the United States

Congress. Exs. JJ, KK. A similar situation presented itself in Krikorian v. Department of State,

984 F.2d 461 (D.C. Cir. 1993), where an unclassified document contained information that was

included in a classified document as well. The circuit court instructed the district court “to compare

the two documents” to determine whether the classified document was officially acknowledged.

FAC asks the same of the district court here – to compare the White Paper with the OLC Memo,

and release any portions of the documents that are substantially similar. Id. at 467-68.

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. See 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); Lamont v. DOJ, 475 F. Supp. 761,

772 (S.D.N.Y. 1979) (“The ‘sunshine’ purposes of the FOIA would be thwarted if information

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

The Government’s declarations do not support blanket withholding as they are not

sufficiently detailed to justify a refusal to provide any segregable information. For example, when

the Government, as it has done here, insists that a document contains no segregable information but

provides “no details justifying that conclusion” and “has failed to offer any useful description of the

… undisclosed pages,” then it fails to justify withholding a document. Oglesby v. United States

Dept. of Army, 79 F.3d 1172, 1180-81 (D.C. Cir. 1996). Additionally, an affidavit that “offered no



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details regarding the five documents, but conclusively stated that they were all currently and

properly classified either TOP SECRET or SECRET because ‘the disclosure of all or any portion of

their contents could reasonably be expected to cause exceptionally grave damage and serious

damage, respectively, to the national security’” and “concluded with the sweeping declaration that

“it is not possible to describe further the withheld information in an unclassified declaration

because any additional description would itself divulge classified information,” did not satisfy the

requirements to withhold a document completely. Id. at 1184. Similarly, In Wiener v. FBI, 943

F.2d 972 (9th Cir. 1991), the Ninth Circuit found 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. Rather, an agency

should provide a “functional description of the documents;” including “the types of documents,

dates, authors, number of pages, or any other identifying information for the records it has

withheld.” While FAC does not seek the authorship or recipient of the DoD Memo, it notes that the

Government’s affidavits fall well short of these standards, and, instead, embrace conclusory (and

apocalyptic) predictions about the consequences of the DoD Memo becoming public. See e.g.

Hudson Decl. ¶¶ 33-35; Tidd Decl. ¶ 5.

7. THE GOVERNMENT’S GLOMAR RESPONSE IS IMPROPER.

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

the CIA was involved with a ship called the Glomar Explorer. 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 21, 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



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reasons each element of record qualifies for exemption pursuant to Vaughn)).7

In the ACLU case seeking access to records reflecting the Government’s use of enhanced

interrogation techniques after 9/11 (in which photographs of abuse of Abu Ghraib prisoners were

disclosed), the court also was confronted with Glomar responses 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). After

explaining the dangers of overbroad Glomar responses, the 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. The court rejected the

Government’s Glomar response and ordered it to produce the record or a Vaughn Index of claimed

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

response, especially where it fails to show how revealing additional OLC memoranda would

“damage” national security and counterterrorism efforts. MSJ at 1.

A. The Government’s Sole Remaining Argument Against Disclosure Fails.

As the Government has publicly acknowledged both the fact and method of al-Awlaki’s

killing, it is left with only one justification for refusing to disclose the existence of other

memoranda discussing the legal justification for his killing: that it would disclose the specific

involvement of the intelligence community in al-Awlaki’s death, whether that involvement be by

the CIA or another agency. MSJ 5-6. This reasoning is flawed for two reasons.

First, FAC has not requested, and has specifically disclaimed, the intent to receive

intelligence information in this case. Compl., Ex. A. It only seeks legal argument, and it is willing

7 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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to accept any document without knowing what agency requested analysis, or what agency received

it. In fact, the CIA’s involvement in this case is a mystery to FAC – it did not name the CIA as a

party or send its FOIA request to the CIA. Rather, it sent it only to the DOJ – the CIA became

involved of its own accord. If the Government now finds itself unable to release a redacted

document merely because it would show the CIA was involved because the CIA has inserted itself

into this case, FAC, and any interested citizens should not be made to suffer.

Second, the CIA has already publicly disclosed its involvement. In Pickard v. DOJ, 653

F.3d 782, 786 (9th Cir. 2011), 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, an inmate

made a FOIA request for records pertaining to an alleged confidential informant in his case. The

court applied its test and concluded that, once prosecutors “intentionally elicited” facts from the

informant in open court about his role, the government could no longer issue a Glomar response

refusing to confirm or deny that he was a confidential informant. Pickard, 653 F.3d at 787-788.

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. 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, as has the

Congressman who oversees such programs. Exs. M, Y, QQ. 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,



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again, the Government may redact the affected agency’s name and still reveal the existence of the

analyses without making a Glomar response. Indeed, in ACLU v. CIA, 710 F.3d 422, 429 (D.C.

Cir. 2013), the court found that the Government had already confirmed the CIA’s involvement in

the use of drones.8 For 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.

8. EVIDENTIARY OBJECTIONS.

Based on the FRE and Local Rule 7-5(b), FAC submits evidentiary objections: Legal

conclusion [FRE 602]. FAC objects to: Hackett Decl. ¶¶ 2, 10-18, 21-25, 27-28 (incorporated by the

Hudson Declaration); Bies Decl. ¶¶ 5, 16- 18, 20, 26; Hudson Decl. ¶¶ 12, 15-20, 22-25, 26-30, 31-

34, 35; Tidd Decl. ¶¶ 5, 10, 12-15. Relevance [FRE 402]. Bies Decl. ¶¶ 2, 3, 4, 5, 6, 7. Lack of

personal knowledge [FRE 602]. Hudson Decl. ¶ 10; Tidd Decl. ¶ 15; Improper lay opinion

[FRE 701]. Bies Decl. ¶¶ 3, 4, 5, 6, 7, 8, 14, 16, 17, 18, 19, 20, 24; 26 Hackett Decl. ¶¶ 14-15;

Hudson Decl. ¶ 12, 15, 23, 26-29, 31, 33; Tidd Decl. ¶¶ 5, 10, 11. Speculation [FRE 402 and 702].

FAC objects to the following as speculative: Bies Decl. ¶ 8, 26; Hackett Decl. ¶¶ 17, 19-23, 25-27;

Hudson Decl. ¶¶ 26-29, 31, 33; Tidd Decl. ¶ 11, Best Evid. Rule [FRE 1002]. Bies Decl. ¶¶ 4, 9-13,

20; Hackett Decl. ¶¶ 5-7, 11-16, 18-19; Hudson Decl. ¶ 5, 8, 9, 10, 13-14; Tidd Decl. ¶¶ 3, 4. Hearsay

[FRE 801, 802]. Bies Decl. ¶¶ 7; 20; Hudson Decl. ¶¶ 6, 8, 9, 10, 13-14, 35; Tidd Decl. ¶ 15.

9. CONCLUSION.

For all these reasons, FAC respectfully requests that the Court grant this Second 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.

DATED: October 3, 2013 By: /s/ Thomas R. Burke Attorneys for Plaintiff First Amendment Coalition

8 Relying on similar facts as the ones before the Court in this case, the D.C. Circuit held

that: “The question before us, then, is whether it is logical or plausible, for the CIA to contend that it would reveal something not already officially acknowledged to say that the Agency “at least has an intelligence interest” in such strikes. Given the extent of the official statements on the subject, we conclude that the answer to that question is no.”


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