Appeals Court Says Secret Drone Memos Can Stay Secret

The Second Circuit Court of Appeals has ruled that certain legal memos justifying the government's drone strikes can remain secret. The long-running FOIA lawsuit involving the New York Times and the ACLU has been covered previously here. At the center of this FOIA lawsuit are more than 100 legal opinions from the DOJ's Office of Legal Counsel (OLC) that provide the legal argument for the extrajudicial killing of suspected terrorists.

A few of these documents have made their way into the public's hands, thanks to the two plaintiffs, aided in no small part by government officials citing the memos in other documents and commenting publicly about the drone strike program.

But there are still a few memos being held back. The "most transparent administration" has been very active in ensuring the Freedom of Information Act doesn't live up to its stated ideals. Nine of these memos have been officially buried by the Appeals Court, which apparently believes the government when it says the legal guidance memos it uses to justify its drone strike program are nothing more than "discussions" with lawyers that are exempted from disclosure. Brett Max Kaufman at Just Security points out the flaws in the court's rationale.

In an OLC memorandum published, ironically or not, the same day (July 16, 2010) and over the same signature (David Barron’s) as the targeted killing memorandum released at the Second Circuit’s behest last year, the OLC explains that its “central function” is to provide “controlling legal advice to Executive Branch officials.” And not even two weeks ago, the acting head of the OLC told the public that even informally drafted legal advice emanating from his office is “binding by custom and practice in the executive branch,” that “[i]t’s the official view of the office, and that “[p]eople are supposed to and do follow it.”

Both sides of this "discussion" (OLC, Obama administration) continue to claim there's nothing binding in these memos when fighting to keep them secret, but both treat the secret documents as binding. The court, however, has resolved these contradictory statements in favor of the government.

On top of that -- via reasoning almost completely hampered by the court's inability to disclose almost anything about the disputed documents or the government's ex parte submissions and in camera discussions -- the court has chosen to allow one of the most controversial memos to remain in the government's possession.

[T]he Second Circuit’s new opinion endorses the continued official secrecy over any discussion of a document that has supplied a purported legal basis for the targeted killing program since almost immediately after the September 11 attacks. The document — a September 17, 2001 “Memorandum of Notification” — is not much of a secret. The government publicly identified it in litigation with the ACLU eight years ago; the Senate Intelligence Committee cited it numerous times in its recent torture report; and the press frequently makes reference to it. Not only that, but the Central Intelligence Agency’s former top lawyer, John Rizzo, freely discussed it in his recent memoir.

According to Rizzo, the September 17 MON is “the most comprehensive, most ambitious, most aggressive, and most risky” legal authorization of the last decade and a half — which is saying something.

This memo apparently contains the OLC's justification for the extrajudicial killing of targets "outside of recognized battlefields." According to Kaufman, the memo also likely contains the DOJ's "workaround" to bypass the restrictions on "assassinations" contained in Executive Order 12333. If so, these justifications would very much be of public interest, while simultaneously being something the administration (this one or the last one) would have no interest whatsoever in making public.

The Freedom of Information Act wasn't passed with the intention of making the government only as transparent as it wants to be. It was a forced change. The government didn't voluntarily decide to grant the public access to its inner workings. Siding with the administration by buying into its "discussions with counsel" arguments subverts the spirit of the law by using the letter of the law against the public.

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