The U.S. Department of Justice’s Office of Legal Counsel in July 2010 issued a memo that provided the legal justification for the drone-strike killing of Anwar al-Awlaki in 2011. The OLC memo was confidential until June 23, when the U.S. Court of Appeals for the Second Circuit released it as part of a Freedom of Information Act lawsuit. (Department of Justice)
Shortly before Christmas in 2011, I called a lawyer at the American Civil Liberties Union and told him I was thinking about filing a suit on behalf of The New York Times against the U.S. Department of Justice. My plan was to ask the court to compel DOJ to reveal its secret legal memoranda justifying targeted killings of Americans and others abroad. I wanted to know whether he thought we had a chance of winning.
“It’s not completely hopeless,” he said. That is how these things go in Freedom of Information Act world. “Not completely hopeless” qualifies as an occasion for optimism.
A few days later, I filed my suit. The ACLU filed a similar case not long after. This past week, after more than 2 1/2 years of litigating, the U.S. Court of Appeals for the Second Circuit oversaw the release of a previously classified memorandum making the legal case for the drone strike that would kill the ­radical cleric Anwar al-Awlaki in Yemen in 2011.
In national security FOIA cases we never litigate on the level playing field that is the hallmark of other civil litigation. Secret affidavits are routinely filed by the government. Secret communications take place between the court and government lawyers. The courts issue sealed versions of the their decisions.
That makes this court’s decision all the more notable: It was the first time post-9/11 that an appellate court had reversed a district court and directly ordered the release of a classified document. Although parts of the memo remain redacted, the court did what few courts have been willing to do: ask hard questions of the government and make an independent determination of whether secrecy was really necessary.
ENRICH THE PUBLIC DEBATE
The release of the memo has done what the Times hoped it would do — enrich the public debate over targeted killings. But it’s “not completely hopeless” to think that the Second Circuit decision may serve larger purposes.
First, the publicity about the case is a much needed reminder of how important to democracy FOIA is — and how broken the FOIA system is. The failures of FOIA are drearily familiar: agency delays have become an art form, and statutory exemptions are mindlessly deployed by bureaucrats armed with boilerplate. Last year we were denied a list of government agencies on the grounds that disclosing the agencies’ names would violate “personal privacy.” We are litigating a case in which the CIA said it could neither confirm nor deny whether it had responsive documents without jeopardizing national security. That was just before we found two responsive documents posted on the CIA’s public website.
There is no easy fix, but any hope of repairing the system begins with engendering greater public awareness of FOIA’s potential and finding the political will to seek meaningful change.
Second, all of us who litigate FOIA cases know how little government agencies are required to do to win. Forget the high-minded rhetoric extolling transparency. The sad fact is that the law overwhelmingly favors the government, starting with the presumption of good faith that attaches to even vacuous government affidavits and extending to the courts’ universal reluctance to permit discovery. The district judge who handled our suit described the law as something out of “Alice in Wonderland,” in which the case for transparency was so apparent and the law so unwilling to allow it.
It is understandable that judges are hesitant to second-guess the CIA or the Pentagon on national security matters. But we also know that governments are built to overclassify, to use secrecy to cover up mistakes and engender a mystique of power. There is no hope of rebalancing transparency and secrecy unless judges demand more of the government.
The Second Circuit’s decision should be a judicial reset. The court has given judges renewed legal sustenance, not only by taking a fresh look at some FOIA doctrines but, more importantly, by being a model of the kind of judicial skepticism that should be brought to the courtroom in every FOIA case.
Finally, in this era of WikiLeaks and Edward Snowden, our case implicitly underscores why leaks to reporters remain an essential element of democracy. Think of FOIA as the front door to the secrets the government does not want the public to have. It took us 2 1/2 years and hundreds of hours of legal work to walk through that door and get one document — a document that should have been public long ago.
FOIA can do many things but it cannot provide the public with the inside information that people need in real time to provide a meaningful check on governmental abuse and overreaching. Whistleblowers can. While we celebrate FOIA and transparency, we shouldn’t forget whistleblowers and the reporters who rely upon them — and how much more we need to do to protect them.
David McCraw is vice president and assistant general counsel at The New York Times Co.