Freedom of Information Act Litigation

One of the benefits of working for The New York Times is that I have had access to legal resources to pursue Freedom of Information Act litigation. FOIA is a powerful but dysfunctional tool for bringing information to public light. One of its shortcomings is that in practice, it rarely works unless you file a lawsuit. The Times‘ lawyer David McCraw and I have pursued many cases, assisted by the Times‘ annual First Amendment Fellows, including Maya Gandhi (2024), Samantha Hamilton (2023), Jess Hui (2022), Alexandra Settelmayer (2021), Alexandra Perloff-Giles (2020), Al-Amyn Sumar (2019), Christina Koningisor (2018), Ian MacDougall (2017), Tali Leinwand (2016), Jeremy Kutner (2015), Victoria Baranetsky (2014), Stephen Gikow (2013), Nabiha Syed (2012) and Dana Green (2011). This page tracks our litigation efforts.







Misc. Obama

Misc. Trump


Requests for intelligence briefings by former presidents

TOPIC: Seeking disclosure of historical requests for intelligence briefings by ex-presidents — like what they wanted to know about, when, why, and whether they got it — dating back to the Eisenhower administration.

CASE: Savage/NYT v. CIA/State Dept./ODNI, 23-cv-1854, S.D.N.Y.

STATUS: Complaint filed.



Complaint (March 3, 2023)

Biden’s counterterrorism drone strike rules, Biden’s international counterterrorism strategy, and Special Operations partner forces documents

TOPIC: Seeking disclosure of two counterterrorism policy documents signed by President Biden and sent to the Defense Department, among other parts of the government, in October 2022: the national security memorandum outlining a strategy for combatting international terrorism, and the presidential policy memo (PPM) setting rules and procedures for counterterrorism direct action operations away from areas of active hostilities. Also seeking disclosure of Special Operations Command policy guidance and reports and slidedecks for briefing Congress about three types of partner forces governed by the statutes 10 U.S.C. § 127e, 10 U.S.C. § 333, and Section 1202 of the National Defense Authorization Act for Fiscal Year 2018.

CASE: Savage/NYT v. Department of Defense, 22-cv-10299, S.D.N.Y.

STATUS: In litigation


April 12, 2023:

June 14, 2023:

June 30, 2023:



Reports from John Durham’s investigation into CIA torture of detainees (II)

TOPIC: With my former colleague Scott Shane, now an independent writer, seeking disclosure of “all reports to the attorney general or deputy attorney general describing or presenting findings and recommendations, and all FBI FD-302 forms and FD-1023 forms summarizing witness and source interviews, in connection with John Durham’s investigation into the CIA’s rendition, detention, and interrogation program.”

BACKGROUND: Durham was appointed to look into the videotapes issues in 2008 by Attorney General Michael Mukasey, and in 2009 Attorney General Eric Holder expanded his mandate to abuses of detainees that went beyond techniques the Bush Justice Department had blessed as lawful at the time. Mr. Durham eventually recommended no charges be brought, and his investigation ended in 2012. In early 2014, The New York Times and I filed a similar FOIA lawsuit, which the Obama administration decided to fight. Years of litigation ensued, but ultimately the documents were largely withheld as attorney work product and pre-decisional deliberative materials under Exemption Five. (Whether the documents were also with-holdable under Exemption One as properly classified was therefore not necessary to address.) Much has changed about the law and the facts since that case was filed. First, large amounts of information about the program has been declassified as a result of the release of the executive summary of the Senate Intelligence Committee report and discovery proceedings in the military commissions system at Guantanamo Bay, Cuba. Second, in 2016 Congress enacted a law, the FOIA Improvement Act, which narrowed the scope of Exemption Five; now, instead of making a blanket boilerplate assertion, the agency must put showing that the release of specific documents would cause foreseeable harm.

CASE: Savage/Shane/NYT v. Department of Justice, 22-cv-02477 (Boasberg D.D.C.)

STATUS: Motion for Summary Judgment



Defense Intelligence Agency purchases of DNS and/or netflow data

TOPIC: With my colleague Mark Mazzetti, seeking documents that would show whether the Defense Intelligence Agency has been purchasing Domain Name System (DNS) logs or Internet traffic data from commercial brokers, and if so what it has been doing with them particularly in regards to searching for data associated with Americans. As amended, the lawsuit covers both the D.I.A. and the Office of the Undersecretary of Defense for Intelligence and Security.

BACKGROUND: There is growing awareness of how DNS and/or netflow logs can be used to identify which websites or servers a particular user has accessed or which users are visiting a particular website or server, and debate about what the rules should be for government access to that kind of data. (This attention is mainly due to a legislative fight over whether to prevent the government from using Section 215 of the Patriot Act to gather Internet traffic logs, but the power of DNS logs has also been in the news due to the Trump-era special counsel John Durham’s investigation into suspicions raised by a group of data scientists in 2016 about odd DNS data suggesting hidden communications between servers for the Trump Organization and a Kremlin-linked Russian bank.) In April, Senator Ron Wyden and other lawmakers introduced The First Amendment is Not For Sale Act to address commercial sales to the government of data pertaining to Americans’ communications. In May, Joseph Cox of Vice’s Motherboard reported on a letter from Wyden to the Pentagon revealing that the lawmaker had asked whether the Defense Intelligence Agency was buying commercially available DNS and netflow data, but that the DIA had provided answers in a form he was not permitted to make public.

CASE: NYT/Mazzetti/Savage v. Defense Intelligence Agency, SDNY, 21-cv-10980

STATUS: Complaint filed and amended.





1984 Office of Legal Counsel memo about National Security Agency surveillance the Fourth Amendment

TOPIC: Sought May 24, 1984, memo, “Memorandum for the Attorney General from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Intelligence Surveillance Act of 1978” and cover letter

BACKGROUND: This memo is apparently the foundation of the United States government’s interpretation of the constitutional issues raised by N.S.A. surveillance techniques that Congress has left unregulated by domestic wiretapping statutes, including bulk collection of communications satellite transmissions and messages intercepted as they flow across network cables outside the territory of the United States. It was mentioned in a footnote of a 2007 Justice Department document that came to light as part of the Snowden revelations, and was discussed in an open Congressional hearing on Jan. 28, 2015 — the confirmation hearing for former Attorney General Loretta Lynch — in which Senator Dianne Feinstein, Democrat of California, said executive branch officials had advised Congress “of the existence of a seminal OLC opinion written Ted Olson decades ago governing the conduct of collection activities under Executive Order 12333.”

CASE: NYT/Savage v. DOJ, 17-cv-0087 (Cooper , D.D.C.)

RESULT: Judge Cooper ruled for the government. NYT did not appeal.




Inspector General Report about National Security Agency Post-Snowden Security Steps

TOPIC: Sought August 29, 2016, Department of Defense Inspector General report “The National Security Agency Should Take Additional Steps in Its Privileged Access-Related Secure the Net Initiatives”

CASE: NYT/Savage v. DOD, 17-cv-1228 (Preska, S.D.N.Y.)

STATUS: Document produced and case closed.




FISA Amendments Act notifications and Treasury Department sanctions

TOPIC: Sought documents showing how the Treasury Department is interpreting its obligations under a statutory requirement in FISA to tell people when surveillance regulated by that law (including the FISA Amendments Act warrantless variety targeting foreigners abroad) is used against them in any government “proceeding”

BACKGROUND: In 2013 and 2014, it emerged that the Justice Department had not been telling criminal defendants when they faced evidence derived from such surveillance, preventing anyone from challenging the constitutionality of the FISA Amendments Act. Following an internal debate, the Department of Justice changed that practice. The legal policy debate then spilled over to Treasury Department and the Office of Foreign Assets Control, which uses surveillance-derived information when sanctioning people or groups abroad as terrorists, drug traffickers, etc. Sanctions typically involve freezing any assets in the United States and making it illegal for Americans to do business with that person or entity.

CASE NAME: NYT/Savage v. Department of Treasury, No. 15-cv-5740 (Ramos, S.D.N.Y.)

STATUS: Treasury said one document was responsive, but successfully withheld it from disclosure because it was deemed a draft rather than a final document. Case closed.




Department of Justice Inspector General reports about surveillance

TOPIC: Sought declassified versions of six Department of Justice inspector general reports related to surveillance, and a six-agency IG report about the post-9/11 Stellarwind warrantless surveillance/bulk data program.

BACKGROUND: After the Snowden leaks, the government declassified many facts about surveillance and communications metadata collection/analysis. This lawsuit sought to leverage that declassification by obtaining release of previously classified inspector general reports on those topics, including one about the FBI’s involvement with the FISA Amendments Act warrantless surveillance program. It also sought reprocessing and more fulsome release of reports that had previously been made public in heavily redacted form, including about FBI collection of phone data and other types of records using national-security letters, exigent letters, and Section 215 of the Patriot Act.

The most important of these reports was a massive investigation by six agencies’ inspectors general into the post-9/11 Stellarwind program. It was mandated by Congress as part of the FISA Amendments Act of 2008, and was entirely classified when completed in 2009. (The famous “NSA IG report” leaked by Snowden was an early draft of the NSA’s contribution to this much larger Stellarwind report.) In response to this lawsuit, the government released a version of it in April 2015, and then on its own decided it could make even more public and released another version in September.

CASE NAME: NYT/Savage v. DOJ, No. 14-3776 (Torres, S.D.N.Y.)

STATUS: The government produced versions of these reports in several tranches. The New York Times then asked Judge Torres to require additional disclosures of certain still-censored portions of the report, but the judge ruled against us and dismissed the case.




National Security Agency inspector general reports

TOPIC: Sought all internal NSA inspector general reports about the NSA’s warrantless surveillance program conducted since 2008 under Section 702 of the FISA Amendments Act, its bulk phone metadata program conducted since 2006 under Section 215 of the Patriot Act, and its bulk e-mail metadata collection program conducted between 2004 and 2011 under FISA’s pen register/trap and trace provision.

BACKGROUND: These three activities grew out of the Bush administration’s original post-9/11 Stellarwind program. Over time, the legal basis of each of the three components of that program evolved, leaving in place a form of the original activity even after Stellarwind ended in 2007.

CASE NAME: NYT/Savage v. NSA, No. 15-2383 (Forrest, S.D.N.Y.)

STATUS: The government produced records in response to this lawsuit in three tranches.

It provided the first – related to the bulk phone records program – in August. The release included — apparently by mistake – two unredacted pages of a 2011 letter the Justice Department had sent the FISA Court describing an incident in which the court-imposed rules for the program were violated. The usually redacted information disclosed in that letter included the names of companies listed in the case header of FISA Court orders for the program – AT&T, Sprint, Verizon subsidiaries, and Verizon Wireless (at the time a separate entity) – and the fact that the program was used in searching for agents of Iran and terrorist organizations linked to it (presumably Hezbollah), not just Al Qaeda.

It provided the second – related to the bulk e-mail records program – in November. The release included confirmation of the theory that while that particular program had ended in December 2011, it was not that the N.S.A. had abandoned its ability to contact-chain Americans’ e-mail records but rather that it had found a functional equivalent to do so without the headaches of the FISA Court rules and oversight that had caused so many problems for PR/TT program.




Foreign Intelligence Surveillance Court documents

TOPIC: Sought declassification and disclosure of secret Foreign Intelligence Surveillance Court rulings that interpreted surveillance law in significant/programmatic ways since 9/11.

BACKGROUND: After the Snowden leaks, it became clear that after the terrorist attacks of Sept. 11, 2001, the Foreign Intelligence Surveillance Court (or “FISA Court”) had secretly evolved from the limited purpose for which it was designed – to approve individual wiretap applications – and had taken on a much more powerful role. It was developing a secret body of common law — embracing complicated legal analysis interpreting surveillance law and Constitutional issues, sometimes in counter-intuitive ways — and overseeing and authorizing surveillance activities at a programmatic level. With Laura Poitras, one of the recipients of the Snowden archive, I wrote a story mapping out some of the major rulings of the FISA Court after 9/11 that affected Americans’ privacy rights and that the public did not know about. I then filed a lengthy FOIA request seeking to obtain disclosure of those rulings and related litigation documents.

The Electronic Frontier Foundation had filed an overlapping FOIA case and sought some of the same documents, so our cases were consolidated before the same judge.The government by then already had declassified and put out documents related to FISC moves in 2004 to legalize the bulk e-mail records program and in 2006 to legalize the bulk phone records program, as well as court-overseen wrestling with problems the NSA had in obeying court-imposed rules for those programs. These additional FISC documents centered on topics including the secret loosening of restrictions on sharing “raw” (or not yet processed to mask or delete any private information about innocent Americans) fruits of surveillance among government agencies, two short-lived efforts to reinterpret FISA as permitting a warrantless surveillance program in 2007 and then convulsions that followed due to disagreements among FISA Court judges about the legitimacy of the legal theories colleagues had used to bless the activities; the certifications the FISA Court used to approve warrantless surveillance under the Protect America Act of 2007 and FISA Amendments Act of 2008 (including whether the statute could be interpreted as permitting “about the target” collection of e-mails that mention a target but are not to or from the target), and later revisions to the rules of FISA Amendments Act surveillance.

CASE NAME: NYT/Savage v. DOJ, No. 14-3948 (Broderick, SDNY)

STATUS: The government declassified and released numerous documents, after which the judge  dismissed the case.


  • Released on multiple dates: Consolidated litigation from 2002, 2006, 2008, 2012, including initial Raw Take sharing and later expansions, and initial certifications in 2008 after FISA Amendments Act
  • December 12, 2014 release: documents related to Howard’s 2007 large content FISA orders
  • January 26, 2015 release: 2007 Vinson litigation on Howard’s large content orders and the “roving wiretap” solution
  • May 29, 2015 release: additional documents re the “roving wiretap” theory and “about the target” collection from 2007; continuation of raw take sharing from 2004
  • July 21, 2015 release: 2007 Protect America Act certification documents
  • September 28, 2015 release: 2014 FISA Amendments Act documents



Preparations to permit interagency raw sharing of surveillance regulated by Executive Order 12333

TOPIC: Sought documents related to work on 12333 intelligence sharing procedures, including meeting invitations, e-mails, drafts, etc.

BACKGROUND: When the NSA intercepts private communications using methods that the Foreign Intelligence Surveillance Act left unregulated — including collecting satellite transmissions, phone calls and e-mails crossing network switches abroad, and foreign-to-foreign messages transiting domestic network switches — it can vacuum up content in bulk without targeting anyone. As a result, the overwhelming volume of the private messages the N.S.A. gathers comes through these techniques, which are governed by Executive Order 12333. But unlike targeted FISA surveillance, the NSA is not permitted to share 12333 intercepts “raw” with sister intelligence agencies, like the CIA and FBI. Instead, NSA analysts act as a filter – searching and evaluating the information and passing on only what they think is pertinent. Moreover, they must first “minimize” whatever they share, masking the names and removing irrelevant private information about Americans. But in 2008, Bush changed the order to permit raw sharing of 12333 intercepts as soon as ODNI, DOJ and DOD came up with rules for it. The national security bureaucracy, under Obama, has been quietly working on those rules. This request sought documents related to that effort that would show the pace of bureaucratic work on it.

CASE NAME: NYT/Savage v. DOD, NSA, ODNI, FBI, CIA, No. 15-cv-6979 (Engelmeyer, S.D.N.Y.)

STATUS: ODNI provided information in an interview and The Times voluntarily dismissed the lawsuit.

PRODUCED DOCUMENTS: None; the government instead provided oral briefing.



Secret interpretation of Section 215 of the Patriot Act

TOPIC: We sought declassification and disclosure of a February 2011 Justice Department/Office of Director of National Intelligence report to Congress explaining something about how the government was interpreting Section 215 of the Patriot Act, which permits the government to obtain business records deemed “relevant” to a national-security investigation.

BACKGROUND: In 2011, Section 215 and another parts of the Patriot Act were about to expire and Congress was debating renewing it. Senators Ron Wyden and Mark Udall, both Democrats on the Senate Intelligence Committee, warned that the government was secretly interpreting this law in a non-obvious way that would outrage people if the public knew what it was. They filed an amendment to require disclosure of this legal interpretation. The preamble included a reference to the existence of a February 2011 report to Congress. They later withdrew this amendment in exchange for a promise of a (closed to the public) Intelligence Committee oversight hearing on the topic, but I filed a FOIA request for it. The government rejected the request.  We filed a lawsuit arguing the government could not withhold the report entirely from the public, because even if it was entitled to black out portions about any classified programs described in the report, other portions containing only the government’s abstract legal analysis of what the statute meant could not be properly classified. The ACLU later separately brought a broader FOIA case for documents in general about the interpretation of the Patriot Act, and their lawsuit was consolidated with ours before the same judge.

CASE NAME: NYT/Savage v. DOJ, No. 11-6990 / ACLU v. FBI, No. 11-7562 (Pauley, S.D.N.Y.)

STATUS: In May 2012, the judge, after reading the classified memo and learning about the program, ruled that the government did not need to disclose anything and dismissed the case.

Postscript: The failure of this lawsuit prevented the public from learning for 13 more months that the Justice Department and FISA Court had secretly interpreted Section 215 to authorize bulk collection of records about Americans showing social links between people, which might be useful in hunting for hidden associates of terrorism suspects. This was the claimed legal basis of the program in which the NSA was secretly collecting bulk records logging Americans’ domestic phone calls. (A similar interpretation of Section 214 of the Patriot Act was also the basis for a sister program collecting bulk logs of Americans’ e-mails, which sort of ended in December 2011). Then, in June 2013, the existence of the bulk phone records program was the first revelation of the Snowden leaks, sparking controversy and debate both about the program and about whether it was a legitimate interpretation of the statute.

In June 2015, when Section 215 was again expiring, Congress enacted the USA Freedom Act, which reauthorized that provision but said it could no longer be used for bulk collection after November 2015. Separately, the ACLU had filed a lawsuit challenging the legality of the now-revealed program. That lawsuit was assigned to Judge Pauley because it was related to this previous FOIA lawsuit. He ruled that the program was legal both on statutory and constitutional grounds. The ACLU appealed that ruling, and in May 2015, a three-judge panel on the Court of Appeals for the Second Circuit unanimously reversed, ruling that the program was illegal because Section 215 of the Patriot Act could not be legitimately interpreted as authorizing bulk collection.

PRODUCED DOCUMENTS: None. However, on July 31, 2013, after the Snowden leaks, the government declassified and disclosed the document our litigation had sought: “Report on the National Security Agency’s Bulk Collection Programs for PATRIOT Act Reauthorization” (Feb. 2, 2010)



Foreign Intelligence Surveillance Court documents related to a 2015 order to Yahoo for bulk email scanning

BACKGROUND: As Reuters first reported and we helped fill in the legal and operational details about, in 2015, Yahoo, in response to a government order, scanned incoming customer e-mails searching for a cyber-signature associated with a communications method used by a foreign state-sponsored terrorist organization. This was a highly unusual, perhaps unprecedented, order under the traditional wiretapping title of the Foreign Intelligence Surveillance Act. We sued to have the memorandum opinion and associated documents made public, invoking a provision of the USA Freedom Act of 2015 that says significant and novel interpretations of surveillance law should be made public. The case was complicated by the fact that the order may have been issued before the Freedom Act became law, and by classification rules because the government has never officially acknowledged this. We eventually agreed to resolve the case by receiving documents being declassified and produced in tranches for another lawsuit brought by the Electronic Frontier Foundation (seeking significant FISC opinions in general), but the government evidently deemed the Yahoo matter to remain entirely classified.

CASE: NYT/Savage v. DOJ, 17-cv-0053 (Preska, S.D.N.Y.)

STATUS: Closed




FBI shootings etc:

Post-2017 FBI shooting incident reports

TOPIC: Sought an updated set of the F.B.I.’s internal incident reports that it produces whenever an agent fires a weapon outside of a shooting range. The reports reconstruct a narrative account of what happened and assess whether the agent’s decision to pull the trigger complied with the F.B.I.’s policy, which allows deadly force only if agents fear that their lives or those of others are in danger. They can also reflect any disciplinary action or discussion of changes to training and procedures arising from the scrutiny.

BACKGROUND: I have been periodically using FOIA to make public the bureau’s reports about intentional shooting incidents; sometimes using lawsuits to goose the bureau into complying.

Earlier litigation and links to shooting incident reports previously obtained are below.

This lawsuit covered both a FOIA request I had made in 2019 seeking all documents produced since the last successful such request (essentially those since 2016) and another such request I made in 2021.

CASE: NYT/Savage v. FBI, SDNY, 21-cv-10888

STATUS: Closed. After we filed the case, the government said it had sent a response to the 2019 request to the NYT office earlier in 2021, which I had not received due to Covid-19 and working from home. The government subsequently emailed those files and later produced some files responsive to the later request. We continued to negotiate over whether the bureau would unredact certain information on a report summarizing precedents and over some apparently missing reports. (We never got one for a January 24, 2018, shooting incident in Houston, in which an FBI agent killed a kidnapping victim, Ulises Valladares, and which has led to controversy and litigation. It appears the SIRG may not have pronounced judgment on that by the time of my request.)


    • May 2022 production: Six intentional shooting incidents in 2017 and eight from 2018, all deemed good shoots except for a 10/15/2017 incident in Little Rock in which an agent improperly fired a bullet at a fleeing car (that was deemed a bad shoot but the bullet did not injure anyone)

    • June 2022 production: 18 intentional shooting incidents between late 2016 and early 2020, all deemed good shoots (plus a number of documents I did not ask for, like reports on accidental discharges — and a bad shoot involving the killing of a family dog during a family dispute)

    • July 2022 production: Mostly 2019-2020 incidents, seven SIRG reports (all good shoots) but mostly initial incident summaries, plus heavily redacted summary of administrative punishments for three previous bad shoots

    • September 2022 production: Redundant versions of two heavily redacted lists of previous incidents plus email chain declining to prosecute agent for the 10/15/2017 incident in Little Rock

    • April 2023 production: 8/7/2018 Los Angeles/Daniel Valdez incident SIRT and SIRG (good shoot); 10/15/2017 Little Rock SIRT and SIRG (partial bad shoot – shot at fleeing vehicle – bullet didn’t hit anyone); 10/8/2018 incident in Brooklyn SIRT and SIRG (good shoot); 4/7/2018 St. Louis SIRT/SIRG (local police on task force fired, not FBI agents, so policy compliance not reviewed)




FBI shooting incident reports

TOPIC: Sought documents showing the FBI’s internal investigations into whether agents who shot people complied with the bureau’s use of deadly force policy, which permits firing a weapon only when there is imminent danger to life

BACKGROUND: See completed case immediately below, an earlier iteration of the same topic, for discussion. More recent round has included documents about the April 11, 2014, killing of Jameel Harrison in suburban Baltimore, Maryland; May 22, 2013, killing of Ibrigim Todashev in Orlando, Florida (Boston Marathon bombings investigation; and the non-fatal shooting of Adrian Ricketts in Queens, New York, on July 18, 2012 and the FBI’s attempt to fire Agent Navin Kalicharan over it.

CASE NAME: NYT/Savage v. Federal Bureau of Investigation, No. 15-cv-9133 (Kaplan, S.D.N.Y.)

STATUS: Government agreed to produce documents in tranches, after which the case was dismissed.




FBI shooting incident reports and “assessment” investigations

TOPIC: In one case, we sought two unrelated sets of documents based on separate FOIA requests involving the F.B.I.: internal FBI shooting incident reports and statistics about the bureau’s use of “assessment”-style investigations

Shooting Incident Reports

BACKGROUND: With rare exceptions, whenever an FBI agent fires his or her gun outside of a shooting range, the FBI conducts an investigation into the incident. Its inspection division leads a shooting incident review team that interviews witnesses and gathers forensic evidence, producing a report recounted what it thinks happened and making any recommendations. A high-level shooting incident review group then decides whether the shooting complied with the FBI’s lethal force policy, which permits firing a gun only in a case of imminent threat of death or serious bodily harm. The review group produces its own report and decides whether it was a “good shoot” or a “bad shoot” in agents’ parlance.

OUTCOME: The government produced reports completed between 1993 and 2011 in response to the lawsuit, along with an internal study covering most of those same years that it had conducted, and we agreed to settle that part of the lawsuit without further litigation. The NYT filed several subsequent FOIA requests for reports completed since that set, which the government has provided without further litigation. The documents showed that for at least a quarter century – and probably much longer than that – the FBI had consistently deemed every intentional shooting of a suspect or innocent bystander by an FBI agent to have been a “good shoot,” including one in which it had paid $1.3 million to an innocent and unarmed Maryland man shot in the face after being mistaken for a suspect; in that case, the FBI’s internal account of what happened appeared to omit and misstate several important details in a way favorable to the agent. Shortly after the Times reported this finding, the FBI’s review group delivered its first known “bad shoot” finding in a case involving an incident in Queens.

We later filed additional Freedom of Information Act case seeking more recent such documents.



Assessment Statistics

BACKGROUND: After the terrorist attacks of Sept. 11, 2001, the FBI shifted its focus from being a law enforcement agency – one that solves crimes that have already happened – to being more of a domestic intelligence agency – one that tries to detect potential threats and disrupt and prevent terrorist attacks before they can take place. Part of that shift was the creation by the Justice Department in 2003 of a new type of investigative activity called a threat assessment. Previously, agents only had two types of cases – preliminary and full investigations – both of which required a factual predicate to suspect someone of wrongdoing before they could be opened. A threat assessment permitted the opening of a case without a factual predicate, although fewer tools were available – for example, wiretapping was not permitted at this stage. After a 2008 revision by the Justice Department, these were called simply assessments.

We initially sought documents with statistics in general, and later narrowed that request to a specific FBI written response to a question from a senator that seemed to contain the information we were seeking. The FBI initially provided that letter with the statistics blacked out. In the course of the litigation, it reconsidered and provided it with the statistics visible. It showed that the FBI had opened more than 11,000 assessments of various unspecified categories between December 2008, when a revamped version of the attorney general guidelines governing F.B.I. investigations was issued, and November 2010, of which fewer than 500 had developed into a more serious investigation. But this information was hard to parse, including because it lumped in a type of assessment investigations of things like thinking about local infrastructure vulnerabilities with the types for scrutinizing people or groups for signs of wrongdoing. In April 2011, I filed another FOIA request seeking statistics over a three-year period, and focusing only on specific categories for investigating people or groups. We attempted to join that request to the existing case. In June 2011, midway through the litigation, the FBI provided that information to me. We pressed on, seeking a judicial order establishing the principle that the FBI was obligated by law to make this information available, not merely as a discretionary matter. But the judge instead dismissed the case for jurisdictional reasons.

Later, as part of my FOIA litigation for Justice Department inspector general reports (see above), it emerged that a chief purpose and use of assessments was to tell agents to scrutinize someone who came under suspicion because of the NSA’s Stellarwind program – either something overheard through the warrantless wiretapping component, or a direct or indirect link to a terrorism suspect uncovered by analyzing bulk phone and e-mail records. The existence of Stellarwind was highly classified and the agents were not told why they had been directed to scrutinize someone – hence there was no factual predicate. Although Stellarwind ended in 2007, the assessment power remains.

OUTCOME: We obtained the information we were seeking and the case is closed.


CASE NAME: NYT/Savage v. F.B.I., No. 10-7920 (Patterson, S.D.N.Y.)



Carter Page FISA surveillance materials

TOPIC: Sought court documents related to the Foreign Intelligence Surveillance Act wiretapping of Carter Page, the onetime Trump campaign adviser, following President Trump’s declassification of the fact of its existence via the Nunes Memo.

CASES: We pursued this through two categories of litigation: asking the Foreign Intelligence Surveillance Court to unseal the materials, and suing DOJ under FOIA for them.

    • FOIA Case: NYT/Savage v. Department of Justice, 18-cv-2054 (SDNY)

    • FISC Case: In Re Orders and Records of This Court Related to The Surveillance of Carter Page, Misc. 18-01 (FISC)


    • FOIA Case: Government produced records it considered responsive and non-exempt

    • FISC Case: Motion filed, never any response but effectively mooted by FOIA release





Durham investigation into the C.I.A. torture program

TOPIC: Sought documents related to the Justice Department investigation, led by AUSA John Durham, into whether charges should be brought in connection with the Central Intelligence Agency’s treatment of detainees as part of its rendition, detention, and interrogation program – including two who died in C.I.A. custody – and its destruction of videotapes depicting interrogations, including waterboarding sessions.

BACKGROUND: Durham was appointed to look into the videotapes issues in 2008 by Attorney General Michael Mukasey, and in 2009 Attorney General Eric Holder expanded his mandate to abuses of detainees that went beyond techniques the Bush Justice Department had blessed as lawful at the time. Mr. Durham eventually recommended no charges be brought, and his investigation ended in 2012. Specifically, the case seeks all of his reports to the attorney general about his findings and recommendations, and it seeks the FBI “302” reports summarizing interviews with witnesses questioned during the investigation.

WHAT HAPPENED: In September 2015, a federal district court judge delivered a mixed verdict. He ruled that the government could continue to withhold the 302 reports and Durham’s reports about the videotape destruction, but the government must disclose, at least in part, Durham’s reports about detainee abuses. The Justice Department appealed to the Court of Appeals for the Second Circuit, which in September 2019 narrowed what had to be released to portions of Durham’s reports related to the conclusion that some were never in CIA custody. The government released a heavily redacted version of one report that contained some parts on that topic, but claimed that other pages that were otherwise responsive remained withholdable. The NYT challenged the withholding of those other pages, but DOJ prevailed.


    • SDNY: NYT/Savage v. DOJ, 14-3777 (Oetken, S.D.N.Y.)

    • 2ND CIRCUIT: NYT/Savage v. DOJ, 17-2066

STATUS: Completed.

PRODUCED DOCUMENTS: Heavily redacted version of one of Durham’s five reports to Holder, showing some of the portions regarding detainees he concluded were never in CIA custody. Released to NYT in January 2020; page 7 re-processed with extra paragraph revealed September 2020.



Department of Justice counterterrorism legal and policy documents

TOPIC: This complex lawsuit combined three FOIA requests seeking documents in the possession of the Justice Department that dealt with post-9/11 legal and policy issues:

    • The first document it seeks is a May 4, 2005, memo signed by Pat Rowan, a national security lawyer in the Bush Justice Department, about the department’s discovery obligations when using evidence obtained or derived from the Stellarwind warrantless surveillance and bulk data collection program in court against a criminal defendant.
        • Discussion: A big issue regarding the N.S.A.’s warrantless surveillance program, both before and after Congress legalized it, is whether and when criminal defendants who face evidence obtained or derived from it should get notice from prosecutors about where that evidence came from. This is important because they have legal standing to challenge the lawfulness of the surveillance that gathered the evidence. To date, the government has successfully prevented a definitive examination of the merits of Stellarwind; in 2006, a district court judge ruled that it was illegal, but an appeals court vacated that ruling on the technical grounds that the plaintiffs did not have standing. No criminal defendant was ever notified that some evidence came from the program, and the Obama administration, in a previous FOIA lawsuit we brought for a Justice Department inspector general report about Stellarwind, redacted much of a lengthy portion about possible Brady violations – that is, instances in which prosecutors may have unlawfully withheld evidence from the defense that could have helped it – regarding the program. But that report included an unredacted sentence referring to the existence of this memo.

    • The second document is the “Standard Minimization Procedures for FBI Electronic Surveillance and Physical Search Conducted Under the Foreign Intelligence Surveillance Act” that were approved by the Attorney General on October 22, 2008 and approved by the Foreign Intelligence Surveillance Court on April 7, 2009.
        • Discussion: The FBI’s minimization procedures for FISA information are its rules for sharing and disseminating information gathered under the Foreign Intelligence Surveillance Act — and, since 2007, the warrantless surveillance program governed by the Protect America and the FISA Amendments Act. The government has issued later versions of these procedures, but a previously available version of this set, which it provided to the ACLU from a 2010 FOIA lawsuit, was heavily redacted from pre-Snowden secrecy. The redacted portions should help show how the practice of “backdoor searching,” or government agents looking at private communications previously collected without a warrant for Americans who have become the subject of their suspicions, began. See this post for more discussion of what we already know about how this got going.

    • The third document is the August 2009 final report of the 2009 executive order task force on rendition/interrogation policy. The fourth document is the January 2010 final report of the 2009 executive order task forces on detention policy.
        • Discussion: In 2009, when Obama took office, he set up three captives-related executive order task forces – each interagency but led or co-led by the DOJ. One re-assessed the remaining Guantanamo detainees and recommended what to do with each; its final report is already public but we are suing in a separate case to get the individual assessments. The other two dealt with what to keep and what to change about rendition and interrogation policy, and future detainee policies, respectively. Their final reports are not public, although I wrote about their contents some in Power Wars. See Chapter Four Section Fourteen (“The Interrogation and Rendition Task Force”) and Chapter Seven Section One (“The Straw Man Plan for Future Captures”).

    • The last request is for a set of documents filed by the department in 2011 before the Foreign Intelligence Surveillance Court in connection with a case that dealt with “upstream,” or network-switch-based, surveillance under the FISA Amendments Act. The final rulings in that case, by Judge John Bates in October and November 2011, have already been declassified and made public.
        • Discussion: In August 2013, as part of the wave of declassifications of FISA Court materials after the Snowden leaks, the government made public redacted versions of an Oct. 3, 2011 ruling and a Nov. 3, 2011 ruling by Judge John Bates, then the presiding judge of the FISA Court. It dealt with upstream Internet surveillance under the FISA Amendments Act (that is, collection directly from network switches, in contrast to the Prism program, which involves collection from webmail providers). Judge Bates found that the NSA had been violating the Fourth Amendment in certain ways, and then he ruled that a fix proposed by the NSA would solve the problem. His rulings are the source of widely cited numbers about the program – that the NSA was collecting about 250 million communications annually from it, of which 9 percent came from upstream and 91 percent came from Prism. I suspect that Judge Bates misinterpreted something and that these numbers are inaccurate. (See this post.) We are seeking the remaining documents from the litigation, including the Justice Department’s submissions which he was working with when he wrote his opinion.

CASE: NYT/Savage v. DOJ, 16-civ-7020 (Kaplan, SDNY)

STATUS: Completed


    • 3/24/2017: Memorandum for assistant attorney general, Criminal Division, from Patrick Rowan, counsel to the assistant attorney general, re: “Discovery Issues Raised by Stellar Wind” (May 4, 2005)

    • 9/2017: Second tranche of Bates/MCT case documents, including transcript of hearing before Bates and one of several government submissions describing a study it did of a sampling of upstream transactions in search of wholly domestic communications.



Guantanamo Detainee Review Task Force reports

TOPIC: Sought detainee review task force reports produced about each of 242 detainees remaining at the Guantanamo Bay prison when President Obama

took office in January 2009.

BACKGROUND: The six-agency task force, led by Matt Olsen, took a more rigorous and systematic look at the evidence against each detainee and assessed his level of threat, dividing them into those recommended for prosecution, those recommended for continued indefinite detention without trial, and those recommended for transfer to a country capable of providing appropriate security assurances. While earlier, flawed reports by the military were leaked by Chelsea Manning and made public via WikiLeaks, these reports — which in some cases found that allegations contained in the earlier reports were unfounded — remain secret.

CASE: NYT/Savage v. ODNI and DOJ, 16-cv-6120 (Berman, S.D.N.Y.)

STATUS: After reading the documents en camera, Judge Berman ruled for the government and dismissed the case.



Medical treatment of Guantanamo Bay detainees

TOPIC: Sought internal Pentagon documents about whether it would be lawful, in a situation in which a Guantanamo detainee is facing a health emergency, not to bring that detainee into the United States for specialized treatment, even in a situation in which an American soldier stationed at the base and facing an identical emergency would be medically evacuated to the mainland.

BACKGROUND: Congress has banned bringing detainees from Guantanamo onto domestic soil for any reason – including emergency medical treatment. Guantanamo has only limited medical facilities. General Kelly, the commander of Southcom, which oversees Guantanamo, had disclosed the existence of legal advice from the Pentagon on this issue during congressional testimony.

CASE NAME: NYT/Savage v. DOD, No. 14-3593 (Stein, S.D.N.Y.)

STATUS: The Defense Department produced the record and the case was closed without further litigation.





Targeted killings of American citizens (Anwawr Awlaki OLC)

TOPIC: Sought Justice Department memos about lethal force operations, especially targeting American citizens

BACKGROUND: In 2010, news leaked that the Obama administration had decided to try to target and kill Anwar al-Awlaki, an American citizen and radical Muslim cleric linked to the attempted bombing of a Detroit-bound airliner by the Yemen affiliate of al-Qaeda. A drone strike narrowly missed al-Awlaki in Yemen in May 2011, and another killed him in September 2011. While it was widely reported that the United States government was responsible for killing al-Awlaki, and I reported extensively on the contents of the memo shortly after the operation, the Obama administration for years would not acknowledge that the government had done so or disclose its internal legal analysis about the scope and limits of the government’s power to kill citizens without a trial.

My colleague Scott Shane, who had written about the decision to target al-Awlaki (and later wrote an excellent book about him) had filed a FOIA request in June 2010 seeking memos about targeted killings or assassinations of terrorism suspects generally. In October 2011, after I wrote about the existence/contents of an Office of Legal Counsel al-Awlaki-killing/citizen memo that was completed in July 2010, I filed a request to obtain it, specifically. Later that same month, the Justice Department both rejected my request and belatedly sent a rejection letter to Shane. In December 2011, we filed a FOIA lawsuit seeking disclosure of memos based on those two FOIA requests. In February 2012, the ACLU filed a similar but broader lawsuit, which was consolidated with ours before the same judge. In March 2013, I also learned and reported, as part of a broader piece on al-Awlaki with Shane and Mark Mazzetti, that the Office of Legal Counsel had crash-written an earlier, shorter memo approving the killing of al-Awlaki if and when he were located, and that the office had later gone back and replaced it with the longer memo we already knew about.

We lost at the district court level. However, over time, government officials gave several speeches sketching the outlines of its legal analysis about killing citizens, and in January 2014, someone leaked to NBC News’s Mike Isikoff an unclassified Justice Department “white paper” analyzing certain legal issues about targeting citizens, generically, which had been provided to Congress. The existence of this white paper, which did not mention al-Awlaki but was clearly derived from the real memos about killing him, had been previously disclosed in a congressional letter, and both Shane and the independent journalist Jason Leopold had filed a FOIA request for it. After it came to light unofficially, Shane – whose request for it had just been rejected – wrote to the Justice Department to complain that it was violating its own policies on transparency, and the department decided to “officially” release it to Leopold and Shane. The Second Circuit eventually ruled that this official disclosure, along with speeches and comments by officials, meant the government had already disclosed so much that it could no longer pretend the whole thing was secret and it had to make public the legal analysis portions of its real memos about al-Awlaki.

CASE: NYT/Savage/Shane v. DOJ, No. 11-9336 (McMahon, S.D.N.Y.), No . 13-422 (Pooler, Newman, Cabranes; 2nd Cir.),  consolidated with ACLU v DOJ et al, No.  12-794 (S.D.N.Y.), No. 13-445 (2nd Cir.)

STATUS: In June 2014, the United States Court of Appeals for the Second Circuit forced the government to disclose two Justice Department memos focusing on killing al-Awlaki. In an October 22, 2015 ruling, made public a month later, the 2nd Circuit ruled that the government could keep almost everything else secret. Case complete.




2014 Office of Legal Counsel Memo re Authority to Use Military Force against ISIS

TOPIC: Sought disclosure of the Justice Department’s “Memorandum Opinion for the Counsel to the President, from Karl R. Thompson, Principal Deputy Assistant Attorney General, Office of Legal Counsel, Re: Authority to Use Military Force in Iraq (Dec. 30, 2014).” Its existence was cited on page 11 of the May 31, 2018, OLC opinion ‘April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities’.

CASE: NYT/Savage v. Department of Justice, S.D.N.Y., Carter, 18-7097

STATUS: Closed after DOJ released the memo in November 2018, making the case moot.



Trump-era drone strike/commando raid rules (PSP)

TOPIC: We sought the “PSP” rules for counterterrorism direct action operations like drone strikes and commando raids away from conventional armed-conflict zones, which Trump secretly signed in October 2017, replacing Obama’s “PPG” rules. (The ACLU brought a parallel case.)

CASE #1: NYT/Savage v. Department of Defense, 18-cv-709 (SDNY)

CASE #2: NYT v. Department of Defense, 20-cv-43 (Ramos SDNY)

STATUS: The first case was dismissed. We refiled after a government disclosure of the existence of the rules. In October 2020 Judge Ramos ruled that the Trump administration must disclose the document, and in May 2021 the Biden administration did so.




DOD video of botched 2021 Kabul drone strike

TOPIC: Sought public disclosure of surveillance footage related to the tragically botched Aug. 29 drone strike in Kabul — aerial footage starting five minutes before the drone started tracking the white car and ending five minutes after the attack (approximately eight hours of footage).

CASE: NYT/Savage v. Central Command, SDNY, 21-cv-8297

RESULT: The government declassified approximately 25 minutes of footage from two drones showing the strike itself. It declined to declassify several hours of earlier footage tracking the car.




Misc. Obama

Secret interpretation of presidential recess appointment powers

TOPIC: Sought two Justice Department Office of Legal Counsel memos regarding the president’s power to make recess appointments that had not been publicly disclosed.

BACKGROUND: In connection with President Obama’s controversial recess appointment of four officials during “pro forma” sessions of the Senate in January 2012, the Justice Department’s Office of Legal Counsel wrote, and the administration publicly released, a memo saying the recess appointments would be lawful. (The Supreme Court later ruled otherwise — unanimously.) This memo cited two previous O.L.C. memos about presidential recess appointment powers which had not been released. We argued that if the government was publicly citing those memos, essentially treating them as legal precedents, it had waived privilege and should be required to disclose them for public scrutiny.

CASE NAME: NYT/Savage v. DOJ ( No. 12-3215 (Rakoff, S.D.N.Y.)

STATUS: The judge ruled against us and the case was closed.



Misc. Trump

White House Office of Management and Budget E-mails between Michael Duffey and Robert Blair (Trump-Ukraine Affair)

TOPIC: Sought disclosure of emails between a top aide to the acting White House chief of staff, Mick Mulvaney, and the Office of Management and Budget official in charge of the disbursement of foreign military aid, during the time period when President Trump froze aid to Ukraine, leading to his first impeachment.

WHAT HAPPENED: The Justice Department argued that the emails were exempt from disclosure and filed sworn affidavits about their contents by lawyers for the Office of Management and Budget during the Trump administration. But Judge Amy Berman Jackson insisted on reading the emails for herself and wrote that “the court discovered that there were obvious differences between the affiants’ description of the nature and subject matter of the documents, and the documents themselves.” She ordered some, but not all, of the emails released.

CASE: NYT/Savage v. Office of Management and Budget, D.D.C., 19-cv-3562

STATUS: Case completed.




Trump-era Civil Rights Division and affirmative action in college admissions

TOPIC: Sought certain e-mails and other records at the Justice Department and the Education Department regarding a Trump administration project to scrutinize race-conscious college and university admissions practices

CASE: NYT/Savage v. U.S. Dept of Education/Dept of Justice, 17-cv-7439 (Forrest, S.D.N.Y.)

STATUS: After documents were produced, NYT dropped the case.




Comey Memos About Encounters With Trump

TOPIC: Sought all F.B.I. memos, e-mails, or other documents discussing or memorializing communications between then-director James Comey and Donald Trump.

CASE: NYT/Savage v. FBI, 17-cv-4558 (Oetken, S.D.N.Y.)

STATUS: After the documents became public, the NYT dropped the case.

PRODUCED  DOCUMENTS: On April 19, 2018, the Trump administration provided a set to Congress, from which they immediately leaked. On May 4 the F.B.I. posted them on its Vault website.



Trump White House communications with Justice Department about Omarosa Manigault Newman

TOPIC: Sought communications between the White House and the Justice Department about former Trump aide Omarosa Manigault Newman, who wrote a negative tell-all memoir about Trump, before the government sued her over a seemingly unrelated paperwork dispute

CASE: NYT/Savage v. Department of Justice, 20-cv-5739 (Ramos, S.D.N.Y.)

STATUS: After the government released a Vaughn Index showing the proximity in the timing between the announcement of her memoir and the White House request for legal action against her, the NYT settled the case.




Guidance for preparation of presidential daily intelligence brief (PDB) for President Trump

TOPIC: Sought “records such as memos and guidelines and instructions since January 1, 2017 regarding the preparation and formatting of the President’s Daily Brief.”

CASE: NYT/Savage v. Office of the Director of National Intelligence, 18-cv-369 (Engelmayer, SDNY)

STATUS: Closed after production of heavily redacted documents



Trump team communications with the Justice Department’s Office of Legal Counsel about early executive orders and other potential presidential actions

TOPIC: Sought communications in January 2017 between the Trump team (transition team, then post-inaugural White House) and the Justice Department’s Office of Legal Counsel about the legality of proposed executive orders and executive actions, including its blessing of the first travel ban order and its Jan. 20, 2017 memo saying it would not violate the federal anti-nepotism law to give Trump’s son-in-law, Jared Kushner, a White House job.

CASE: NYT/Savage v. DOJ, 17-cv-1946 (Castel, S.D.N.Y.)

STATUS: After documents produced, case closed.