A secret (for now) appeals court ruling in our targeted killing FOIA lawsuit

The U.S. Court of Appeals for the Second Circuit has issued what appears to be a significant ruling in the ongoing NYT/ACLU Freedom of Information Act lawsuit for legal memos related to targeted killings — but we can’t see it yet. The court has made certain redactions in its opinion, and the government now has 30 days to appeal whether additional parts should be withheld from public view.

This is the same case that previously dragged into the light the February 2010 and July 2010 Office of Legal Counsel memos about killing Anwar al-Awlaki, the U.S. citizen and radical Muslim cleric accused of helping orchestrate the Christmas 2009 underwear bombing attack by al-Qaeda in the Arabian Peninsula, and whom the U.S. killed in a drone strike in Yemen in September 2011. Litigation has continued over other legal memos about targeted killing operations more generally.

We’ll find out later this year what is going on.

UPDATE Oct. 23, 2015: A reader points out that, per the now-unsealed transcript of ex parte oral arguments in July, it may be that the dispute is over the release of (only) two and a half pages of a 2002 DOJ Office of Legal Counsel memo on targeted killings, although there was some sealed back-and-forth after that so maybe something more is involved.


On “Quotes” and Reconstructed Dialogue in Journalism

It bothers me to read, in your standard Bob Woodward style insider book or personal memoirs by retired officials, dialogue from private conversations that has quotation marks around it. To me, quotation marks are for verbatim comments. In reporting out behind-the-scenes stuff, we journalists can reconstruct approximate dialogue drawn from people’s memories (ideally, cross-referencing multiple witnesses) or scribbled meeting notes. But unless we were there, or someone recorded it, or there was a trained stenographer, what we’re doing is capturing the gist of what was said in approximate form – not quoting what was literally actually said. It’s different from a quotation from a document or from a public speech or from a direct interview.

I have to obey the New York Times‘ stylistic conventions when writing for the newspaper, but I had more flexibility in writing my own book, so I decided to use italicized text to be up front about when dialogue was reconstructed rather than verbatim. In places I drew on memories of conversations as recounted in officials’ memoirs or as reported in fellow journalists’ work, and I turned their fake quotes into italicized dialogue, too. I explain this in a note in the front, reproduced below.



Down to two weeks for “Power Wars” publication. Please pre-order a copy!

Previous blog post: What’s in “Power Wars?” Here’s the table of contents.

We’re asking a court to force the government to disclose more of its surveillance-related inspector general reports for public scrutiny

“Under FOIA, courts are not rendered mere bystanders whenever the executive branch declares something classified.” — NYT motion

Today, the New York Times filed a memorandum of law in support of its motion for summary judgment in another one of my Freedom of Information Act lawsuits. This case involves a series of inspector general reports about government surveillance programs. Some were heavily classified at the time they were completed, and some were entirely classified. One is a joint report by six agency inspectors general about the National Security Agency’s Stellarwind program, which was completely withheld from the public when completed in 2009. (The “NSA inspector general report” that Edward Snowden leaked was an early draft of the NSA inspector general’s contribution to this much larger report.) Several others are Justice Department inspector general reports about matters like the FBI’s use of national security letters, the FISA Amendments Act, and Section 215 of the Patriot Act.

The government responded to the lawsuit by reprocessing and turning over newly declassified (but still heavily redacted in places) versions of these reports, which brought lots of new information to light. Here are some of the revelations:

George W. Bush Made Retroactive N.S.A. ‘Fix’ After Hospital Room Showdown

Declassified Report Shows Doubts About Value of N.S.A.’s Warrantless Spying

F.B.I. Is Broadening Surveillance Role, Report Shows


But we think there is still more that they should be required to make public under FOIA, and so we’re challenging certain continued blacked-out passages. The Times’ lawyer is David McCraw, assisted by Jeremy Kutner and Tali Leinwand, and I thank them.


A partial victory (for now) in my FOIA lawsuit about the Justice Department’s investigation into the CIA black-site program

Today, Federal District Court Judge J. Paul Oetkin issued an important ruling in one of the Freedom of Information Act lawsuits I am fighting with the New York Times. It was a partial victory and a partial defeat. I have posted his memorandum opinion and order below.

The lawsuit concerns my FOIA request for documents related to the special investigation by a federal prosecutor, John Durham, into whether the CIA broke laws in connection with its “black site” rendition, detention, and interrogation program. Bush’s final attorney general, Michael Mukasey, appointed Durham in 2008 to look into whether CIA officials should be charged for destroying videotapes of interrogations, including waterboarding sessions. In 2009, Obama’s first attorney general, Eric Holder, expanded Durham’s mandate to include whether any laws were broken in the treatment of detainees, including at least two who died in custody. Durham ultimately recommended against charging anyone, and his investigation ended in 2012.

Specifically, I requested all the FBI “302” reports summarizing interviews with witnesses in the course of the investigation, as well as all of Durham’s reports to the attorney general summarizing his findings and recommendations. When the government did not turn over the documents, the New York Times and I filed a lawsuit. The Times’ lawyer is David McCraw.

The Justice Department argued that all the documents were exempt from disclosure under an exception to FOIA for pre-decisional/deliberative work product and attorney-client privileged information. We argued that they should nevertheless be disclosed, including under an exception for documents the government later expressly adopted as policy. Judge Oetkin today ruled for the government when it came to the 302 reports and Durham’s report about the tape destruction, but ruled for us when it came to Durham’s reports about not charging anyone for detainee abuses.

The judge’s reasoning about why the public is not entitled to read the 302s was that Durham had closely supervised the witness interviews, and so the reports might reveal his legal thinking in terms of the witnesses selected to interview and the questions asked. The judge’s decision that the public also was not entitled to see the tape destruction report turned on his finding that the Justice Department had not expressly relied on it when publicly discussing its decision not to bring charges about that matter.

But Holder had extensively cited Durham’s findings and recommendations when announcing decisions about not to charge anyone for detainee abuses, so the judge ruled that for those issues the government had waived its right to keep the documents secret from the public.

We are still a ways away from seeing any documents. The Justice Department may appeal, or it may bring other arguments that portions of them should nevertheless be withheld from the public for other reasons.