Administrative appeal filed with Department of Justice

January 1, 2012

Posted by Matt Ehling

On December 30th, PRM filed an administrative appeal with the Justice Department’s Office of Information Policy. The appeal dealt with the Office of Legal Counsel (OLC)’s denial of our October 11 FOIA request. The appeal sought legal opinions related to the use of unmanned aerial vehicles (UAVs) against United States citizens, both here and abroad.

The OLC’s response to our request refused to “confirm or deny” the existence of certain documents, and withheld others based upon several FOIA exemptions.

In our initial request, we asked for three categories of documents:

• Legal opinions about the use of lethal force via UAVs against Anwar al-Awlaki (a U.S. citizen killed in Yemen);

• Legal opinions about the use of lethal force via UAVs against U.S. citizens outside of the United States;

• Legal opinions about the use of lethal force via UAVs against U.S. citizens inside of the United States.

Our appeal focuses exclusively on the third category, which deals with abstract legal analysis intended to guide government actions on the domestic front. Both the Bush and Obama administrations have aggressively sought to protect similar material from disclosure through the FOIA.

OLC memos from the Bush administration that dealt with the use of the military in domestic counter-terrorism and other internal security matters were withheld for years, even when they contained no operational details. The same was true of Bush-era legal analyses that covered non-domestic security issues.

In 2008, Bill Leonard (former head of the Information Security Oversight Office, and a top government classification authority) testified before a Senate committee, and called the classification of a 2003 OLC interrogation memo “one of the worst abuses of the classification process that I had seen during my career.” According to Leonard, the document in question was “pure legal analysis” that should never have been classified.

At the beginning of the Obama administration, there were signs that this trend of excessive classification might abate. In early 2009, the White House declassified a number of controversial Bush-era OLC opinions written by John Yoo and Robert Delahunty. Obama also ordered various modifications to classification protocols through executive orders and memoranda. All of these initiatives were lauded by the government transparency community at the time.

The times, however, have changed. Since then, many federal agencies have construed FOIA exemptions broadly, effectively continuing a Bush-era trend that saw withholding – rather than disclosure – as the default position under FOIA. This has been particularly true in the context of the UAV program that the CIA has relied upon in Afghanistan and elsewhere. While publicly acknowledging the program’s existence (as well as some of its operational details), the Obama administration has kept a lid on releasing UAV-related information through the FOIA.

While there can be a legitimate purpose for withholding operational details of a covert program, the administration has reached much further, as its denial of FOIA requests for basic legal analysis has indicated.

There are few defensible reasons why a legal opinion about a government program cannot be released with appropriate redactions. The OLC has, in fact, released portions of other legal memoranda in a redacted manner. On August 10, 2011, the OLC provided intelligence historian Matthew Aid with several pages of a John Yoo memo on warrantless wiretapping. The memo is heavily redacted, but it reveals just enough about the crux of Yoo’s legal arguments to make the document useful to historians, policy makers, and others. Thus, it seems entirely feasible that the OLC could order a segregated release of the legal analysis underlying government UAV programs. (It bears noting that – consistent with recent trends – two other related memos requested by Mr. Aid were withheld in their entirety.)

Our administrative appeal focuses narrowly on OLC memos and opinions that cover the use of UAVs against U.S. persons inside the U.S. This appeared to be the most fruitful path to pursue, given the domestic nexus, and given a decision in a recent FOIA case regarding CIA-related UAV records. We were mindful of the later, in the event that the administrative process advances to the litigation stage. We will evaluate our next steps within the month, but we first need to see if the DOJ responds to our appeal in a timely fashion.

In related news, Charlie Savage and Scott Shane of the New York Times have filed suit against the Department of Justice, seeking various documents related to targeted killing via the use of UAVs. Savage has pursued the story (and documents) for several months.

Savage and Shane proceeded to litigation after their administrative appeals went unanswered after more than twenty days. Their complaint can be found here.

The link to the Matthew Aid OLC materials comes via Secrecy News.