Obama speech impacts California drone lawsuit

June 11, 2013

Since its earliest days, the Obama administration has been circumspect about officially confirming the existence of its drone-centric counter-terrorism operations. Despite extensive press coverage of the subject (as well as apparently sanctioned leaks and carefully crafted public statements) the administration avoided officially acknowledging its drone program for over four years.

In fact, while Attorney General Holder and other officials made couched references to such an operation, the administration fought off multiple FOIA requests for legal opinions related to the program in federal court. Such requests came from the ACLU, the New York Times, PRM, and the California-based First Amendment Coalition (FAC).

Speech officially confirms drone program
President Obama’s May speech at the National Defense University served as official confirmation of the administration’s drone program, and also changed the landscape for several drone-related lawsuits, including the FOIA suit filed by the FAC.

Like several other requesters, FAC had submitted a FOIA request for legal opinions relating to the lethal force targeting of al-Qaeda operative (and American citizen) Anwar al-Awlaki. As with other media organizations, DOJ had provided a “Glomar” response to FAC’s request – neither confirming nor denying the existence of responsive records. For several requesters, the DOJ’s Glomar response proved difficult to overcome in court. For instance, a federal judge ruled against the New York Times and the ACLU in their consolidated FOIA lawsuit to obtain the so-called Awlaki memo.

In the FAC’s case, the government had recently moved for summary judgment, hoping to get the proceedings terminated. On May 22, however, DOJ filed notice that they would be withdrawing their motion for summary judgment, due to the fact that:

“At the direction of the President, the Attorney General officially confirmed that the United States Government targeted Anwar al-Awlaki and conducted an operation that resulted in his death.”

The DOJ’s filing noted that the fact of the operation against Awlaki had been “properly classified,” but that the President had subsequently determined that the same fact could now be publicly revealed. This official acknowledgment eliminated the basis for the government’s Glomar response, and opened the matter of access to the underlying OLC memo.

In the DOJ’s filing, the agency noted that it would provide FAC with a modified FOIA response within thirty days.