OIP denies PRM administrative appeal on NDAA memos

February 19, 2014

On February 7, 2014, Public Record Media received a letter from the Justice Department’s Office of Information Policy (OIP) regarding one of its pending administrative appeals. In its letter, OIP stated that a 2013 decision by the Office of Legal Counsel to withhold legal memos about the National Defense Authorization Act (NDAA) of 2012 was correct.

Our NDAA request touched upon two separate policy areas that PRM has followed closely – the scope of presidential powers under the NDAA, as well as the ability of federal agencies to withhold final legal opinions from public disclosure.

PRM pursuit of NDAA records
For over two years, PRM has sought information about detention powers granted under the 2012 NDAA. The NDAA is an annual, omnibus military spending bill that often contains other defense-related provisions, and its 2012 iteration included provisions relating to the indefinite military detention of individuals. Provisions 1021 and 1022 of the Act made explicit the President’s authority under the post-9/11 Authorization for the Use of Military Force (AUMF) to detain any person who was part of, “or substantially supported, al-Qaeda, the Taliban, or associated forces” under the law of war, “without trial, until the end of hostilities authorized by the AUMF.”

Military detention controversy
The detention-related provisions of the 2012 NDAA became the subject of public controversy after their passage, due to concerns that the provisions could be used to detain American citizens in a broad range of circumstance, including inside the United States itself. The indefinite duration of the detentions authorized by the NDAA also raised concerns about due process and related constitutional issues.

The military detention of civilians had been effectively prohibited since the passage of the Posse Comitatus Act in the aftermath of the Civil War. However, the Bush administration confined a small number of U.S. persons in domestic military brigs in the years after the 9/11 attack, raising renewed controversies about the use of indefinite, military detention.

The Bush-era military detentions split circuit and appellate courts. The administration eventually charged one of its U.S. detainees – Jose Padilla – with a series of criminal charges, ending his period of military detention without charge. The Obama administration took the same route with the last domestic military detainee – Ali Saleh al-Marri. Since the Supreme Court did not end up acting on the al-Marri or Padilla cases, a patchwork of lower court case law remains, some of which could be used to justify future, indefinite military detention.

This legal ambiguity is what has fueled concerns over the content of the NDAA, even in the face of language in the law itself that appears to limit its reach. Section 1201(e) of the NDAA notes that,

“Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizen, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”

However, the case law landscape left over from the post-9/11 years (which could certainly be viewed as “existing authority”) may yet authorize detentions of U.S. citizens in the United States. Likewise, the Obama administration has articulated guidance on the NDAA that seeks to limit its domestic reach, but such guidance is at the discretion of the White House, and could be changed to give the NDAA broader effect.

PRM’s January 2012 FOIA request
In January of 2012, PRM submitted a Freedom of Information Act (FOIA) request to the Office of Legal Counsel (OLC) seeking documents pertinent to the President’s military detention powers under a variety of legal authorities, including the 2012 NDAA. For background, the OLC is frequently relied upon by executive branch agencies to evaluate legal issues and provide definitive guidance on a variety of matters.

The OLC responded in February of 2012, and noted that it held fourteen responsive documents. OLC also set out its decision to withhold each document in its entirety, asserting that the records were protected from disclosure by the deliberative process privilege under FOIA’s Exemption Five. This exemption can be used to withhold attorney-client communications and other “deliberative” discussions from disclosure under the FOIA. OLC also noted that it was invoking Exemption Five to protect presidential communications.

Knowing that OLC held responsive documents, PRM reformulated its request and attempted to obtain the records a second time.

Final opinions under FOIA
PRM believes that legal opinions – particularly final opinions – are valuable government records, because they provide the legal basis for government actions. By understanding the scope of a legal opinion, members of the public can anticipate government actions within a defined set of circumstances. Such an understanding is one of the underpinnings of a free society, and a key to government accountability.

The importance of public access to final legal opinions is reflected in the text of the Freedom of Information Act itself, which states that,

“Each agency shall make available for public inspection and copying … final opinions, including concurring and dissenting opinions.”

Recognizing this, FOIA case law makes it clear that the deliberative process privilege and other FOIA exemptions cannot be used to withhold materials that are “post-decisional” in nature. In other words, once a decision has been made by a government agency, records that set forth that decision should be publicly available. For instance, the U.S. Supreme Court’s Coastal States Gas Corporation case holds that an “agency shall not be permitted to develop a body of ‘secret law’ used by it in its discharge of its regulatory duties and in its dealings with the public, but hidden behind a veil of privilege.”

PRM’s April, 2012 FOIA request
In April of 2012, PRM sent a reformulated request to OLC seeking a more limited sub-set of records pertinent to the 2012 NDAA. PRM’s request also explicitly stated that it was only seeking records that constituted “final determinations of policy or final opinions” that were “post-decisional in nature.”

OLC eventually responded to that request by confirming that it held four responsive documents, but that it was withholding all of them under FOIA Exemption Five. PRM appealed the withholding via administrative appeal to the Office of Information Policy.

OLC letter of June, 2013
On June 25, 2013, OLC sent a letter to PRM in response to its administrative appeal. In its letter, OLC characterized its NDAA opinions as “final opinions” of the agency, but also noted that they were not “post-decisional” materials. Instead, OLC categorized the opinions as pre-decisional legal advice to its client agencies. Because of this clarification, OLC claimed that its four documents were not – in fact – responsive to PRM’s FOIA request.

OIP administrative determination
Upon administrative review, OIP affirmed OLC’s withholding of the NDAA memos. OIP’s Sean O’Neill wrote that,

“OLC informed you that it does not maintain records such as those you described because all of OLC’s legal opinions and memorandum are pre-decisional. In light of your clarification of the scope of your request and OLC’s subsequent response, I have determined that OLC’s response was correct.”

OIP’s recent determination affirms a much longer-term practice by OLC attorneys. For years, the OLC has maintained that its opinions are merely legal advice to clients, and has chosen to minimize their authoritative effect on federal agencies. OLC opinions have been used as the principle legal authority undergirding many of the government’s most controversial actions, including the Bush administration’s torture and warrantless wiretapping programs.

PRM believes that any final legal memoranda that government actors rely upon to guide their actions should be available for public review. Our opinion is shared by organizations such as Citizens for Responsibility and Ethics in Washington (CREW), which filed a lawsuit against OLC last year. CREW’s lawsuit seeks to make all of OLC’s final opinions public, by seeking to enforce the FOIA’s explicit language about final legal opinions. More information about CREW’s lawsuit is available here.

In the coming weeks, PRM will continue its pursuit of NDAA-related legal opinions to seek clarity on how these provisions of law are interpreted by federal agencies.