Government largely prevails in NYT-ACLU FOIA suit

January 6, 2013

On January 2nd, Judge Colleen McMahon issued her ruling in a FOIA case regarding documents related to the Obama Administration’s use of UAV drones to conduct targeted killing operations. One of the principal documents at the heart of the case was an opinion written by the Office of Legal Counsel about the legality of using lethal force against Anwar al-Awlaki, a U.S. citizen who served as a key propagandist for al-Qaeda. Al-Awlaki was killed in Yemen in 2011, reportedly as the result of a drone strike.

Judge McMahon’s opinion affirmed most of the government’s use of FOIA exemptions to withhold documents, save for two Defense Department memos. The ruling applies to two separate FOIA matters that were joined in litigation – one brought by the New York Times, and one brought by the ACLU.

In her opinion, Judge McMahon noted that substantive issues were raised by the requesters’ FOIA probes, but further noted that she was constrained by precedent related to the government’s various FOIA exemptions as they were applied to the facts as presented. The New York Times and ACLU have publicly stated that they plan to appeal.

In 2012, Public Record Media (PRM) filed suit for documents related to lethal force/drone actions that might be undertaken within the United States itself. PRM and the U.S. Department of Justice (DOJ) jointly moved to dismiss the case after the DOJ stated under oath that it did not possess responsive documents. PRM is currently awaiting a ruling on its motion for attorney’s fees in the matter.