More Secret Law

Last Monday, the U.S. Court of Appeals for the Second Circuit released a decision furthering insulating from public disclosure and accountability, the secret law governing the government’s targeted killing program.  The decision, in long-running Freedom of Information Act (“FOIA”) litigation brought by the ACLU and New York Times, allowed the government to keep secret nine Office of Legal Counsel (“OLC”) memoranda addressing the legality of the extrajudicial killing of terrorism suspects through unmanned drone strikes abroad.

The decision contrasts with the Second Circuit’s ruling last year in the same case, which released a redacted version of a 2010 OLC memo setting forth the purported legal basis for the targeted killing of suspected Al–Qaeda leader and U.S. citizen, Anwar al-Awlaki, in Yemen.   This time around, the Court concluded there was insufficient overlap between the OLC legal memos and high ranking officials’ public statements regarding the legality of the targeting killing program.   The Court held that the Government therefore did not officially disclose otherwise secret legal analysis and thereby “waive” application of FOIA Exemption 1 (protecting classified information) or Exemption 5 (protecting “pre-decisional” or “deliberative” government information).

Putting aside legitimate questions about the Court’s waiver analysis—that is, how closely the government’s selective disclosure of information asserting the legality of government action should match the authorities secretly relied upon by the government and whether the passage of time between the two should make any difference, as the Court suggested—the opinion is deeply problematic because it sanctions, and thus invites, more secret law.   It does so by discounting the status of OLC opinions as a source of the Executive’s “working law,” which FOIA has long required agencies to disclose.

Specifically, after finding the Government had not waived FOIA protection through official disclosures, the Second Circuit concluded that the OLC memos were protected as “pre-decisional” and “deliberative,” under FOIA Exemption 5.   In reaching that result, the Court followed the lead of a D.C. Circuit decision last year in Electronic Frontier Foundation v. U.S. Dep’t of Justice, which concluded that OLC memos, without more, do not constitute an Agency’s working law because at most they provide “legal advice as to what a department or agency is permitted to do.”    According to the Court, because “OLC did not have the authority” to establish the Agency’s working law, “its advice is not the law of an agency unless the agency adopts it.’”   Significantly, this view of OLC opinions is not only at odds with the Government’s own statements regarding the force of OLC opinions, it conflates several Exemption 5 considerations that the Second Circuit was at great pains to keep straight only three years earlier.

Specifically, in Brennan Center for Justice v. Department of Justice, the court recognized “two somewhat distinct paths through which Exemption 5’s protections could be lost.”  Exemption 5 is inapplicable “(1) when the contents of the document have been “adopted, formally or informally, as the agency position on an issue or [are] used by the agency in its dealings with the public,” or “(2) when the document is more properly characterized as an opinion or interpretation which embodies the agency’s effective law and policy, in other words, its ‘working law.’” The Brennan Center Court further acknowledged that the “working law” exception to Exemption 5 may apply “even without evidence that a document is ‘expressly adopted or incorporated by reference.’”  Quoting precedent to that effect, the court noted “that to qualify as working law, ‘[i]t is not necessary that the [documents] reflect the final programmatic decisions of the program officers who request them. It is enough that they represent [the Agency]’s final legal position.”

OLC opinions represent just that; they provide the Executive’s final legal position governing its policy choices, even if, by their nature as legal opinions, they do not dictate or determine the Executive’s ultimate programmatic decisions. This distinction is not reflected in the Second Circuit’s recent analysis.

The court cited Brennan Center, but only to note that in that case it determined an OLC memo should be disclosed because the Agency (the United States Agency for International Development) had adopted it, and not because it was the agency’s working law.   But the Court last week failed to acknowledge that in Brennan Center, it specifically noted that its analysis would “be different had plaintiff adduced evidence that OLC opinions were essentially binding upon the agencies.”  That is precisely what the ACLU and Times adduced in the targeting killing FOIA—and even more striking, the Court relied upon that fact in directing the release of the al-Awlaki memo last year.

In its 2014 decision, the Second Circuit cited the Government’s acknowledgement, namely the statement of CIA Director John Brennan, that “Office of Legal Counsel advice establishes the legal boundaries within which [it] can operate.’”  Brennan was not referring to a single memorandum or programmatic decision, but the OLC’s legal conclusions regarding the law constraining and authorizing the Executive’s decisions with respect to targeting killing.  The statement reflects what other commentators have previously acknowledged: that “OLC memos are generally viewed as authoritative guidance to the rest of the Executive Branch when it comes to the scope of the government’s legal authorities-whether or not they are ‘adopted.’”

In the context of OLC opinions, the Second Circuit’s decision last week conflated the “adoption” and “working law” exceptions to Exemption 5, erroneously viewing such opinions as mere advice unless specifically adopted by the Executive.  A government adept at information control with respect to controversial national security policies will inevitably benefit from this blurring of doctrinal lines.  To be sure, the Executive is prone to defend the legality of its secret actions on the public record by claiming it acted consistently with OLC authorization even while resisting public disclosure of OLC opinions.   But if the government wants to keep OLC memos concealed, which it clearly does, it will avoid such language which could be deemed “adoption.”

The Second Circuit’s discounting of OLC opinions as “working law” thus invites further strategic government information control at the expense of democratic accountability, while ignoring the real force and status of OLC legal conclusions.  Unfortunately, this likely means more secret law—a result that is not only inconsistent with FOIA, but fundamentally antidemocratic.

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