Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

American Civil Liberties Union v. Department of Justice

United States Court of Appeals, Second Circuit

July 5, 2018

AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Plaintiffs-Appellees,
v.
DEPARTMENT OF JUSTICE, including its components the Office of Legal Counsel and Office of Information Policy, DEPARTMENT OF DEFENSE, DEPARTMENT OF STATE, CENTRAL INTELLIGENCE AGENCY, Defendants-Appellants.

          Argued: May 15, 2018

          Appeal from the November 16, 2016, judgment of the District Court for the Southern District of New York (Colleen McMahon, Chief Judge), granting in part and denying in part summary judgment motions by the Plaintiffs-Appellees and the Defendants-Appellants in a Freedom of Information Act lawsuit seeking documents concerning drone strikes. The Defendants-Appellants seek to vacate a ruling that a certain fact has been officially acknowledged and to leave redacted from the District Court's public opinion the fact and related sentences.

         We vacate the District Court ruling of official acknowledgement and remand with direction to leave redacted from the District Court's public opinion all redactions currently made in that opinion.

          Sarah S. Normand, Asst. U.S. Atty., New York, NY (Joon H. Kim, Acting U.S. Atty., New York, NY, Chad A. Readler, Acting Asst. Atty. General, Matthew M. Collette, Sharon Swingle, Civil Division, U.S. Department of Justice, Washington, DC, on the brief), for Defendants-Appellants U.S. Department of Justice, U.S. Department of Defense, U.S. Department of State, and Central Intelligence Agency.

          Hina Shamsi, American Civil Liberties Union Foundation, New York, NY (Brett Max Kaufman, Anna Diakun, American Civil Liberties Union Foundation, New York, NY, on the brief), for Plaintiffs-Appellees American Civil Liberties Union and American Civil Liberties Union Foundation.

          Before: NEWMAN, CABRANES, and POOLER, Circuit Judges.

          JON O. NEWMAN, CIRCUIT JUDGE:

         This is the fourth and hopefully last appeal in protracted Freedom of Information Act ("FOIA") litigation, begun in 2011, seeking documents relating to lethal drone strikes. See New York Times Co. v. U.S. Dep't of Justice, 756 F.3d 100 (2d Cir. 2014) ("NYTimes I"); New York Times Co. v. U.S. Dep't of Justice, 806 F.3d 682 (2d Cir. 2015) ("NYTimes II"); ACLU v. U.S. Dep't of Justice, 844 F.3d 126 (2d Cir. 2016) ("ACLU"). In this appeal, as in the previous three appeals, no issue concerning the lawfulness of lethal drone strikes is presented.

         The Government appeals from the November 16, 2016, judgment of the District Court for the Southern District of New York (Colleen McMahon, Chief Judge) granting in part and denying in part motions for summary judgment by both the Government and the Plaintiffs-Appellees American Civil Liberties Union and the American Civil Liberties Union Foundation (collectively "ACLU"). Unlike any previous FOIA appeal in this Court, and perhaps in any court, neither side is challenging the District Court's decisions either to disclose or withhold any documents. Instead, the Defendants-Appellants, the Department of Justice, including its components the Office of Legal Counsel and Office of Information Policy; the Department of Defense; the Department of State; and the Central Intelligence Agency (collectively "the Government"), are appealing for the sole purpose of obtaining an order (1) requiring the District Court to vacate a ruling ("the official acknowledgement ruling") that a certain fact ("the fact at issue") has been officially acknowledged by the United States Government and (2) directing the District Court to permanently redact from its public opinion the official acknowledgement ruling and related sentences that the Government contends reveal the fact at issue. The District Court ruled that the fact at issue, which has been temporarily redacted from the Court's public opinion to preserve the Government's rights pending appeal, has been officially acknowledged and for that reason is no longer entitled to remain secret although previously classified.

         We conclude that the District Court need not have decided whether the fact at issue has been officially acknowledged. We vacate the Court's official acknowledgement ruling and remand with directions to the District Court to leave redacted all passages currently redacted from the Court's public opinion.

         Background

         The litigation comprises two lawsuits. The first lawsuit, filed in 2011 by the New York Times Co. and two of its reporters, concerned a 2010 FOIA request. This suit was consolidated with a similar suit filed by the ACLU. The second lawsuit, filed in 2015 by the ACLU, concerned a 2013 FOIA request. The first lawsuit resulted in disclosure of what was known as "the OLC-DOD Memorandum," see NYTimes I, 756 F.3d at 124, the Government's legal argument for permitting a lethal drone strike that killed an American citizen, see id. at 124-51, App'x A. NYTimes II and ACLU concerned other documents sought in the first lawsuit, most of which were determined to have been properly withheld from disclosure. See NYTimes II, 806 F.3d at 690; ACLU, 844 F.3d at 132-33.

         Before ruling on disclosure of the numerous documents sought in the first lawsuit, Chief Judge McMahon sensibly began by identifying seven facts implicated by several of the documents at issue and determining whether those facts had been officially acknowledged. See ACLU, 844 F.3d at 131. She concluded that six facts had been officially acknowledged but could not be segregated from other information entitled to be kept secret, see id. at 131, 132, and left it for this Court to rule whether the seventh fact had been officially acknowledged, see id. at 131. We concluded that such a ruling by this Court was unnecessary because the Government had not relied on the seventh fact as a basis for withholding any documents. See id. at 132.

         While ACLU, the third appeal generated by the first lawsuit, was pending, the ACLU filed the second lawsuit, seeking additional documents relating to drone strikes. After the ACLU narrowed the scope of that lawsuit to a request for 128 documents, the Government agreed to disclose portions of five documents, but withheld the entirety of all other documents. The District Court upheld the Government's nondisclosure of all documents withheld in full and, with respect to the five documents that the Government disclosed in part, upheld the Government's ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.