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Thursday, June 13, 2024 | Back issues
Courthouse News Service Courthouse News Service

FOIA-Proof Council Can Shield Drone-Strike Info

MANHATTAN (CN) - Reaching the same conclusion as its sister court in Washington, the Second Circuit declared that National Security Council did not qualify as an agency subject to the Freedom of Information Act.

In its immediate effect, Tuesday's ruling blocks a nonprofit from accessing council records regarding drone strikes on U.S. citizens and foreign nationals.

More broadly, however, the decision limits public information about a council with an increasingly amorphous role in the so-called global war on terror.

Congress passed the legislation that created the National Security Council in 1947.

Billed as an advisory board to the president, the council was fashioned to help coordinate between various branches of the armed forces and intelligence agencies. President Barack Obama merged it with the Homeland Security Council toward the beginning of his tenure.

The change caught the eye of Main Street Legal Services, a nonprofit affiliated with the City University of New York, which filed requests under the Freedom of Information Act in 2012 to discover what role the council plays in U.S. drone operations.

The request sought "all records related to the killing and attempted killing by drone strike of U.S. citizens and foreign nationals," and "all National Security Council meeting minutes taken in the year 2011."

Main Street filed suit in Brooklyn when the National Security Council denied the FOIA request, but a federal rejected the case on the grounds that the council was not an "agency" as defined in the statute.

A three-judge panel of the Second Circuit affirmed Tuesday, declining to credit Main Street's analysis of remarks to the Senate by then-Homeland Security adviser John Brennan.

Rather than showing the council played more than an advisory role when it comes to drone strikes, Brennan said that drone-strike decisions face legal review by the Department of Justice, NSC principals and the president, according to the ruling.

"Far from demonstrating authority exercised independent of the president, the [Brennan-]described process manifests the very function of advising the president in connection with the exercise of his authority, as envisioned by Congress in establishing the NSC and by the president in organizing the NSC system," Judge Reena Raggi, a George W. Bush-appointee, wrote for the court.

Main Street did not fare better by pointing to the so-called torture report, a 500-page declassified summary of the Senate Select Committee on Intelligence's report on CIA interrogations.

Though the clinic said this summary showed that the NSC approved the torture of Pakistani detainee Janat Gul, the Second Circuit found this "too slender a reed" to prove the council was an independent agency.

Judge Richard Wesley supplemented the 66-page decision with a brief concurring opinion.

Despite agreeing with his colleagues about the NSC's "purely advisory" role, Wesley said the council's exemption comes from an "ambiguous last minute compromise" made by Congress.

"Whether that conclusion is wise policy, or whether it accurately captures the intent of the Congress in adopting the FOIA amendments, is best considered a political issue for Congress and the president, not for this court," he concluded.

CUNY law professors Douglas Cox and Ramzi Kassem, who are representing the Main Street legal clinic, said that they are reviewing the lengthy ruling and considering next steps.

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