The dispute stems from an April order by the 2nd Circuit, compelling various U.S. agencies to provide The New York Times and the American Civil Liberties Union with legal opinions and other records that would reveal when, in the government’s belief, a citizen deemed to be a terrorist could be killed abroad without domestic legal review.
Drone strikes that killed radical cleric Anwar al-Awlaki, his son and al-Qaida propagandist Samir Khan, all of whom were U.S. citizens, in 2011 had brought these concerns to a head.
The first paper, which the 2nd Circuit released last month in redacted form, was a 4-year-old memo from the Office of Legal Counsel’s former acting chief David Barron.
Other memos responsive to the New York Times and ACLU’s request also face disclosure.
ACLU lawyer Brett Kaufman declined in an interview to speculate as to how many memos will be deemed responsive, but he noted that Sen. Diane Feinstein, D-Calif., said last year that 11 such memos existed. Four of those relate to U.S. citizens, Kaufman added.
Although U.S. District Judge Colleen McMahon set an Aug. 15 date for their production, government lawyers sent a letter to her chambers on Monday asking her to withdraw that schedule and allow them to argue why the remaining disclosures should be exempt.
The ACLU and the New York Times opposed that motion.
Writing “I agree with the ACLU,” McMahon shot down the government’s request in a remarkable four-page opinion on Wednesday.
“The circuit’s order that they be produced for in camera inspections is clear and admits no argument or exception,” McMahon said. “Frankly, the govemment’s bald assertion, in its letter of July 7, 2014, that it to decide ‘whether of those documents, or particular portions thereof, fall within the scope of the waiver found by the Second Circuit’ would be offensive if it were not so laughable. The Second Circuit directed this court to make that determination, in light of the rulings it has made. And so I shall.”
Kaufman commented that the ACLU was “pleased that the court seems to agree that this process should move forward quickly.”
Meanwhile, the 2nd Circuit on Thursday addressed the release of even more secretive documents shielded under the so-called “Glomar response,” in which the government asserts that revealing whether or not a document exists would expose classified information.
It is named after the Hughes Glomar Explorer, a ship used in a classified CIA project to raise a sunken Soviet submarine from the Pacific Ocean.
The federal appeals court’s dense, 15-page opinion does not identify or describe the sought-after documents, except by number.
Asked to illuminate it, New York Times general counsel David McCraw said in a phone interview that it builds upon an earlier order denying the government’s Glomar response with a procedure for the government to respond with a list of documents.
“Our view is that it’s positive that the court has challenged the government’s classification,” McCraw said.
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