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2nd Cir. Rules on FOIA Requests About Drone Strikes on U.S. Citizens

By Gabriella Khorasanee, JD on April 24, 2014 | Last updated on March 21, 2019

In 2011, the United States engaged in a drone strike in Yemen that killed Anwar al-Awlaki, an al Qaeda leader -- and U.S. citizen. The strike also killed Samir Khan, another U.S. citizen. A month later, al-Awlaki's son, also a U.S. citizen, was killed in a drone strike. These killings instigated protests against killing U.S. citizens without fair trials, reports The Guardian.

As a result, two writers for The New York Times, along with the ACLU, each submitted Freedom of Information Act requests related to documents that authorized the killing of U.S. citizens by drone strike. What happened next takes us to a trip to the Second Circuit.

The FOIA Requests

The NY Times and the ACLU each made requests with the Department of Justice, Department of Defense, and Central Intelligence Agency (collectively, the "Government"). The purpose was to uncover "documents prepared by the DOJ's Office of Legal Counsel ("OLC") setting forth the Government's reasoning as to the lawfulness of the attacks."

The Government invoked three exemptions to the FOIA:

  • Secrecy in the "interest of national defense of foreign policy";
  • Statutory exemptions; and
  • Common law privileges such as attorney-client privilege.

As a result, the Government submitted "no number, no list" responses in lieu of a Vaughn index and Glomar response that "neither confirms nor denies the existence of documents responsive to the request."

The District Court

The NY Times and ACLU initiated separate actions that were later consolidated into one case, both suing the Government seeking access to the requested information. The district court found that the exemptions applied to the Government, and granted the Government's motion for summary judgment. The NY Times and ACLU appealed.

Second Circuit Affirms, Reverses and Remands

On appeal, the Second Circuit found much of the district court's analysis unpersuasive. The panel conducted extensive in-camera review of documents in question, namely an OLC memo, and was very careful in its analysis. Citing speeches and statements by public officials, the court noted that the officials had waived their privilege in so far as the legal analysis underlying the legality of the drone strikes.

The court stated, "the Government has done so by publicly asserting that OLC advice 'establishes the legal boundaries within which we can operate'; it 'cannot invoke that relied-upon authority and then shield it from public view.'" However, the court noted that waiver only affected the legal reasoning of the memo and did not apply to the whole memo, ultimately finding the Government must disclose a redacted copy of the memo.

Citing redactions and public information, the court also concluded that there was no risk of disclosing "military plans, intelligence activities, sources and methods, and foreign relations."

In addition to ordering disclosure of the redacted memo, the court ordered the disclosure of a redacted Vaughn list, and remanded for the Government to submit Vaughn lists to other requests finding that the Glomar and "no number, no list" responses "insufficiently justified." The court noted that its opinion would guide the district court in performing its own in camera review.

An attorney for the NY Times, David E. McCraw, was quoted by the paper as stating: "In the end, the court reaffirmed a bedrock principle of democracy: The people do not have to accept blindly the government's assurances that it is operating within the bounds of the law; they get to see for themselves the legal justification that the government is working from."

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