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Government's Motions in FOIA Drone Strike Appeal Denied

By Gabriella Khorasanee, JD on June 03, 2014 | Last updated on March 21, 2019

In April, the Second Circuit ordered the disclosure of a redacted Department of Justice Office of Legal Counsel ("OLC") memo that essentially laid out the legal analysis that authorized the killing of U.S. citizens abroad by drone strike.

Last week, the Government submitted a motion seeking leave to file an ex parte and in camera motion for rehearing en banc of the court's April decision. The next day, the Second Circuit issued its ruling. Read on to see what the court decided.

The April Decision

Two writers for The New York Times, along with the ACLU, each submitted Freedom of Information Act ("FOIA") requests related to documents that authorized the killing of U.S. citizens by drone strike. The Government invoked three exemptions to the FOIA, all ultimately unpersuasive. The Second Circuit held that the Government must disclose a redacted copy of the memo, as well as a redacted Vaughn list. Understanding the sensitive nature of the information at issue, the Second Circuit allowed the Government to examine the proposed public opinion, before its publication on April 21, 2014.

Redactions in Public Opinion and OLC Memo

One of the things the Government sought was clarity on redactions; essentially, the Government wanted to be sure that certain items in the opinion and OLC memo would remain redacted "in order to preserve its opportunity for further appellate review." The Second Circuit clarified that certain redactions -- including four that the Government highlighted specifically -- would be permanently redacted from the April opinion. However, the court asked for the Government to identify the particular passages that it thought were not redacted inadvertently.

Petition for Rehearing En Banc

The Second Circuit dismissed the Government's motion to file a petition for rehearing en banc ex parte and in camera, and instead provided that "the Government may file ex parte and in camera those portions of its petition for rehearing (including supporting documents) that it believes in good faith require secrecy."

Oral argument has been scheduled for Monday, June 9, 2014 at 2 p.m., however the court will notify the parties whether oral argument will even be necessary by 5 p.m. on Friday, June 6, 2014.

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