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NSC Drone Strike Records Are Not Covered by FOIA

By Jonathan R. Tung, Esq. on January 28, 2016 5:59 AM

The Second Circuit recently decided to stand with the D.C. Circuit in ruling that the National Security Conference was outside of the reach of FOIA.

This means one thing: documents relating to drone strikes and other national security issues are that much more obscured from view.

NSC Is Not an "Independent Agency"

Main Street, an academic think tank working out of CUNY Law School was unsuccessful in its attempts to convince the Second Circuit of one contention: the National Security Conference is an agency with independent authority. Main Street had already lost at the district level. The group seemed to spiritually continue the work of the ACLU and The New York Times which had both attempted to loosen the strangle-hold that the NSC had on potentially controversial drone-strike papers.

The basis of Main's argument was that the NSC's "pervasive decision making role in foreign policy and security issues has made it a federal agency subject to FOIA." Thus, this satisfies FOIA's "independent agency" element.

But the circuit disagreed and likened the NCS to a forum, not an agency. In essence, NCS is, according to the court, more like a meeting place of independent agents, not the agents themselves. Calling for FOIA to reach NCS documents would be tantamount to reaching the minutes of a meeting.

This loss means that public access to its documents shall remain, at least for now, impossible.

Second Circuit Secrecy

The appeal was a bit of a long shot. This is the second important ruling by the Second Circuit in only several months that has been what some legal scholars could call a boon for government-secrecy types. In November last year, the Second Circuit ruled that the United States government may compose and keep secret documents relating to legal justification for targeted drone strike killings in foreign lands. This was the ACLU and NYT case mentioned above.

FOIA and the DC Circuit

The NSC didn't always enjoy such vehement defense from the courts. FOIA reached the NSC up until 1996, when the D.C. Circuit switched course and ruled that the council was not an agency for purposes of the Act.

I suppose times really have changed.

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