Feds won't budge on public access to drone legal memos

http://www.politico.com/blogs/under-the-radar/2013/06/feds-wont-budge-on-public-access-to-drone-legal-memos-166428.html

Feds won't budge on public access to drone legal memos

By JOSH GERSTEIN

6/17/13 3:18 PM EDT

The public has no right to examine classified Justice Department legal opinions on the so-called "targeted killing" of Americans and foreigners, even though President Barack Obama recently acknowledged that the U.S. used drones to kill alleged Al Qaeda operative Anwar Al-Awlaki, the Obama Administration argued in a legal brief filed Friday.

The brief argues that the official declassification, which also included the acknowledgement that three other American citizens have died in such operations outside active combat zones, "should not affect (or be relevant to)" the appeals court's review of a district court judge's ruling that legal memoranda sought by the New York Times and the ACLU were exempt from disclosure under the Freedom of Information Act.

In the brief filed with the New York-based U.S. Court of Appeals for the Second Circuit (and posted here), Justice Department lawyers do say that the declassification gives them new leeway to describe the relevant DOJ records in general terms.

"Given recent acknowledgments by the President and other senior officials of the previously properly classified fact that the United States carried out the targeted strike that killed Anwar al- Awlaki, DOJ has now determined that it can provide some limited additional information about classified documents in its possession that are responsive to the ACLU request," says the brief submitted under the names of DOJ Civil Division Chief Stuart Delery and U.S. Attorney Preet Bhahara.

"DOJ can now disclose that there are a significant number of responsive classified records, consisting of legal advice and analysis (including about al-Awlaki), requests for legal advice, internal Executive Branch legal deliberations (including legal and factual input and comments on draft legal advice and analysis), summaries of legal advice and analysis, internal attorney work product (such as draft legal advice and analysis, preliminary outlines of the same, and related questions and notes), and confidential factual information regarding terrorist organizations and individuals potentially involved in such organizations received from Executive Branch clients," the brief continues.

"However, even with the President’s acknowledgment of the previously properly classified fact that the United States carried out this particular operation, DOJ is not in a position to disclose additional details about the dates, nature, recipients, or contents of the classified responsive DOJ records, because such details would tend to reveal information protected under FOIA Exemptions 1 [classified information], 3 [exempted by statute, like one protecting CIA intelligence methods], and 5 [legally privileged, like attorney work product and attorney-client privilege]," the brief adds.

After a considerable struggle by members of Congress and threats to hold up the confirmation of John Brennan as Central Intelligence Agency director, the Obama Administration agreed in March to show the classified legal memos to members of Congress. However, the White House has remained unwilling to share them with the public.

MSNBC obtained a leaked copy of an unclassified Justice Department "white paper" including some of the legal analysis in the brief. That "white paper" was provided to members of Congress on the condition that it remain confidential. After the memo leaked, the White House urged reporters and the public to read the document. However, the administration has never officially released it.

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