District Court Orders Release Of Another DOJ Drone-Killing Memo, Cites [REDACTED] In Support

from the reading-between-the-deletions dept

New York's Southern District Court -- which has been hosting (along with the Second Circuit Appeals Court) the ACLU and New York Times' long-running, concurrent FOIA lawsuits against the government over its drone killing memos -- has reached a partial decision on some of the embattled documents.

The court's decision was actually delivered on Sept. 30th, but its conclusion and order have spent the last month under seal while the government applied its redactions. An accompanying memo from the presiding judge [pdf link] notes that the court isn't buying all the government's redaction arguments.
I disagree with the Government's redaction of the bulk of the first full paragraph and the second and third paragraphs on page 9, which as drafted by this court contain not a whit of classified material (the Government does not suggest otherwise), and which I do not believe would tend to reveal any classified information. In order to preserve that issue for appellate review, I will release on the public docket the opinion with all the Government's proposed redactions today, along with this cover note indicating my conclusion about this material. Should the Second Circuit agree with the Government that the material was properly redacted, nothing will be lost; should it agree with my view that nothing the Government has redacted on page 9 should be redacted, it will so indicate.
Indeed, page 9 of the order [pdf link] leaves almost everything to the imagination, retaining only a single sentence that really makes you wish the court hadn't deferred to the government's judgement.

The issue raised by the Government's objection to disclosure is potentially fascinating and incredibly complicated.
The rest of the document is the government's proprietary blend of abysmal scanning and heavy redactions. After some discussion about documents the government has already released and information revealed by government officials' own statements, the court drills deeper into the DOJ's redaction justifications. Of course, we can't actually read the government's reasoning or the court's reactions because the government has final cut approval. The DOJ's broad redactions remove a majority of the last 14 pages, leaving behind tantalizing sentences like:

The Government's blithe assertion to the contrary, these waiver issues are not so easily resolved
and:

if that be true, I see no reason why I am even going through this exercise.
The court orders the government to release the contested documents (legal opinions from the DOJ's Office of Legal Counsel) discussed in the order (the remaining documents related to the FOIA requests will likely be discussed next year), noting there is "no just reason for delay" considering both the public's interest in these memos, as well as the fact that it has been more than three years since the documents were requested.

So, another long-running FOIA lawsuit is showing a little return on investment. Unfortunately, the government's lengthy redactions prevent the public from seeing what arguments it's using in defense of its FOIA stiffarm, as well as keeping it from drawing any legal insight from the court's response.



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  • identicon
    Anonymous Coward, 4 Nov 2014 @ 9:29am

    Should we start voting with bullets yet?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Nov 2014 @ 9:44am

      Re:

      If you do, I'm sure they'll respond with drone hits...

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Nov 2014 @ 9:46am

      Re:

      ...can't tell if you're a dimwit, law enforcement troll, or both?

      Technique #5 - 'ANGER TROLLING'

      Statistically, there is always a percentage of the forum posters who are more inclined to violence. In order to determine who these individuals are, it is a requirement to present a image to the forum to deliberately incite a strong psychological reaction. From this the most violent in the group can be effectively singled out for reverse IP location and possibly local law enforcement tracking. To accomplish this only requires posting a link to a video depicting a local police officer massively abusing his power against a very innocent individual. Statistically of the million or so police officers in America there is always one or two being caught abusing there powers and the taping of the activity can be then used for intelligence gathering purposes - without the requirement to 'stage' a fake abuse video. This method is extremely effective, and the more so the more abusive the video can be made to look. Sometimes it is useful to 'lead' the forum by replying to your own posting with your own statement of violent intent, and that you 'do not care what the authorities think!!' inflammation. By doing this and showing no fear it may be more effective in getting the more silent and self-disciplined violent intent members of the forum to slip and post their real intentions. This can be used later in a court of law during prosecution.

      The Gentleperson's Guide To Forum Spies

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 4 Nov 2014 @ 10:00am

        Re: Re:

        Well... all of that is still in the eye of the beholder.

        If corrupt people did not abuse their power so flagrantly then it would be a little bit more difficult to incite people to violence.

        And the statistics is not fair game for this because of the factors in involved. A dirty cop only needs to be dirty by virtue of protecting another dirty cop. A dirty cop does not actually have to abuse their authority to be dirty, all they need to do is turn a blind eye to those abusing.

        At the end of the day... you might sit in freedom and liberty because enough someones did vote with their bullets.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 4 Nov 2014 @ 10:22am

          Re: Re: Re:

          Calls for violence are the domain of the simpleton and the desperate.

          How about instead of wasting an iota of energy on contemplating such a counterproductive/everyone-loses/stupid notion, we first try something useful like supporting those groups that are actually doing something constructive to prevent our country from going down the totalitarian state toilet (and thus preventing the need for violence).

          So maybe we might consider (you know, before picking up a gun) sending a couple bucks to organizations like the EFF, ACLU, Privacy International, EPIC, and/or any of the other groups fighting hard in the courts to restore our liberties, rule of law, and democracy.

          While calls to arms may provide you some emotional release, you're only making yourself look stupid - as there are so many, many other ways to help fight this without resorting to violence.

          reply to this | link to this | view in chronology ]

          • icon
            AricTheRed (profile), 4 Nov 2014 @ 11:42am

            Re: Re: Re: Re: The ACLU

            "So maybe we might consider (you know, before picking up a gun) sending a couple bucks to organizations like the EFF, ACLU..."

            I like many of the things the ACLU stands for, however it is unfortunate that as an organization they have historically refused to defend ALL of the enumerated rights outlined in The Bill of Rights, whether or not the position was popular or not.

            The have historically taken on controversial cases that defend an unpopular expression of a protected activity, in addition to the more traditional egregious violations of generally accepted rights, however until they are willing to stand up for everyone, regardless of the popularity of the right I can't support them.

            From their website. https://www.aclu.org/racial-justice_prisoners-rights_drug-law-reform_immigrants-rights/second-amendm ent
            "Given the reference to "a well regulated Militia" and "the security of a free State," the ACLU has long taken the position that the Second Amendment protects a collective right rather than an individual right. For seven decades, the Supreme Court's 1939 decision in United States v. Miller was widely understood to have endorsed that view. This position is currently under review and is being updated by the ACLU National Board in light of the U.S. Supreme Court decision in D.C. v. Heller in 2008."

            So basically they have taken four years to not revise their position, on a specifically enumerated right, decided by the Supreme Court to be an individual right.

            I've had my proverbial check book out many times, and given to other organizations instead, and until they pull their "liberal" heads out of the end of their collective digestive tract they can go and collect cans for the redemption value…

            reply to this | link to this | view in chronology ]

            • icon
              John Fenderson (profile), 4 Nov 2014 @ 1:41pm

              Re: Re: Re: Re: Re: The ACLU

              Given the wording of the second amendment, both your position and the ACLU's are defensible. It seems a shame that you intentionally avoid helping an organization that by your own admission does very good things just because you two disagree about how to interpret an amendment that is so poorly worded that everyone's been arguing about what it means practically since it passed.

              No two entities ever agree with every stance taken by the other and demanding 100% compliance is not the road to liberty.

              reply to this | link to this | view in chronology ]

              • icon
                AricTheRed (profile), 4 Nov 2014 @ 3:10pm

                Re: Re: Re: Re: Re: Re: The ACLU

                Former Independent, sensible citizen, now a rabid Single Issue voter with Libertarian leanings that is willing to vote for fiolks who will let it all burn...

                See Michael Z Williamson's Sacred Cow Slaughterhouse post

                http://www.michaelzwilliamson.com/blog/item/the-post-in-which-i-piss-off-everybody


                They can have me back, when the've got my back.

                reply to this | link to this | view in chronology ]

                • icon
                  John Fenderson (profile), 4 Nov 2014 @ 3:25pm

                  Re: Re: Re: Re: Re: Re: Re: The ACLU

                  It's a good essay, but I don't understand how it relates to what I said at all.

                  reply to this | link to this | view in chronology ]

                  • icon
                    John Fenderson (profile), 4 Nov 2014 @ 3:27pm

                    Re: Re: Re: Re: Re: Re: Re: Re: The ACLU

                    Sorry, I said that wrong. I'm not sure how it counters or answers what I said.

                    reply to this | link to this | view in chronology ]

                    • icon
                      AricTheRed (profile), 4 Nov 2014 @ 3:46pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: The ACLU

                      The only way that I intended for it to answer to your comments is that I am now willing to vote the most hateful, disgusting, hate speech spewing, rights destroying, filthy politicians to office that would likely drive this country in to a theocratic oligarchy because I am not, female, LBGT, non-white, or particularly poor. I no longer care about anyone's rights but my own.

                      I'm voting a straight "Bitter Clinger" ticket, for better or worse.

                      Love Udall, can't vote for 'em
                      Actually made a big mistake and voted for Barry "Oathbreaker" Obama the first time around, fixed that right up and voted for the Mormon and his magic underwear.
                      Voted for Jerry Brown instead of Meg Whitman, that was wrong too.

                      I'm with the art guerrilla now, the best I think we can hope for is something so wholly disgusting that The People decide enough is enough.

                      If the FAA is willing to put in a 3k AGL flight restriction just to keep news choppers out of Ferguson then we've got problems.

                      Do I agree with Cliven Bundy? On some things, but not most.

                      Howeverrrrr....

                      No reporters got "Detained" no one was tear gassed, shot with rubber bullets, hit with sonic dispersal weapons, flash-banged with grenade launched stun grenades, and not a single one of the .gov storm troopers shouted at the assembled protesters "I'll shoot you in your 'effing face! Get back!"

                      Not a single protester was questioned, shot, detained or harmed in any way, yet.

                      Because they were all armed.

                      reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 4 Nov 2014 @ 12:50pm

            Re: Re: Re: Re:

            organizations like the EFF, ACLU, Privacy International, EPIC, and/or any of the other groups fighting hard in the courts to restore our liberties, rule of law, and democracy.


            bad laws and rules are like terrorists/hydra cut one head off 5 more grow back.

            reply to this | link to this | view in chronology ]

          • icon
            art guerrilla (profile), 4 Nov 2014 @ 1:06pm

            Re: Re: Re: Re:

            *sigh*
            you will NEVER fix a broken and corrupted system by working within the broken and corrupted system; they have you covered at every turn...
            The They (tm) *want* you to waste your time with petitions and voting and joining toothless organizations who DARE NOT breath a word of revolution to the masses...

            power NEVER devolves voluntarily, NEVER...
            power has to be taken back, and -if you only observe what is ACTUALLY HAPPENING- you will see that Empire cares not one whit for your moralizing, your principles, and your worthless piece of paper called the constitution...
            they only care about ONE THING: POWER, and they only see ONE THREAT, power being wielded by others...
            unless/until we THREATEN (and NOT by ineffectual protests, but REAL VIOLENCE) the status quo, NOTHING WILL HAPPEN...
            NOTHING except further descent into 1984-world...

            you can march until the rising seas lap at your toes, you can shout and hold signs and vote dem'rat until the cows come home, you can strategize and canvass and petition and donate and cry and organize and bumpersticker and shake your fists at The Man, but NOTHING will happen until at least some of the power elite are strung up on the town square...

            otherwise, you are doomed...

            reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Nov 2014 @ 1:32pm

      Re:

      Well we currently vote with :-

      pencil and paper,
      white balls/black balls
      show of hands
      yeas/nays

      I suppose this could be used where it is legal to have ammunition in your possession. Or we could really make it fun and use Barbie dolls.

      And for all the turkeys above who have assumed that violence was the motivating factor for the original comment, shame on you, you violent thugees. It shows that your own tendencies are towards violence as a solution.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Nov 2014 @ 9:52am

    What do you bet this is the 9/17/2001 "gloves come off" memo? Emptywheel's made reference to it...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Nov 2014 @ 9:58am

    IMO [redacted]

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Nov 2014 @ 10:07am

    Why are these scans always 1970s quality?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Nov 2014 @ 10:13am

      Re:

      Suspect it's intentional to make the information less readable by the receiver.

      I imagine they run it through the oldest and worst copy machine they can find, and then fax it back and forth a few times after redacting just to make sure.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Nov 2014 @ 10:18am

    Defn of Redacted

    See [redacted].

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Nov 2014 @ 10:25am

    Having been tangentially part of a lawsuit over IP, I can confirm:

    If you demand documents (during discovery, at a minimum), if you don't specify what you want with precision (IE "original format, machine searchable, etc), you'll get whatever the other side thinks it can foist off on you.

    The only restraint upon such behavior is The Patience Of The Court. IE, whether you manage to annoy the judge as well as the opposing party.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Nov 2014 @ 11:00am

    Public document for courts to examine

    XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
    XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
    XXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
    XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
    XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
    and tell Steven to stop hogging all the forks.
    XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
    XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
    XX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Nov 2014 @ 11:25am

      Re: Public document for courts to examine

      ████████████ █████ ████████ ███████████
      ██ ████████ ██████████ ███ ████ ███████
      █████ ████████ ██████ are we sill on
      for Tennis this weekend, Steve? ███████
      ███ ██████ ████████ █ ███████ █ ███████
      ███████ █ ███ █████████████ ███████████

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Nov 2014 @ 11:26am

    As these continual redactions show up in court, more and more judges are getting the idea that you just can't scream National Security and wipe it all away. Every one that gets exposed like this sows that much more doubt it was ever about National Security but rather about dodging blame and responsibility.

    It's sort of like Prenda. Initially given the benefit of the doubt, there is no doubt today where Prenda stands nor what was done with it.

    So to does all this National Security excuses have an end. It's a question of how long it goes on; not if it will come to a close without actual National Security issues and not CYA issues.

    reply to this | link to this | view in chronology ]

  • identicon
    RA, 4 Nov 2014 @ 10:20pm

    You know you are important when tell a court what evidence you will and will not give it.

    reply to this | link to this | view in chronology ]


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