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.


Filed Under: classified, drones, extrajudicial killing, foia, killing, redacted, secrecy, transparency


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  1. 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…

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