Gov't Must Pay Legal Fees In Court Battle Over 'Secret' Drone Docs Gov't Couldn't Stop Talking About

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from the putting-its-money-where-its-nonstop-mouth-is dept

The government will be paying its opponent’s legal fees after needlessly drawing out FOIA litigation, the Ninth Circuit Appeals Court has decided [PDF]. The First Amendment Coalition sued the Department of Justice after it refused to produce documents discussing the legal rationale for extrajudicial drone strikes targeting American citizens.

The legal memo FAC sought was the same legal memo the ACLU and New York Times sued the DOJ for refusing to release. (Or so the FAC thought. But its litigation — along with the ACLU/NYT litigation — made it clear the government was holding on to more than one legal memo.) In the NYT/ACLU case, the Second Circuit Court told the DOJ to cough up its justification for killing Anwar al-Awlaki, pointing to several public comments made about the drone strike by prominent US government officials. The court wasn’t interested in the DOJ’s arguments something publicly discussed frequently would be too “sensitive” to put in the hands of the ACLU and New York Times.

The DOJ made the same arguments in this case, but the Second Circuit decision undoes its attempt to fend off FAC’s legal fees claims. Factoring into the Ninth’s conclusions is the leak of a white paper by the US government providing its legal analysis of extrajudicial drone strikes. This was then followed by an official release of the same white paper.

This leak — and the court-ordered release of the DOJ’s legal memo to the ACLU and New York Times — prompted the FAC to ask the district court to vacate its decision in favor of the DOJ’s secrecy and award it legal fees, since it was seeking the same document. This motion was filed nearly three years ago, just to give you some idea how long the DOJ has dragged out a losing legal battle.

The Appeals Court notes the documents might not have been released by the government if it hadn’t been for its entanglement in multiple FOIA lawsuits. As the court points out, the fact that the government voluntarily handed the documents to the FAC after the drone strike white paper’s official release doesn’t absolve it of racking up FAC’s legal fees for no apparent reason.

FAC was met with abject resistance throughout the entire litigation until the OLC-CIA memo was produced roughly two and a half years after the lawsuit was initiated, and almost a year and seven months after the Government waived any secrecy or privilege with the official release of the White Paper.

Additionally, FAC’s litigation is possibly the only reason the public’s now aware there are multiple legal memos justifying extrajudicial killings of American citizens.

There is no question that the Second Circuit’s decision in the SDNY litigation was an impetus for FAC to continue its litigation. But what actually triggered the release of the OLC-CIA memo was that FAC sought to vacate the district court’s grant of summary judgment. It was the appellant’s “dogged determination,” therefore, that led the district court to “direct” the parties to discuss whether the litigation was moot, and which resulted in the Government’s decision—as acknowledged by the lower court—to “voluntarily disclose[] the CIA memorandum to [FAC].” Because of FAC’s efforts, the public then learned that the OLC-DOD memo was not the first memo addressing the justification for the drone attack, nor was it identical to the prior OLC-CIA memo. Plaintiff’s litigation, therefore, “triggered the release of additional or key documents.”

Summing it up, the Ninth Circuit Appeals Court has harsh words for both the DOJ and the lower court.

There is no reason why the district court failed to recognize, as the Second Circuit did, that the official release of the White Paper—coupled with all the prior public statements of high-ranking Government officials— constituted a waiver of any secrecy and privilege that the Government had asserted. The district court, therefore, erred in granting summary judgment and dismissing the complaint. But for this error, the district court litigation would have ended earlier. Thus, FAC had to endure unnecessarily protracted litigation. It is counterintuitive to punish FAC for expending additional legal fees to pursue the litigation, when it would have sooner been entitled to the release of both memoranda—and the right to recoup its counsel fees—if not for the district court’s error.

The lawsuit now goes back to the lower court to determine how much the government will be paying FAC for the DOJ’s protracted refusal to even acknowledge the existence of drone strike memos government officials couldn’t stop talking about.

Filed Under: 2nd circuit, 9th circuit, anwar al awlaki, doj, drones, fees, foia, secrecy, transparency