Case Detail

FOIA Project Annotation: Recognizing the surreal quality of her decision, Judge Colleen McMahon has ruled that the Justice Department's Office of Legal Counsel is not required to disclose the legal analysis for its conclusion that the President can constitutionally authorize the targeting of a U.S. citizen who is not actively involved in battlefield combat because the memo, if it exists, is protected by Exemption 1 (national security), Exemption 3 (other statutes), and Exemption 5 (deliberative process privilege). McMahon noted that "this Court is constrained by law, and under the law, I can only conclude that the Government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States. The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contrary constraints and rulesâ€"a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret." Ruling in a case that consolidated a broad request from the ACLU about the policy of targeted killings with two specific requests from New York Times reporters Scott Shane and Charlie Savage for Legal Counsel's analysis supporting the legality of such actions, McMahon's ruling focused specifically on the legal analysis. OLC had consistently said that it would neither confirm nor deny the existence of such records, but had softened its position somewhat by using what McMahon referred to as a "No Number, No List" response, in which it admitted to having records but refused to either identify the number of records or their general subject matter. However, OLC and the Defense Department both admitted the existence of a classified legal opinion responsive to the Shane and Savage requests that contained legal advice to the Attorney General concerning military operations. Neither the ACLU nor the Times argued that the memo could have been protected by any of the three exemptions. Rather, their argument centered on whether the government had waived its ability to withhold the memo because of multiple references to its conclusions by President Barack Obama, Attorney General Eric Holder, Defense Secretary Leon Panetta, and other high-ranking government officials, including at the time of the killing of Anwar Al-Awlaki in Yemen in September 2011. McMahon dispensed with the plaintiffs' first contention that legal analysis was not something that could be properly classified. The government argued that "E.O. 13256 does not contain a specific carve-out for legal analysis; rather E.O. 13526 applies to any information that 'pertains to' the various items listed in Section 1.4. Therefore, legal analysis that 'pertains to' military plans or intelligence activities (including covert action), sources or methodsâ€"all of which are classified mattersâ€"can indeed be classified." McMahon agreed, noting that "I see no reason why legal analysis cannot be classified pursuant to E.O. 13526 if it pertains to matters that are themselves classified." Having reached that conclusion, McMahon next looked at whether Holder's speech at Northwestern University Law School, in which he spoke about the legality of targeted killings, waived the protection of the OLC memo. McMahon observed that "the Northwestern Speech discussed the legal considerations that the Executive Branch takes into account before targeting a suspected terrorist for killing. Indeed, the speech constitutes a sort of road map of the decision-making process that the Government goes through before deciding to 'exterminate' someone 'with extreme prejudice.' It is a far cry from a 'general discussion' of the subject matter." However, she added that "but the Holder speech is also a far cry from a legal research memorandum. . .[H]e did not cite to a single specific constitutional provision (other than the Due Process Clause), domestic statute (other than the use of force authorization), treaty obligation, or legal precedent." McMahon remarked that "no lawyer worth his salt would equate Mr. Holder's statements with the sort of robust analysis that one finds in a properly constructed legal opinion addressed to a client by a lawyer." She pointed out that "nor can it be said that Mr. Holder revealed the exact legal reasoning behind the Government's conclusion that its actions comply with domestic and international law. In fact, when you really dissect the speech, all it does is recite general principles of law and the Government's legal conclusions." Rejecting the plaintiffs' call for in camera review, she said that "it is plain that the Attorney General's discussion of the legal underpinnings of the Government's targeted killing program in the Northwestern Speech, which cites almost no specific authority, could not possibly be the exact legal analysis purportedly contained in the OLC Memo (unless standards at OLC have slipped dramatically). I do not need to review the OLC Memo in camera to know that its legal analysis would be far more detailed and robust." McMahon found the memo was also protected by Exemption 3, citing both the National Security Act and the CIA Act. Turning to Exemption 5, McMahon rejected the plaintiffs' contention that the government had waived the privilege for the memo by adopting its reasoning. McMahon was not persuaded. She noted that "the various public statements on which Plaintiffs rely in this case are obviously grounded in legal analysis that was performed by someone for someone. But there is no suggestion, in any of those speeches or interviews, that the legal reasoning being discussed is the reasoning set out in the OLC Memo, a document which the Government acknowledges exists. . .OLC has never been mentioned in any public statement; none of the speeches attribute any legal principles announced to OLC or to any opinion it has issued." McMahon admitted that the OLC memo was the only one identified by the government, but because the government had refused to identify any other legal memos, she observed that "it is impossible even to know whether any other legal opinions aside from the OLC Memo exist, let alone whether senior Administration officials were actually relying, in whole or in part, on some other opinion or opinions that might (or might not) exist when they made their public statements." She indicated that in camera review was pointless. "Even if the OLC Memo contains language identical to that uttered by the Attorney General and others in the various public statements on which Plaintiffs rely, that would still not necessarily constitute proof that the Government had adopted this document in particular as its policy."
Issues: Exemption 1 - Harm to national security, Exemption 3 - Statutory prohibition of disclosure, Exemption 5 - Privileges

Date Filed	Doc #	Docket Text
2011-12-20	1	COMPLAINT against United States Department of Justice. (Filing Fee $ 350.00, Receipt Number 4996)Document filed by The New York Times Company, Charlie Savage, Scott Shane.(ama) (Entered: 12/22/2011)
2011-12-20		SUMMONS ISSUED as to United States Department of Justice, U.S. Attorney and U.S. Attorney General. (ama) (Entered: 12/22/2011)
2011-12-20		Magistrate Judge James C. Francis IV is so designated. (ama) (Entered: 12/22/2011)
2011-12-20		Case Designated ECF. (ama) (Entered: 12/22/2011)
2011-12-20	2	RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Charlie Savage, Scott Shane, The New York Times Company.(ama) (Entered: 12/22/2011)
2012-01-10	3	ORDER SCHEDULING AN INITIAL PRETRIAL CONFERENCE: Initial Conference set for 2/24/2012 at 11:30 AM in Courtroom 14C, 500 Pearl Street, New York, NY 10007 before Judge Colleen McMahon. Additional relief as set forth in this Order. (Signed by Judge Colleen McMahon on 1/10/12) (pl) (Entered: 01/10/2012)
2012-01-13	4	NOTICE OF APPEARANCE by Sarah Sheive Normand on behalf of United States Department of Justice (Normand, Sarah) (Entered: 01/13/2012)
2012-01-23	5	ANSWER to 1 Complaint. Document filed by United States Department of Justice.(Normand, Sarah) (Entered: 01/23/2012)
2012-02-24		Minute Entry for proceedings held before Judge Colleen McMahon: Initial Pretrial Conference held on 2/24/2012. Decision: Initial conference held. A briefing schedule was entered. The Government must move before April 13, 2012; responses to its motion are due May 11, 2012, at which time the opponents are free to cross-move; and the Governments reply and, if appropriate, opposition to the cross-motion is due May 25, 2012. Cross-movants should not file a reply unless instructed to do so by the Court. (Submitted By Scott Danner). (mde) (Entered: 02/24/2012)
2012-04-09	6	ENDORSED LETTER addressed to Judge Colleen McMahon from Sarah S Normand dated 4/9/2012 re: Request for a ten day extension of time to file a motion for summary judgment and to file a consolidated brief of up to 40 pages in both cases. ENDORSEMENT: Ok, but dont ask for any more time. If government official can give speeches about this matter without creating security problem, any involved agency can. (Signed by Judge Colleen McMahon on 4/9/2012) (cd) (Entered: 04/09/2012)
2012-04-23	7	ENDORSED LETTER addressed to Judge Colleen McMahon from Stuart Delery and Preet Bharara dated 4/23/2012 re: We write respectfully on behalf of the Department of Justice, the Department of Defense and the Central Intelligence Agency (collectively, the "Government") to seek a further extension, until May 21, 2012, of the Government's deadline to file its consolidated motion for summary judgment. ENDORSEMENT: I have read Director Clapper's declaration (which must remain under seal - believe me, I appreciate the irony) and I will grant the extension requested by the government. The time to file its motion is extended to May 21, 2012. (Motions due by 5/21/2012.) (Signed by Judge Colleen McMahon on 4/23/2012) (rjm) (Entered: 04/23/2012)
2012-04-23	8	ENDORSED LETTER addressed to Judge Colleen McMahon from Stuart Delery and Preet Bharara dated 4/23/12 re: Counsel for the defendant requests a further extension, until 5/21/12, of the Government's deadline to file his consolidated motion for summary judgment. ENDORSEMENT: I have read Director Clepper's declaration (which must remain under seal-believe me, I appreciate the irony) and I will grant the extension requested by the government. The time to file its motion is extended to May 21, 2012. ( Motions due by 5/21/2012.) (Signed by Judge Colleen McMahon on 4/23/2012) (mro) (Entered: 04/24/2012)
2012-05-21		Minute Entry for proceedings held before Judge Colleen McMahon: Telephone Conference held on 5/21/2012. Decision: Phone conference held. Defendants must move on or before June 20, 2012. Plaintiffs have four weeks thereafter to file responses.(Submitted By Benjamin T. Alden). (mde) (Entered: 05/21/2012)
2012-06-19	9	ENDORSED LETTER addressed to Judge Colleen McMahon from Susan S. Normand dated 6/18/12 re: Counsel for the Government seeks leave to file a consolidated brief of up to fifty pages in both cases in support of the Government's motion for summary judgment. ENDORSEMENT: Ok. (Signed by Judge Colleen McMahon on 6/19/2012) (mro) (Entered: 06/19/2012)
2012-06-20	10	MOTION for Summary Judgment. Document filed by United States Department of Justice.(Normand, Sarah) (Entered: 06/20/2012)
2012-06-20	11	DECLARATION of Sarah S. Normand in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Normand, Sarah) (Entered: 06/20/2012)
2012-06-20	12	MEMORANDUM OF LAW in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Normand, Sarah) (Entered: 06/20/2012)
2012-06-21	13	DECLARATION of John F. Hackett in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Normand, Sarah) (Entered: 06/21/2012)
2012-06-21	14	DECLARATION of John Bennett in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Normand, Sarah) (Entered: 06/21/2012)
2012-06-21	15	DECLARATION of John E. Bies in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Normand, Sarah) (Entered: 06/21/2012)
2012-06-21	16	DECLARATION of Robert R. Neller in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Normand, Sarah) (Entered: 06/21/2012)
2012-06-21	17	DECLARATION of Douglas R. Hibbard in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Normand, Sarah) (Entered: 06/21/2012)
2012-06-21	18	NOTICE of Classified Filing re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Normand, Sarah) (Entered: 06/21/2012)
2012-07-18	19	CROSS MOTION for Summary Judgment. Document filed by Charlie Savage, Scott Shane, The New York Times Company.(McCraw, David) (Entered: 07/18/2012)
2012-07-18	20	MEMORANDUM OF LAW in Support re: 19 CROSS MOTION for Summary Judgment.. Document filed by Charlie Savage, Scott Shane, The New York Times Company. (McCraw, David) (Entered: 07/18/2012)
2012-07-18	21	DECLARATION of NABIHA SYED in Support re: 19 CROSS MOTION for Summary Judgment.. Document filed by Charlie Savage, Scott Shane, The New York Times Company. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit)(McCraw, David) (Entered: 07/18/2012)
2012-07-20	22	ENDORSED LETTER addressed to Judge Colleen McMahon from Sarah S. Normand dated 7/20/2012 re: We write respectfully on behalf of defendants the Department of Justice and its component, the Office of Legal Counsel; the Department of Defense and its component, the United States Special Operations Command; and the Central Intelligence Agency (collectively, the "Government") in the above-named related cases brought pursuant to the Freedom of Information Act ("FOIA") to request that the Court set a deadline of August 8, 2012, for the filing of the Government's reply and opposition to plaintiffs' respective cross-motions in these cases. ENDORSEMENT: OK., ( Responses due by 8/8/2012., Replies due by 8/8/2012.) (Signed by Judge Colleen McMahon on 7/20/2012) (lmb) (Entered: 07/20/2012)
2012-08-08	23	REPLY MEMORANDUM OF LAW in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Normand, Sarah) (Entered: 08/08/2012)
2012-08-08	24	DECLARATION of Douglas Hibbard in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Normand, Sarah) (Entered: 08/08/2012)
2012-08-09	25	DECLARATION of Mark Herrington in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Normand, Sarah) (Entered: 08/09/2012)
2012-08-09	26	MEMORANDUM OF LAW in Opposition re: 19 CROSS MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Normand, Sarah) (Entered: 08/09/2012)
2012-08-09	27	DECLARATION of Mark Herrington in Opposition re: 19 CROSS MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Normand, Sarah) (Entered: 08/09/2012)
2012-08-09	28	DECLARATION of Douglas Hibbard in Opposition re: 19 CROSS MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Normand, Sarah) (Entered: 08/09/2012)
2012-08-27	29	REPLY MEMORANDUM OF LAW in Support re: 19 CROSS MOTION for Summary Judgment.. Document filed by Charlie Savage, Scott Shane, The New York Times Company. (McCraw, David) (Entered: 08/27/2012)
2012-09-21	30	ENDORSED LETTER addressed to Judge Colleen McMahon from David McCraw dated 9/21/2012 re: Plaintiffs and Defendant respectfully ask for permission to submit on or before October 1, 2012 three-page letters discussing the significance of the new decision for the pending summary judgment motions. ENDORSEMENT: Excellent idea - we have been reading the decision carefully. (Signed by Judge Colleen McMahon on 9/21/2012) (rjm) (Entered: 09/21/2012)
2012-10-02	31	ENDORSED LETTER addressed to Judge Colleen McMahon, from Sarah S. Normand, dated 10/1/2012, re: on behalf of defendants, request an unopposed extension of time, until October 10, 2012, for the parties to submit simultaneous supplemental letter briefs addressing the Second Circuit's recent decision in Brennan Center v. Department of Justice, No. 11-4599 (2d Cir. Sept. 20, 2012). ENDORSEMENT: OK. (Signed by Judge Colleen McMahon on 10/2/2012) (ja) (Entered: 10/02/2012)
2013-01-02	32	ORDER: #102747 terminating 10 Motion for Summary Judgment; terminating 19 Motion for Summary Judgment. The Government's motion for summary judgment is granted except to the extent of permitting the DoD to submit a supplemental and more fulsome justification for why the deliberative process privilege applies to the two Unclassified Memos on its Vaughn Index. Plaintiffs' cross motions for summary judgment are denied except as to the open issue described above. This constitutes the decision and order of the Court. The Clerk of the Court is directed to remove the motions at Docket 11 Civ. 9336 # 10 and 19 and Docket 12 Civ. 794 # 24 and 34 from the Court's list of open motions.(Signed by Judge Colleen McMahon on 1/2/2013) (ago) (Additional attachment(s) added on 1/2/2013: # 1 Order) (mde). Modified on 1/7/2013 (jab). (Entered: 01/02/2013)
2013-01-03	33	CORRECTED OPINION GRANTING THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS' CROSS MOTION FOR SUMMARY JUDGMENT: #102747 The Government's motion for summary judgment is granted except to the extent of permitting the DoD to submit a supplemental and more detailed justification for why the deliberative process privilege applies to the two Unclassified Memos on its Vaughn Index. Plaintiffs' cross motions for summary judgment are denied except as to the open issue described above. This constitutes the decision and order of the Court. The Clerk of the Court is directed to remove the motions at Docket 11 Civ. 9336 # 10 and 19 and Docket 12 Civ. 794 # 24 and 34 from the Court's list of open motions. (Signed by Judge Colleen McMahon on 1/3/2013) Copies Sent By ECF By Chambers. (cd) Modified on 1/7/2013 (jab). (Entered: 01/03/2013)
2013-01-15	38	INTERNET CITATION NOTE: Material from decision with Internet citation re: 33 Memorandum & Opinion. (Attachments: # 1 Internet Citation, # 2 Internet Citation, # 3 Internet Citation, # 4 Internet Citation, # 5 Internet Citation, # 6 Internet Citation, # 7 Internet Citation, # 8 Internet Citation, # 9 Internet Citation, # 10 Internet Citation, # 11 Internet Citation, # 12 Internet Citation, # 13 Internet Citation, # 14 Internet Citation, # 15 Internet Citation) (sj) (Entered: 02/13/2013)
2013-01-18	36	ORDER: The Government has until 6 PM on February 1, 2013 to submit supplemental declarations justifying the applicability of the deliberative process privilege to the two Unclassified Memos on the Department of Defense's Vaughn Index. (Signed by Judge Colleen McMahon on 1/18/2013) Copies Sent By ECF TO ALL COUNSEL (pl) (Entered: 01/30/2013)
2013-01-22	34	DECISION AND ORDER: Accordingly, the Government's motion for summary judgment with respect to the Unclassified Memos is granted and Plaintiffs' cross motions for summary judgment are denied. The Clerk of the Court is directed to enter judgment for the Government and to close both cases. This constitutes the decision and order of the Court. (Signed by Judge Colleen McMahon on 1/22/2013) (djc) (Entered: 01/22/2013)
2013-01-22		Transmission to Judgments and Orders Clerk. Transmitted re: 34 Order, to the Judgments and Orders Clerk. (djc) (Entered: 01/22/2013)
2013-01-24	35	CLERK'S JUDGMENT That for the reasons stated in the Court's Decision and Order dated January 22, 2013, the Governments motion for summary judgment with respect to the Unclassified Memos is granted and Plaintiffs cross motions for summary judgment are denied; accordingly, both of the cases are closed. (Signed by Clerk of Court Ruby Krajick on 1/24/13) (Attachments: # 1 Notice of Right to Appeal)(dt) (Entered: 01/24/2013)
2013-02-01	37	NOTICE OF APPEAL from 35 Clerk's Judgment, 33 Memorandum & Opinion,,, 34 Order,. Document filed by Charlie Savage, Scott Shane, The New York Times Company. Filing fee $ 455.00, receipt number 0208-8196082. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (McCraw, David) (Entered: 02/01/2013)
2013-02-01		Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 37 Notice of Appeal,. (nd) (Entered: 02/01/2013)
2013-02-01		Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 32 Order on Motion for Summary Judgment,,,,,,, 13 Declaration in Support of Motion filed by United States Department of Justice, 35 Clerk's Judgment, 11 Declaration in Support of Motion, filed by United States Department of Justice, 23 Reply Memorandum of Law in Support of Motion filed by United States Department of Justice, 21 Declaration in Support of Motion, filed by The New York Times Company, Scott Shane, Charlie Savage, 9 Endorsed Letter, 16 Declaration in Support of Motion, filed by United States Department of Justice, 15 Declaration in Support of Motion, filed by United States Department of Justice, 19 CROSS MOTION for Summary Judgment. filed by The New York Times Company, Scott Shane, Charlie Savage, 12 Memorandum of Law in Support of Motion filed by United States Department of Justice, 14 Declaration in Support of Motion, filed by United States Department of Justice, 22 Endorsed Letter, Set Deadlines,,,,,, 6 Endorsed Letter, 28 Declaration in Opposition to Motion filed by United States Department of Justice, 17 Declaration in Support of Motion, filed by United States Department of Justice, 3 Order for Initial Pretrial Conference, 27 Declaration in Opposition to Motion filed by United States Department of Justice, 24 Declaration in Support of Motion filed by United States Department of Justice, 7 Endorsed Letter, Set Deadlines,,,, 2 Rule 7.1 Corporate Disclosure Statement filed by The New York Times Company, Scott Shane, Charlie Savage, 36 Order, 8 Endorsed Letter, Set Deadlines,,,, 1 Complaint filed by The New York Times Company, Scott Shane, Charlie Savage, 5 Answer to Complaint filed by United States Department of Justice, 29 Reply Memorandum of Law in Support of Motion filed by The New York Times Company, Scott Shane, Charlie Savage, 10 MOTION for Summary Judgment. filed by United States Department of Justice, 26 Memorandum of Law in Opposition to Motion filed by United States Department of Justice, 37 Notice of Appeal, filed by The New York Times Company, Scott Shane, Charlie Savage, 25 Declaration in Support of Motion filed by United States Department of Justice, 4 Notice of Appearance filed by United States Department of Justice, 18 Notice (Other) filed by United States Department of Justice, 30 Endorsed Letter, 20 Memorandum of Law in Support of Motion filed by The New York Times Company, Scott Shane, Charlie Savage, 33 Memorandum & Opinion,,, 31 Endorsed Letter, 34 Order, were transmitted to the U.S. Court of Appeals. (nd) (Entered: 02/01/2013)
2013-05-03	39	ENDORSED LETTER addressed to Judge Colleen McMahon from David McCraw dated 5/3/2013 re: The Times respectfully seeks the Court's permission to file a corrected version of the Syed Declaration in order to perfect the record for the purposes of the on-going appeal. All parties have consented to this request. ENDORSEMENT: Application granted. (Signed by Judge Colleen McMahon on 5/3/2013) (cd) (Entered: 05/03/2013)
2013-05-06	40	DECLARATION of Nabiha Syed - Amended in Support re: 19 CROSS MOTION for Summary Judgment.. Document filed by Charlie Savage, Scott Shane, The New York Times Company. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(McCraw, David) (Entered: 05/06/2013)
2014-04-21	41	OPINION of USCA as to 37 Notice of Appeal, filed by The New York Times Company, Scott Shane, Charlie Savage. USCA Case Number 13-422(L). Appeal from the January 24, 2013, judgment of the United States District Court for the Southern District of New York (Colleen McMahon, District Judge), dismissing, on motion for summary judgment, a suit under the Freedom of Information Act seeking documents relating to targeted killings of United States citizens carried out by drone aircraft. We conclude that (1) a redacted version of the OLC-DOD Memorandum must be disclosed, (2) a redacted version of the classified Vaughn index (described below) submitted by OLC must be disclosed, (3) [redacted], (4) the Glomar and "no number, no list" responses are insufficiently justified, (5) DOD and CIA must submit Vaughn indices to the District Court for in camera inspection and determination of appropriate disclosure and appropriate redaction, and (6) the OIP search was sufficient. We therefore affirm in part, reverse in part, and remand. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 04/21/2014. (nd) (Entered: 04/21/2014)
2014-06-26	42	[PARTIAL] MANDATE of USCA (Certified Copy) as to 37 Notice of Appeal, filed by The New York Times Company, Scott Shane, Charlie Savage. USCA Case Number 13-422(L). The appeal in the above captioned case from a judgment of the United States District Court for the Southern District of New York was argued on the district court record and the parties' briefs. Upon consideration thereof, IT IS HEREBY ORDERED, ADJUDGED and DECREED that a partial judgment is entered and the matter is REMANDED as directed in the Court's order of June 26, 2014, and consistent with paragraph (3) of the "Conclusion" section of the Court's June 23, 2014, revised opinion. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 06/26/2014. (nd) Modified on 6/27/2014 (nd). (Additional attachment(s) added on 6/27/2014: # 1 Revised Opinion, # 2 Opinion of rehearing) (nd). (Entered: 06/27/2014)
2014-06-30	43	ORDER: This court has received a partial mandate from the United States Court of Appeals for the Second Circuit, directing that, at this time: (3) other legal memoranda prepared by OLC and at issue here must be submitted to the District Court for in camera inspection and determination of waiver of privileges and appropriate redaction; New York Times Co. v. US. Dep't of Justice, 13-422 L, 2014 WL 2838861 (2d Cir. June 23, 2014) (Mandate issued on June 26, 2014). Accordingly, the Government is directed to comply with Paragraph 3 of the conclusion of the Second Circuit's amended opinion of June 23, 2014, by providing this court with the following requests as set forth herein this Order. The Government has 21 days to comply. SO ORDERED. (Signed by Judge Colleen McMahon on 6/30/2014) (ja) Modified on 6/30/2014 (ja). (Entered: 06/30/2014)
2014-07-07	44	FIRST LETTER MOTION for Extension of Time to File Motion in Response to 6/30/14 Order addressed to Judge Colleen McMahon from AUSA Sarah S. Normand dated 07/07/14. Document filed by United States Department of Justice.(Normand, Sarah) (Entered: 07/07/2014)
2014-07-08	45	LETTER REPLY to Response to Motion addressed to Judge Colleen McMahon from AUSA Sarah S. Normand dated 07/08/14 re: 44 FIRST LETTER MOTION for Extension of Time to File Motion in Response to 6/30/14 Order addressed to Judge Colleen McMahon from AUSA Sarah S. Normand dated 07/07/14. . Document filed by United States Department of Justice. (Normand, Sarah) (Entered: 07/08/2014)
2014-07-09	46	ORDER denying 44 Letter Motion for Extension of Time: This court has already settled on a procedure for conducting the in camera review necessitated by the mandate; the June 30 order explains that procedure to the parties. That process gives the Government an opportunity to explain, under seal and in camera, why it has not waived potentially applicable privileges with respect to all or any portion of the documents that the court is required to review. It also permits the Government to suggest other redactions that may be necessary before the opinions can be produced to plaintiffs. I expect the Government to comply with the procedure set by the Court. The parties have apparently agreed to a short postponement of the date by which the Government must produce the documents contemplated by the mandate. I am agreeable to their chosen date, which is August 15, 2014. (Signed by Judge Colleen McMahon on 7/9/2014) (tn) (Entered: 07/09/2014)
2014-07-10	47	OPINION of USCA as to 37 Notice of Appeal, filed by The New York Times Company, Scott Shane, Charlie Savage. USCA Case Number 13-422(L). Accordingly, with respect to the bifurcated issues concerning the Vaughn index, we will grant the petition in part by excluding from disclosure the titles and descriptions of listings 67, 105, 118, 119, 250, 262-65, and 271, and the titles of listings 57, 62, 66, 68, 69, 70, 78, 79, 80, 88, 92,93, 97, 100, 103, 104, 108, 123-28, and 130. We will remand the case to the District Court with directions, in addition to those ordered in our Revised Opinion (Conclusion 3), 2014 WL 2838861, at *20, to order the Appellee U.S. Department of Justice to file a public version of its Vaughn index in compliance with our Revised Opinion at 64-65 (Conclusion 2 (identifying listings not required to be disclosed)), 2014 WL 2838861, at *20, and this opinion. We will amend our Revised Opinion to delete listings 244, 246, 248, and 256 from page 62, lines 9-10. Apart from these rulings and those set forth in our opinion of June 23, 2014, on the bifurcated issues concerning the OLC-DOD Memorandum, the Petition for Rehearing is DENIED, and the case is REMANDED. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 07/10/2014. (nd) (Entered: 07/10/2014)
2014-08-15	48	NOTICE of Lodging of Classified Documents. Document filed by United States Department of Justice. (Normand, Sarah) (Entered: 08/15/2014)
2014-08-18	49	MANDATE of USCA (Certified Copy) as to 37 Notice of Appeal, filed by The New York Times Company, Scott Shane, Charlie Savage USCA Case Number 13-442(L). Ordered, Adjudged and Decreed that the final judgment is entered and the matter is REMANDED as directed in the Court's opinion of July 10, 2014. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 08/18/2014. (Attachments: # 1 Opinion of rehearing motion, # 2 Opinion)(nd) (Entered: 08/18/2014)
2014-08-18		Transmission of USCA Mandate to the District Judge re: 49 USCA Mandate,. (nd) (Entered: 08/18/2014)
2014-09-05	50	ENDORSED LETTER addressed to All Counsel in New York Times v. Department of Justice and ACLU v. Department of Justice from Judge McMahon dated 9/5/2014 re: Scheduling. ENDORSEMENT: I have begun work on carrying out the first mandate received from the Court of Appeals, relating to Item (3) of that court's Conclusion. I hope to have a decision well before the end of the month. Meanwhile, I have received a second mandate, this one relating to Item (5) of the Court's conclusion, which directs the production of Vaughn indices by the Department of Defense and the Central Intelligence Agency for in camera inspection. I expect to receive said Vaughn indices by September 25, 2014, together with any affidavits or briefs the agencies wish to file concerning the protectability or disclosability of particular listings on these indices. Finally, to the extent that the plaintiffs seek the production of any documents on the OLC Vaughn Index that was ordered to be disclosed in redacted form (See Item (2) of the Second Circuit's Conclusion), they must file a request for production, specifying the identifying number of each item they wish disclosed, by September 19, 2014. The Government may have until October 3, 2014 to provide the court with affidavits and briefs explaining the following herein. (Signed by Judge Colleen McMahon on 9/5/2014) (kgo) Modified on 9/5/2014 (kgo). (Entered: 09/05/2014)
2014-10-31	51	ORDER DIRECTING RELEASE OF UNREDACTED VERSION OF REMAND OPINION #1 (RELATING TO ITEM 3): I have received and reviewed the October 17, 2014 ex parte submission from the Department of Justice following its classification review of the court's first decision on remand from the United State Court of Appeals for the Second Circuit. The decision was submitted to the Government on September 30, 2014. 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 issuefor 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. The full opinion will remain under seal. Looking to the future: I have before me the ACLU's letter of September 19, 2014, in which it indicates what additional documents from the OLC Vaughn Index it wishes disclosed, as well as the Government's sealed, ex parte response to that request and its motion for summary judgment with respect to the OLC documents. (Item 2 on Remand; Court's Order of September 5, 2014, Docket# 75; Motion for Summary Judgment dated October 3, 2014, Docket #79). Consistent with the parties' briefing schedule, I hope to have that decision out before Christmas. Finally, I will not be able to address Remand, Item 5, the Vaughn Indices from the Department of Defense and the CIA, until early next year, as briefing will not be complete until January 9. I had hoped to get all of this work done this year, as I have a heavy trial calendar for the first half of 2015. I will, therefore, not grant any extensions of the already generous briefing schedule with respect to these long-overdue Vaughn Indices. (Signed by Judge Colleen McMahon on 10/31/2014) (kgo) (Entered: 10/31/2014)
2014-10-31	52	DECISION ON REMAND WITH RESPECT TO ISSUE (3)(REDACTED): (U) This constitutes the decision and order of the court. Before releasing this decision to plaintiffs and to the public, I am providing a copy to the Government, to check classification status (which we have tried our best to get right on a paragraph by paragraph basis) and to propose redactions. (U) To the extent it should be necessary, the court certifies that an immediate entry of partial judgment as to this aspect of the case would be appropriate, pursuant to Fed. R. Civ. P.54(b), because (1) this order finally disposes of a discrete and severable issue in this action, to wit the disclosability of one specific type of legal document (legal opinions from the OLC) sought from one party defendant (the Department of Justice); and (2) there is no just reason for delay. These FOIA requests were made nearly three years ago, and it is in the public interest that any disclosable documents become public as without further delay. Also, there are many open issues in this case, which are completely severable from Remand Issue 3; and (if the parties' briefing schedule is any indication) it will take many months to resolve those issues. (U) The mandate directs that any appeal from this order and the partial judgment to be entered thereon be referred to a panel consisting of Judges Newman, Cabranes, and Pooler. (Signed by Judge Colleen McMahon on 9/30/2014) (kgo) (Entered: 10/31/2014)
2014-11-26	53	NOTICE OF INTERLOCUTORY APPEAL from 51 Order,,,,,,,,, 52 Order,,,,,. Document filed by Charlie Savage, Scott Shane, The New York Times Company. Filing fee $ 505.00, receipt number 0208-10354393. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (McCraw, David) (Entered: 11/26/2014)
2014-11-26		Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 53 Notice of Interlocutory Appeal. (tp) (Entered: 11/26/2014)
2014-11-26		Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 53 Notice of Interlocutory Appeal, filed by The New York Times Company, Scott Shane, Charlie Savage were transmitted to the U.S. Court of Appeals. (tp) (Entered: 11/26/2014)
2015-11-23	54	OPINION of USCA as to 53 Notice of Interlocutory Appeal, filed by The New York Times Company, Scott Shane, Charlie Savage. USCA Case Number 14-4432-cv. Appeal from the October 31, 2014, decision and order of the United States District Court for the Southern District of New York (Colleen McMahon, District Judge), adjudicating, pursuant to a remand from this Court, Freedom of Information Act requests for documents prepared by the Office of Legal Counsel of the United States Department of Justice concerning targeted killings by drone aircraft. The District Court ordered disclosure of all or portions of some documents and denied disclosure of other documents. The appeal also concerns disclosure of redacted portions of the District Court's sealed opinion and disclosure of redacted portions of the transcript of the June 23, 2015, oral argument present by the Government to the Court ex parte and in camera. Judgment AFFIRMED; redacted portions of District Court opinion to remain UNDISCLOSED, except for three paragraphs (as redacted pursuant to Part IV of this opinion) that the District Court wishes to disclose; and redacted portions of transcript of June 23, 2015, oral argument to remain UNDISCLOSED; case REMANDED.. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 11/23/2015. (nd) (Entered: 11/23/2015)
2015-12-07	55	LETTER MOTION for Extension of Time for Motion for Award of Fees addressed to Judge Colleen McMahon from David E. McCraw dated 12/07/2015. Document filed by Charlie Savage, Scott Shane, The New York Times Company.(McCraw, David) (Entered: 12/07/2015)
2015-12-08	56	ORDER granting 55 Letter Motion for Extension of Time. So ordered. Please settle it. Motions due by 2/16/2016. (Signed by Judge Colleen McMahon on 12/7/2015) (kgo) (Entered: 12/08/2015)
2016-02-09	57	CONSENT LETTER MOTION for Extension of Time to File Motion for Attorney's Fees addressed to Judge Colleen McMahon from David E. McCraw dated 02/09/2016. Document filed by Charlie Savage, Scott Shane, The New York Times Company.(McCraw, David) (Entered: 02/09/2016)
2016-02-10	58	ORDER granting 57 Letter Motion for Extension of Time. Since I am hopeful you can settle this, I grant the adjournment. Motions due by 2/29/2016. (Signed by Judge Colleen McMahon on 2/9/2016) (kgo) (Entered: 02/10/2016)
2016-02-29	59	STIPULATION AND ORDER REGARDING FEES: IT IS HEREBY STIPULATED AND AGREED, by and between the parties, as follows: 1. DOJ shall pay to Plaintiffs the sum of $100,000.00 (ONE HUNDRED THOUSAND DOLLARS) in attorneys' fees and litigation costs, pursuant to 5 U.S.C. § 552(a)(4)(E), which sum Plaintiffs agree to accept as full payment of any attorneys' fees and costs Plaintiffs have incurred or will incur in this action for services performed up to the date of this Stipulation and Order. 2. This Stipulation and Order does not constitute, and shall not be construed as, an admission by DOJ or any other agency or component of the United States that Plaintiffs are either eligible or entitled to recover attorneys' fees or costs in connection with this matter. 3. The parties understand and agree that this Stipulation and Order contains the entire agreement between them, and that no statements, representations, promises, agreements, or negotiations, oral or otherwise, between the parties or their counsel that are not included herein shall be of any force or effect. 4. Facsimile or pdf signatures shall have the same force and effect as original signatures on this Stipulation. (As further set forth in this Order.) (Signed by Judge Colleen McMahon on 2/29/2016) (kgo) (Entered: 02/29/2016)
2016-04-21	60	MANDATE of USCA (Certified Copy) as to 53 Notice of Interlocutory Appeal, filed by The New York Times Company, Scott Shane, Charlie Savage. USCA Case Number 14-4432(L). IT IS HEREBY ORDERED, ADJUDGED and DECREED that the judgment of the district court is AFFIRMED. The matter is REMANDED and the district court is authorized to disclose the three redacted paragraphs on page 9 of its opinion (as redacted pursuant to Part IV of this court's opinion),and maintain undisclosed the redacted portions of the District Court's opinion and the June 23, 2015, transcript. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 04/21/2016. (nd) (Entered: 04/21/2016)
2016-05-23	61	REVISED DECISION ON REMAND WITH RESPECT TO ISSUE (3): (U) This constitutes the decision and order of the court. Before releasing this decision to plaintiffs and to the public, I am providing a copy to the Government, to check classification status (which we have tried our best to get right on a paragraph by paragraph basis) and to propose redactions. (U) To the extent it should be necessary, the court certifies that an immediate entry of partial judgment as to this aspect of the case would be appropriate, pursuant to Fed. R. Civ. P.54(b), because (1) this order finally disposes of a discrete and severable issue in this action, to wit the disclosability of one specific type of legal document (legal opinions from the OLC) sought from one party defendant (the Department of Justice); and (2) there is no just reason for delay. These FOIA requests were made nearly three years ago, and it is in the public interest that any disclosable documents become public as without further delay. Also, there are many open issues in this case, which are completely severable from Remand Issue 3; and (if the parties' briefing schedule is any indication) it will take many months to resolve those issues. (U) The mandate directs that any appeal from this order and the partial judgment to be entered thereon be referred to a panel consisting of Judges Newman, Cabranes, and Pooler. (As further set forth in this Order.) (Signed by Judge Colleen McMahon on 5/11/2016) (kgo) (Entered: 05/23/2016)
Hide Docket Events