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Case TitleThe New York Times Company et al v. United States Department of Justice
DistrictSouthern District of New York
CityFoley Square
Case Number1:2011cv09336
Date Filed2011-12-20
Date Closed2013-01-24
JudgeJudge Colleen McMahon
PlaintiffThe New York Times Company
PlaintiffCharlie Savage
PlaintiffScott Shane
DefendantUnited States Department of Justice
AppealSecond Circuit 13-422
AppealSecond Circuit 14-4432
Documents
Docket
Complaint
Opinion/Order [33]
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
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2011-12-201COMPLAINT 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)
2011-12-20SUMMONS ISSUED as to United States Department of Justice, U.S. Attorney and U.S. Attorney General. (ama) (Entered: 12/22/2011)
2011-12-20Magistrate Judge James C. Francis IV is so designated. (ama) (Entered: 12/22/2011)
2011-12-20Case Designated ECF. (ama) (Entered: 12/22/2011)
2011-12-202RULE 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)
2012-01-103ORDER 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)
2012-01-134NOTICE OF APPEARANCE by Sarah Sheive Normand on behalf of United States Department of Justice (Normand, Sarah) (Entered: 01/13/2012)
2012-01-235ANSWER to 1 Complaint. Document filed by United States Department of Justice.(Normand, Sarah) (Entered: 01/23/2012)
2012-02-24Minute 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)
2012-04-096ENDORSED 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)
2012-04-237ENDORSED 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)
2012-04-238ENDORSED 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)
2012-05-21Minute 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)
2012-06-199ENDORSED 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)
2012-06-2010MOTION for Summary Judgment. Document filed by United States Department of Justice.(Normand, Sarah) (Entered: 06/20/2012)
2012-06-2011DECLARATION 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)
2012-06-2012MEMORANDUM OF LAW in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Normand, Sarah) (Entered: 06/20/2012)
2012-06-2113DECLARATION 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)
2012-06-2114DECLARATION 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)
2012-06-2115DECLARATION 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)
2012-06-2116DECLARATION 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)
2012-06-2117DECLARATION 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)
2012-06-2118NOTICE of Classified Filing re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Normand, Sarah) (Entered: 06/21/2012)
2012-07-1819CROSS MOTION for Summary Judgment. Document filed by Charlie Savage, Scott Shane, The New York Times Company.(McCraw, David) (Entered: 07/18/2012)
2012-07-1820MEMORANDUM 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)
2012-07-1821DECLARATION 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)
2012-07-2022ENDORSED 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)
2012-08-0823REPLY 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)
2012-08-0824DECLARATION 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)
2012-08-0925DECLARATION 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)
2012-08-0926MEMORANDUM 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)
2012-08-0927DECLARATION 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)
2012-08-0928DECLARATION 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)
2012-08-2729REPLY 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)
2012-09-2130ENDORSED 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)
2012-10-0231ENDORSED 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)
2013-01-0232ORDER: #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)
2013-01-0333CORRECTED 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)
2013-01-2234DECISION 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)
2013-01-22Transmission to Judgments and Orders Clerk. Transmitted re: 34 Order, to the Judgments and Orders Clerk. (djc) (Entered: 01/22/2013)
2013-01-2435CLERK'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)
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