Justice Department opposes release of "targeted killing" records

The U.S. Department of Justice filed a motion for summary judgment Wednesday in a federal Freedom of Information Act lawsuit, opposing the release of documents regarding the CIA's use of “targeted killings.”

The justice department's motion filed in the U.S. District Court in New York City came in response to The New York Times and the American Civil Liberties Union’s lawsuit seeking records containing the government's legal justifications for its alleged killing of U.S. citizens and others associated with al-Qaida and other terrorist groups.

The justice department asserts that the records fall under four separate exemptions under the FOIA.

According to the justice department, the records are exempt under Exemption 1, which protects classified national security information, as well as Exemption 3, which protects information that is protected from disclosure under the CIA Act and the National Security Act. These laws cover intelligence sources and methods, as well as CIA functions. Citing Exemptions 1 and 3, the justice department refused to confirm or deny the existence of certain documents, claiming the the fact of their existence is classified.

The motion stated that certain material is protected under Exemption 5 and Exemption 6, which permit the withholding of privileged information and certain personal information of agency personnel, respectively. The department alleges that certain documents containing legal analyses are protected in part under the deliberative process privilege.

In its Dec. 20 complaint, The Times argued that Exemptions 1 and 3 do not apply because documents “containing only legal analysis fail to meet the requirements for properly classified materials.”

“Even if parts of the [documents] are properly classified or otherwise subject to an exemption, [the department] has an obligation to redact non-public portions of the [documents] and release those portions that are public under FOIA,” according to the complaint.

Times attorney David McCraw said in an interview that the documents contain “statements of legal authority and are not documents that deal with operational details that could truly be called national security.”

“The public shouldn’t be required to engage in 'trust-me' government,” he said. “The power that’s being asserted here is very historically significant. The public should be able to decide for themselves if there is a compelling legal argument” for the government's use of lethal force.

The Times further alleged that because government officials publicly acknowledged that responsive records exist, the government waived its right to deny their existence.

According to court documents, Attorney General Eric Holder and Assistant to the President for Homeland Security and Counterterrorism John Brennan publicly addressed the government’s use of lethal force and its decision-making process this past spring.

“In FOIA, a waiver typically requires official acknowledgement, and here it’s been done,” McCraw said.

The Times also provided news articles that provided "information and belief" that such documents exist.

The department argued that The Times and the ACLU are relying on statements by former government officials in their arguments, and statements made by people outside of the Executive Branch cannot constitute official disclosure. It also argues that news reports on the subject did not contain official acknowledgment by an authorized person, just statements by former government officials and anonymous sources.

McCraw said the publication plans to file a brief in response to the justice department’s motion. That brief is due in four weeks.

Related Reporters Committee resources:

· Federal Open Government Guide: 1. National security

· Federal Open Government Guide: 3. Statutory exemption

· Federal Open Government Guide: 5. Internal agency memos

· Federal Open Government Guide: 6. Personal privacy