POLITICS
02/12/2013 03:34 pm ET Updated Feb 12, 2013

Obama Drones Memo Disclosure Could Change FOIA Cases

WASHINGTON -- Until last week, the Obama administration's official position was that it had never technically acknowledged the existence of a memo from the Office of Legal Counsel laying out the legal framework for the targeted killing of an American citizen.

"The very fact of the existence or nonexistence of such documents is itself classified," the Justice Department wrote in a previous letter, despite wide discussion from members of the administration on the general principles of the targeted killing program.

Even a broader document -- a so-called "white paper" -- that spelled out the less-specific legal basis for targeted killings was "protected by the deliberative process privilege" though it was turned over to select members of Congress, a Justice Department official wrote late last month to a reporter from The New York Times who had requested that document.

But once the white paper was disclosed by Michael Isikoff of NBC News, the government had a change of heart. Jason Leopold, a reporter for Truthout who had submitted a Freedom of Information Act request for the white paper in August, contacted DOJ after the leak, reminding them he was granted expedited processing. An official called to tell him it would take three months to disclose the already-public paper but wound up turning over the document in an email to Leopold late Friday as a matter of "agency discretion." Other requestors got the same document on Friday.

"It's completely ridiculous and to me this action underscores how the Obama administration has failed to live up to its promise of open government and transparency," Leopold told HuffPost. "This was an unclassified document shared with certain members of Congress. It should have been made available to me not long after I filed my records request."

The decision to disclose the document "displays some minimal capacity for reality-testing," wrote Steven Aftergood, the director of the Project on Government Secrecy of the Federation of American Scientists. "To continue to insist that the document was protected and exempt from release would have been too absurd. But the Freedom of Information Act process is supposed to meet a higher standard than 'not absurd,' and in this case it failed to do so."

Meanwhile, the American Civil Liberties Union is fighting on in its mission to get the full OLC memo on targeted killing made public and more information on the CIA's drone program disclosed. The ACLU believes the white paper and the testimony of John Brennan during his CIA confirmation hearing last week bolster its case.

"We think we were right before and we think we have an even stronger case now," Brett Max Kaufman, a national security fellow with the ACLU, told The Huffington Post.

John Brennan's testimony during this CIA confirmation hearing last week offered additional evidence, the ACLU believes. The ACLU sent a letter to the U.S. Court of Appeals for the District of Columbia Circuit, which is deciding the organization's appeal of the CIA decision to reject their FOIA. The letter points to the transcript where Brennan and the members of the Senate Select Committee on Intelligence "extensively discussed various aspects of the CIA’s targeted-killing program, including the 'role' of the 'CIA director in [the] approval process” for targeted killings abroad."

ACLU lawyers are also in the midst of appealing a federal judge's decision to deny their FOIA for the OLC memo despite what the judge described as the "Alice-in-Wonderland nature" of the process. Now that the government has formally acknowledged that the OLC memo exists and turned over a copy to select members of Congress, the ACLU hopes the appeals court will take its side.

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