By Christopher Zoukis

The United States Court of Appeals for the Second Circuit has denied a Freedom of Information Act (FOIA) request in which the American Civil Liberties Union requested documents from several government agencies relating to the use of lethal drone strikes.

The requests were initially made by the American Civil Liberties Union and The New York Times in October 2011 to the Department of Justice, the Department of Defense, and the CIA. The government withheld many documents, and years of litigation ensued. The ruling by the Second Circuit was the third time it heard an appeal of the case. Previous rulings ordered the release of a redacted version of a DOJ Office of Legal Counsel memorandum which argued the legal justification for the drone strikes that specifically targeted and killed three American citizens.

This appeal involved 52 documents that the district court ordered withheld as exempt, and seven documents that the district court ordered released. The appellate court upheld the withholding of the 52 documents and reversed the release of the other seven. All of the documents were deemed to be protected from disclosure by FOIA Exemption 5, which prevents the release of “predecisional drafts.” A predecisional draft is a document generated before the adoption of an agency policy or decision.

The American Civil Liberties Union was seriously hamstrung in its ability to press the case for disclosure. The documents were considered secret enough that no one could see them at all. The district court judge did see the documents, in secret proceedings, but the judge’s analysis was filed under seal. As such, the American Civil Liberties Union was forced to argue on appeal for release of documents without knowing what they were, or why the district court ruled that they be withheld.

“We appreciate the difficulty American Civil Liberties Union encounters in challenging the District Court’s decision to withhold from disclosure 52 documents,” wrote the appellate court. “American Civil Liberties Union has not seen either the documents or the redacted portions of the District Court’s opinion explaining the Court’s reason.” See:  American Civil Liberties Union v. United States Department of Justice, No. 15-2956(L) (2nd Cir. December 20, 2016).

Related legal case

American Civil Liberties Union v. United States Department of Justice

This article originally appeared in Prison Legal News on September 1, 2017.

About Christopher Zoukis
Christopher Zoukis is an outspoken prisoner rights and correctional education advocate who is incarcerated at FCI Petersburg Medium in Virginia. He is an award-winning writer whose work has been published widely in major publications such as The Huffington Post, Prison Legal News, New York Daily News and various other print and online publications. Learn more about Christopher Zoukis at christopherzoukis.com and prisoneducation.com

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).