NYT/Savage Freedom of Information Act Litigation

One of the benefits of working for The New York Times is that I have had access to legal resources to pursue Freedom of Information Act litigation. FOIA is a powerful but dysfunctional tool for bringing information to public light. One of its shortcomings is that in practice, it rarely works unless you file a lawsuit. The Times‘ lawyer David McCraw and I have pursued many cases, assisted by the Times‘ annual First Amendment Fellows, including Victoria Baranetsky, Stephen Gikow, Dana Green, Jeremy Kutner, Tali Leinwand, Ian MacDougall, and Nabiha Syed. This page tracks our litigation efforts.

OPEN CASES

Trump-Comey Memos

Trump team communications with the Justice Department’s Office of Legal Counsel

Department of Defense Inspector General Report about National Security Agency Post-Snowden Upgrades

1984 Office of Legal Counsel memo about National Security Agency surveillance the Fourth Amendment

Foreign Intelligence Surveillance Court order to Yahoo for bulk email scanning

Guantanamo Detainee Review Task Force reports

Justice Department counterterrorism legal and policy documents

Justice Department investigation into Central Intelligence Agency torture

COMPLETED CASES

Surveillance:

FISA Amendments Act notifications and Treasury Department sanctions

Department of Justice Inspector General reports about surveillance

National Security Agency Inspector General reports about FISA Amendments Act, FISA BR, and FISA PR/TT programs

Foreign Intelligence Surveillance Court documents

Preparations to permit interagency raw sharing of surveillance regulated by Executive Order 12333

Secret interpretation of Section 215 of the Patriot Act

F.B.I. shootings etc.

Federal Bureau of Investigation agent shooting incident review reports

F.B.I. shooting incident review reports and use of “assessment” investigations

Captives

Medical treatment of Guantanamo Bay detainees

Misc. executive power

Secret interpretation of presidential recess appointment powers

Targeted killings

Targeted killings, including of American citizens


OPEN CASES


Trump-Comey Memos

TOPIC: Seeking all F.B.I. memos, e-mails, or other documents discussing or memorializing communications between then-director James Comey and Donald Trump.

CASE: NYT/Savage v. FBI, 17-cv-4558 (____, S.D.N.Y.)

STATUS: Complaint filed.

PRODUCED  DOCUMENTS: None yet.

SELECTED COURT DOCUMENTS:

 

Trump team communications with the Justice Department’s Office of Legal Counsel

TOPIC: Seeking communications in January 2017 between the Trump team (transition team, then post-inaugural White House) and the Justice Department’s Office of Legal Counsel about the legality of proposed executive orders and executive actions, including its blessing of the first travel ban order and its Jan. 20, 2017 memo saying it would not violate the federal anti-nepotism law to give Trump’s son-in-law, Jared Kushner, a White House job.

CASE: NYT/Savage v. DOJ, 17-cv-1946 (Castel, S.D.N.Y.)

STATUS: Complaint filed.

PRODUCED  DOCUMENTS: None yet

SELECTED COURT DOCUMENTS:


 

Inspector General Report about National Security Agency Post-Snowden Security Steps

TOPIC: Seeking August 29, 2016, Department of Defense Inspector General report “The National Security Agency Should Take Additional Steps in Its Privileged Access-Related Secure the Net Initiatives”

CASE: NYT/Savage v. DOD, 17-cv-1228 (Preska, S.D.N.Y.)

STATUS: Complaint filed.

PRODUCED  DOCUMENTS: None yet

SELECTED COURT DOCUMENTS:


1984 Office of Legal Counsel memo about National Security Agency surveillance the Fourth Amendment

TOPIC: Seeking May 24, 1984, memo, “Memorandum for the Attorney General from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Constitutionality of Certain National Security Agency Electronic Surveillance Activities Not Covered Under the Foreign Intelligence Surveillance Act of 1978” and cover letter

BACKGROUND: This memo is apparently the foundation of the United States government’s interpretation of the constitutional issues raised by N.S.A. surveillance techniques that Congress has left unregulated by domestic wiretapping statutes, including bulk collection of communications satellite transmissions and messages intercepted as they flow across network cables outside the territory of the United States. It was mentioned in a footnote of a 2007 Justice Department document that came to light as part of the Snowden revelations, and was discussed in an open Congressional hearing on Jan. 28, 2015 — the confirmation hearing for former Attorney General Loretta Lynch — in which Senator Dianne Feinstein, Democrat of California, said executive branch officials had advised Congress “of the existence of a seminal OLC opinion written Ted Olson decades ago governing the conduct of collection activities under Executive Order 12333.”

CASE: NYT/Savage v. DOJ, 17-cv-0087 (Cooper , D.D.C.)

STATUS: Complaint and answer filed. Parties are to propose schedule for briefing by March 9.

PRODUCED  DOCUMENTS: None yet

SELECTED COURT DOCUMENTS:


 

Foreign Intelligence Surveillance Court documents related to a 2015 order to Yahoo for bulk email scanning

TOPIC: Seeking FISC order to Yahoo requiring it to search incoming e-mails for a cyber-signature

BACKGROUND: As Reuters first reported and we helped fill in the legal and operational details about, in 2015, Yahoo, in response to a government order, scanned incoming customer e-mails searching for a cyber-signature associated with a communications method used by a foreign state-sponsored terrorist organization. This was a highly unusual, perhaps unprecedented, order under the traditional wiretapping title of the Foreign Intelligence Surveillance Act. We are suing to have the memorandum opinion and associated documents made public, invoking a provision of the USA Freedom Act that says significant and novel interpretations of surveillance law should be made public.

CASE: NYT/Savage v. DOJ, 17-cv-0053 (Preska, S.D.N.Y.)

STATUS: Complaint filed.

PRODUCED DOCUMENTS: None yet.

SELECTED COURT DOCUMENTS:

RELATED NEWS COVERAGE:


 

Guantanamo Detainee Review Task Force reports

TOPIC: Seeking detainee review task force reports produced about each of 242 detainees remaining at the Guantanamo Bay prison when President Obama took office in January 2009.

BACKGROUND: The six-agency task force, led by Matt Olsen, took a more rigorous and systematic look at the evidence against each detainee and assessed his level of threat, dividing them into those recommended for prosecution, those recommended for continued indefinite detention without trial, and those recommended for transfer to a country capable of providing appropriate security assurances. While earlier, flawed reports by the military were leaked by Chelsea Manning and made public via WikiLeaks, these reports — which in some cases found that allegations contained in the earlier reports were unfounded — remain secret.

CASE: NYT/Savage v. ODNI and DOJ, 16-cv-6120 (Berman, S.D.N.Y.)

STATUS: Complaint filed. Judge has confidentially reviewed “randomly selected” threat assessments and has ordered a hearing for oral arguments on several issues on September 13, 2017.

PRODUCED DOCUMENTS: None yet.

SELECTED COURT DOCUMENTS:


Department of Justice counterterrorism legal and policy documents

TOPIC: This lawsuit combines three FOIA requests for documents in the possession of the Justice Department that deal with post-9/11 legal and policy issues:

  • The first document it seeks is a May 4, 2005, memo signed by Pat Rowan, a national security lawyer in the Bush Justice Department, about the department’s discovery obligations when using evidence obtained or derived from the Stellarwind warrantless surveillance and bulk data collection program in court against a criminal defendant.
    • Discussion: A big issue regarding the N.S.A.’s warrantless surveillance program, both before and after Congress legalized it, is whether and when criminal defendants who face evidence obtained or derived from it should get notice from prosecutors about where that evidence came from. This is important because they have legal standing to challenge the lawfulness of the surveillance that gathered the evidence. To date, the government has successfully prevented a definitive examination of the merits of Stellarwind; in 2006, a district court judge ruled that it was illegal, but an appeals court vacated that ruling on the technical grounds that the plaintiffs did not have standing. No criminal defendant was ever notified that some evidence came from the program, and the Obama administration, in a previous FOIA lawsuit we brought for a Justice Department inspector general report about Stellarwind, redacted much of a lengthy portion about possible Brady violations – that is, instances in which prosecutors may have unlawfully withheld evidence from the defense that could have helped it – regarding the program. But that report included an unredacted sentence referring to the existence of this memo.
    • UPDATE 3/24/17: The Trump administration has released the memo
  • The second document is the “Standard Minimization Procedures for FBI Electronic Surveillance and Physical Search Conducted Under the Foreign Intelligence Surveillance Act” that were approved by the Attorney General on October 22, 2008 and approved by the Foreign Intelligence Surveillance Court on April 7, 2009.
    • Discussion: The FBI’s minimization procedures for FISA information are its rules for sharing and disseminating information gathered under the Foreign Intelligence Surveillance Act — and, since 2007, the warrantless surveillance program governed by the Protect America and the FISA Amendments Act. The government has issued later versions of these procedures, but a previously available version of this set, which it provided to the ACLU from a 2010 FOIA lawsuit, was heavily redacted from pre-Snowden secrecy. The redacted portions should help show how the practice of “backdoor searching,” or government agents looking at private communications previously collected without a warrant for Americans who have become the subject of their suspicions, began. See this post for more discussion of what we already know about how this got going.
    • UPDATE 5/8/17: The Trump administration has released the reprocessed 2008/09 SMPs with the important pages (15-16) now visible.
  • The third document is the August 2009 final report of the 2009 executive order task force on rendition/interrogation policy. The fourth document is the January 2010 final report of the 2009 executive order task forces on detention policy.
    • Discussion: In 2009, when Obama took office, he set up three captives-related executive order task forces – each interagency but led or co-led by the DOJ. One re-assessed the remaining Guantanamo detainees and recommended what to do with each; its final report is already public but we are suing in a separate case to get the individual assessments. The other two dealt with what to keep and what to change about rendition and interrogation policy, and future detainee policies, respectively. Their final reports are not public, although I wrote about their contents some in Power Wars. See Chapter Four Section Fourteen (“The Interrogation and Rendition Task Force”) and Chapter Seven Section One (“The Straw Man Plan for Future Captures”).
    • UPDATE: 12/5/2016: The Obama administration has released the rendition/interrogation report
  • The last request is for a set of documents filed by the department in 2011 before the Foreign Intelligence Surveillance Court in connection with a case that dealt with “upstream,” or network-switch-based, surveillance under the FISA Amendments Act. The final rulings in that case, by Judge John Bates in October and November 2011, have already been declassified and made public.
    • Discussion: In August 2013, as part of the wave of declassifications of FISA Court materials after the Snowden leaks, the government made public redacted versions of an Oct. 3, 2011 ruling and a Nov. 3, 2011 ruling by Judge John Bates, then the presiding judge of the FISA Court. It dealt with upstream Internet surveillance under the FISA Amendments Act (that is, collection directly from network switches, in contrast to the Prism program, which involves collection from webmail providers). Judge Bates found that the NSA had been violating the Fourth Amendment in certain ways, and then he ruled that a fix proposed by the NSA would solve the problem. His rulings are the source of widely cited numbers about the program – that the NSA was collecting about 250 million communications annually from it, of which 9 percent came from upstream and 91 percent came from Prism. I suspect that Judge Bates misinterpreted something and that these numbers are inaccurate. (See this post.) We are seeking the remaining documents from the litigation, including the Justice Department’s submissions which he was working with when he wrote his opinion.
    • UPDATE: 6/18/2017: The Trump administration has released the first tranche of documents from this docket. (They don’t answer the question I raised above.) Two more tranches are coming.
    • UPDATE: 9/12/2017: The Trump administration has released the second tranche of documents from this docket.

CASE: NYT/Savage v. DOJ, 16-civ-7020 (Kaplan, SDNY)

STATUS: Complaint filed.

PRODUCED DOCUMENTS:

SELECTED COURT DOCUMENTS:

RELATED NEWS COVERAGE:


Justice Department investigation into the C.I.A. torture program

TOPIC: Seeking documents related to the Justice Department investigation, led by AUSA John Durham, into whether charges should be brought in connection with the Central Intelligence Agency’s treatment of detainees as part of its rendition, detention, and interrogation program – including two who died in C.I.A. custody – and its destruction of videotapes depicting interrogations, including waterboarding sessions.

BACKGROUND: Mr. Durham was appointed to look into the videotapes issues in 2008 by Attorney General Michael Mukasey, and in 2009 Attorney General Eric Holder expanded his mandate to abuses of detainees that went beyond techniques the Bush Justice Department had blessed as lawful at the time. Mr. Durham eventually recommended no charges be brought, and his investigation ended in 2012. Specifically, the case seeks all of his reports to the attorney general about his findings and recommendations, and it seeks the FBI “302” reports summarizing interviews with witnesses questioned during the investigation.

CASE NAME: NYT/Savage v. DOJ, 14-377 (Oetken, S.D.N.Y.)

STATUS: In September 2015, a federal district court judge delivered a mixed verdict. He ruled that the government could continue to withhold the 302 reports and Durham’s reports about the videotape destruction, but the government must disclose, at least in part, Durham’s reports about detainee abuses. His reasoning turned on the fact that Holder extensively cited and expressly relied upon the latter in public statements discussing the decision not to bring charges, so the government had waived its right, under an exception to FOIA for predecisional, deliberative, and attorney-client privileged information, to keep it secret. In February 2017, the judge delivered another mixed verdict about the remaining potential FOIA exemptions, finding that some applied but that portions of some documents must be produced. The Justice Department may yet appeal that ruling.

PRODUCED DOCUMENTS: None yet

SELECTED COURT DOCUMENTS:

RELATED NEWS COVERAGE:


COMPLETED CASES:

Surveillance:


FISA Amendments Act notifications and Treasury Department sanctions

TOPIC: Sought documents showing how the Treasury Department is interpreting its obligations under a statutory requirement in FISA to tell people when surveillance regulated by that law (including the FISA Amendments Act warrantless variety targeting foreigners abroad) is used against them in any government “proceeding”

BACKGROUND: In 2013 and 2014, it emerged that the Justice Department had not been telling criminal defendants when they faced evidence derived from such surveillance, preventing anyone from challenging the constitutionality of the FISA Amendments Act. Following an internal debate, the Department of Justice changed that practice. The legal policy debate then spilled over to Treasury Department and the Office of Foreign Assets Control, which uses surveillance-derived information when sanctioning people or groups abroad as terrorists, drug traffickers, etc. Sanctions typically involve freezing any assets in the United States and making it illegal for Americans to do business with that person or entity.

CASE NAME: NYT/Savage v. Department of Treasury, No. 15-cv-5740 (Ramos, S.D.N.Y.)

STATUS: Closed.

PRODUCED DOCUMENTS: None: Treasury said one document was responsive, but successfully withheld it from disclosure because it was deemed a draft rather than a final document.

SELECTED COURT DOCUMENTS:

RELATED NEWS COVERAGE:

Department of Justice Inspector General reports about surveillance


TOPIC: Seeking declassified versions of six Department of Justice inspector general reports related to surveillance, and a six-agency IG report about the post-9/11 Stellarwind warrantless surveillance/bulk data program.

BACKGROUND: After the Snowden leaks, the government declassified many facts about surveillance and communications metadata collection/analysis. This lawsuit seeks to leverage that declassification by obtaining release of previously classified inspector general reports on those topics, including one about the FBI’s involvement with the FISA Amendments Act warrantless surveillance program. It also sought reprocessing and more fulsome release of reports that had previously been made public in heavily redacted form, including about FBI collection of phone data and other types of records using national-security letters, exigent letters, and Section 215 of the Patriot Act.

The most important of these reports is a massive investigation by six agencies’ inspectors general into the post-9/11 Stellarwind program. It was mandated by Congress as part of the FISA Amendments Act of 2008, and was entirely classified when completed in 2009. (The famous “NSA IG report” leaked by Snowden was an early draft of the NSA’s contribution to this much larger Stellarwind report.) In response to this lawsuit, the government released a version of it in April 2015, and then on its own decided it could make even more public and released another version in September.

CASE NAME: NYT/Savage v. DOJ, No. 14-3776 (Torres, S.D.N.Y.)

STATUS: The government has produced versions of these reports in several tranches. The New York Times asked Judge Torres to require additional disclosures of certain still-censored portions of the report, but the judge ruled against us and dismissed the case. The Times is considering whether to let the litigation end or to file an appeal.

PRODUCED DOCUMENTS:

SELECTED COURT DOCUMENTS:

RELATED NEWS COVERAGE


2. National Security Agency Inspector General reports

TOPIC: Seeking all internal NSA inspector general reports about the NSA’s warrantless surveillance program conducted since 2008 under Section 702 of the FISA Amendments Act, its bulk phone metadata program conducted since 2006 under Section 215 of the Patriot Act, and its bulk e-mail metadata collection program conducted between 2004 and 2011 under FISA’s pen register/trap and trace provision.

BACKGROUND: These three activities grew out of the Bush administration’s original post-9/11 Stellarwind program. Over time, the legal basis of each of the three components of that program evolved, leaving in place a form of the original activity even after Stellarwind ended in 2007.

CASE NAME: NYT/Savage v. NSA, No. 15-2383 (Forrest, S.D.N.Y.)

STATUS: The government said it will produce records in response to this lawsuit in three tranches.

It provided the first – related to the bulk phone records program – in August. The release included — apparently by mistake – two unredacted pages of a 2011 letter the Justice Department had sent the FISA Court describing an incident in which the court-imposed rules for the program were violated. The usually redacted information disclosed in that letter included the names of companies listed in the case header of FISA Court orders for the program – AT&T, Sprint, Verizon subsidiaries, and Verizon Wireless (at the time a separate entity) – and the fact that the program was used in searching for agents of Iran and terrorist organizations linked to it (presumably Hezbollah), not just Al Qaeda.

It provided the second – related to the bulk e-mail records program – in November. The release included confirmation of the theory that while that particular program had ended in December 2011, it was not that the N.S.A. had abandoned its ability to contact-chain Americans’ e-mail records but rather that it had found a functional equivalent to do so without the headaches of the FISA Court rules and oversight that had caused so many problems for PR/TT program.

PRODUCED DOCUMENTS:

SELECTED COURT DOCUMENTS:

RELATED NEWS COVERAGE


3. Foreign Intelligence Surveillance Court documents

TOPIC: Seeking declassification and disclosure of secret Foreign Intelligence Surveillance Court rulings that interpreted surveillance law in significant/programmatic ways since 9/11.

BACKGROUND: After the Snowden leaks, it became clear that after the terrorist attacks of Sept. 11, 2001, the Foreign Intelligence Surveillance Court (or “FISA Court”) had secretly evolved from the limited purpose for which it was designed – to approve individual wiretap applications – and had taken on a much more powerful role. It was developing a secret body of common law — embracing complicated legal analysis interpreting surveillance law and Constitutional issues, sometimes in counter-intuitive ways — and overseeing and authorizing surveillance activities at a programmatic level. With Laura Poitras, one of the recipients of the Snowden archive, I wrote a story mapping out some of the major rulings of the FISA Court after 9/11 that affected Americans’ privacy rights and that the public did not know about. I then filed a lengthy FOIA request seeking to obtain disclosure of those rulings and related litigation documents. The Electronic Frontier Foundation had filed an overlapping FOIA case and sought some of the same documents, so our cases were consolidated before the same judge.

The government by then already had declassified and put out documents related to FISC moves in 2004 to legalize the bulk e-mail records program and in 2006 to legalize the bulk phone records program, as well as court-overseen wrestling with problems the NSA had in obeying court-imposed rules for those programs. These additional FISC documents centered on topics including the secret loosening of restrictions on sharing “raw” (or not yet processed to mask or delete any private information about innocent Americans) fruits of surveillance among government agencies, two short-lived efforts to reinterpret FISA as permitting a warrantless surveillance program in 2007 and then convulsions that followed due to disagreements among FISA Court judges about the legitimacy of the legal theories colleagues had used to bless the activities; the certifications the FISA Court used to approve warrantless surveillance under the Protect America Act of 2007 and FISA Amendments Act of 2008 (including whether the statute could be interpreted as permitting “about the target” collection of e-mails that mention a target but are not to or from the target), and later revisions to the rules of FISA Amendments Act surveillance.

CASE NAME: NYT/Savage v. DOJ, No. 14-3948 (Broderick, SDNY)

STATUS: The government declassified and released numerous documents, and has now made a motion asking the judge to dismiss the case, arguing that it has disclosed enough. The NYT is preparing to file a response asking the judge to instead order the government to disclose more portions of the documents. That filing is due December 2.

PRODUCED DOCUMENTS:

SELECTED COURT DOCUMENTS:

RELATED NEWS COVERAGE:

 



4. Preparations to permit interagency raw sharing of surveillance regulated by Executive Order 12333

TOPIC: Sought documents related to work on 12333 intelligence sharing procedures, including meeting invitations, e-mails, drafts, etc.

BACKGROUND: When the NSA intercepts private communications using methods that the Foreign Intelligence Surveillance Act left unregulated — including collecting satellite transmissions, phone calls and e-mails crossing network switches abroad, and foreign-to-foreign messages transiting domestic network switches — it can vacuum up content in bulk without targeting anyone. As a result, the overwhelming volume of the private messages the N.S.A. gathers comes through these techniques, which are governed by Executive Order 12333. But unlike targeted FISA surveillance, the NSA is not permitted to share 12333 intercepts “raw” with sister intelligence agencies, like the CIA and FBI. Instead, NSA analysts act as a filter – searching and evaluating the information and passing on only what they think is pertinent. Moreover, they must first “minimize” whatever they share, masking the names and removing irrelevant private information about Americans. But in 2008, Bush changed the order to permit raw sharing of 12333 intercepts as soon as ODNI, DOJ and DOD came up with rules for it. The national security bureaucracy, under Obama, has been quietly working on those rules. This request sought documents related to that effort that would show the pace of bureaucratic work on it. The Times voluntarily dismissed the lawsuit; ODNI provided information in an interview.

CASE NAME: NYT/Savage v. DOD, NSA, ODNI, FBI, CIA, No. 15-cv-6979 (Engelmeyer, S.D.N.Y.)

STATUS: Case closed.

PRODUCED DOCUMENTS: None.

SELECTED COURT DOCUMENTS:

RELATED NEWS COVERAGE:


5. Secret interpretation of Section 215 of the Patriot Act

TOPIC: We sought declassification and disclosure of a February 2011 Justice Department/Office of Director of National Intelligence report to Congress explaining something about how the government was interpreting Section 215 of the Patriot Act, which permits the government to obtain business records deemed “relevant” to a national-security investigation.

BACKGROUND: In 2011, Section 215 and another parts of the Patriot Act were about to expire and Congress was debating renewing it. Senators Ron Wyden and Mark Udall, both Democrats on the Senate Intelligence Committee, warned that the government was secretly interpreting this law in a non-obvious way that would outrage people if the public knew what it was. They filed an amendment to require disclosure of this legal interpretation. The preamble included a reference to the existence of a February 2011 report to Congress. They later withdrew this amendment in exchange for a promise of a (closed to the public) Intelligence Committee oversight hearing on the topic, but I filed a FOIA request for it. The government rejected the request.  We filed a lawsuit arguing the government could not withhold the report entirely from the public, because even if it was entitled to black out portions about any classified programs described in the report, other portions containing only the government’s abstract legal analysis of what the statute meant could not be properly classified. The ACLU later separately brought a broader FOIA case for documents in general about the interpretation of the Patriot Act, and their lawsuit was consolidated with ours before the same judge.

CASE NAME: NYT/Savage v. DOJ, No. 11-6990 / ACLU v. FBI, No. 11-7562 (Pauley, S.D.N.Y.)

STATUS: In May 2012, the judge, after reading the classified memo and learning about the program, ruled that the government did not need to disclose anything and dismissed the case.

Postscript: The failure of this lawsuit prevented the public from learning for 13 more months that the Justice Department and FISA Court had secretly interpreted Section 215 to authorize bulk collection of records about Americans showing social links between people, which might be useful in hunting for hidden associates of terrorism suspects. This was the claimed legal basis of the program in which the NSA was secretly collecting bulk records logging Americans’ domestic phone calls. (A similar interpretation of Section 214 of the Patriot Act was also the basis for a sister program collecting bulk logs of Americans’ e-mails, which sort of ended in December 2011). Then, in June 2013, the existence of the bulk phone records program was the first revelation of the Snowden leaks, sparking controversy and debate both about the program and about whether it was a legitimate interpretation of the statute.

In June 2015, when Section 215 was again expiring, Congress enacted the USA Freedom Act, which reauthorized that provision but said it could no longer be used for bulk collection after November 2015. Separately, the ACLU had filed a lawsuit challenging the legality of the now-revealed program. That lawsuit was assigned to Judge Pauley because it was related to this previous FOIA lawsuit. He ruled that the program was legal both on statutory and constitutional grounds. The ACLU appealed that ruling, and in May 2015, a three-judge panel on the Court of Appeals for the Second Circuit unanimously reversed, ruling that the program was illegal because Section 215 of the Patriot Act could not be legitimately interpreted as authorizing bulk collection. Litigation continues in that case.

PRODUCED DOCUMENTS: None. However, on July 31, 2013, after the Snowden leaks, the government declassified and disclosed the document our litigation had sought: “Report on the National Security Agency’s Bulk Collection Programs for PATRIOT Act Reauthorization” (Feb. 2, 2010)

SELECTED COURT DOCUMENTS:

RELATED NEWS COVERAGE:


FBI shootings etc:

6. Federal Bureau of Investigation agent shooting incident review reports

TOPIC: Seeking documents showing the FBI’s internal investigations into whether agents who shot people complied with the bureau’s use of deadly force policy, which permits firing a weapon only when there is imminent danger to life

BACKGROUND: See completed case immediately below, an earlier iteration of the same topic, for discussion. More recent round has included documents about the April 11, 2014, killing of Jameel Harrison in suburban Baltimore, Maryland; May 22, 2013, killing of Ibrigim Todashev in Orlando, Florida (Boston Marathon bombings investigation; and the non-fatal shooting of Adrian Ricketts in Queens, New York, on July 18, 2012 and the FBI’s attempt to fire Agent Navin Kalicharan over it.

CASE NAME: NYT/Savage v. Federal Bureau of Investigation, No. 15-cv-9133 (Kaplan, S.D.N.Y.)

STATUS: Government has agreed to produce documents in tranches. Several tranches provided.

PRODUCED DOCUMENTS:

SELECTED COURT DOCUMENTS:

RELATED NEWS COVERAGE:

7. F.B.I. shooting incident review reports and use of “assessment” investigations

TOPIC: In one case, we sought two unrelated sets of documents based on separate FOIA requests involving the F.B.I.: internal FBI shooting incident reports and statistics about the bureau’s use of “assessment”-style investigations

Shooting Incident Reports

BACKGROUND: With rare exceptions, whenever an FBI agent fires his or her gun outside of a shooting range, the FBI conducts an investigation into the incident. Its inspection division leads a shooting incident review team that interviews witnesses and gathers forensic evidence, producing a report recounted what it thinks happened and making any recommendations. A high-level shooting incident review group then decides whether the shooting complied with the FBI’s lethal force policy, which permits firing a gun only in a case of imminent threat of death or serious bodily harm. The review group produces its own report and decides whether it was a “good shoot” or a “bad shoot” in agents’ parlance.

STATUS: The government produced reports completed between 1993 and 2011 in response to the lawsuit, along with an internal study covering most of those same years that it had conducted, and we agreed to settle that part of the lawsuit without further litigation. The NYT filed several subsequent FOIA requests for reports completed since that set, which the government has provided without further litigation. The documents showed that for at least a quarter century – and probably much longer than that – the FBI had consistently deemed every intentional shooting of a suspect or innocent bystander by an FBI agent to have been a “good shoot,” including one in which it had paid $1.3 million to an innocent and unarmed Maryland man shot in the face after being mistaken for a suspect; in that case, the FBI’s internal account of what happened appeared to omit and misstate several important details in a way favorable to the agent. Shortly after the Times reported this finding, the FBI’s review group delivered its first known “bad shoot” finding in a case involving an incident in Queens.

In November 2015, we filed a new Freedom of Information Act case seeking more recent such documents. See above.

PRODUCED DOCUMENTS:

RELATED NEWS COVERAGE:

Assessment Statistics

BACKGROUND: After the terrorist attacks of Sept. 11, 2001, the FBI shifted its focus from being a law enforcement agency – one that solves crimes that have already happened – to being more of a domestic intelligence agency – one that tries to detect potential threats and disrupt and prevent terrorist attacks before they can take place. Part of that shift was the creation by the Justice Department in 2003 of a new type of investigative activity called a threat assessment. Previously, agents only had two types of cases – preliminary and full investigations – both of which required a factual predicate to suspect someone of wrongdoing before they could be opened. A threat assessment permitted the opening of a case without a factual predicate, although fewer tools were available – for example, wiretapping was not permitted at this stage. After a 2008 revision by the Justice Department, these were called simply assessments.

We initially sought documents with statistics in general, and later narrowed that request to a specific FBI written response to a question from a senator that seemed to contain the information we were seeking. The FBI initially provided that letter with the statistics blacked out. In the course of the litigation, it reconsidered and provided it with the statistics visible. It showed that the FBI had opened more than 11,000 assessments of various unspecified categories between December 2008, when a revamped version of the attorney general guidelines governing F.B.I. investigations was issued, and November 2010, of which fewer than 500 had developed into a more serious investigation. But this information was hard to parse, including because it lumped in a type of assessment investigations of things like thinking about local infrastructure vulnerabilities with the types for scrutinizing people or groups for signs of wrongdoing. In April 2011, I filed another FOIA request seeking statistics over a three-year period, and focusing only on specific categories for investigating people or groups. We attempted to join that request to the existing case. In June 2011, midway through the litigation, the FBI provided that information to me. We pressed on, seeking a judicial order establishing the principle that the FBI was obligated by law to make this information available, not merely as a discretionary matter. But the judge instead dismissed the case for jurisdictional reasons.

Later, as part of my FOIA litigation for Justice Department inspector general reports (see above), it emerged that a chief purpose and use of assessments was to tell agents to scrutinize someone who came under suspicion because of the NSA’s Stellarwind program – either something overheard through the warrantless wiretapping component, or a direct or indirect link to a terrorism suspect uncovered by analyzing bulk phone and e-mail records. The existence of Stellarwind was highly classified and the agents were not told why they had been directed to scrutinize someone – hence there was no factual predicate. Although Stellarwind ended in 2007, the assessment power remains.

STATUS: We obtained the information we were seeking and the case is closed.

PRODUCED DOCUMENTS:

CASE NAME: NYT/Savage v. F.B.I., No. 10-7920 (Patterson, S.D.N.Y.)

SELECTED COURT DOCUMENTS:

RELATED NEWS COVERAGE:


Captives:

8. Medical treatment of Guantanamo Bay detainees

TOPIC: We sought internal Pentagon documents about whether it would be lawful, in a situation in which a Guantanamo detainee is facing a health emergency, not to bring that detainee into the United States for specialized treatment, even in a situation in which an American soldier stationed at the base and facing an identical emergency would be medically evacuated to the mainland.

BACKGROUND: Congress has banned bringing detainees from Guantanamo onto domestic soil for any reason – including emergency medical treatment. Guantanamo has only limited medical facilities. General Kelly, the commander of Southcom, which oversees Guantanamo, had disclosed the existence of legal advice from the Pentagon on this issue during congressional testimony.

CASE NAME: NYT/Savage v. DOD, No. 14-3593 (Stein, S.D.N.Y.)

STATUS: The Defense Department produced the record and the case was closed without further litigation.

PRODUCED DOCUMENTS:

SELECTED COURT DOCUMENTS:

RELATED NEWS COVERAGE


Misc. Executive power:

9. Secret interpretation of presidential recess appointment powers

TOPIC: We sought two Justice Department Office of Legal Counsel memos regarding the president’s power to make recess appointments that had not been publicly disclosed.

BACKGROUND: In connection with President Obama’s controversial recess appointment of four officials during “pro forma” sessions of the Senate in January 2012, the Justice Department’s Office of Legal Counsel wrote, and the administration publicly released, a memo about saying the recess appointments would be lawful. This memo cited two previous O.L.C. memos about presidential recess appointment powers which had not been released. We argued that if the government was publicly citing those memos, essentially treating them as legal precedents, it had waived privilege and should be required to disclose them for public scrutiny.

CASE NAME: NYT/Savage v. DOJ ( No. 12-3215 (Rakoff, S.D.N.Y.)

STATUS: The judge ruled against us and the case is closed.

PRODUCED DOCUMENTS: None.

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Targeted killing:

10. Targeted killings of American citizens

TOPIC: Justice Department memos about lethal force operations, especially targeting American citizens

BACKGROUND: In 2010, news leaked that the Obama administration had decided to try to target and kill Anwar al-Awlaki, an American citizen and radical Muslim cleric linked to the attempted bombing of a Detroit-bound airliner by the Yemen affiliate of al-Qaeda. A drone strike narrowly missed al-Awlaki in Yemen in May 2011, and another killed him in September 2011. While it was widely reported that the United States government was responsible for killing al-Awlaki, and I reported extensively on the contents of the memo shortly after the operation, the Obama administration for years would not acknowledge that the government had done so or disclose its internal legal analysis about the scope and limits of the government’s power to kill citizens without a trial.

My colleague Scott Shane, who had written about the decision to target al-Awlaki (and later wrote an excellent book about him) had filed a FOIA request in June 2010 seeking memos about targeted killings or assassinations of terrorism suspects generally. In October 2011, after I wrote about the existence/contents of an Office of Legal Counsel al-Awlaki-killing/citizen memo that was completed in July 2010, I filed a request to obtain it, specifically. Later that same month, the Justice Department both rejected my request and belatedly sent a rejection letter to Shane. In December 2011, we filed a FOIA lawsuit seeking disclosure of memos based on those two FOIA requests. In February 2012, the ACLU filed a similar but broader lawsuit, which was consolidated with ours before the same judge. In March 2013, I also learned and reported, as part of a broader piece on al-Awlaki with Shane and Mark Mazzetti, that the Office of Legal Counsel had crash-written an earlier, shorter memo approving the killing of al-Awlaki if and when he were located, and that the office had later gone back and replaced it with the longer memo we already knew about.

We lost at the district court level. However, over time, government officials gave several speeches sketching the outlines of its legal analysis about killing citizens, and in January 2014, someone leaked to NBC News’s Mike Isikoff an unclassified Justice Department “white paper” analyzing certain legal issues about targeting citizens, generically, which had been provided to Congress. The existence of this white paper, which did not mention al-Awlaki but was clearly derived from the real memos about killing him, had been previously disclosed in a congressional letter, and both Shane and the independent journalist Jason Leopold had filed a FOIA request for it. After it came to light unofficially, Shane – whose request for it had just been rejected – wrote to the Justice Department to complain that it was violating its own policies on transparency, and the department decided to “officially” release it to Leopold and Shane. The Second Circuit eventually ruled that this official disclosure, along with speeches and comments by officials, meant the government had already disclosed so much that it could no longer pretend the whole thing was secret and it had to make public the legal analysis portions of its real memos about al-Awlaki.

CASE: NYT/Savage/Shane v. DOJ, No. 11-9336 (McMahon, S.D.N.Y.), No . 13-422 (Pooler, Newman, Cabranes; 2nd Cir.),  consolidated with ACLU v DOJ et al, No.  12-794 (S.D.N.Y.), No. 13-445 (2nd Cir.)

STATUS: In June 2014, the United States Court of Appeals for the Second Circuit forced the government to disclose two Justice Department memos focusing on killing al-Awlaki. In an October 22, 2015 ruling, made public a month later, the 2nd Circuit ruled that the government can keep almost everything else secret.

PRODUCED RECORDS:

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