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EPIC's Amicus Brief 13-0422-cv(L), 13-0445-cv(CON) UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT THE NEW YORK TIMES COMPANY, CHARLIE SAVAGE, SCOTT SHANE, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF DEFENSE, CENTRAL INTELLIGENCE AGENCY, Defendants-Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK BRIEF OF AMICI CURIAE ELECTRONIC PRIVACY INFORMATION CENTER AND SEVEN OPEN GOVERNMENT ORGANIZATIONS IN SUPPORT OF APPELLANTS AND URGING REVERSAL Marc Rotenberg Counsel of Record Alan Butler Ginger McCall David Brody Julia Horwitz Electronic Privacy Information Center (EPIC) 1718 Connecticut Ave. NW, Suite 200 Washington, DC 20009 (202) 483-1140 [email protected] April 22, 2013 CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1 and 29(c) for Case No. 13-422 amicus curiae Electronic Privacy Information Center (“EPIC”) states that it is a District of Columbia corporation with no parent corporation or publicly-held company with a 10 percent or greater ownership interest. EPIC is a non-profit, non-partisan corporation, organized under section 501(c)(3) of the Internal Revenue Code. The Brennan Center for Justice at the New York University School of Law (“Brennan Center”) does not have a parent company, and is not a publicly-held company with a 10 percent or greater ownership interest. The Brennan Center is a non-profit, non-partisan corporation, organized under section 501(c)(3) of the Internal Revenue Code. Citizens for Responsibility and Ethics in Washington (“CREW”) does not have a parent company, and is not a publicly-held company with a 10 percent or greater ownership interest. CREW is a non-profit, non-partisan corporation, organized under section 501(c)(3) of the Internal Revenue Code. Pursuant to Fed. R. App. P. 26.1, amicus curiae Government Accountability Project submits the following identification of corporate parents, subsidiaries and affiliates: NONE. The National Security Archive (“the Archive”) is an independent, non- governmental public interest research institute, library and publisher based at the George Washington University and certified as a 501(c)3 public charity by the IRS. The Archive is a District of Columbia non-profit corporation with no parent corporation; no publicly held company owns 10 percent or more of Archive stock. OpenTheGovernment.org is a project of the Fund for Constitutional Government, which does not have a parent company, and is not a publicly-held company with a 10 percent or greater ownership interest. The Fund for Constitutional Government is a non-profit, non-partisan corporation, organized under section 501(c)(3) of the Internal Revenue Code. Project on Government Oversight ("POGO") does not have a parent company, and is not a publicly-held company with a 10 percent or greater i ownership interest. POGO is a non-profit, non-partisan corporation, organized under section 501(c)(3) of the Internal Revenue Code. The Sunlight Foundation does not have a parent company, and is not a publicly-held company with a 10 percent or greater ownership interest. The Sunlight Foundaiton is a non-profit, non-partisan corporation, organized under section 501(c)(3) of the Internal Revenue Code. ii TABLE OF CONTENTS TABLE OF AUTHORITIES.................................................................................iv INTEREST OF AMICI CURIAE..........................................................................1 SUMMARY OF THE ARGUMENT.....................................................................4 ARGUMENT ...........................................................................................................5 I. According to the Department of Justice and Former Heads of OLC, Final OLC Opinions Are Controlling Law and Should Be Disclosed..5 A. Formal OLC Opinions Are the Law of the Executive Branch.........5 B. Current OLC Policy and Past Heads of OLC Recommend Public Release of OLC Memos.................................................................10 II. Secret Law is Antithetical to the Democratic Principles of Republican Government and Separation of Powers...............................................12 III. The FOIA Does Not Allow for Secret Law........................................15 A. FOIA Exemption 5 Safeguards Deliberative Communications, Not Legal Authority..............................................................................15 B. FOIA Exemption 1 Protects National Security, Not Secret Law...18 IV. The Disclosure of OLC Opinions Promotes Public Debate...............21 A. The Purpose of the FOIA Is to Promote Government Transparency and Accountability, a Priority of the Current Administration .......21 B. Past Disclosures of OLC Opinions Have Informed Congress and the Public, Contributed to Effective Oversight, and Promoted Democratic Self-Governance.........................................................24 CONCLUSION......................................................................................................32 CERTIFICATE OF COMPLIANCE..................................................................33 CERTIFICATE OF SERVICE............................................................................34 iii TABLE OF AUTHORITIES Cases Brennan Center for Justice at N.Y. Univ. Sch. Of Law v. DOJ, 697 F.3d 184 (2d Cir. 2012) .......................................................................................................16 Caplan v. ATF, 587 F.2d 544 (2d Cir. 1978) ..........................................................17 Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013)...........................................29 Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1980) .......16 EPIC v. DOJ, 584 F. Supp. 2d 65 (D.D.C. 2008) ...................................................27 Hamdan v. Rumsfeld, 548 U.S. 557 (2006).............................................................24 Hamdi v. Rumsfeld, 542 U.S. 407 (2004) (Scalia, J., dissenting)............................14 Inner City Press/Cmty. on the Move v. Bd. of Governors of the Fed. Reserve Sys., 463 F.3d 239 (2d. Cir. 2006)........................................................................19 Mead Data Central v. U.S. Dep’t of Air Force, 566 F.2d 242 (D.C. Cir. 1977)..............................................................................................18, 20 Nat'l Council of La Raza v. DOJ, 411 F.3d 350 (2d. Cir. 2005).............................16 Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157 (2004).........................15 NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) ............................................17 Public Citizen v. OMB, 598 F.3d 865 (D.C. Cir. 2009) ..........................................17 Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997) ...............................................17 Torres v. I.N.S., 144 F.3d 472 (7th Cir. 1998).........................................................14 Constitutional Provisions U.S. Const., art. I, sec. 5, cl. 3 .................................................................................13 iv Statutes and Regulations Assertion of Executive Privilege Over Documents Generated in Response to Congressional Investigation Into Operation Fast and Furious, 36 Op. OLC 1 (2012) ...................................................................................................................31 Authorization for Use of Military Force (AUMF), 115 Stat. 224, note following 50 U.S.C. § 1541 (2000 ed., Supp. III) .....................................................................24 Detainee Treatment Act of 2005, 42 U.S.C. § 2000dd et seq. (2005).....................26 Exec. Order No. 12,146 § 1-4, 3 C.F.R. § 409 (1979) ........................................6, 11 Exec. Order No. 13,526, 3 C.F.R. § 298 (2009)................................................18, 19 Exec. Order No. 2877 (1918) ................................................................................5, 6 The Freedom of Information Act, 5 U.S.C. § 552 (2000).......................................15 § 552(b)(1).................................................................................................18, 20 § 552(b)(5).......................................................................................................15 The Judiciary Act of 1789, 28 U.S.C. §§ 510-13......................................................5 Memorandum from John C. Yoo, Deputy Assistant Attorney Gen., Office of Legal Counsel, U.S. Dep’t of Justice, for the Deputy Counsel to The President (Sept. 25, 2001)...............................................................................................................19 Memorandum from Steven G. Bradbury, Principal Deputy Assistant Attorney Gen., Office of Legal Counsel, U.S. Dep’t of Justice, for the Files (Jan. 15, 2009)......................................................................................................28 Memorandum of John C. Yoo, Deputy Assistant Attorney General, Dep't of Justice, Office of Legal Counsel, U.S. Dep’t of Justice, for the Attorney General (Nov. 2, 2001).........................................................................................28 Memorandum on Transparency and Open Government, 2009 Daily Comp. Pres. Doc. 10 (Jan. 21, 2009) ........................................................................................21 Office and Duties of the Attorney General, 6 Op. Att'y Gen. 326 (1854) ................8
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