Protect Democracy Project, Inc. v. U.S. Dep't of Justice

PROTECT DEMOCRACY PROJECT, INC., Plaintiff, v. U.S. DEPARTMENT OF JUSTICE et al., Defendants.

Civil Action No.: 20-172 (RC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

March 26, 2021

Re Document Nos.: 31, 34

MEMORANDUM OPINION

DEFERRING JUDGMENT ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

The Protect Democracy Project, a watchdog organization, seeks a memorandum describing legal advice that government lawyers gave the President's advisors about an airstrike against an Iranian general. To that end, the Project filed this Freedom of Information Act ("FOIA") lawsuit against the Department of Justice, the Department of Defense, and the Department of State (collectively, "the Government"). The Government refuses to give up the memo. It claims that the memo's contents are privileged. Without reviewing the memo, the Court cannot say whether that is the case. Accordingly, it will defer ruling on the parties' opposing summary judgment motions until it can review the memo in camera.

II. BACKGROUND

At the beginning of 2020, the United States conducted a drone strike in Iraq that killed Iranian General Qassem Soleimani. Pl.'s Statement of Undisputed Facts ("Pl.'s Statement") ¶ 6, ECF No. 34-4. Soleimani was the head of Iran's Quds Force, a component of the Revolutionary Guard responsible for foreign intelligence and paramilitary operations. Pl.'s Mot., Ex. C at 1. In that capacity, he reportedly engineered the deaths of hundreds of Americans in Iraq. Id.

The Administration sent mixed messages following the strike. President Trump and Secretary of State Mike Pompeo told reporters that Soleimani posed an imminent threat—likely to American embassies—and thus needed to be stopped. Pl.'s Statement ¶¶ 15, 20, 24-26, 30. But Secretary of Defense Mark Esper said that he had seen no evidence of a planned attack on U.S. embassies. Id. ¶ 27. And Attorney General William Barr described the "concept of imminence" as "something of a red herring." Id. ¶ 32. In addition, it turned out that President Trump had authorized the strike against Soleimani seven months earlier. Id. ¶ 29.

Nearly a month after the strike, the President sent a notice to Congress informing it of "a change in application of the existing legal and policy frameworks" governing the use of military force. Pl.'s Mot., Ex. V ("NDAA Notice") at 1, ECF No. 34-27; see also Pl.'s Mot., Ex. U ("NDAA Notice Letter"), ECF No. 34-26. The one-and-a-half-page notice said that the strike responded to an "escalating series of attacks in preceding months by Iran and Iran-backed militias on United States forces and interests in the Middle East region." NDAA Notice at 1. It explained that the strike was intended "to protect United States personnel, to deter Iran from conducting further attacks . . . , to degrade Iran's and Qods Force-backed militias' ability to conduct attacks, and to end Iran's strategic escalation of attacks on, and threats to United States interests." Id. Ultimately, the notice justified the strike under international law as self-defense and under domestic law as permitted by Article II and the 2002 Authorization for Use of Military Force Against Iraq ("2002 AUMF"). Id. at 1-2.

Over a month later, Defense Department General Counsel Paul Ney gave a speech on the strike at Brigham Young University Law School. The "aim" of the speech, Ney said, was "toexplain the international and domestic law underpinnings" of the strike. See Pl.'s Mot., Ex. X ("BYU Speech") at 1, ECF No. 34-29. He provided factual background on Soleimani and U.S. involvement in Iraq, id. at 2-4, described how the strike was legal under international law, id. at 4-6, and then outlined the legal bases for the strike under domestic constitutional and statutory law, id. at 6-8. Ney echoed the same "Bottom Line" as the President's notice to Congress: he asserted that the strike was self-defense under international law and grounded domestic authority for carrying it out in Article II and the 2002 AUMF. Id. at 1-2. The Department of Defense posted the speech on its website. See generally id.

Apparently displeased with the Administration's decision to act unilaterally against Soleimani, Congress passed a joint resolution purporting to prohibit further military action against Iranian forces without congressional approval. See Pl.'s Mot., Addendum A. It said, among other things, that no statute gave the President power to use military force against Iran. Id. President Trump vetoed the resolution. In an accompanying statement, he specifically rejected Congress's assertion that the strike lacked statutory authorization. See Pl.'s Mot., Ex. Y ("Veto Statement") at 2, ECF 34-30. He reiterated that he had the power to call for the strike under Article II and the 2002 AUMF. See id. at 2-3.

This litigation has its origins in the day after the strike. That day, the Project submitted a FOIA request to the Department of Justice, the Department of Defense, and the Department of State asking for a variety of records relating to the strike. Defs.' Statement of Material Facts ("Defs.' Statement") ¶ 1, ECF No. 38. After bringing suit against the agencies in an effort to compel disclosure, the Project eventually agreed to narrow its request to a single document: a memorandum written by attorneys at the Office of Legal Counsel in the Department of Justice (the "OLC Memo"). See id. ¶ 10. According to a member of that office ("OLC"), the documentmemorializes legal advice given to the President's national security advisors prior to the strike. Colborn Decl. ¶ 15, ECF No. 31-1. The Government argues it does not have to disclose the memo. See Defs.' Mem. Supp. Mot. Summ. J. ("Defs.' Mot."), ECF No. 31. Both sides now move for summary judgment. See id.; Pl.'s Mem. Supp. Mot. Summ. J. and Opp'n Defs.' Mot. Summ. J. ("Pl.'s Mot."), ECF No. 34-1.

III. LEGAL STANDARD

The Freedom of Information Act is meant "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)). It "thus mandates that an agency disclose records on request, unless they fall within one of nine exemptions." Milner v. Dep't of Navy, 562 U.S. 562, 565 (2011). Those exemptions reflect Congress's recognition that "public disclosure is not always in the public interest." ACLU v. U.S. Dep't of Def., 628 F.3d 612, 618 (D.C. Cir. 2011) (quoting CIA v. Sims, 471 U.S. 159, 167 (1985)). But because "disclosure, not secrecy, is the dominant objective of the Act," the exemptions "must be narrowly construed." Rose, 425 U.S. at 361. For the same reason, the Government "bears the burden of showing that a claimed exemption applies." See Elec. Frontier Found. v. U.S. Dep't of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014).

A court must grant a motion for summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Given that FOIA disputes usually involve the application of law to undisputed facts, they are "typically and appropriately" resolved on such motions. See Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); see also Judicial Watch, Inc. v. U.S. Dep't of Def., 245 F. Supp. 3d 19, 26 (D.D.C. 2017). The Government can earnsummary judgment only if it presents affidavits that "describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Elec. Frontier Found., 739 F.3d at 7 (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears 'logical' or 'plausible.'" Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007)).

IV. ANALYSIS

To avoid disclosing the OLC Memo, the Government invokes only one exemption: Exemption 5. Exemption 5 protects "inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552. It "simply incorporates civil discovery privileges" that the agency could assert in ordinary litigation. United States v. Weber Aircraft Corp., 465 U.S. 792, 799 (1984); see also Taxation With Representation Fund v. IRS, 646 F.2d 666, 676 (D.C. Cir. 1981). Applicable here, the Government argues, are the presidential communications, attorney-client, and deliberative process privileges. Defs.' Mot. at 5.

There is little doubt that at least the presidential communications privilege covers the OLC Memo. That privilege protects "communications made by presidential advisers in the course of preparing advice for the President," including those "which . . . advisers solicited and received from others." In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997). It "covers documents reflecting 'presidential decisionmaking and deliberations,' regardless of whether the documents are predecisional or not, and it covers the documents in their entirety." Loving v. Dep't of Def., 550 F.3d 32, 37-38 (D.C. Cir. 2008) (quoting In re Sealed Case, 121 F.3d at 744).

The OLC Memo fits that bill. John Eisenberg, Deputy Counsel to the President and Legal Adviser to the National Security Council, asked OLC to prepare the memo to memorialize advice the office had given the President and other senior officials prior to the strike. Colborn Decl. ¶ 15. That kind of advice is exactly the sort of communication the privilege is meant to shield. See, e.g., Protect Democracy Project, Inc. v. U.S. Dep't of Def., 320 F. Supp. 3d 162, 173 (D.D.C. 2018) ("[I]f the [National Security Council] Legal...