Reporters Committee urges appeals court to reaffirm judiciary’s oversight of Executive Branch classification

The judiciary has a congressionally mandated responsibility to serve as a check on Executive Branch overclassification and, as such, should review and order the disclosure of memos detailing federal policy on drone strikes against U.S. citizens, the Reporters Committee for Freedom of the Press and 37 media organizations argued in a friend-of-the-court brief filed today.

“This case is fundamentally about the amount of information the government must make public when it prescribes rules on whether and how it can use lethal force against U.S. citizens,” the amicus brief argued. “In the face of the Executive Branch’s failure to disclose the documents at issue here, FOIA instructs the judiciary to serve as the check against excessive or unlawful classification decisions.”

The brief pointed out that there has been a 40 percent increase in the use of Exemption 1 (national security or foreign policy) in denying Freedom of Information Act requests since 2010. “Through its amendments to FOIA in 1974, Congress sought to reign in Executive Branch overclassification by requiring courts to scrutinize whether agencies have properly classified documents they withhold under Exemption 1,” the brief explained.

In New York Times v. Dept. of Justice before the U.S. Court of Appeals (2nd Cir.), The New York Times and American Civil Liberties Union are seeking to overturn a District Court ruling for summary judgment in favor of the government that deferred to the Executive Branch’s decision regarding classification. The Times and the ACLU have requested copies of memos from the Department of Justice Office of Legal Counsel explaining the legal issues involved in the use of drones against U.S. citizens.

“Under FOIA, the judiciary plays a crucial independent role in assessing administration claims about national security to avoid the kind of rubber-stamp classification agreement we’re seeing in this case,” said Reporters Committee Executive Director Bruce D. Brown. “With anywhere from 50-to-90 percent of material admittedly overclassified, and classification decisions jumping from 16 million in 1980 to 90 million in 2011, the need for a check on the system is crucial.

“The issue of drone attacks against U.S. citizens is literally a matter of life-and-death, and the legal basis for such decisions must be open to public scrutiny,” Brown added. “It’s what Congress intended and what our open government demands.”

In October, the Reporters Committee and 32 media organizations filed a similar brief in the U.S. Court of Appeals in Washington, D.C., although in the case of Center for International Environmental Law v. Office of the United States Trade Representative the Reporters Committee asked the appeals panel to uphold the trial court’s decision that the judiciary has the right to review classification decisions.

About the Reporters Committee:

Founded in 1970, the Reporters Committee for Freedom of the Press offers free legal support to thousands of working journalists and media lawyers each year. It is a leader in the fight against persistent efforts by government officials to impede the release of public information, whether by withholding documents or threatening reporters with jail. In addition to its 24/7 Legal Defense Hotline, the Reporters Committee conducts cutting-edge legal research, publishes handbooks and guides on media law issues, files frequent friend-of-the-court legal briefs and offers challenging fellowships and internships for young lawyers and journalists. For more information, go to www.rcfp.org, or follow us on Twitter @rcfp.

Related Reporters Committee resources:

· Release: Reporters Committee asks court to uphold judicial scrutiny of federal FOIA denials

· Brief: NYT v. DOJ, No. 13-422