POTUS Communications Privilege Protects Legal Memos on bin Laden Raid

On May 1, 2011, Navy SEAL Team Six entered Pakastani airspace, raided Osama bin Laden’s Abbottabad compound, killed the mastermind of the September 11 Attacks, and buried his body at sea.  For a discussion about the raid, watch this interview with the primary trigger man, Navy SEAL Rob O’Neill.

President Obama authorized the military mission and watched the raid unfold via monitors in the White House Situation Room.  But before the president made the decision, he relied upon a variety of legal opinions about the mission, including five memoranda on violation of Pakastani sovereignty, raiding with an intention to kill bin Laden, duty to alert congressional leaders, plans for bin Laden in the event of his capture, and burial options.  Lawyers for the Pentagon, CIA, NSC, and the Joint Chiefs of Staff authored these memoranda.

Judicial Watch, which describes itself as “a conservative, non-partisan educational foundation” that “promotes transparency, accountability and integrity in government, politics and the law,” made a FOIA request to the DoD and CIA seeking documents and communications from government lawyers regarding the authority, analysis, opinions, and conclusions for the raid and killing of Osama bin Laden. More…

Court Imposes Strict Privilege-Log Standards for Deliberative Process Privilege

As discussed in an earlier post, courts are increasingly finding privilege waiver when a party either fails to submit a privilege log or submits an insufficient one.  And a Delaware court has now elevated the privilege-log requirements when a governmental agency asserts the deliberative process privilege.  State Dep’t of Transp. v. Figg Bridge Engineers, Inc., 2013 WL 5365384 (Del. Super. Ct. Aug. 13, 2013). You may access the opinion here.

In Figg, the Delaware DepartmentSlide1 of Transportation asserted the deliberative process privilege in an effort to preclude production of a retained investigator’s analysis of a bridge-embankment failure.  In a ruling profiled in an earlier post, the court refused to recognize the deliberative process privilege.  But the court nevertheless scolded the government agency for its insufficient privilege log.

The Figg court stated that privilege logs must include sufficiently detailed descriptions “so that someone can actually assess whether it makes sense to challenge the document.”  For the deliberative process privilege, it must include—

  1.  The date of each communication;
  2. The parties to the communication, including both names and positions;
  3. The attorneys involved; and
  4. The subject matter of each communique sufficient to show why the privilege is warranted, as well as whether it pertains to the decision or decisions in question, including the facts to bring each document within the narrow reach of the privilege.

The court stated that, in essence, the privilege log must contain information to show that each document is “both pre-decisional and deliberative.”  In other words, the government agency’s privilege log must include enough information to allow the court to determine how each document fits into the deliberative process.  Boilerplate language and conclusory statements do not meet these strict requirements.

The Department of Transportation included dates and descriptions of the putatively privileged documents, with the descriptions including “analysis of,” “analysis of embankment failure report,” “discussion of,” “notes and handouts,” “draft of,” and “notes of.”  The court found these descriptions inadequate because they did not provide sufficient detail or explanation to identify the deliberative material.  And the court emphasized that the government agency must provide a sufficient description for each document, suggesting that the agency lacked good faith because it cut and paste some of the privilege-log entries.

Answer to Relatively Novel Question: Lack of Diligence in Retrieving Inadvertently Disclosed Documents Waives Deliberative Process Privilege

The U.S. Federal Court of Claims recently decided a “relatively novel question: whether a lack of diligence in asserting the deliberative process privilege to claw back previously disclosed documents can serve as a waiver of that privilege.”  In Sikorsky Aircraft Corp. v. United States, 2012 WL 4018026 (Ct. Cl. Sept. 13, 2012), the U.S. government claimed that Sikorsky violated federal regulations by improperly allocating overhead costs to government contracts. On February 17, 2011, the government inadvertently produced an email string between an auditor and his superior at the Defense Contracting Auditing Agency (DCAA). The auditor was questioned without objection during his deposition on June 20, 2011, but at the end of the deposition the government’s lawyer stated that the email string may be subject to the deliberative process privilege.  Despite this statement, the government did not formally assert the privilege until May 14, 2012–fifteen months after the email string was produced.

The court first decided that, although some courts hold otherwise, invocation of the deliberative process privilege is subject to a timeliness requirement.  The court reasoned that the privilege may be waived for other reasons, such as placing a portion of the material at issue, and there was no basis for refraining from extending the waiver to “instances of indiligence, indolence, or dawdling.”  But the court limited the timeliness waiver to the deliberative process privilege branch of the executive privilege, and indicated that a timeliness waiver may not apply to chief-executive communications, military secrets, and intelligence reports.

The court next outlined the criteria courts should apply in determining when an inadvertent disclosure constitutes a waiver.  Finding no binding precedent, the court studied Federal Rule of Evidence 502 and prior inadvertent disclosure decisions for other evidentiary privileges.  The court held that Rule 502’s inadvertent disclosure criteria should apply to inadvertent disclosures of materials subject to the deliberative process privilege.  Under this criteria, a disclosure of information protected by the deliberative process privilege will not constitute a waiver if (1) the disclosure was inadvertent; (2) the privilege’s holder took reasonable steps to prevent disclosure in the first instance; and (3) the holder promptly took reasonable steps to rectify the error.  And in this case, the court ruled that the government’s fifteen-month delay in asserting the privilege was not prompt and that the deliberative process privilege was waived.

PoP Analysis.  In an area lacking definitive authority, the Sikorsky opinion serves as persuasive authority that government agencies must assert the deliberative process privilege in a timely manner.  And the criteria to determine waiver of the privilege through inadvertent disclosure is Federal Rule of Evidence 502.  While the timeliness requirement likely will not apply to other branches of the executive privilege, most notably the presidential or chief-executive communications privilege, government lawyers must maintain diligence when protecting deliberative and pre-decisional documents protected by the deliberative process privilege.

The Sikorsky opinion is also helpful to practitioners in need of a succinct summary of the deliberative process privilege, including the substantive criteria and the procedure for invoking the privilege.  While some state courts, most recently New Mexico, refuse to recognize a deliberative process privilege, many states have not decided the issue.  And those states looking for guidance in making the decision should look to Sikorsky as authority for the substantive scope and procedural requirements for successfully asserting the privilege.