Evidentiary Privileges Protect DoJ Legal Memo Allegedly Supporting U.S. Targeted Killings 2

In an opinion issued on January 2, 2013, Judge Colleen McMahon of the U.S. District Court for the Southern District of New York ruled that the Justice Department may withhold from disclosure a legal memorandum prepared for Attorney General Eric Holder that allegedly provided legal support for a U.S. program targeting terrorists, including U.S.

Staff Legal Memo to Attorney General Holder Privileged from FOIA Request

Staff Legal Memo to Attorney General Holder Privileged from FOIA Request

citizens, for assassination.  Judge McMahon held that the attorney-client and deliberative process privileges prevent disclosure even though several senior executive officials publicly commented on the strong legal authority supporting the program.  But Judge McMahon’s ruling, with citations ranging from the Federalist Papers to the Magna Charta, seriously questioned “the legality of killings unilaterally authorized by the Executive that take place otherwise than on a ‘hot’ field of battle.” The New York Times Co. v. U.S. Dep’t of Justice, 2013 WL 20543 (S.D.N.Y. Jan. 2, 2013).  Here is a link to the Court’s opinion.

FOIA Requests

The case arises from FOIA requests by two New York Times reporters and the ACLU.  These requests essentially sought documents containing the legal justification for the Obama Administration’s decision that the U.S. Government may lawfully target for killing persons, including U.S. citizens, suspected of having ties to al Qaeda or other terrorists groups.

The broad requests were effectively reduced to two legal memoranda.  The first was a legal memorandum prepared for Attorney General Eric Holder by the Justice Department’s Office of Legal Counsel (OLC).  According to DoJ, the memo contained “confidential legal advice to the Attorney General, for his use in interagency deliberations, regarding a potential military operation in a foreign country.” The second memo was from Legal Counsel to the Joint Chiefs of Staff to the National Security Advisor Legal Advisor containing legal advice regarding the effect of U.S. citizenship on targeting enemy belligerents.

Public Comments Constitute Waiver?

The Times and ACLU conceded these memoranda were privileged under the deliberative process privilege and the attorney-client privilege.  But they argued that the Government had waived these privileges due to senior executive-branch officials’ public comments on the legal basis underlying the Government’s ability to target off-the-battlefield individuals, including U.S. citizens.

The Times and ACLU cited a plethora of comments by high-level executive-branch officials, including President Obama’s comments in the Google Hangout online forum and to Jay Leno during his October 25, 2011 appearance on the Tonight Show.  In speaking with Leno, President Obama stated that U.S. citizen Anwar Al-Awlaki “was probably the most important al Qaeda threat that was out there after bin Laden was taken out, and it was important that, working with the Yemenis, we were able to remove him from the field.”

The most explicit comments, however, came from Attorney General Eric Holder during a March 5, 2012 speech he gave at the Northwestern University School of Law.  In this speech, General Holder discussed at length the legal justifications for the Government’s ability to use lethal force in a foreign country against a U.S. citizen associated with al Qaeda and actively planning to kill Americans.

Law and Order

The court correctly held that the Government waives the deliberative process privilege only when a predecisional document has been adopted as a final policy.  And the adoption of a predecisional document such as a legal memorandum occurs only where the agency expressly adopts or incorporates it as a final opinion.

The court acknowledged that the various public statements clearly reference a legal opinion that was “performed by someone for someone.”  But the court correctly observed that none of the statements specifically referenced the OLC legal memorandum.

President Obama talks with the Tonight Show's Jay Leno on October 25, 2011

President Obama talks with the Tonight Show’s Jay Leno on October 25, 2011

  The Times and ACLU had nothing more than speculation that the legal analysis referenced by Attorney General Holder and others was set forth in the OLC memorandum.  And for this reason, the court held that the Government did not waive its deliberative process privilege because it neither adopted nor incorporated by reference the OLC memorandum.  The OLC memo is privileged and not subject to the Times and ACLU’s FOIA request.

As for the Joint Chiefs of Staff legal memorandum, the court reserved judgment because the Government’s supporting affidavit contained nothing more than conclusory statements that the document was predecisional and deliberative. The court declined to uphold the privilege based on these conclusory statements but provided the Government with another opportunity to correct this proof with a supplement declaration.  A ruling on this memo awaits another day.

Judge Questions Legal Authority for U.S. Targeted Killings outside the Battlefield

Although ruling that evidentiary privileges preclude disclosure of a legal memorandum that may support the U.S. program of targeting terrorists, including U.S. citizens, for killing, Judge McMahon questioned the underlying issue—whether a legal basis actually exists for the Executive Branch to authorize unilateral killings of alleged terrorists, including U.S. citizens, outside the confines of a  battlefield.

Judge McMahon, citing James Madison and French philosopher Montesquieu, noted the Founders’ tyrannical fear of placing executive and judicial power in a single individual or institution.  The judge rejected the Hamiltonian view of due process as limited to the judicial branch, and stated that the Constitutional due process right, emanating from the Magna Charta’s “by the law of the land” provision, requires the government to give notice of a proposed action and opportunity to be heard before imposing an adverse action.

Judge McMahon, citing the hundreds of thousands of American citizen deaths during the Civil War, conceded that these due process requirements do not apply to combatants actively engaged in armed combat against the United States.  But she countered that the 2011 killings of U.S. citizens Anwar Al-Awlaki, his son, Abdulrahman Al-Awlaki, and Samir Khan, were hundreds of miles away from any battlefield.  The court observed that the activities in which these three were alleged to have engaged constituted treason, but that “the Founders contemplated that traitors would be dealt with by the courts of law, not by unilateral action of the Executive.”

Acknowledging that the matter is not “straightforward,” the court stated that “there are indeed legitimate reasons, historical and legal, to question the legality of killings unilaterally authorized by the Executive that take place otherwise than on a ‘hot’ field of battle.  The judge sympathized with the Times and the ACLU and would clearly prefer the DoJ’s legal basis for the program be publicly disclosed to “allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated.” The court lamented the “Alice-in-Wonderland” nature of her ruling, stating:

I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.

Court Expands Mental Process Privilege for Administrative Law Judges

The Iowa Supreme Court, deciding an issue of first impression, ruled that the mental process privilege applies to administrative law judges under investigation by the State’s Ombudsman’s office. The decision, issued in Office of Citizens’ Aide/Ombudsman v. Edwards, 2012 WL 6217027 (Iowa Dec. 14, 2012), which can be accessed here, expands the mental process privilege for administrative law judges.

Mental Process Privilege

The mental process privilege protects from compelled disclosure the deliberative or mental processes of individuals, most notably administrative law judges, acting in a quasi-judicial capacity.  The privilege’s basis arises from the idea that individuals

Iowa expands mental process privilege

making administrative adjudications must be able to render independent decisions free from external and internal pressures.  And permitting compelled disclosure of an ALJ’s thought processes behind a decision would thwart that concept.  See United States v. Morgan, 313 U.S. 409 (1941); Grant v. Shalala, 989 F.2d 1332 (CTA3 1993) (Alito, J.).  Most courts hold that the privilege is qualified, meaning that it may be overcome upon a sufficient showing of need.

Facts

Iowa maintains an Ombudsman’s Office that serves as a watchdog for administrative agencies.  The Ombudsman’s Office opened an investigation into a prisoner-disciplinary decision rendered by an ALJ for the Iowa Department of Corrections (IODC).  The Ombudsman’s Office subpoenaed the ALJ to provide deposition testimony regarding the basis for her decision, but she refused citing the mental process privilege adopted in State ex rel Miller v. DeCoster, 608 N.W.2d 785 (Iowa 2000).

Ruling

The Ombudsman’s Office argued that the mental process privilege applies only in judicial proceedings and does not extend to investigations into an ALJ’s conduct.  The Iowa Supreme Court disagreed and extended the privilege to administrative investigations so long as the ALJ was acting in a quasi-judicial capacity.  The test whether an administrator functions in a quasi-judicial capacity involves determining (1) whether the questioned act involves a proceeding that requires notice and opportunity to be heard, or (2) whether the administrator determines the parties’ rights by exercising discretion in finding facts and applying the law to those facts.

Here, the IODC ALJ met those conditions, and the Court ruled that the mental process privilege applies during an Ombudsman’s investigation into her conduct.  So, while the Ombudsman may inquire at deposition into procedural steps regarding the questionable decision, he may not inquire into the ALJ’s mental processes behind that decision.

The Court also held that the mental process privilege is qualified.  The party seeking to overcome the privilege must make a “strong showing” of bad faith or improper behavior by the ALJ.  And while the burden does not require the party to conclusively prove bad faith or improper behavior, bare allegations and conclusory statements are insufficient.

Relation to Deliberative Process Privilege and Judicial Deliberative Privilege

The mental process privilege is more akin to deliberative process privilege but is related to the judicial deliberative privilege.  The deliberative process privilege protects from compelled disclosure an administrative agency’s deliberative materials created as part of the agency’s decision-making process.  Like the mental process privilege, the deliberative process privilege is qualified and may be overcome upon a showing of need that outweighs the agency’s need for confidentiality.  See an earlier PoP post analyzing a New Mexico Supreme Court decision on the deliberative process privilege.

The judicial deliberative privilege protects a judge’s mental processes and deliberative thoughts.  This privilege, unlike the mental process privilege, is absolute, not qualified, meaning that once established it cannot be invaded regardless of the level of need.  For a review of the judicial deliberative privilege, see an earlier PoP post discussing the privilege and its recent adoption by the Massachusetts Supreme Court.

Major Decision on Subject Matter Waiver Doctrine 3

In a major decision concerning privilege waiver, the Illinois Supreme Court, in Center Partners, LTD v. Growth Head GP, LLC, ruled that the subject matter waiver doctrine does not apply to privileged communications disclosed in an extrajudicial context.  The Court’s decision, which can be accessed here, answered a question of first impression in Illinois and will serve as influential authority when other states consider the scope of subject matter waiver.

Question at Issue

The precise question before the Court was whether, as a matter of law, the subject matter waiver doctrine applies to the disclosure of privileged information made outside of a litigation or judicial setting (an extrajudicial setting).

Illinois Supreme Court

Illinois Supreme Court

Where a privileged communication is voluntarily disclosed, the subject matter waiver doctrine extends this waiver to all other communications pertaining to the same subject matter.  The purpose of the doctrine is to prevent a party from selectively disclosing favorable information while simultaneously withholding unfavorable information under the cloak of privilege. The question in Center Partners was whether the subject matter doctrine, and its underlying purpose, should apply in non-litigation contexts.

Facts of Case

The Center Partners case involved a complicated business transaction.  In short, three companies negotiated the purchase of  Rodamco North America, N.V., including the General Partner of one of Rodamco’s holdings.  During the purchase negotiations, the purchasing entities and their lawyers exchanged privileged information concerning the legal implications of the transaction, rights and obligations of the parties to the transaction, and legal concerns and conclusions about the structure of a new partnership agreement.  A couple of years after the transaction was complete, a group of minority limited partners sued for breach of contractual and fiduciary duties, and sought all communications actually disclosed between the purchasing entities and all privileged, non-disclosed communications concerning the same subject matter.

Court’s Ruling

In an issue of first impression in Illinois, the Court ruled that the subject matter waiver doctrine does not apply where privileged communications are disclosed in an extrajudicial setting. The Court based its decision in large part on the doctrine’s underlying purpose.  The purpose is to prevent a party from using an evidentiary privilege offensively (sword) to disclose favorable information and later defensively (shield) to withold unfavorable information pertaining to the same subject matter.

The Court reasonsed that, outside the litigation context, parties generally do not decide to disclose privileged information for sword and shield purposes.  In many non-litigation settings, such as business transactions, parties disclose privileged information before litigation is initiated or even contemplated.  And expanding the subject matter waiver doctrine to non-litigation contexts would produce a perverse result: parties may “leave attorneys out of commercial negotiations for fear that their inclusion would later force wholesale disclosure of confidential information.” Consequently, the Court found that the purpose of the subject matter waiver doctrine is simply not served by expanding it to non-litigation contexts.

The Court placed one limitation on its ruling.  It stated that, if a disclosure is made during a business negotiation to gain a later tactical advantage in anticipated litigation, then the subject matter waiver doctrine would still apply if such a disclosure is later used by the disclosing party at any point during the litigation to gain a tactical advantage.

PoP Analysis

Most states have not addressed the issue whether the subject matter waiver doctrine applies in extrajudicial contexts, and this area of evidentiary privileges needs more development.  The Illinois Supreme Court’s decision in Center Partners is based on sound reasoning and will likely serve as persuasive authority when the issue arises in other states.  And while the decision was made in the non-litigation context of business transactions, it will likely serve as persuasive authority for disclosures made in other non-litigation contexts such as disclosures made during settlement negotiations, government investigations, regulatory compliance filings, or for public relations/media purposes.  For a more detailed analysis of these issues, see an earlier PoP post recommending an IADC article by Andrew Kopon and M.C. Sungaila.