University of Michigan Law School
Civil Rights Litigation Clearinghouse
new search
page permalink
Case Name New York Times Co. v. United States Department of Justice NS-NY-0017
Docket / Court 1:11-cv-09336 ( S.D.N.Y. )
State/Territory New York
Case Type(s) National Security
Case Summary
On December 20, 2011, Charlie Savage, Scott Shane, and the New York Times (NYT) filed a Freedom of Information Act (FOIA) complaint in the United States District Court for the Southern District of New York against the United States Department of Justice (DOJ).

There had been controversy ... read more >
On December 20, 2011, Charlie Savage, Scott Shane, and the New York Times (NYT) filed a Freedom of Information Act (FOIA) complaint in the United States District Court for the Southern District of New York against the United States Department of Justice (DOJ).

There had been controversy and questions surrounding the legality of targeted killings since October 2001, when the Bush Administration had first contemplated whether covert lethal force could be used against people deemed to be al-Qaeda operatives. The debate rekindled when an Anwar al-Awlaki, an American citizen, was killed in Yemen on September 29, 2011. On September 30, 2011, the Washington Post had reported that the government had produced a “secret memorandum authorizing the legal targeting” of al-Awlaki. Both before and after the death of al-Awlaki, the NYT had filed FOIA requests seeking records regarding the government’s use of targeted lethal force. On June 11, 2010, Mr. Shane had submitted a FOIA request to DOJ seeking a copy of “all Office of Legal Counsel opinions or memoranda since 2001 that addresses the legal status of targeted killings, assassination, or killing of people suspected of ties to Al-Qaeda or other terrorist groups by employees or contractors of the United States government.” However, the DOJ had denied the FOIA request, maintaining that all responsive records were being withheld pursuant to FOIA exemptions. On October 7, 2011, Mr. Savage submitted a similar FOIA request and were denied for similar reasons.

In their complaint, the plaintiffs requested that the records requested by the NYT be declared public, or that the court conduct an in camera review to determine whether any parts of the memoranda are properly public under FOIA; that the DOJ provide the records; and that the court award the NYT attorneys’ fees and costs.

On June 20, 2012, the DOJ filed a motion for summary judgment, and on July 18, 2012, the NYT filed a cross-motion for summary judgment. On January 2, 2013, District Judge Colleen McMahon granted the DOJ’s motion for summary judgment and denied the NYT’s cross-motion (the court filed a corrected opinion on January 22, 2013 that corrected several grammatical and typographical errors; however, the corrected opinion was substantively identical to the original opinion). Judge McMahon stated that she found herself in a “a veritable Catch-22” and that she could not find any way “around the ticket 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 its conclusion a secret.” However, under the law, Judge McMahon found that the DOJ had not violated FOIA by refusing to turn over the documents sought in the FOIA requests and that their motion for summary judgment had to be granted. Nearly all of the documents located in response to the plaintiffs’ FOIA requests were classified, and the appropriate authorities from each of the responding agencies had filed affidavits; Judge McMahon found that there was no evidence suggesting that the proper procedures were not followed when these documents were classified. She noted that the DOJ had submitted additional material to the court for ex parte and for in camera review in support of its position; however, due to their classified nature, she filed a separate, classified appendix to her opinion, which was filed under seal and was not made available to the plaintiffs. 915 F.Supp.2d 508.

On January 31, 2013, the plaintiffs appealed Judge McMahon’s grant of summary judgment to the DOJ to the Court of Appeals for the Second Circuit. On April 21, 2014, the appeals court affirmed in part, reversed in part, and remanded. In particular, it found that the DOJ had improperly submitted a “no number, no list” response, which acknowledges the existence of documents responsive to a FOIA request but does not identify nor number them, to the NYT’s first FOIA request instead of submitting the usual “Vaughn index,” which numbers and identifies by title and description documents that are being withheld and specifies the FOIA exemptions asserted. Additionally, the appeals court found that the DOJ had insufficiently justified submitted a “Glomar response,” which neither confirms nor denies the existence of documents responsive to a FOIA request, in response to NYT’s second FOIA request. Therefore, the appeals court ordered that the DOJ submit a redacted version of a classified Vaughn index. 752 F.3d 123.

On June 23, 2014, the appeals court ordered that the DOJ disclose a 2010 document known as the “OLC-DOD Memorandum,” which was a legal opinion prepared by the Office of Legal Counsel (OLC) in the DOJ advising as to the legality of targeted drone attacks. The appeals court had found that prior disclosures by senior officials of the government had resulted in waiver of all applicable exemptions for protection of the OLC-DOD memorandum. 756 F.3d 100. On October 22, 2015, the appeals court ruled that the DOJ did not have to disclose other documents. 806 F.3d 682.

On February 29, 2016, the parties stipulated that the DOJ would pay the plaintiffs $100,000 in attorneys’ fees and litigation costs. The case is now closed.

Lisa Limb - 05/07/2019


compress summary

- click to show/hide ALL -
Issues and Causes of Action
click to show/hide detail
Issues
Content of Injunction
Required disclosure
Defendant-type
Jurisdiction-wide
General
Confidentiality
Record-keeping
Records Disclosure
Terrorism/Post 9-11 issues
Plaintiff Type
Public (for-profit) corporation
Causes of Action Freedom of Information Act (FOIA), 5 U.S.C. § 552
Defendant(s) U.S. Department of Justice
Plaintiff Description The New York Times and two of its reporters.
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer No
Nature of Relief Attorneys fees
Injunction / Injunctive-like Settlement
Source of Relief Litigation
Filing Year 2011
Case Closing Year 2016
Case Ongoing No
Additional Resources
click to show/hide detail
  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
Docket(s)
11-cv-9336 (S.D.N.Y.)
NS-NY-0017-9000.pdf | Detail
Date: 05/23/2016
Source: PACER [Public Access to Court Electronic Records]
General Documents
Memorandum for the Attorney General [Re: Lethal Operation Against Shaykh Anwar Aulaqi]
NS-NY-0017-0005.pdf | External Link | Detail
Date: 02/19/2010
Memorandum for the Attorney General [Re: Lethal Operation Against Shaykh Anwar Aulaqi]
NS-NY-0017-0010.pdf | External Link | Detail
Date: 02/19/2010
Complaint [ECF# 1]
NS-NY-0017-0001.pdf | Detail
Date: 12/20/2011
Source: PACER [Public Access to Court Electronic Records]
Corrected Opinion Granting the Government's Motion for Summary Judgment and Denying Plaintiffs' Cross Motion for Summary Judgment [ECF# 33] (915 F.Supp.2d 508) (S.D.N.Y.)
NS-NY-0017-0002.pdf | WESTLAW| LEXIS | Detail
Date: 01/03/2013
Source: Bloomberg Law
Decision and Order [ECF# 34] (2013 WL 238928) (S.D.N.Y.)
NS-NY-0017-0003.pdf | WESTLAW | Detail
Date: 01/22/2013
Source: PACER [Public Access to Court Electronic Records]
Opinion [Ct. of App. ECF# 205] (752 F.3d 123)
NS-NY-0017-0004.pdf | WESTLAW| LEXIS | Detail
Date: 04/21/2014
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 43] (S.D.N.Y.)
NS-NY-0017-0006.pdf | Detail
Date: 06/30/2014
Source: PACER [Public Access to Court Electronic Records]
Opinion [Ct. of App. ECF# 239] (758 F.3d 436)
NS-NY-0017-0007.pdf | WESTLAW| LEXIS | Detail
Date: 07/10/2014
Source: PACER [Public Access to Court Electronic Records]
Opinion [Ct. of App. ECF# 137] (806 F.3d 682)
NS-NY-0017-0008.pdf | WESTLAW| LEXIS | Detail
Date: 10/22/2015
Source: PACER [Public Access to Court Electronic Records]
Revised Decision on Remand with Respect to Issue [ECF# 61] (S.D.N.Y.)
NS-NY-0017-0009.pdf | Detail
Date: 05/23/2016
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges McMahon, Colleen (S.D.N.Y.) show/hide docs
NS-NY-0017-0002 | NS-NY-0017-0003 | NS-NY-0017-0006 | NS-NY-0017-0009 | NS-NY-0017-9000
Newman, Jon Ormond (D. Conn., Second Circuit) show/hide docs
NS-NY-0017-0004 | NS-NY-0017-0007 | NS-NY-0017-0008
Plaintiff's Lawyers McCraw, David E (New York) show/hide docs
NS-NY-0017-0001 | NS-NY-0017-9000
Defendant's Lawyers Barron, David Jeremiah (Massachusetts) show/hide docs
NS-NY-0017-0005 | NS-NY-0017-0010
Normand, Sarah Sheive (New York) show/hide docs
NS-NY-0017-9000

- click to show/hide ALL -

new search
page permalink

- top of page -