The Administration’s Non-Appeal Appeal on the Awlaki Memo

The Administration has informed the 2nd Circuit it won’t appeal its order to release the Anwar al-Awlaki memo. (h/t Mike Scarcella)

But it is going to ask nicely that the Circuit reconsider some of its instructions on redactions.

Granted, we knew they were going to try to hide that CIA conducts the drone killing, and some other details (perhaps even that the drone killing happened in Yemen).

But they insist on doing this ex parte.

The government does not intend to seek further review of the Court’s ruling that the OLC-DOD Memorandum may not be withheld in full under the Freedom of Information Act (“FOIA”). The government does intend, however, to seek panel rehearing, and alternatively, rehearing en banc, with respect to certain parts of the Court’s opinion and its proposed redactions.


The government intends to seek rehearing to protect certain information in the Court’s opinion, the Court-redacted version of the OLC-DOD Memorandum, and the OLC classified Vaughn index ordered disclosed by the Court. In the government’s view, that information is properly classified, protected from disclosure by statute, and/or privileged, and therefore exempt under FOIA Exemptions 1, 3, and/or 5, 5 U.S.C. § 552(b)(1), (3), and/or (5), even if the OLC-DOD Memorandum cannot be withheld in its entirety under FOIA. Some of the information appears to have been ordered disclosed based on inadvertence or mistake, or is subject to distinct exemption claims or other legal protections that have never been judicially considered.

Of course, the Administration got David Barron confirmed before this was resolved (that was naive response from Mark Udall and Ron Wyden, in my opinion — I wouldn’t trust the Administration’s word after this!).

And now they’re going to make a secret bid to keep the jist of the report (likely everything that hasn’t already been published in the white paper) secret.

6 replies
  1. wallace says:

    quote”And now they’re going to make a secret bid to keep the jist of the report (likely everything that hasn’t already been published in the white paper) secret.”unquote

    Nawww..really? Shades of.. if their lips are moving. whudda thunk. The government lies. My goodness gracious. What’s this world coming to? Next they’ll be asking us to believe the world is flat.

  2. john francis lee says:

    ‘… that was naive response from Mark Udall and Ron Wyden, in my opinion — I wouldn’t trust the Administration’s word after this! …’
    You would have before though. Right.
    This was obviously an orchestrated performance to allow stooges Udall and Wyden to take cover.
    And you helped.
    “If people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure we’re abiding by the Constitution, then we’re going to have some problems here.” —Barack Obama
    The entire government is utterly corrupt. We need to build a new one.

    That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,
    That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

  3. Stephen says:

    I was surprised by the votes of Wyden and Udall as well. Such naivete on their part on this particular issue does make you wonder on whether that also plays a role on the nature of the oversight the intelligence committee both are on is able to exert on the intelligence agencies. In particular, there was Feinstein’s revelation during that 40-minute speech of hers on the torture investigation that she had given in to the CIA on them using CIA-provided computers only to wind up being betrayed.

    Given that sort background, Wyden and Udall, more than others, should have been more wary of the Administration long before this and cast their votes on this particular occasion accordingly. That they chose instead to play the loyal party stalwarts is not just unfortunate. It makes one wonder just what exactly does go on inside that Senate intelligence committee.

  4. wallace says:

    OMG. I can’t believe it. Finally, a DOJ Assistant US Attorney admits it..

    quote”I am an Assistant United States Attorney in the office of Preet Bharara, United States Attorney for the Southern District of New York, attorney for defendants -appellees the Department of Justice, the Department of Defense, and the Central Intelligence Agency (collectively, the “government”)”unquote

    Shades of Jim Garrison’s assessment of the CIA, DOD, and DOJ.. …as BEING our government. Well now we have the evidence in a legal document.

    quote”our Government is the CIA and the Pentagon, with Congress reduced to a debating society… We won’t build Dachaus and Auschwitzes; the clever manipulation of the mass media is creating a concentration camp of the mind that promises to be far more effective in keeping the populace in line … I’ve learned enough about the machinations of the CIA in the past year to know that this is no longer the dream world America I once believed in … Huey Long once said, “Fascism will come to America in the name of anti-fascism.” I’m afraid, based on my own experience, that fascism will come to America in the name of national security.”unquote

    Indeed. Facisim will come to America in the name of… “national security”.

    Whudda thunk.

Comments are closed.