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Lawsuit seeks to restore FOIA access to NSC records

A legal clinic seeking information on the U.S. Government's use of drone strikes and "kill lists" in the war on terror is mounting a headlong drive to restore the Freedom of Information Act's reach into the White House.

For decades, the core federal transparency law had some—albeit limited—purchase in the White House. At least some National Security Council records could be obtained through FOIA, along with some administrative records relating to White House operations.

The window to access NSC records through FOIA slammed shut in 1994, during President Bill Clinton's tenure, and was nailed shut by the D.C. Circuit in a 2-1 ruling in 1996.

Now, President Barack Obama's administration is fighting an effort to pry that window open again. In a lawsuit filed in federal court in Brooklyn, N.Y., lawyers and law students connected with the City University of New York are arguing that the "day has come" for the courts to revisit the question of whether the NSC should be subject to FOIA.

The CUNY clinic's lawsuit argues, in essence, that the 1996 D.C. Circuit case—Armstrong v. Executive Office of the President—was wrongly decided. Lawyers Ramzi Kassem and Douglas Cox contend that the NSC is clearly making life-and-death decisions independent of Obama, defying the central tenet of the D.C. Circuit ruling that the council's sole function is to advise and assist the president.

"The Executive has also officially acknowledged that the NSC is at the center of the decisions to kill U.S. citizens and foreign nationals in drone strikes without judicial process," Kassem, Cox and their students write in a recent brief (posted here). "While Congress placed the President at the head of the core NSC, the NSC/NSS [National Security Staff] system...consists of multiple layers of entities of decreasing proximity to the President performing policy formation and decision-making in the absence of, and independently from, the President."

Justice Department lawyers have argued that letting FOIA shine in on the NSC would diminish the value of presidential advice.

"The constitutional dimension of the President’s right to confidential communications is well settled," DOJ trial counsel Judson Littleton wrote in a recent brief (posted here). "The potential for interference with the President’s core constitutional functions by subjecting purely advisory entities to FOIA is evident. Simply knowing that such communications could be subjected to disclosure under FOIA could cause members of the President’s NSC to 'temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.'"

Littleton also noted that the CUNY clinic sought not just NSC records on drone strikes, but all NSC minutes from 2011.

"Requiring the NSC to even respond to such a FOIA request—by searching, processing responsive records for exemptions, and subjecting to de novo judicial review its withholding determinations—would represent a substantial intrusion on the President’s fulfillment of his core constitutional functions with the assistance of his closest advisors," DOJ argued.

Of course, the plaintiffs argue that the NSC isn't really—or isn't always—acting in an advisory capacity when it tackles issues line drone strikes.

The suit, filed in February, has been assigned to U.S. District Court Judge Eric Vitaliano, a former Democratic member of the New York Assembly who was appointed to the federal bench by President George W. Bush. The NSC, through the Justice Department, moved to dismiss the case in June. That motion is pending.

While the D.C. Circuit ruling effectively ended FOIA access to the NSC, technically that decision is not binding on FOIA lawsuits filed outside D.C. By filing in New York, any appeal of Vitaliano's ultimate ruling on the case would go to the Manhattan-based 2nd Circuit, which would be free to disagree with the D.C. Circuit ruling or deem it outmoded. Such a circuit split could lead to a Supreme Court showdown on the issue, which the then-justices passed up in 1997.

Blocking access to NSC records under FOIA doesn't preclude all public access to them, just timely access. As presidential records, NSC files become available—at least in theory—five to 12 years after a president leaves office, subject to classification review for national security or diplomatic sensitivities.

Despite Obama's oft-cited pledge to run the most transparent administration in U.S. history, the NSC has been very parsimonious about allowing access to its records. A POLITICO request sent to the Pentagon in 2010 for information on the membership of various NSC committees was delayed for a a couple of years and then rejected in full—at the direction of the NSC.