913 F.3d 1106
D.C. Cir.2019Background
- Judicial Watch sought five memoranda (from DOD, CIA, NSC, Joint Chiefs) memorializing legal advice relating to the 2011 operation that killed Osama bin Laden.
- Agencies withheld the memoranda under FOIA Exemptions 1 (classified national-security information), 3 (statutory protection for intelligence sources/methods), and 5 (privileged intra-/inter-agency communications, including presidential communications, deliberative process, and attorney-client privileges).
- Declarations explained the memoranda memorialized legal advice solicited and received by the President and his closest national security advisers and were kept confidential.
- The district court granted summary judgment to the government, applying Exemptions 1, 3, and 5 and denying Judicial Watch’s motion to amend after the government clarified timing issues about the memoranda.
- On appeal, Judicial Watch argued the government’s withholding permits “secret law” and challenged application of the presidential communications privilege, especially because the requests did not ask for presidential deliberations or specify when the memoranda were prepared.
- The D.C. Circuit reviewed de novo and affirmed, holding the presidential communications privilege under Exemption 5 protected the memoranda in full.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether memoranda are protected by the presidential communications privilege (Exemption 5) | Judicial Watch: timing/recipient uncertainty means documents are not presidential communications; request seeks memoranda, not presidential deliberations | Government: memoranda memorialize legal advice solicited and received by President and close advisers and thus reflect presidential decisionmaking | Court: privilege applies; documents reflect presidential deliberations and are protected in full |
| Whether FOIA Exemption 1 and Executive Order classification justify withholding | JW: did not contest classification argument on record | Govt: disclosures would harm national security; materials properly classified under EO 13,526 | Court: upheld Exemption 1 protection as supportive of nondisclosure (in conjunction with privilege) |
| Whether Exemption 3 (intelligence sources/methods) applies | JW: challenged secrecy and public oversight concern | Govt: materials implicate intelligence sources/methods protected by statute (National Security Act) | Court: upheld Exemption 3 protection as applicable alongside other privileges |
| Whether withholding results in unlawful "secret law" or requires narrower construction | JW: withholding allows governance by secret law and privilege must be narrowly construed; unanswered factual gaps require public disclosure | Govt: memoranda document advice, not binding legal rules; secrecy protects candid presidential decisionmaking | Court: rejected secret-law claim; memoranda do not establish binding law and privilege appropriately applied and construed |
Key Cases Cited
- United States v. Nixon, 418 U.S. 683 (1974) (recognizes need for confidentiality in presidential decisionmaking and a presumptive privilege)
- Nixon v. Administrator of General Services, 433 U.S. 425 (1977) (scope of presidential communications privilege tied to Office and functions of President)
- In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997) (presidential communications privilege covers advice solicited and received by President and immediate advisers)
- Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108 (D.C. Cir. 2004) (privilege protects documents solicited and received by President or immediate White House advisers but not all agency predecisional materials)
- Loving v. Dep’t of Defense, 550 F.3d 32 (D.C. Cir. 2008) (Exemption 5 covers presidential communications regardless of pre- or post-decisional label)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (describes scope of Exemption 5 and doctrines like secret law)
- CIA v. Sims, 471 U.S. 159 (1985) (Exemption 3 protects intelligence sources and methods)
- EPA v. Mink, 410 U.S. 73 (1973) (FOIA as a breakthrough for government transparency)
- FBI v. Abramson, 456 U.S. 615 (1982) (FOIA’s policy of broad disclosure and the existence of enumerated exemptions)