Court slaps down effort to FOIA Obama’s list of drone targets

Records from the president’s National Security Council (NSC) are not subject to the Freedom of Information Act (FOIA), the Second Circuit Court of Appeals ruled on Tuesday. 

The court denied an appeal from a group at the City University of New York School of Law, which was seeking records from all National Security Council meetings in 2011 and all records related to U.S. targeted drone strikes. 

{mosads}The three-judge panel concluded that the NSC is not subject to open records laws because its sole function is to advise the president and it has no independent authority — a key requirement for being subject to FOIA requests. 

“This structure confirms that the Council is more appropriately viewed as a forum attended by actors exercising independent authority within their respective spheres, not an actor itself, much less one exercising authority independent of the President,” Judge Reena Raggi wrote in the 69-page opinion. 

The NSC was set up in 1947 to advise the president on national security and foreign policy. The president leads the council, which is made up of other officials like the vice president, the secretaries of State, Defense and Treasury, the director of the CIA and other advisers. 

Tuesday’s ruling upholds decades of precedent. For nearly 20 years, the separate U.S. Appeals Court for the D.C. Circuit has held the the council is not subject to open records laws. 

“In the almost twenty years since the D.C. Circuit held the NSC not to be an agency subject to the FOIA, Congress has made no effort to reverse that decision,” the judge wrote. 

Main Street, the university group that brought the suite, argued that the council wields an increasing amount of authority, and is thus subject to the open records law. The group pointed to the NSC’s maintaining of the drone target list. It also cited records from 2004 that appeared to show the NSC authorizing the CIA to use “enhanced interrogation techniques” on one detainee. 

The court found, however, that the documents did not show that the NSC has drone authority outside the president. It also said it was plausible that the NSC was simply communicating the president’s policies on enhanced interrogation. 

“Accordingly, the actions Main Street attributes to the NSC System do not raise a plausible inference of independent authority so as to make the NSC an agency subject to the FOIA,” the court ruled.