DoJ White Paper Released as a Matter of “Discretion”

Updated below

Late Friday afternoon, the Department of Justice released an official copy of its White Paper on lethal targeting of Americans to Freedom of Information Act requesters, including FAS and Truthout.org, several days after it had been leaked to the press.

The official version appears to be identical to the document posted by NBC News, except that it contains a notation on the first page stating “Draft November 8, 2011.” (It also lacks the heavy-handed NBC watermark.)

“The Department has determined that the document responsive to your request is appropriate for release as a matter of agency discretion,” wrote Melanie Ann Pustay, director of the Office of Information Policy at the Department of Justice.

This is a surprising statement, because as recently as two or three weeks earlier, the Department had said exactly the opposite.

“The document is protected by the deliberative process privilege, and is not appropriate for discretionary release at this time,” wrote Paul Colborn of the DoJ Office of Legal Counsel in a January 23, 2013 denial letter to the New York Times.

What changed in the interim?  Obviously, the fact that the document leaked — and had already been read by most people who cared to do so — altered DoJ’s calculation.  The decision to cease withholding the document in light of its public availability displays some minimal capacity for reality-testing.  To continue to insist that the document was protected and exempt from release would have been too absurd.

But the Freedom of Information Act process is supposed to meet a higher standard than “not absurd,” and in this case it failed to do so.

According to a FOIA policy statement issued by Attorney General Eric Holder in 2009, “an agency should not withhold information simply because it may do so legally.  I strongly encourage agencies to make discretionary disclosures of information. An agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption.”

The Attorney General’s policy cited President Obama’s own statement on FOIA which declared that “The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.”

The pre-leak withholding of the White Paper on targeted killing appears to have been inconsistent with both policy statements.  It is now clear that only “speculative or abstract fears” were at issue, not actual hazards.

Was the release of the memo “a threat to national security”?  A reporter asked that question at the White House press briefing on February 5. “No. No,” said Press Secretary Jay Carney.  “It wasn’t designed for public release, but it’s an unclassified document.”

“And since it is out there,” he added, “you should read it.”

Last week, Reps. Darrell Issa and Elijah Cummings of the House Committee on Oversight and Government Reform asked the Department of Justice to explain several apparent inconsistencies between FOIA policy and actual practice.

“The Committee seeks information about a number of issues including what many term as outdated FOIA regulations, exorbitant and possibly illegal fee assessments, FOIA backlogs, the excessive use and abuse of exemptions, and dispute resolution services,” they wrote in a February 4 letter.

Update: The belated release of the White Paper may have been dictated by tactical considerations intended to evade an ACLU FOIA lawsuit for related records, suggests Marcy Wheeler at Emptywheel.

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