Coronavirus pandemic underscores need for legislative fix to the Freedom of Information Act 

By Jules Zacher and Theo Wilson 

April 5, 2020 

Faced with the prospect of millions of COVID-19 infections in the United States and potentially a quarter-million fatalities, the American people deserve to know why the Trump administration was so unprepared to deal with the Coronavirus pandemic despite years of warnings from intelligence officials and from inside Trump’s own White House transition team. Properly answering this question requires obtaining answers from the National Security Council (NSC), a body whose primary purpose is to coordinate whole-of-government responses to national emergencies. But because of appellate court decisions holding that the NSC is off-limits to the Freedom of Information Act (FOIA), the public will be denied the ability to hold the administration accountable until Congress designates the NSC as a body subject to that law. 

Former government officials like Joe Biden and Beth Cameron have lambasted the Trump administration for disbanding the White House pandemic preparedness office in 2018 (what was officially called the Global Health Security and Biodefense Directorate, a body within the NSC). Other government officials, notably John Bolton and Tim Morrison, have pushed back against these allegations, claiming the office was not “disbanded,” but merely “folded into” other offices within the NSC. Fact-checking websites like Snopes, PolitiFact, and the Washington Post’s Fact Checker seem to agree significant pandemic expertise and coordination abilities were lost as a result of Bolton’s “streamlining” while national security advisor, but they have struggled to capture the full picture since the agency is shrouded in secrecy. No matter what happened to that office, the reality is the NSC failed to sufficiently prepare for and respond to a foreseeable viral pandemic— and hundreds of thousands of Americans may die as a result. 

Questions for the National Security Council 

Americans have a rightful access to the life-or-death public health decisions that the government has been making in secret. True to form, President Trump has dismissed questions about the NSC’s preparedness as “nasty” and the potential controversy of breakup the pandemic preparedness office as “fake.” The appropriate term for the office’s demise is not nearly as important as understanding the reasons why the NSC’s actions, or lack thereof, turned a preventable crisis into a full-blown catastrophe the likes of which America has not witnessed since World War II. This information is essential not only for holding the government accountable, but for understanding how the government can prevent this kind of tragedy in the future. 

Besides understanding how the NSC prepared and responded to the Coronavirus crisis, below are a few more questions the American public deserves to have answered: 

➢ What preparation did the NSC undertake to prepare for an outbreak in light of the October 2019 Crimson Contagion after-action report that specifically raised concerns about a viral respiratory outbreak originating in China? 

➢ Did the NSC consider reconstituting the pandemic preparedness office or appointing a senior official in charge of coordinating efforts to “anticipate, prevent, and respond to biological crises” after a bipartisan November 2019 report specifically called on the administration to do so, or were the report’s recommendations totally ignored? 

➢ Was the administration’s decision to disband or fold-in the pandemic preparedness office really an attempt to streamline a “bloated” government agency, or was the administration not convinced that a pandemic posed a major national security threat despite numerous intelligence warnings? 

➢ What specific efforts did the new counterproliferation and biodefense office undertake to bring this issue to the president’s attention in the early days of the Coronavirus crisis— and how much time and capacity was likely lost as a result of not having the old pandemic preparedness office intact? 

➢ Why did the NSC ignore vital resources developed by the former pandemic preparedness office, such as 69-page playbook with color-coded instructions, to guide the government through a pandemic like the Coronavirus? 

The Freedom of Information Act and Appellate Court Roadblocks 

Access to government information is critical to a well-functioning democracy. It enables citizens to hold elected representatives accountable to fulfill their oath to serve the public interest. That’s why Congress enacted the Freedom of Information Act (FOIA) in 1966, which allows any citizen to request information from the federal government for any reason. Moreover, in the aftermath of the Watergate scandal, Congress even amended FOIA to include the Executive Office of the President, an office that encompasses the NSC. 

Unfortunately, appellate courts have nevertheless held the NSC to be strictly off-limits under FOIA— and the Supreme Court has never weighed in. The appellate courts’ justifications stem from a 1980 Supreme Court case, Kissinger v. Reporters Committee for Freedom of the Press, in which the court looked at FOIA and its post-Watergate amendments and decided Congress did not intend the law to extend to “the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.” 

As Andy Wright wrote in Just Security in 2016, this decision has enabled appellate courts to put up roadblocks preventing the NSC from being subject to FOIA. The D.C. Circuit Court put up the first roadblock in 1996 when a former U.S. national security archive director, Scott Armstrong, sued the federal government to prevent the NSC from destroying e-mails before they could be archived in the event of a FOIA request. In that case, Armstrong v. NSC, the D.C. court decided that although the self-contained structure of the NSC resembles that of an agency normally 

subject to FOIA, the NSC lacks the authority to do more than advise and assist the president in making or implementing policy. Thus, applying the Supreme Court’s logic in Kissinger, the D.C. Court decided the NSC cannot be subject to FOIA. 

The second roadblock came in 2016 when a CUNY law clinic sued the NSC for information pertaining to the killing and attempted killing of U.S. citizens and foreign nationals through drone strikes abroad. In its Main Street v. NSC ruling, the Second Circuit Court of Appeals looked at the actual language in the statute establishing the NSC under 50 U.S.C. § 3021(a), and decided that based on the statue’s wording, the NSC’s only purpose is to advise and assist the president. Thus, applying the Supreme Court’s logic in Kissinger, it is exempt it from FOIA. 

These two cases have established a firm appellate court precedent that has barred FOIA requests from reaching the NSC. 

Legislating a Way Forward 

Between 1980 and 2016, the courts have been interpreting and re-interpreting which government bodies they believe Congress had intended to be subject to FOIA. Meanwhile, Congress has been silent— and the courts have noticed. In its 2016 opinion, for example, the Second Circuit noted that “[i]n 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.” Congress needs to put an end to this ambiguity by passing legislation delineating the NSC as an executive agency subject to FOIA. 

Representative Jackie Walorski (R-IN-2) twice introduced legislation amending FOIA to specifically include the NSC, in 2016 and 2017, but to no avail. With questions swirling over the administration’s handling of the Coronavirus response, now is the time to try again. Congress needs to recognize how powerless the American people have become to gain access to the life-or-death decisions the government makes in secret. Now is the time to support the rights of Americans to access the vital information necessary to hold the government accountable. 

Jules Zacher, Esquire is the founder of Speaking Truth to Power, an executive board member of the Center for Ethics and the Rule of Law at the University of Pennsylvania Carey Law School, and an executive board member of the Council for Livable World. (@JulesZacher) 

Theo Wilson is a Master of Public Affairs Candidate at Princeton University’s Woodrow Wilson School of Public and International 

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Biting Through Layers of Secrecy: Will the Constitution Show its Teeth in the case of Anwar Al-Awlaki?

As covered in a recent New York Times article, a lawsuit filed by Nasser Al-Awlaki, father of deceased United States citizen and alleged Al Qaeda organizer Anwar Al-Awlaki, has brought the matter back into the United States court system. Nasser is filing suit not only on behalf of Anwar, but also on behalf of his 16 year old son, Abdulrahman, who was killed in a second drone strike less then a month after Anwar. Also joined on the suit is Sarah Kahn, whose son Samir was an apparent bystander in the strike that killed Anwar Al-Awlaki. The lawsuit names four federal officials, including Secretary of Defense Leon Panetta and CIA Director David Patreus – while notably not naming President Barack Obama.

Let’s start with a brief recap of the facts: Anwar Al-Awlaki was a dual citizen of the U.S. and Yemen who was killed in a Yemen drone strike on Sept. 30, 2011. He was born in New Mexico in 1971, and spent a great deal of his life in the United States, only moving to Yemen in 2004. Starting in mid-2010, agencies of the United States government officially recognized Al-Awlaki as a Specifically Designated Global Terrorist (SDGT), acting on behalf of Al Qaeda in the Arabian Peninsula. He allegedly assisted with training camps in Yemen and instructed both (1) the failed Christmas day ’09 airplane bomber, and (2) Nidal Malik Hasan, who allegedly killed 13 people in a late ’09 shooting at Fort Hood. He allegedly praised these actions, encouraged others to follow suit, and called for jihad against the West.

In 2010, following several leaks of intelligence revealing that Al-Awlaki was classified on some form of a “kill list” by the United States government, his father filed suit, alleging tortious violations and violations of Constitutional rights. His hope was to enjoin the United States government from killing his son without some form of judicial process or notice. This case was dismissed on numerous grounds, all of which are discussed below, before any information regarding governmental proceedings was released or the key constitutional issues were even touched on. Before his death in the 2011 drone strike, Al-Awlaki was never formally indicted, with evidence presented to the American public or a grand jury. Formal extradition requests were never sent to Yemen.

As the Times article mentions, there is allegedly a secret Justice Department memo that concluded it would be lawful to target Anwar Al-Awlaki if capturing him was infeasible. The Times and the ACLU have filed suit for this memo under the Freedom of Information Act (FOIA), so far to no avail.   

Let me begin by saying that President Obama has a list of admirable achievements in the realm of foreign policy. While developments have come too slowly for the satisfaction of some, the President has us in a position where an end to our wars is in sight, and future defense spending cuts may actually be attainable. After practically being welcomed into office with a Nobel Peace Prize, Obama has reconciled his campaign’s foreign policy ideals with politically prudent pragmatism, and now has a record that serves as one of the strongest selling points of his 2012 campaign.

That said, the handling of this case is an area where I find the President’s position to be somewhat dangerous. The killing of American citizens in drone strikes without notice or judicial accountability of any kind presents a Constitutional mess, calling into question issues of due process and executive power. This litigation at least leaves open the possibility that these decisions won’t go judicially untouched or publicly forgotten.  

The FOIA litigation against the Department of Justice is the first chance to speak truth to power in this matter. Granting media and public access to this information under the Freedom of Information Act would instantly peel away a layer of secrecy and, at the very least, expose the legal reasoning of the DoJ in this situation.  This would increase the base of information which voters can use when deciding whether or not to hold elected officials accountable for these decisions. Allowing the public expect legal justification when similar situations arise in the future would also set a valuable precedent. I’d be willing to bet that even the majority of those who trust President Obama to make Constitutionally accurate decisions behind closed doors wouldn’t extend the same trust to, say, President Bachmann.

As for this most recent round of litigation, it is an unfortunate reality that the plaintiffs face many seemingly insurmountable barriers to success. Many of these barriers are the following issues, the same ones which caused Nasser Al-Awlaki to fall short in his initial suit in 2010:

Grounds for Dismissal Cited in the 2010 case Al-Awlaki v. Obama:

I. Standing:

Federal District Court Judge John Bates considered two types of standing that could allow Nasser Al-Awlaki to bring a suit on behalf of his son: “next friend” standing, and “third party” standing.

Next friend standing has two stern requirements: (1) that the party can provide an adequate explanation as to why the third party cannot appear in court on their own behalf, and (2) that the next friend is truly dedicated to acting in the best interests of the third party. Bates was apparently not convinced that Al-Awlaki satisfied either of these standards. He argued that Anwar was not entirely unable to appear, regardless of the fact that he was said to be in hiding after hearing that he was on a government list permitting the United States military to kill him. His unwillingness to appear apparently also signified that he and his father had less than parallel interests, and the second requirement could not be met.

Third party standing requires that there must be an actual injury to the litigating party, they must be substantially close to the third party, and the third party must have some hindrance to appearing in their own defense.  Bates was again unsatisfied that there was any actual injury to Nasser – even the possibility of living without a son – or enough of a hindrance to Anwar appearing on his own behalf.

II. Sovereign Immunity

The court also barred the consideration of due process from consideration on the basis of sovereign immunity. Bates ruled that the President could not be sued because of sovereign immunity, and that the agencies named in the suit were acting in a realm in which they had discretion that could not be reviewed by the courts. Bates said that it would be “extraordinary for this Court to order declaratory and injunctive relief against the President's top military and intelligence advisors, with respect to military action abroad that the President himself is alleged to have authorized”. (Pg. 63).

III. Political Questions

The court also found that the often-criticized “political question” doctrine was sufficient grounds for dismissal. As the court quotes, the political question doctrine involves the consideration of 6 vague factors: “[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”

Judge Bates, in his analysis, concluded that many of these factors were satisfied. Apparently, the constitutional commission of military powers to other agencies of government makes matters such as the drone-killing of American citizens political questions beyond the reach of the judiciary. Judge Bates agreed that there is not a readily available judicial standard with which to resolve this question, and that doing so has the potential to interfere with another branch of government.

These defenses, when successfully used in 2010, suggested a bleak truth: that there may be little to no check on executive power when it comes to the kill list. The kill list was drafted secretly, and never revealed to those whose names were allegedly on the list. The limits on standing force potential kill list targets to come forward to contest a classification that they (1) cannot see, and (2) aren’t even sure exists. Should one not do so, they may forfeit their right to any process at all under the logic of Judge Bates. Also, the top officials that make these decisions and are the final arbiters of these decisions are sheltered from accountability under the doctrine of sovereign immunity. Even if these suits fall within an exception to sovereign immunity, there is a good chance the decision will be labeled a “political question”. This classification basically cements unbridled government power, thwarting the purpose of a federal Constitution. On top of all that, the U.S. government has not even taken official responsibility for the strike yet, even recently suggesting that it could have come from a Yemen drone. I’ve watched enough Sopranos episodes to understand this maneuver. In the mafia, when a “made” man is killed, the killer can never officially take ownership of their kill without subjecting themselves to the same fate under the rules. What usually happens is that the killer goes to the funeral, hugs the mother of the deceased, and gives smiling nods to their friends, with no means of being held accountable. Sound familiar?

These same barriers to justice will no doubt rear their ugly heads in the next round of litigation pursued by Nasser Al-Awlaki. However, there are also positives - Constitutional protections in the realm of foreign policy are not completely non-existent. The 2000’s series of cases regarding the judicial process required for Guantanamo Bay prisoners represents important due process protections for alleged terrorists. Also, one can only hope that the increased public, and even mainstream, outcry over the executive’s actions in the matter of Al-Awlaki, may set the stage for a more aggressive consideration of the issues.

The Due Process clause of the 4th Amendment of the Constitution should require the killing of American citizens in unmanned drone strikes to be an issue for which actors are held accountable to a neutral fact finder. The kind of “due process” that Eric Holder describes in his explanation at Northwestern University, in which no accountability exists at any level of decision making, may as well be no process at all. Holder’s “due process” would be something that we can’t see, change, or challenge – we are forced only to trust that it’s there. The placement of United States citizens on a “kill list” should not take place entirely behind closed doors, unbeknownst even to those placed on the list. Alleged terroristic acts used as justification by the United States government should have to be proven as fact before they may be treated as such.

Is it easy to see why unabridged drone-striking power may be attractive to a commander in chief? Sure. It gets the job done. It can be accomplished without bringing United States soldiers into dangerous territories. There is a time advantage to be recognized, and a tactical one as well. However, this alone does not justify the current protocol as long as the Constitution has teeth. Sure, these will be difficult decisions, and sure, they bring with them the potential for conflict between branches of government. But the idea that some decisions are too important to come before the Constitution has the value of the Constitution exactly backwards. 

June 8, 2012 - Speaking Truth to Power visits the 50th Anniversary Celebration for the Council for a Livable World in Washington, D.C.

On June 6, 2012, Speaking Truth to Power members attended a celebration for the 50th anniversary of the Council for a Livable World, a like-minded organization whose mission is to increase national security by reducing the danger of nuclear weapons.
The afternoon session of the celebration included speeches from several prominent United States Senators, including Sen. Jeff Merkley (D-OR), Sen. Jack Reed (D-RI), Sen. John Kerry (D-MA), Sen. Carl Levin (D-MI), Sen. Tom Udall (D-NM), and Sen. Ben Cardin (D-MD). Several recurring topics were mentioned by multiple senators. One of these topics of discussion was the vast effort put into the New START (strategic arms reduction treaty) with the Russian Federation, which was signed in 2010 and entered into force in 2011. Several senators offered their compliments and critiques of the troop surge, and more recent troop drawdown, in Afghanistan. Another popular topic of discussion was the dysfunctional fillibuster system currently plaguing the senate. While this issue does not directly impact our foreign policy, it has a negative effect on what our legislature can do to bring about a wide range of positive changes in this area.
The evening session featured honored guests Representative Barney Frank and Senator Al Franken. Also addressing the reception by video were Vice President Joseph Biden and Massachusetts Senate Candidate Elizabeth Warren.
More important than any one speaker or point raised at the celebration was the fact that such a celebration was taking place. As a first time observer of the Council for a Livable World in action, I quickly noticed that the Council was greatly respected among some of our most well known and longest serving Senators. A 50 year career of advocating for safety and peace in our foreign policy has earned them a fantastic reputation in the Washington community. It was very pleasant to notice that this type of thinking can play a role in bringing about a positive change.