13-422 (L)
The New York Times Company v. United States



                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

          At a stated Term of the United       States Court of Appeals
     for the Second Circuit, held at the      Thurgood Marshall United
     States Courthouse, 40 Foley Square,      in the City of New York,
     on the 28th day of May, two thousand     fourteen.

     PRESENT:

                JON O. NEWMAN,
                JOSÉ A. CABRANES,
                ROSEMARY S. POOLER,
                               Circuit Judges.

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     THE NEW YORK TIMES COMPANY, CHARLIE SAVAGE,
     SCOTT SHANE, AMERICAN CIVIL LIBERTIES UNION,
     AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
          Plaintiffs-Appellants,

                 v.               Docket Nos. 13-422(L), 13-445(Con)


     UNITED STATES DEPARTMENT OF JUSTICE, UNITED
     STATES DEPARTMENT OF DEFENSE, CENTRAL
     INTELLIGENCE AGENCY,
          Defendants-Appellees.

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                                   ORDER
         Pending before the Court is a motion by the Defendants-
     Appellees (“the Government”) filed May 27, 2014, to file ex
     parte and in camera a motion to seek panel rehearing and in
     banc rehearing of this Court’s April 21, 2014, decision. See
     The New York Times Co. v. United States Department of Justice,
     No. 13-422L, 2014 WL 1569514 (2d Cir. April 21, 2014). In a
     supporting affidavit the Government contends that it “cannot
     address . . . classified and privileged information in a
     public filing without mooting its arguments.” Affidavit of
     Sarah S. Normand ¶ 5. The Government also asserts that, if
     the pending motion is granted, the petition for rehearing will
     be lodged with the Department of Justice’s Court Security
Office on or before June 5, 2014, for transmission to the
Court. Id. ¶ 7. June 5 is the deadline for the Government to
file a petition for rehearing or rehearing in banc. See
Federal Rules of Appellate Procedure 35(c), 40(a)(1).      The
Government also asserts that it “intends to prepare and to
provide for public filing a version of the OLC-DOD Memorandum
that includes the redactions in the Court-redacted version of
the OLC-DOD Memorandum and the additional redactions that will
be at issue in the petition for rehearing.” Normand Affidavit
¶ 8.

                         Background

    The background of this proceeding, relevant to disposition
of the pending motion, is as follows.

    1. On February 10, 2014, the Court provided the
Government, ex parte and in camera, a redacted version of the
Court’s proposed public opinion and a partially redacted
version of the OLC-DOD Memorandum to afford the Government an
opportunity to advise the Court whether the filing of the
opinion   and  the   partially  redacted   Memorandum   would
inadvertently disclose material entitled to be kept secret.

    2. The Government responded to the Court’s February 10
communication in a motion, filed ex parte and in camera, on
March 13, 2014. That response framed two issues.

    (a) The first issue concerns redactions in the public
opinion. The public opinion, filed April 21, 2014, made a
number of redactions that the Government requested in order to
preserve its opportunity for further appellate review. The
opinion explained that these redactions are to be restored in
the event that the opinion is not altered upon any further
appellate review. See New York Times, typescript copy of
opinion from Second Circuit website (“typescript copy”) at 2,
n.1; 2014 WL 1569514, at *17 n.1. The Government’s March 13
motion identified (by blacking out words) four redactions in
the proposed public opinion that it contended should remain
redacted to protect classified information, even under the
standards governing disclosure set forth in the public
opinion. The first three appear at page 40, lines 4-6, of the
typescript copy; see New York Times, 2014 WL 1569514, at *13.

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We thought our language on page 40, lines 4-5, made it clear
that we agreed with the Government that these three redactions
should be made. To eliminate any doubt, we now clarify that
these three redactions are permanent, i.e., they will not be
restored even if no further appellate review occurs.       The
fourth redaction appears at page 49, line 11, of the
typescript copy; see New York Times, 2014 WL 1569514, at *16.
We agree with the Government that this redaction should also
be permanent.    As a consequence of making that redaction
permanent, we will amend the public opinion on page 50, line
2, and on page 52, line 2, to add numbers 252-54 and 268 to
the list of documents on OLC’s classified Vaughn index whose
number, title, and description need not be disclosed.

    (b) The second issue raised by the Government’s March 13
motion concerns redactions in the OLC-DOD Memorandum.      The
public opinion redacted the entire OLC-DOD Memorandum in order
to preserve the Government’s opportunity for further appellate
review, and also made several specific redactions in the OLC-
DOD Memorandum that are to be permanent, i.e., not restored
even if no further appellate review occurs. In its March 13
motion, the Government represented that the OLC-DOD Memorandum
“even with the redactions made by the Court, appears
inadvertently to leave unredacted some information that
remains classified or privileged after applying the Court’s
own analysis.”     March 13 Motion at 3.      Although we had
requested the Government to identify any passages that we had
inadvertently failed to redact, the Government’s March 13
motion identified such passages only in the public opinion,
but did not identify any such passages in the already redacted
version of the OLC-DOD Memorandum.

    3. On April 21, 2014, this Court issued a public opinion
that made several redactions at the request of the Government.
The reason for the redactions and the circumstances under
which the redacted material would be restored were explained
in that opinion as follows:




    The redactions in the text of this opinion, most of
    which refer to the content of the OLC-DOD Memorandum,

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    disclosure of which is the primary subject of this
    appeal, are being made at the request of the
    Government to preserve its opportunities for further
    appellate review of our ruling requiring disclosure of
    a redacted version of that Memorandum. In the event
    that our ruling requiring disclosure of a redacted
    version of the Memorandum is not altered in the course
    of any further appellate review, an unredacted version
    of this opinion, together with a redacted version of
    the OLC-DOD Memorandum, will be filed.

New York Times, typescript copy at 2, n.1; 2014 WL 1569514, at
*17 n.1.

    The Court also filed a sealed opinion, with redactions
from the public opinion double-underlined to facilitate any
further appellate review. The sealed opinion also contained,
as Appendix A, a redacted version of the OLC-DOD Memorandum.

                         Discussion

    The Government’s pending motion raises two issues.

    1. The first issue concerns the requested relief to file
a petition for rehearing ex parte and in camera.           The
Government contends that this type of filing is necessary to
protect classified information and that it follows two
previous instances where the Court permitted the Government to
make ex parte and in camera submissions. See Norman Affidavit
¶¶ 5, 6. However, neither of the two previous ex parte and in
camera submissions concerned secrecy for an entire motion. On
August 27, 2013, the Court permitted the Government to file ex
parte and in camera classified inserts to its appellate brief.
On October 18, 2013, the Court permitted the Government to
file ex parte and in camera a supplemental submission to
respond to questions posed at oral argument.

    We see no reason why the Government cannot prepare and
serve its petition for rehearing in the normal course,
redacting any particular portions that require secrecy and
submitting only those redacted portions to the Court ex parte
and in camera.


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    2. The second issue concerns the Government’s assertion
that it “intends to prepare and to provide for public filing
a version of the OLC-DOD Memorandum that includes . . . the
additional redactions that will be at issue in the petition
for rehearing.” Normand Affidavit § 8. No date is specified
for this presentation of a version of the OLC-DOD Memorandum
with additional redactions beyond those already made by the
Court.   Perhaps the Government intends to specify those
additional redactions in its rehearing petition, but clarity
on this point is needed.

    Accordingly, it is hereby ORDERED that

    (1) The Government’s motion to file a petition for
rehearing ex parte and in camera is DENIED, provided, however,
that the Government may file ex parte and in camera those
portions of its petition for rehearing (including supporting
documents) that it believes in good faith require secrecy.

    (2) The Government shall provide the Court ex parte and in
camera by June 5, 2014, those additional passages of the OLC-
DOD Memorandum that it believes, with justification, should be
permanently redacted under the standards set forth in the
Court’s public opinion. These additional passages should be
identified with precision by reference to the redacted version
of the OLC-DOD Memorandum filed as Exhibit A to the Court’s
sealed opinion.

    The parties should be prepared for oral argument on the
petition for rehearing on Monday, June 9, 2014, at 2 p.m. The
Court will advise the parties by 5 p.m. on Friday, June 6,
2014, whether oral argument will be necessary.

                              FOR THE COURT,
                              Catherine O’Hagan Wolfe, Clerk




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