     14-4432-cv(L) 14-4764-cv(Con)
     The New York Times Company v. United States Department of Justice

 1                                 UNITED STATES COURT OF APPEALS

 2                                        FOR THE SECOND CIRCUIT

 3                                             August Term 2014

 4   Argued: June 23, 2015                                       Decided: October 22, 2015
 5
 6                              Docket No. 14-4432-cv, 14-4764-cv
     - - - - - - - - - - - - - - - - - - - - - -
1    THE NEW YORK TIMES COMPANY, CHARLIE SAVAGE,
2    SCOTT SHANE, AMERICAN CIVIL LIBERTIES UNION,
3    AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
4         Plaintiffs-Appellants,

5                             v.


 6   UNITED STATES DEPARTMENT OF JUSTICE, UNITED
 7   STATES DEPARTMENT OF DEFENSE, CENTRAL
 8   INTELLIGENCE AGENCY,
 9        Defendants-Appellees.
10   - - - - - - - - - - - - - - - - - - - - - -
11
12   Before: NEWMAN, CABRANES, and POOLER, Circuit Judges.
13
14           Appeal from the October 31, 2014, decision and order of the

15   United States District Court for the Southern District of New

16   York (Colleen McMahon, District Judge), adjudicating, pursuant

17   to a remand from this Court, Freedom of Information Act requests

18   for documents prepared by the Office of Legal Counsel of the

19   United States Department of Justice concerning targeted killings

20   by drone aircraft.                 The District Court ordered disclosure of all


                                                             1
 1   or portions of some documents and denied disclosure of other

 2   documents.        The appeal also concerns disclosure of redacted

 3   portions of the District Court’s sealed opinion and disclosure

 4   of redacted portions of the transcript of the June 23, 2015, oral

 5   argument present by the Government to the Court ex parte and in

 6   camera.

 7          Judgment    AFFIRMED;    redacted    portions     of   District   Court

 8   opinion to remain UNDISCLOSED, except for three paragraphs (as

 9   redacted pursuant to Part IV of this opinion) that the District

10   Court wishes to disclose; and redacted portions of transcript of

11   June    23,   2015,   oral     argument    to   remain   UNDISCLOSED;     case

12   REMANDED.

13                                      David E. McCraw, The New York Times
14                                        Company, New York, N.Y. (Jeremy A.
15                                        Kutner, New York, N.Y., on the
16                                        brief), for Plaintiffs-Appellants
17                                        The   New  York   Times   Company,
18                                        Charlie Savage, and Scott Shane.
19
20                                      Jameel   Jaffer,    American   Civil
21                                        Liberties Union Foundation, New
22                                        York, N.Y. (Hina Shamsi, Dror
23                                        Ladin, American Civil Liberties
24                                        Union Foundation, New York, N.Y.,
25                                        Eric   Ruzicka,    Colin   Wicker,
26                                        Michael Weinbeck, Dorsey & Whitney
27                                        LLP, Minneapolis, Minn., on the
28                                        brief), for Plaintiffs-Appellants
29                                        American Civil Liberties Union and
30                                        American Civil Liberties Union
31                                        Foundation.

                                           2
 1                                  Sarah S. Normand, Asst. U.S. Atty.,
 2                                    New York, N.Y. (Preet Bharara,
 3                                    U.S. Atty., New York, NY, Benjamin
 4                                    C. Mizer, Acting Asst. U.S. Atty.
 5                                    General, Matthew M. Collette,
 6                                    Sharon Swingle, Thomas Pulham,
 7                                    Civil Division, U.S. Dep’t of
 8                                    Justice, Washington, D.C., on the
 9                                    brief), for Defendants-Appellees.
10
11                                  (Lawrence S. Lustberg, Joseph A.
12                                    Pace, Gibbons P.C., Newark NJ, for
13                                    amici curiae Senators Ron Wyden,
14                                    Rand Paul, Jeff Merkley, and
15                                    Martin Heinrich, in support of
16                                    Plaintiffs-Appellants)
17
18   JON O. NEWMAN, Circuit Judge:

19       This appeal from the October 31, 2014, decision and order of

20   the District Court for the Southern District of New York (Colleen

21   McMahon,   District   Judge)   concerns   the   second   round   in   a
22   protracted Freedom of Information Act (“FOIA”) litigation seeking
23   disclosure of documents related to targeted killings by the use

24   of drone aircraft.    On the prior appeal, see New York Times Co.

25   v. U.S. Dep’t of Justice, 756 F.3d 100 (2d Cir. 2014) (“NYTimes
26   I”), we ordered disclosure of a 2010 document known as the “OLC-

27   DOD Memorandum,” a 41-page legal opinion prepared by the Office

28   of Legal Counsel (“OLC”) in the Department of Justice for the
29   Department of Defense (“DOD”), advising as to the legality of

30   targeted drone attacks.   See id. at 112-21.     We ruled that prior
31   disclosures by senior officials of the Government, plus the


                                       3
 1   release of what was referred to as “the White Paper,” resulted
 2   in waiver of all applicable exemptions for protection of the OLC-
 3   DOD Memorandum.

 4        We also remanded the case to the District Court to review in
 5   camera several other documents prepared by the OLC that the
 6   Government had identified as responsive to the pending FOIA

 7   requests but had withheld on various grounds.           We remanded for
 8   “determination    of    waiver      of    privileges   and   appropriate

 9   redaction.” Id. at 124. The District Court ruled, in a partially

10   redacted   opinion,    that   the   Government   had   properly   invoked

11   Exemption 1 (documents classified by executive order), Exemption
12   3 (intelligence sources and methods protected by statute), and

13   Exemption 5 (document protected by the deliberative process or

14   attorney-clients privilege), and that most of these documents

15   should not be disclosed.1           That ruling is challenged on the

          1
            As explained in our prior decision, see NYTimes I, 756 F.3d at
     104, Exemption 1 permits an agency to withhold information that is
     “‘specifically authorized under criteria established by an Executive
     order to be kept secret in the interest of national defense or foreign
     policy’” if that information has been “‘properly classified pursuant
     to such Executive order.’” ACLU v. Dep’t of Justice, 681 F.3d 61, 69
     (2d Cir. 2012) (quoting U.S.C. § 552(b)(1)). Exemption 3 permits an
     agency to withhold information that is “specifically exempted from
     disclosure by statute, see 5 U.S.C. § 552(b)(3)(A)(I), (ii), such as
     pursuant to 50 U.S.C. § 3024-1(i)(1), which exempts from disclosure
     “intelligence sources and methods,” or 50 U.S.C. § 3507, which exempts
     the CIA from “any other law which require[s] the publication or
     disclosure of the organization, functions, names, official titles,
     salaries, or numbers of personnel employed by the Agency.” Exemption
     5 authorizes an agency to withhold “inter-agency or intra-agency
     memorandums or letters which would not be available by law to a party
     other than an agency in litigation with the agency.” 5 U.S.C.

                                           4
 1   pending appeal.     The appeal also concerns disclosure of the

 2   redacted portions of the District Court’s opinion, including

 3   three paragraphs that the District Court wishes to disclose, and

 4   disclosure of redacted portions of the transcript of the June 23,

 5   2015, oral argument presented by the Government to this Court ex

 6   parte and in camera.

 7                                Background

 8        The background of the litigation was extensively set forth

 9   in NYTimes I, 756 F.3d at 104-11, and need not be repeated here.
10   We recount only developments since our prior decision.

11        Paragraph (3) of the “Conclusion” of NYTimes I provided that

12   “other legal memoranda prepared by OLC and at issue here must be
13   submitted to the District Court for in camera inspection and

14   determination of waiver of privileges and appropriate redaction.”

15   Id. at 124.    In conformity with that direction, the District
16   Court examined in camera eleven sealed documents, identified as

17   Exhibits A, B, C, E, F, G, H, I, J, K, and L to a sealed
18   affidavit submitted by John E. Bies, Deputy Assistant Attorney
19   General in the OLC. Exhibit D is the OLC-DOD Memorandum, already

20   disclosed.



     § 552(b)(5). Exemption 5 encompasses documents protected by, among
     other things, the attorney-client and deliberative process privileges.
     See National Council of La Raza v. Dep’t of Justice, 411 F.3d 350, 356
     (2d Cir. 2005).

                                       5
 1        On October 31, 2014, the District Court filed under seal its
 2   opinion adjudicating claims for disclosure of these documents.
 3   The District Court’s opinion was sealed because, in discussing

 4   the reasons for refusing disclosure of most of the documents at
 5   issue, the Court necessarily discussed matters entitled to remain
 6   secret.    The Court submitted its opinion to the Government ex

 7   parte    for   classification      review.     The   Government   requested
 8   redaction of several portions of the District Court’s opinion.

 9   The District Court agreed to all of the redactions proposed by

10   the Government with the exception of three paragraphs on page 9

11   of   the   Court’s     opinion.2      Judge    McMahon   continued    those
12   paragraphs under seal, however, to abide the outcome of appellate

13   review of her decision to disclose them.             We will recount below

14   the District Court’s rulings with respect to each of the eleven

15   documents.       The   District     Court    certified   its   rulings   for
16   immediate entry of a partial judgment under Rule 54(b) of the
17   Federal Rules of Civil Procedure.

18        After the Appellants and four United States Senators, as
19   amici curiae, filed their briefs, the Government filed a redacted
20   version of its brief and filed an unredacted version ex parte and

21   in camera.       The Government later sought the opportunity to

22   present oral argument to the Court ex parte and in camera.               We

          2
            The Government did not request redaction of the first sentence
     of the first paragraph.

                                           6
 1   granted that request and heard Government counsel ex parte and
 2   in camera on June 23, 2015, just prior to hearing both sides in
 3   open court.   On June 25, we entered two sealed orders, both sent

 4   to the Government ex parte. These orders afforded the Government
 5   an opportunity to submit ex parte and in camera a brief and a
 6   supplemental declaration concerning matters that the Court had

 7   raised with Government counsel at the June 23 ex parte and in
 8   camera hearing.   On July 7, the Government filed ex parte and in

 9   camera a transcript of the June 23 argument, together with a

10   redacted version of that transcript, which was filed in the

11   normal course (“June 23 redacted tr.”). See Dkt. No. 119.     On
12   July 17, the Government filed its response to our June 25 orders,

13   submitting, ex parte and in camera, a brief and a supporting

14   affidavit.    On the same day, we asked the Government to submit

15   a letter justifying the transcript redactions.    The Government
16   responded with a letter of July 24, 2015, filed ex parte and in
17   camera.

18                              Discussion
19       We emphasize at the outset, as we did before, see NYTimes I,
20   756 F.3d at 103, that the lawfulness of drone strikes is not at

21   issue.    This appeal, like the prior one, primarily concerns

22   whether documents considering such lawfulness must be disclosed.
23




                                     7
 1       I. The Eleven OLC Documents.
 2       Exhibits A, B, and C. The District Court ruled that these

 3   documents were required to remain secret, but that the legal

 4   reasoning contained in Exhibit B had been incorporated into

 5   Exhibit K, which was appropriate for disclosure.            We agree with

 6   the District Court’s decision not to disclose Exhibits A, B, and

 7   C, which contain intelligence information that was properly

 8   exempted.

 9       Exhibit     E.3    This     OLC   document,   as   described   by   the

10   Government, is “the provision of legal advice in 2002 provided

11   to the President’s close legal advisor about the [E]xecutive

12   [O]rder 12333.”4 Executive Order 12333, captioned “United States

13   Intelligence Activities,” was signed by President Reagan on Dec.

14   4, 1981.    The District Court withheld Exhibit E partly on the

15   ground that most of it discusses topics exempted from FOIA

16   disclosure and not subject to any waiver.              We agree with the

17   District Court’s ruling in that respect.            As to one portion of

18   Exhibit E that discusses a topic referred to in subsequent

19   statements of senior Government officials, the District Court

20   withheld    that      portion    because   the    discussion   “does    not

21   correspond” to any legal analysis that has been disclosed.


         3
             Exhibit D is the OLC-DOD Memorandum, previously disclosed.
         4
             June 23 redacted tr. at 12.

                                            8
 1          At issue is whether the Government waived its right to

 2   invoke Exemption 5 as the basis for withholding portions of the

 3   legal       analysis      in     Exhibit    E   by   subsequently     making       public

 4   statements on topics related to some of the analysis contained

 5   in that document.                Our initial concern with disclosure of the

 6   portion         that   is      similar     to   subsequent       disclosures   is    the

 7   substantial time interval between the date of Exhibit E and the

 8   subsequent arguably similar disclosures.                     In NYTimes I, several

 9   relevant statements of Government officials were made before the

10   date       of   the    July      16,   2010,    OLC-DOD    Memorandum,5      and    other

11   statements were made less than three years afterwards.6                              With

12   respect to Exhibit E, there is no statement of a Government

13   official before the date of that exhibit that even arguably

14   supports         waiver     of    protection,        and   the    earliest   dates    of

15   subsequent statements that even arguably support waiver were made

16   eight years after the date of Exhibit E.7



            5
            March 18, 2010, statement of then-CIA director Leon Panetta, see
     NYTimes I, 756 F.3d at 118; March 25, 2010, statement of then-Legal
     Adviser of the State Department Harold Hongju Koh, see id. at 114;
     June 27, 2010, statement of then-CIA director Leon Panetta, see id. at
     118.
            6
            Nov. 8, 2011, White Paper, see NYTimes I, 756 F.3d at 110-11 &
     n.9; February 7, 2013, statement of John O. Brennan, id. at 111;
     statement of then-Attorney General Eric Holder, id.
            7
                See footnote 6, supra.

                                                     9
 1       We do not mean to imply that a Government official’s public

 2   statement made after preparation of a legal opinion can never

 3   result in waiver of protection for that opinion.        Our reliance

 4   on some statements made soon after the date of the OLC-DOD

 5   Memorandum dispels such a broad implication.            However, the

 6   passage of a significant interval of time between a protected

 7   document   and   a   Government   official’s   subsequent   statement

 8   discussing the same or a similar topic considered in the document

 9   inevitably raises a concern that the context in which the

10   official spoke might be significantly different from the context

11   in which the earlier document was prepared.      Even if the content

12   of legal reasoning set forth in one context is somewhat similar

13   to such reasoning that is later explained publicly in another

14   context, such similarity does not necessarily result in waiver.

15   Moreover, ignoring both the differences in contexts and the

16   passage of a significant interval of time would risk requiring

17   Government   officials   to   consider   numerous   arguably   similar

18   documents prepared long before and then measure their public

19   words very carefully so as not to inadvertently precipitate a

20   waiver of protection for those earlier documents.

21       In this case, it would be difficult to explain in detail why

22   the context of the legal reasoning in Exhibit E differs from the


                                       10
 1   context of the public explanations given by senior Government

 2   officials eight years later without revealing matters that are

 3   entitled to protection.    We can say, however, that Exhibit E

 4   concerns Executive Order 12333, and that Order is not mentioned

 5   in any of the public statements we relied on in NYTimes I to

 6   support waiver of protection for the OLC-DOD Memorandum.   We can

 7   also say that Exhibit E concerns actions and governing legal

 8   standards different from those later publicly discussed.      We

 9   conclude that these differences suffice to preclude a ruling that

10   waiver has occurred, and we therefore affirm the District Court’s

11   decision not to disclose Exhibit E.

12          Exhibits F, G, H, I, and J.    These OLC documents discuss

13   another document that remains entitled to protection.   It would

14   be difficult to redact any arguably disclosable lines of legal

15   analysis from these documents without disclosing the contents of

16   that other document, and for that reason the District Court

17   properly withheld them from disclosure.

18       Exhibit K. This document is a redacted version of Exhibit B.

19   The District Court properly ordered it disclosed because the

20   Government waived any privilege in the redacted legal analysis.

21       Exhibit L. This document is an email that circulated the

22   White Paper to DOJ personnel, together with the White Paper


                                    11
 1   itself.   The White Paper has already been disclosed, and the

 2   email contains no legal analysis.      The District Court properly

 3   withheld it from disclosure.

 4        Unable to direct arguments to the specific documents, which

 5   they have not seen, the Appellants make the general argument that

 6   the legal reasoning in OLC opinions is “working law,” see Brennan

 7   Center for Justice v. U.S. Dep’t of Justice, 697 F.3d 184 (2d

 8   Cir. 2012), not entitled to be withheld under FOIA Exemption 5.

 9   Whether or not “working law,” the documents are classified and

10   thus protected under Exemption 1, in the absence of statements

11   by   public   officials   that   constitute   waiver   of   all   FOIA

12   exemptions.

13        Moreover, these OLC documents are not “working law.”          At

14   most, they provide, in their specific contexts, legal advice as

15   to what a department or agency “is permitted to do,” Electronic

16   Frontier Foundation v. U.S. Dep’t of Justice, 739 F.3d 1, 10

17   (D.C. Cir. 2014) (emphasis in original), but OLC “did not have

18   the authority to establish the ‘working law’ of the [agency],”

19   id. at 8, and its advice “is not the law of an agency unless the

20   agency adopts it,” id.     The one document ordered disclosed in

21   Brennan Center was not deemed “working law,” 697 F.3d at 203, and

22   was ordered disclosed only because the agency had “adopted [it]


                                       12
 1   by reference,” id.   No agency of the Government has adopted by

 2   reference any of the documents at issue in this case.

 3       To recapitulate, we agree with all of the District Court’s

 4   rulings with respect to the documents at issue, with the result

 5   that only Exhibit K is to be disclosed.     As explained above,

 6   Exhibit K, which the District Court ordered disclosed, is a

 7   redacted version of Exhibit B.

 8         II. Disclosure of the Redacted Portions of the District

 9   Court’s Opinion

10       The Appellants contend that the redacted portions of the

11   District Court’s opinion should be disclosed.      Judge McMahon

12   herself urges us to permit disclosure of three paragraphs on page

13   9 of her opinion, which she maintained under seal only to assure

14   that those paragraphs remained sealed in the event that a

15   reviewing court disagreed with her decision to make them public.

16       The Appellants are understandably in a difficult position to

17   present their argument for disclosure of the redacted portions

18   of the District Court’s opinion because they have not seen them.

19   The Appellants’ basic argument is that the First Amendment

20   requires public access to normally public documents, such as

21   court opinions.   They rely on United States v. Erie County, 763

22


                                      13
 1   F.3d 235 (2d Cir. 2014), and Lugosch v. Pyramid Co., 435 F.3d 110

 2   (2d Cir. 2006).

 3       Erie County concerned compliance reports filed with a court

 4   administering a stipulation governing prison conditions.              As the

 5   Court noted, “[E]very aspect of this litigation is public.” Erie

 6   County, 763 F.3d at 241.      By contrast, the pending case concerns

 7   classified documents sought pursuant to FOIA requests, and the

 8   District   Court’s   sealed    opinion    explains   why,    with   limited

 9   exception, those documents must remain under seal.                   Lugosch

10   concerned documents supporting and opposing a summary judgment

11   motion in litigation between private parties.          Concerns related

12   to classified documents were not involved in either case.                “As

13   a general rule,” there is no constitutional right of access “to

14   traditionally   nonpublic     government     information.”     McGehee    v.

15   Casey, 718 F.2d 1137, 1147 (D.C. Cir. 1983).                Appellants are

16   therefore not entitled to disclosure of those portions of the

17   District   Court’s   opinion    that     discuss   information      properly

18   withheld under an applicable FOIA exemption.

19       The Appellants further contend that even if the District

20   Court was entitled to seal its opinion, the Court failed to make

21   the findings warranting sealing that are required by Erie County,

22   763 F.3d at 239, and Lugosch, 435 F.3d at 120, both of which

                                        14
 1   restated the findings requirement first announced in In re New

 2   York Times, 828 F.2d 110, 116 (2d Cir. 1987) (“[D]ocuments may

 3   be   sealed   if   specific,   on   the   record   findings   are    made

 4   demonstrating that closure is essential to preserve higher values

 5   and is narrowly tailored to serve that interest.”) (internal

 6   quotation marks omitted).      But, as Erie County explained, the

 7   findings requirement for sealing documents arises only after “a

 8   First Amendment right of access to judicial documents is found.”

 9   763 F.3d at 239.     In any event, we require no findings in this

10   case to understand that the District Court sealed its opinion to

11   avoid disclosure of classified information.

12        We turn then to the three paragraphs of the District Court’s

13   opinion that Judge McMahon thought need not be withheld.            Those

14   paragraphs briefly mention hypothetical situations that might

15   raise issues of waiver of attorney-client privilege with respect

16   to a non-compete clause in an employment contract.                  In an

17   unredacted order, she stated that the three paragraphs “contain

18   not a whit of classified material (the Government does not

19   suggest otherwise)” and would not “tend to reveal any classified

20   material.” SPA 176.

21        The Government contends that the three paragraphs at issue,

22   although containing no classified information, can be understood

                                         15
 1   to imply a fact that should not be disclosed.     That fact is the

 2   nationality of a person who has been considered as a possible

 3   target of a drone attack.   However, the three paragraphs neither

 4   say nor imply anything about such a nationality.      At most, the

 5   paragraphs, by considering various permutations of a law firm’s

 6   advice concerning one or more different employment contracts,

 7   might be understood to imply that drone attacks have been

 8   considered for persons other than al-Awlaki, the subject of the

 9   OLC-DOD Memorandum.   That fact, of course, is widely known, see,

10   e.g., W.J. Hennigan & David S. Cloud, “U.S. airstrikes in Somalia

11   signal a more direct role against Shabab,” Los Angeles Times, July

12   23, 2015 (reporting six drone strikes in one week, quoting U.S.

13   military officials),8 and has been publicly acknowledged by

14   senior United States military personnel, see, e.g., Lolita C.

15   Baldor, “U.S. Drone Strike In Afghanistan Kills ISIS Recruiter
16   Who Was Once Held In Guantanamo,” Huffington Post (Feb. 10, 2015)

17   (reporting statement of Pentagon spokesman Rear Admiral John

18   Kirby).9

19




          8
           Available at http://www.latimes.com/world/la-fg-us-airstrikes-
     somalia-20150723-story.html.
          9
            Available at http://www.huffingtonpost.com/2015/02/10/drone-
     kills-guantanamo-de_n_6656530.html.

                                      16
 1       The flaw in the Government’s argument is that a reader of

 2   the District Court’s redacted opinion, with the three paragraphs

 3   restored, could not identify the name or nationality of the

 4   potential target.      Indeed, the District Court’s opinion redacts

 5   the entire discussion of the document that mentions that target’s

 6   name, and that document remains undisclosed.             To guard against

 7   even the remote possibility that a reader might conceivably infer

 8   the nationality of the potential target from the three paragraphs

 9   at issue, we will order redaction of the few words in the first

10   of these paragraphs to which the Government, on classification

11   review, has called to our attention. See Point IV, below.

12       We agree with the District Court that the three paragraphs

13   need not be redacted, other than as ordered in Point IV, below,

14   and that the remainder of the Court’s opinion may remain sealed.

15       III.      Disclosure     of   Redacted   Portions   of    the    June    23

16   Transcript

17       Because the Appellants have not seen the words that the

18   Government has redacted from the transcript of the June 23 ex

19   parte   and    in   camera    hearing,     they   obviously   have    had    no

20   opportunity to argue for disclosure of these redactions.                    And

21   they have not seen the Government’s ex parte and in camera letter

22   of July 24 supporting those redactions.               Our own ability to

                                           17
 1   explain our rulings with respect to the redactions is also

 2   handicapped, but for a different reason: if redacted words touch

 3   on matters entitled to remain secret, we can state a conclusion,

 4   but little, if anything, else.

 5       Initially, we note some concern as to the need for the

 6   Government’s ex parte and in camera oral argument.    When asked

 7   at the closed hearing why such argument was needed at this stage

 8   of the litigation but not at the earlier stage, the Government

 9   offered two different reasons.   First, the Government noted that

10   many of the bases for withholding the documents at issue are

11   classified or statutorily protected.     Then we were told the

12   reason was that a large portion of the District Court’s opinion

13   was redacted. Neither reason precluded the Government from fully

14   presenting its arguments in briefs and affidavits, submitted ex

15   parte and in camera, as it has done throughout this litigation.

16   Any future request for ex parte and in camera oral argument will

17   have to be persuasively supported, even if the request is

18   unopposed, as it was in this case.

19        Nearly all of the redactions made by the Government in the

20   June 23 transcript refer to the contents of Exhibit E.   Because

21   we have upheld nondisclosure of that Exhibit in this opinion, we

22   will uphold nondisclosure of those redactions.

                                      18
 1       One other redaction in the June 23 transcript has nothing to

 2   do with Exhibit E.       In response to the panel’s request for

 3   identification of those in attendance at the closed hearing,

 4   eight   Government     personnel      named   themselves      and   their

 5   affiliations; one provided only a name.             The Government has

 6   redacted that name and the name and agency affiliation of one

 7   other person.

 8       We have substantial reservations about the Government’s

 9   decision to bring to a closed ex parte hearing personnel whose

10   identity    and   affiliation   it   will   not   disclose   to   opposing

11   counsel, who were excluded from the hearing.            Of course, the

12   Government is entitled to keep secret the name of any undercover

13   operative, but there is no claim that the two people whose names

14   have been redacted serve in such capacity, and it would be a rare

15   case where such persons would need to attend an appellate

16   argument.    The Government’s justification for nondisclosure of

17   the two names is that they are CIA personnel, whose identities

18   are protected by the Central Intelligence Act and Exemption (3)

19   of FOIA, 5 U.S.C. § 552(b)(3).

20       Not having previously established ground rules concerning

21   disclosure of the identities of those attending the closed

22   hearing, we think it would be unfair to disclose the two names


                                          19
 1   that the Government has redacted.        However, if the need for a

 2   closed   ex   parte   hearing   should   arise   in     the   future,   the

 3   Government should either not bring personnel whose identities may

 4   not be disclosed, or present, prior to the hearing, a substantial

 5   justification for including such personnel.

 6       IV. Government’s Classification Review

 7       After     affording   the    Government      an     opportunity     for

 8   classification review of our proposed opinion, we received, ex

 9   parte and in camera, requests for a correction of a misstatement,

10   redactions from the opinion, and requests to redact some words

11   from the three paragraphs on page 9 of the District Court’s

12   opinion that Judge McMahon stated should be disclosed.

13       With respect to our proposed opinion, we have corrected the

14   misstatement and made all of the redactions requested by the

15   Government, except those concerning the three paragraphs at issue

16   on page 9 of the District Court’s opinion.            With respect to the

17   requested redactions from the District Court’s opinion, we rule

18   as follows: in the third line of the first full paragraph on page

19   9 of that opinion, the eight words following the word “opine”

20   will be redacted; in the 6th line of that paragraph, the six

21   words following the word “lawyer” will be redacted; in the

22   seventh line of that paragraph, “an” shall be changed to “a” and


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 1   the next two words will be redacted.    With these redactions, the

 2   three paragraphs at issue may be disclosed.     We recognize that

 3   these redactions render the resulting wording somewhat awkward.

 4   We leave it to Judge McMahon on remand, if she chooses, to make

 5   further redactions or some rephrasing of her language to smooth

 6   out the wording without restoring the words we have deleted.

 7       The Government has requested that we either (1) submit our

 8   revised opinion for further classification review or (2) maintain

 9   our opinion under seal for 30 days to permit the Government an

10   opportunity to seek further appellate review. We will pursue the

11   second alternative and have instructed the Clerk accordingly.

12                              Conclusion

13       We conclude that all the OLC documents at issue shall remain
14   undisclosed, except Exhibit K (the redacted version of Exhibit

15   B), which the District Court has authorized to be disclosed; that
16   the redacted portions of the District Court’s opinion shall

17   remain undisclosed, except for the three paragraphs on page 9,
18   (as redacted pursuant to Part IV of this opinion), which the
19   District Court wishes disclosed; and that the redactions from the

20   transcript of the June 23 hearing may remain undisclosed.
21       We therefore affirm the judgment, authorize the District
22   Court to disclose the three redacted paragraphs on page 9 of its
23   opinion (as redacted pursuant to Part IV of this opinion), and

                                    21
1   maintain   undisclosed   the   redacted   portions   of   the   District
2   Court’s opinion and the June 23, 2015, transcript.
3       AFFIRMED and REMANDED.




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