New “drone memo” to be released to FAC . . . and other developments in FAC’s legal cases

The US Justice Department has advised FAC that it plans to release a second redacted memo analyzing the legality of the government’s proposed use of force to kill al-Aulaqi, a US citizen who had joined Al Qaeda and taken on operational functions for Al-Qaeda’s  operations in Yemen. Al-Aulaqi was subsequently killed in a 2010 drone attack.

The disclosure about the second memo was made in a filing in FAC’s FOIA suit against the Justice Department, which is pending in federal district court in Oakland. The first Justice Department legal memo, dated July 16, 2010, was released last month following a court of appeals decision that substantially sustained FOIA claims of the New York Times and the ACLU. The Obama administration chose not to appeal that decision as part of a deal with Senate Republicans, who had blocked the President’s nomination of David Barron, the author of the memo, to a federal judgeship. The Republicans conditioned a confirmation vote on release of the memo. (Barron was ultimately confirmed, albeit by a narrow margin).

The July 16, 2010 memo was addressed to the Department of Defense, but examined the proposed attack against al-Aulaqi on the assumption that it could be carried out by either DOD or CIA. The heavily redacted memo refers to a previous Justice Department analysis, the “Barron Memorandum,” in which the Department concluded that al-Aulaqi’s US citizenship poses no “constitutional limitations that would preclude the contemplated lethal action under the facts presented. . .” The second memo, to be released some time before August 15, may be the referenced “Barron Memorandum.”

Thomas Burke and his colleagues at Davis Wright Tremaine are FAC’s counsel in this case.

The CA Supreme Court has decided to consider an appeal in the San Jose email case. This is the case involving public officials’ increasingly common practice of using a private email account for communications about public business. The appellate court, in a terrible opinion, gave its blessing to this end-run around the CPRA. The Supreme Court’s decision to review that opinion is obviously a positive development in what will be a protracted appeals process. But it also has an immediate, practical benefit: it causes the “de-publishing” of the court of appeal decision. FAC’s amicus brief urging the Court to take up this case was written by Karl Olson.


FAC’s lawsuit against the State Bar is headed back to superior court following our 2013 victory in the CA Supreme Court. FAC now faces, and our lawyers are preparing for, a trial on issues of how to redact data on Bar admission applicants to adequately protect applicants’ anonymity. The outcome could be a leading precedent for protocols governing access to data that contain potentially sensitive, personal information.  FAC is represented by James Chadwick in the State Bar case; Jean-Paul Jassy represents Rick Sander, FAC’s co-plaintiff.


The US Supreme Court, in a case in which FAC filed its own amicus brief, issued an important first amendment decision on the rights of government whistleblowers. The case, Lane v. Franks, involved an
employee of a state program who lost his job as punishment for testifying in a judicial proceeding (that led ultimately to criminal charges against other state officials). The first amendment issue was whether the employee, when testifying, was functioning as a citizen (in which case first amendment protection applies) or as an employee (no protection). The Court held, unanimously, that he testified in his role as citizen, regardless of the fact that his testimony concerned information obtained in his job.

Lane v. Franks is one of 2 Supreme Court cases this term in which FAC filed its own amicus brief. The other is Air Wisconsin v. Hoeper, in which the Court interpreted a statutory immunity clause to provide the
same protection as the “actual malice” test in libel litigation. FAC was represented by Floyd Abrams in the Lane case; by Jean-Paul Jassy in the Hoeper case.