CH: Of course, a lot of times reporters gather much more information than what pops up in their stories. The editors say “No, this isn’t going to interest our readers, we’re getting in the weeds here.” Would you ever get in touch with the reporters to ask what else they knew about these documents?
JJ: Yes. And some reporters have been very helpful to us. One who I think was especially helpful was Stephen Gray, who helped us a lot with the rendition issue. He’s not the only one who has been helpful but he stands out in my mind.
But, you know, there’s also a certain amount of competition between the reporters, and not everybody is that willing to share information that they haven’t already published.
CH: Were there other reporters who wanted to keep advocacy organizations like the ACLU at arm’s length, who were more hesitant to speak to you?
JJ: There were certainly reporters who were hesitant to share information. I don’t think it was because we are an advocacy organization—I think they would have been even more hesitant to share with another news organization—but as you know, for a reporter information is everything, and people are, for understandable reasons, sometimes reluctant to share what they may be able to use themselves in the next day’s story. It’s just a fact about the way the media world works.
CH: You said you filed the suit in part to bring attention, and that you didn’t really expect that you would get all that much. Is that because of precedents in national security FOIA litigations?
JJ: Yes, absolutely. It is very difficult to obtain a document the government is withholding on national security grounds. It almost never happens.
One thing I should emphasize is that it’s not that we filed the request and then all this information started coming in the door. We’ve filed probably 250 briefs in this case, literally. The appeals have gone up the Second Circuit three times. Judge Hellerstein has issued probably a dozen published opinions and maybe three dozen unpublished orders and opinions.
Along the way there were disclosures either through leaks to the media or through documents given to us through the FOIA, and we learned about documents that we didn’t know about earlier. It just became a sprawling litigation, with multiple branches in the district court, and several branches in the appeals court as well. It required an enormous investment in the ACLU’s resources, but also enormous investment of litigation resources by cooperating attorneys. We have a law firm, Gibbons Del Deo, and they have been working on this case since 2003, and putting, I don’t even know how many, but, by this point several thousand hours. It’s part of their pro-bono program, which Larry Lustberg runs. It’s great. We would never have been able to do this without their help.
CH: From all I’ve heard from people who’ve done national security-related FOIA requests going back to the Reagan era, this is how it works. You start with a tiny request and then it becomes a sprawling litigation and you probably wind up getting more than you ever though you would.
JJ: Right, more than you ever knew existed.
CH: How did we get to the point where April 16 was a key deadline?
JJ: After The New York Times reported the existence of these two Bradbury memos we filed a motion asking it to require the government to process these memos, which they hadn’t identified to us, in response to our FOIA request. We said these are clearly within the scope of the request, we don’t know why they haven’t identified them to us until now. And the government said the reason we haven’t identified them to you is because we used a January 2005 cut-off date for your FOIA request with respect to the OLC.
CH: How did they say that they picked that date?
JJ: It was completely arbitrary. In fact, they had identified some documents that post-dated May of 2005, some from June of 2005.
So, Judge Hellerstein said, “Look, I don’t care what the cut-off date was. It’s only three documents. They’re clearly within the scope of what the plaintiffs were looking for. I don’t think it’s a big burden on the Justice Department to process those memos.”
If we had lost that motion, what we would have done is just file a new FOIA request for those documents. It would have added months to the litigation and the government knew that, they understood that it was a stalling tactic. It was a very technical victory for us, but a very important one because…
CH: …because it shaved months off ?