13-422-cvThe New York Times Company v. United StatesUNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUITAugust Term 2013Argued: October 1, 2013Decided: April 21, 2014Docket Nos. 13-422(L), 13-445(Con)- - - - - - - - - - - - - - - - - - - - - -THE NEW YORK TIMES COMPANY, CHARLIE SAVAGE,SCOTT SHANE, AMERICAN CIVIL LIBERTIES UNION,AMERICAN CIVIL LIBERTIES UNION FOUNDATION,Plaintiffs-Appellants,v.UNITED STATES DEPARTMENT OF JUSTICE, UNITEDSTATES DEPARTMENT OF DEFENSE, CENTRALINTELLIGENCE AGENCY,Defendants-Appellees.- - - - - - - - - - - - - - - - - - - - - Before: NEWMAN, CABRANES, and POOLER, Circuit Judges.Appeal from the January 24, 2013, judgment of the UnitedStates District Court for the Southern District of New York(Colleen McMahon, District Judge), dismissing, on motion forsummary judgment, a suit under the Freedom of Information Actseeking documents relating to targeted killings of United Statescitizens carried out by drone aircraft.We conclude that (1) a redacted version of the OLC-DOD1Memorandum must be disclosed, (2) a redacted version of theclassified Vaughn index (described below) submitted by OLC mustbe disclosed, (3) [redacted],1 (4) the Glomar and “no number, nolist” responses are insufficiently justified, (5) DOD and CIAmust submit Vaughn indices to the District Court for in camerainspectionanddeterminationofappropriatedisclosureandappropriate redaction, and (6) the OIP search was sufficient.We therefore affirm in part, reverse in part, and remand.David E. McCraw, The New York TimesCompany, New York, N.Y. (StephenN. Gikow, New York, N.Y., on thebrief), for Plaintiffs-AppellantsTheNewYorkTimesCompany,Charlie Savage, and Scott Shane.JameelJaffer,AmericanCivilLiberties Union Foundation, NewYork, N.Y. (Hina Shamsi, Brett MaxKaufman, American Civil LibertiesUnion Foundation, New York, N.Y.,Joshua Colangelo-Bryan, Dorsey &Whitney LLP, New York, N.Y., Eric1The redactions in the text of this opinion, most of whichrefer to the content of the OLC-DOD Memorandum, disclosure ofwhich is the primary subject of this appeal, are being made atthe request of the Government to preserve its opportunities forfurther appellate review of our ruling requiring disclosure ofa redacted version of that Memorandum. In the event that ourruling requiring disclosure of a redacted version of theMemorandum is not altered in the course of any further appellatereview, an unredacted version of this opinion, together with aredacted version of the OLC-DOD Memorandum, will be filed.2Ruzicka, Colin Wicker, Dorsey &Whitney LLP, Minneapolis, MN., onthebrief),forPlaintiffsAppellantsAmericanCivilLiberties Union and American CivilLiberties Union Foundation.Sharon Swingle, U.S. Appellate StaffAtty., Washington, D.C. (PreetBharara, U.S. Atty., Sarah S.Normand, Asst. U.S. Atty., NewYork, N.Y., Stuart F. Delery,Acting Asst. U.S. Atty. General,Washington, D.C., on the brief),for Defendants-Appellees.(Bruce D. Brown, Mark Caramanica,AaronMackey,TheReportersCommittee for Freedom of Press,Arlington, V.A., for amicus curiaeTheReportersCommitteeforFreedom of Press, in support ofPlaintiffs-Appellants.)(Marc Rotenberg, Alan Butler, GingerMcCall,DavidBrody,JuliaHorwitz,ElectronicPrivacyInformation Center, Washington,D.C., for amicus curiae ElectronicPrivacy Information Center, insupport of Plaintiffs-Appellants.)JON O. NEWMAN, Circuit Judge:This appeal of a judgment dismissing challenges to denialsofrequestsundertheFreedomofInformationAct(“FOIA”)presents important issues arising at the intersection of thepublic'sopportunitytoobtaininformationabouttheirgovernment's activities and the legitimate interests of the3Executive Branch in maintaining secrecy about matters of nationalsecurity.Theissuesassumeaddedimportancebecausetheinformation sought concerns targeted killings of United Statescitizens carried out by drone aircraft.Plaintiffs-AppellantsThe New York Times Company and New York Times reporters CharlieSavage and Scott Shane (sometimes collectively “N.Y. Times”), andtheAmericanCivilLibertiesUnionandtheAmericanCivilLiberties Union Foundation (collectively “ACLU”) appeal from theJanuary 24, 2013, judgment of the United States District Courtfor the Southern District of New York (Colleen McMahon, DistrictJudge)dismissing,onmotionsforsummaryjudgment,theirconsolidated FOIA suits. See New York Times Co. v. U. S. Dep’tof Justice (“Dist. Ct. Op.”), 915 F. Supp. 2d 508 (S.D.N.Y.2013).The suits were brought against the Defendants-AppelleesUnited States Department of Justice (“DOJ”), the United StatesDepartment of Defense (“DOD”), and the Central IntelligenceAgency (“CIA”) (sometimes collectively the “Government”).We emphasize at the outset that the Plaintiffs’ lawsuits donotchallengekillings.thelawfulnessInstead,theyofseekdroneattacksinformationortargetedconcerningthoseattacks, notably, documents prepared by DOJ’s Office of LegalCounsel (“OLC”) setting forth the Government’s reasoning as to4the lawfulness of the attacks.The issues primarily concern the validity of FOIA responsesthat (a) decline to reveal even the existence of any documentsresponsive to particular requests (so-called “Glomar responses”(described below)), (b) acknowledge the existence of responsivedocuments but decline to reveal either the number or descriptionof such documents (so-called “no number, no-list” responses(describedbelow)),(c)assertvariousFOIAexemptionsorprivileges claimed to prohibit disclosure of various documentsthathavebeenpubliclyidentified,notablytheOLC-DODMemorandum [redacted], and (d) challenge the adequacy of a FOIAsearch conducted by one office of DOJ.We conclude that (1) a redacted version of the OLC-DODMemorandum must be disclosed, (2) a redacted version of theclassified Vaughn index (described below) submitted by OLC mustbe disclosed, (3) [redacted], (4) the Glomar and “no number, nolist” responses are insufficiently justified, (5) DOD and CIAmust submit Vaughn indices to the District Court for in camerainspectionanddeterminationofappropriatedisclosureandappropriate redaction, and (6) the Office of Information Policy(“OIP”) search was sufficient.We therefore affirm in part,reverse in part, and remand.5BackgroundThe FOIA requests at issue in this case focus primarily onthe drone attacks [redacted] that killed Anwar al-Awlaki2 andSamirKhaninSeptember2011andal-Awlaki’sAbdulrahman al-Awlaki, in October 2011.teenageson,All three victims wereUnited States citizens either by birth or naturalization.Statutory Framework. FOIA provides, with exceptions notrelevant to this case, that an “agency, upon any request forrecords which (i) reasonably describes such records and (ii) ismade in accordance with published rules . . . , shall make therecordspromptlyavailable§ 552(a)(3)(A) (2013).toanyperson.”5U.S.C.FOIA contains several exemptions, threeof which are asserted in this case.Exemption 1 exempts records that are “(A) specificallyauthorized under criteria established by an Executive order tobe kept secret in the interest of national defense or foreignpolicy and (B) are in fact properly classified pursuant to suchExecutive order.” 5 U.S.C. § 552(b)(1) (2013).Executive Order13526 allows an agency to withhold information that (1) “pertains2This spelling, which we adopt (except in quotations), is usedby the District Court and in the Government’s brief. The briefs ofN.Y. Times and ACLU and numerous documents in the record render thename “al-Aulaqi.”6to” one of the categories of information specified in theExecutive order, including “intelligence activities (includingcovert action),” “intelligence sources or methods,” or “foreignrelations or foreign activities of the United States” and (2) if“unauthorized disclosure of the information could reasonably beexpected to cause identifiable and describable damage to thenational security.”Executive Order No. 13526 § 1.1(a)(3)-(4),1.4(c)-(d), 75 Fed. Reg. 708, 709 (Dec. 29, 2009).Exemption 3 exempts records that are “specifically exemptedfrom disclosure by [another] statute” if the relevant statuteeither “requires that the matters be withheld from the public insuch a manner as to leave no discretion on the issue” or“establishes particular criteria for withholding or refers toparticular§typesof552(b)(3)(A)(i),matters(ii)tobe(2013).potentially relevant here.withheld.”Twosuch5U.S.C.statutesareThe Central Intelligence Agency Actof 1949, as amended, provides that the Director of NationalIntelligence “shall be responsible for protecting intelligencesources or methods,” and exempts CIA from “any other law whichrequire[s] the publication or disclosure of the organization,functions,names,officialtitles,salaries,ornumbersofpersonnel employed by the Agency.” 50 U.S.C. § 3507 (2013). The7National Security Act of 1947, 50 U.S.C. § 3024-1(i)(1) (2013),exempts from disclosure “intelligence sources and methods.”Exemption5exempts“inter-agencyorintra-agencymemorandums or letters which would not be available by law to aparty other than an agency in litigation with the agency.” 5U.S.C. § 552(b)(5) (2013).Exemption 5 encompasses traditionalcommon law privileges against disclosure, including the attorneyclient and deliberative process privileges.See NationalCouncil of La Raza v. Dep't of Justice, 411 F.3d 350, 356 (2dCir. 2005).The N.Y. Times FOIA requests and Government responses.Shane and Savage, New York Times reporters, submitted separateFOIA requests to OLC.Shane’s request, submitted in June 2010,sought:all Office of Legal Counsel opinions or memoranda since2001 that address the legal status of targetedkillings, assassination, or killing of people suspectedof ties to Al-Qaeda or other terrorist groups byemployees or contractors of the United Statesgovernment.Joint Appendix (“JA”) 296-97.Savage’s request, submitted in October 2010, sought:a copy of all Office of Legal Counsel memorandumsanalyzing the circumstances under which it would belawful for United States armed forces or intelligencecommunity assets to target for killing a United States8citizen who is deemed to be a terrorist.JA 300-01.OLC denied Shane’s request.With respect to the portion ofhis request that pertained to DOD, OLC initially submitted a socalled “no number, no list” response3 instead of submitting theusual Vaughn index,4 numbering and identifying by title anddescription documents that are being withheld and specifying theFOIAexemptionsacknowledgestheasserted.existenceAofnonumber,documentsnolistresponsiveresponsetotherequest, but neither numbers nor identifies them by title ordescription.OLC said that the requested documents pertainingto DOD were being withheld pursuant to FOIA exemptions 1, 3, and5.As to documents pertaining to agencies other than DOD, OLCsubmitted a so-called “Glomar response.”5This type of response3The term was apparently coined by CIA, see Bassiouni v. CIA, 392F.3d 244, 246 (7th Cir. 2004), and the CIA’s use of no number, no listresponses to FOIA requests has been considered by district courts inthe District of Columbia. See National Security Counselors v. CIA, 898F. Supp. 2d 233, 284-85 (D.D.C. 2012); Jarvik v. CIA, 741 F. Supp. 2d106, 123 (D.D.C. 2010).4The term derives from Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.1973).5The term derives from the Hughes Glomar Explorer, a vessel builtto recover a sunken Soviet submarine. See Phillippi v. CIA, 546 F.2d1009, 1010-12 (D.C. Cir. 1976). A Glomar response was first used in1992 in a case challenging a Government agency’s refusal to confirm or9neither confirms nor denies the existence of documents responsiveto the request. See Wilner v. National Security Agency, 592 F.3d60, 68 (2d Cir. 2009).OLC stated that the Glomar response wasgiven “because the very fact of the existence or nonexistence ofsuch documents is itself classified, protected from disclosureby statute, and privileged” under 5 U.S.C. § 552(b)(1), (3), (5).CIA confirmed that it requested DOJ to submit a Glomar responseon its behalf.6OLC also denied Savage’s request.Declining to submiteither a Vaughn index or even a no number, no list response, OLCsubmitted a Glomar response, stating that, pursuant to Exemptions1, 3, and 5, it was neither confirming nor denying the existenceof documents described in the request. Unlike its letter denyingthe Shane request, OLC’s response to the Savage request did notidentify any responsive documents relating to DOD.During the course of thelitigation, OLC modified itsresponses to the Shane and Savage requests by identifying thedeny the existence of certain materials requested under FOIA, seeBenavides v. DEA, 968 F.2d 1243, 1245 (D.C. Cir. 1992).6CIA made one exception to its request that OLC submit a Glomarresponse. Because CIA’s involvement in the operation that resulted inthe death of Osama bin Laden had been acknowledged and was notclassified, the agency asserted that any OLC documents related to theagency’s involvement in that operation would not be covered by aGlomar response, but added that there were no such documents.10existence of one document pertaining to DOD, what the DistrictCourt and the parties have referred to as the OLC-DOD Memorandum,but claimed that this document was exempt from disclosure underExemption 5.Because the OLC-DOD Memorandum was classified, itwas presumably also withheld under Exemption 1.As to all otherDOD documents, it is not clear whether OLC was continuing toassert a Glomar response, as it had made to Shane, or a nonumber, no list response, as it had made to Savage.The ACLU FOIA requests and Government responses. In October2011,ACLUsubmittedFOIArequeststothreeagencies:DOJ(including two of DOJ’s component agencies, OIP and OLC), DOD,andCIA.Therequests,quotedinthemargin,7sought71. All records created after September 11, 2001, pertainingto the legal basis in domestic, foreign, and internationallaw upon which U.S. citizens can be subjected to targetedkillings, whether using unmanned aerial vehicles (“UAVs” or“drones) or by other means.2. All records created after September 11, 2001, pertainingto the process by which U.S. citizens can be designated fortargeted killings, including who is authorized to make suchdeterminations and what evidence is needed to support them.3. All memoranda, opinions, drafts, correspondence, andother records produced by the OLC after September 11, 2001,pertaining to the legal basis in domestic, foreign, andinternational law upon which the targeted killing of Anwaral-Awlaki was authorized and upon which he was killed,including discussions of:A. The reasons why domestic-law prohibitions on murder,11assassination, and excessive use of force did notpreclude the targeted killing of al-Awlaki;B. The protection and requirements imposed by the FifthAmendment Due Process Clause;C. The reasons why International-law prohibitions onextrajudicial killing did not preclude the targetedkilling of al-Awlaki;D. The applicability (or non-applicability) of theTreason Clause to the decision whether to target alAwlaki;E. The legal basis authorizing the CIA, JSOC, or otherU.S. Government entities to carry out the targetedkilling of Anwar Al-Awlaki;F. Any requirement for proving that al-Awlaki posed animminent risk of harm to others, including anexplanation of how to define imminence in this context;andG. Any requirement that the U.S. Government firstattempt to capture Al-Awlaki before killing him.4. All documents and records pertaining to the factual basisfor the targeted killing of Al-Awlaki, including:A. Facts supporting a belief that al-Awlaki posed animminent threat to the United States or United Statesinterests;B. Facts supporting a belief that al-Awlaki could notbe captured or brought to justice using nonlethalmeans;C.Factsindicatingthattherewasalegaljustification for killings persons other than alAwlaki, including other U.S. citizens, while attemptingto kill al-Awlaki himself;D. Facts supporting the assertion that al-Awlaki wasoperationally involved in al Qaeda, rather than beinginvolved merely in propaganda activities; and12various documents concerning the targeted killings of UnitedStates citizens in general and al-Awlaki, his son, and Khan inparticular.Both OLC and CIA initially submitted Glomar responses,refusingtoconfirmordenytheexistenceofresponsivedocuments, pursuant to Exemptions 1, 3, and 5.DOD initially stated that it could not respond to therequest within the statutory time period because of the scope andcomplexity of the request.During the course of the litigation, the Government agenciesE. Any other facts relevant to the decision toauthorize and execute the targeted killings of alAwlaki.5. All documents and records pertaining to the factual basisfor the killing of Samir Khan, including whether he wasintentionally targeted, whether U.S. Government personnelwere aware of his proximity to al-Awlaki at the time themissiles were launched at al-Awlaki’s vehicle, whether theUnited States took measures to avoid Khan’s death, and anyother facts relevant to the decision to kill Khan or thefailure to avoid causing his death.6. All documents and records pertaining to the factual basisfor the killing of Abdulrahman al-Awlaki, including whetherhe was intentionally targeted, whether U.S. Governmentpersonnel were aware of his presence when they launched amissile or missiles at his location, whether he was targetedon the basis of his kinship with Anwar al-Awlaki, whetherthe United States took measures to avoid his death, and anyother factors relevant to the decision to kill him or thefailure to avoid causing his death.JA 252-53.13modified their original responses in light of statements bysenior Executive Branch officials on the legal and policy issuespertaining to United States counterterrorism operations and thepotential use of lethal force by the United States Governmentagainst senior operational leaders of al-Qaeda who are UnitedStates citizens.OLC provided ACLU with a Vaughn index of sixty unclassifiedresponsivedocuments,eachdescribedasane-mailchainreflecting internal deliberations concerning the legal basis forthe use of lethal force against United States citizens in aforeign country in certain circumstances.OLC withheld thesedocuments pursuant to Exemption 5.OLC also submitted a no number, no list response as toclassified documents, stating that it could not provide thenumber or description of these documents because that informationwas protected from disclosure by Exemptions 1 and 3.OLC diddescribe one of these documents as an “OLC opinion related to DoDoperations,”DeclarationofJohnE.Bies,DeputyAssistantAttorney General, OLC ¶ 38 (“Bies Decl.”), JA 279, which itwithheld in its entirety under Exemptions 1 and 3.This isapparently not the OLC-DOD Memorandum, which OLC said was exemptfrom disclosure under Exemption 5. That this document is not the14OLC-DOD Memorandum is confirmed by OLC’s assertion that thisdocument “cannot be further identified or described on the publicrecord.”Id.TheOLC-DODMemorandumwaswithheldunderExemptions 1 and 5.OIP located one responsive document, a set of talking pointspreparedfor“hypotheticaltheAttorneyquestionsGeneralaboutandAnwarothersrelatedal-Aulaqi’stodeath,”Declaration of Douglas R. Hibbard, Deputy Chief of the InitialRequest Staff, OIP ¶ 8, JA 441, which it released to ACLU.OIPalso issued a Vaughn index listing four unclassified recordswithheld under Exemptions 3, 5, and 6.8OIP also submitted a nonumber, no list response to various classified documents withheldunder Exemptions 1 and 3.DOD’s revised response disclosed a speech given by JehJohnson, then-DOD General Counsel, at Yale Law School on February22, 2012. DOD also provided ACLU with a Vaughn index listing tenunclassified records, withheld pursuant to Exemption 5.Sevenof those documents were e-mail traffic regarding drafts of thespeech given by Johnson at Yale Law School and a speech delivered8Exemption 6, which is not in issue in this appeal, applies to“personnel and medical files and similar files the disclosure of whichwould constitute a clearly unwarranted invasion of personal privacy.”5 U.S.C. § 552(b)(6) (2013).15by Attorney General Holder at Northwestern University School ofLaw. One of the withheld unclassified records was a presentationbyJohnsoninFebruary2012,regardinginternationallawprinciples, to officers who had recently obtained the rank of O7.Theremainingtwowithheldunclassifiedrecordsweredescribed as “memoranda from the Legal Counsel to the Chairmanof the Joint Chiefs of Staff to the White House’s NationalSecurity Council Legal Advisor addressing the legal basis forconducting military operations against U.S. citizens in general.”Declaration of Robert E. Neller, Lt. General, United StatesMarine Corp, Director of Operations for the Joint Staff at thePentagon, ¶ 16 (“Neller Decl.”). JA 334.DOD also located responsive classified records.One ofthese was the previously mentioned OLC-DOD memorandum, which DODwithheld under Exemptions 1 and 5.As to the other classifieddocuments, DOD submitted a no number, no list response.CIA modified its initial Glomar responses in June 2012 byconfirming the existence of “responsive records reflecting ageneral interest” in two areas described in the ACLU’s request:(1) “‘the legal basis . . . upon which U.S. citizens can besubjected to targeted killing’” and (2) “‘the process by whichU.S. citizens can be subjected to targeted killing.’” Declaration16of John Bennett, Director, National Clandestine Service, CIA,¶ 27 (quoting ACLU request).In these two categories, CIAsubmitted a no number, no list response, relying on Exemptions1 and 3, with the exception that CIA acknowledged that itpossessed copies of speeches given by the Attorney General atNorthwestern University Law School on March 5, 2012, and by theAssistanttothePresidentforHomelandSecurityandopinions.InCounterterrorism on April 30, 2012. See id.ThependinglawsuitandDistrictCourtDecember 2011, N.Y. Times filed a lawsuit challenging the denialsof the Shane and Savage requests.February2012.AfterthesuitsACLU filed its suit inwereconsolidated,bothPlaintiffs and the Government filed cross-motions for summaryjudgment.In January 2013, the District Court denied bothPlaintiffs’motionsforsummaryjudgmentandgrantedtheDefendants’ motion in both cases, with one exception, whichrequired DOD to submit a more detailed justification as to whythe deliberative process exemption (asserted through Exemption5) applied to two unclassified memos listed in its Vaughn index.See Dist. Ct. Op., 915 F. Supp. 2d at 553.Later in January2013, after receiving a supplemental submission from DOD, theDistrictCourtgrantedtheDefendants’17motionforsummaryjudgment with respect to the two unclassified DOD memos. See NewYork Times Co. v. U. S. DOJ (“Dist. Ct. Supp. Op.”), Nos. 11 Civ.9336, 12 Civ. 794, 2013 WL 238928 (S.D.N.Y. Jan. 22, 2013).In its principal opinion, which we discuss in more detail inPartsIIIandIV,below,GovernmenthadconductedtheanCourtadequatefirstruledsearchforthattheresponsivedocuments. See Dist. Ct. Op., 915 F. Supp. 2d at 532-33.TheCourt then considered separately each of the Government’s claimsto an exemption.As to Exemption 1, concerning properly classified documents,the Court first ruled that there was no evidence that any of thedocuments withheld pursuant to Exemption 1 had not been properlyclassified. See id. at 535.The Court specifically consideredthe Plaintiffs’ claim that legal analysis could not be classifiedand rejected the claim. See id.Turning to the Plaintiffs’ claim of waiver, the Court,citing Wilson v. CIA, 586 F.3d 171, 186 (2d Cir. 2009), firstruled that waiver of Exemption 1 had not occurred with respecttoclassifieddocumentscontainingoperationaldetailsoftargeted killing missions. See Dist. Ct. Op., 915 F. Supp. 2d at535-37.ofThe Court then specifically considered whether waiverExemption1hadoccurredwith18respecttotheOLC-DODMemorandum and rejected the claim. See id. at 538.As to Exemption 3, which protects records exempted fromdisclosure by statute, the District Court first noted thatsection 102A(i)(1) of the National Security Act, now codified at50 U.S.C. § 3024(i)(1) (2013), is an exempting statute within themeaning of Exemption 3, and that this provision protects fromdisclosure “intelligence sources and methods.” Id. at 539.CourtthenreckonedwithACLU’scontentionthatTheplacingindividuals on kill lists does not fall within the category ofintelligence sources and methods.Agreeing with a decision ofa district court in the District of Columbia, ACLU v. Dep’t ofJustice, 808 F. Supp. 2d 280, 290-92 (D.D.C. 2011) (“Drone StrikeCase”), which was later reversed on appeal, see ACLU v. CIA, 710F.3d 422 (D.C. Cir. 2013), the District Court here rejectedACLU’s argument. See Dist. Ct. Op., 915 F. Supp. 2d at 540.TheDistrict Court then specifically focused on the issue whetherlegal analysis could fall within the category of intelligencesources and methods.Acknowledging that it is “entirely logicaland plausible” that intelligence sources and methods could beredacted from legal analysis upon in camera inspection, the Courtdeclined to make such inspection or resolve the issue because itconcludedthatExemption5“plainly19applies”tothelegalanalysis that is sought here. See id.The District Court then determined that section 6 of the CIAAct, 50 U.S.C. § 403g, now codified at 50 U.S.C. § 3507 (2013),is an exempting statute within the meaning of Exemption 3 andthat section 6 protects from disclosure information concerningthe “functions” of CIA. See id. at 541.Again, following thedistrict court decision in the Drone Strike Case, before it wasreversed,theDistrictCourthereruledthatExemption3permitted CIA, in response to ACLU’s request, to refuse to revealthe existence of records concerning drone strikes. See id.As to Exemption 5, covering “inter-agency or intra-agencymemorandums or letters which would not be available by law to aparty other than an agency in litigation with the agency,” theDistrict Court noted that this exemption applies to documentswithheld “under the deliberative process privilege (a.k.a., theexecutive privilege) and the attorney-client privilege,” citingthis Court’s decision in Tigue v. U.S. Dep’t of Justice, 312 F.3d70, 76 (2d Cir. 2002). See Dist. Ct. Op., 915 F. Supp. 2d at 54142. OLC relied on the deliberative process privilege to withholdthe classified OLC-DOD Memorandum, which both Plaintiffs sought,and DOD relied on this privilege to withhold the two unclassifieddocuments on its Vaughn index that ACLU requested.20These two,numbered 9 and 10, were described as “Memorandum from LegalCounsel to Chairman of the Joint Chiefs of Staff to the NationalSecurity Legal Advisor with legal analysis regarding the effectof U.S. citizenship on targeting enemy belligerents.” JA 409.With respect to the OLC-DOD Memorandum, the District Court,accepting N.Y. Times’s concession that this document at one timemight have been properly withheld under the deliberative processand/or attorney-client privileges, see id. at 544, rejected thePlaintiffs’ contentions that these privileges had been lostbecause of one or more of the following principles: waiver,adoption, or working law, see id. at 546-50.As to documents 9 and 10 on DOD’s Vaughn index, the Courtinitially found DOD’s justification for invoking Exemption 5inadequate,submissionseeid.atsufficiently545,butsupportedruledthethatasubsequentapplicationofthedeliberative process privilege and hence Exemption 5 to thesedocuments, see Dist. Ct. Supp. Op., 2013 WL 238928, at *1.Finally, the District Court considered the Glomar and nonumber, no list responses that were given by DOJ, DOD, and CIA.Apparently accepting the sufficiency of the affidavits submittedby officials of these agencies to justify the responses underExemptions 1 and 3, the Court turned its attention to the21Plaintiffs’claimsthattheseprotectionshadbeenwaived.Again, following the district court opinion in the Drone StrikeCase, before it was reversed, the District Court here concludedthat none of the public statements of senior officials waivedentitlement to submit Glomar or no number, no list responsesbecause “[i]n none of these statements is there a reference toany particular records pertaining to the [targeted killing]program, let alone the number or nature of those records.” Dist.Ct. Op., 915 F. Supp. 2d at 553 (emphases in original).Information made public after the District Court opinions.99As a general rule, a FOIA decision is evaluated as of the timeit was made and not at the time of a court's review.See, e.g.,Bonner v. U.S. Dep’t of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991)(“To require an agency to adjust or modify its FOIA responses based onpost-response occurrences could create an endless cycle of judiciallymandated reprocessing.”). On this basis, the Government argues thatwe cannot consider any official disclosures made after the DistrictCourt's opinion.We disagree.Although we are not required to consider suchevidence, the circumstances of this case support taking judicialnotice of the statements here.See Fed. R. Evid. 201(b)(2). TheGovernment's post-request disclosures “go[] to the heart of thecontested issue,” Powell v. U.S. Bureau of Prisons, 927 F.2d 1239,1243 (D.C. Cir. 1991) (internal quotation marks omitted), and, asdiscussed below, are inconsistent with some of its prior claims[redacted]. Taking judicial notice of such statements is the samecourse taken by the Court of Appeals for the D.C. Circuit in itsrecent ACLU v. C.I.A. decision. 710 F.3d at 431. We conclude that itis the most sensible approach to ongoing disclosures by the Governmentmade in the midst of FOIA litigation.Moreover, the Government’s request for an opportunity to submitnew material concerning public disclosures made after the District22After the District Court entered judgment for the Defendants, onedocument and several statements of Government officials that thePlaintiffsavailable.contendsupporttheirclaimsbecamepubliclyThe document is captioned “DOJ White Paper” andtitled “Lawfulness of a Lethal Operation Directed Against a U.S.Citizen Who Is a Senior Operational Leader of Al-Qa’ida or anAssociatedForce”(“DOJWhitePaper”).AstheGovernmentacknowledges, see Br. for Appellees at 25, the 16-page, singlespaced DOJ White Paper was leaked to the press and subsequentlyofficially disclosed by DOJ.10The leak occurred on February 4,Court’s decision was honored by affording the Government anopportunity, after oral argument, to submit such material ex parte forin camera inspection, which the Government has done.10The DOJ White Paper was leaked to Michael Isikoff, a reporterwithNBCNews,accordingtoareportavailableathttp://nbcnews.to/U1ZII3; the text of the leaked document is availablevia a link at that website. (Hard copies of the documents availableat this and all other websites cited in this opinion, as well ascopies of videos available at websites cited in this opinion, to theextent they can be copied, have been docketed with the Clerk of Courtfor public reference.) The official disclosure, acknowledged by theGovernment, see Br. for Appellees at 25, was made by OIP on Feb. 4,2013, in response to an FOIA request submitted by Truthout, accordingto a report available at http://www.truth-out.org/news/item/14585targeted-killing-white-paper-leaked-to-nbc-news-turned-over-totruthout-by-doj-in-response-to-a-six-month-old-foia-request-four-dayslater; the text of the officially disclosed document is available viaalinkatthatwebsiteandalsoathttps://www.documentcloud.org/documents/602342-draft-white-paper.html.The document disclosed to Truthout is marked “draft”; the documentleaked to Isikoff is not marked “draft” and is dated November 8, 2011.The texts of the two documents are identical, except that the documentleaked to Isikoff is not dated and not marked “draft.”232013; the official disclosure occurred four days later.The statementsare those of John O. Brennan, AttorneyGeneral Eric Holder, and President Obama.Brennan, testifyingbefore the Senate Select Committee on Intelligence on February7, 2013, on his nomination to be director of CIA, said, amongother things, “The Office of Legal Counsel advice establishes thelegal boundaries within which we can operate.” Open Hearing onthe Nomination of John O. Brennan to be Director of the CentralIntelligence Agency Before the S. Select Comm. on Intelligence,113 Cong. 57 (Feb. 7, 2013) (“Brennan Hearing”), available athttp://www.intelligence.senate.gov/130207/transcript.pdf. Holdersent a letter to Senator Patrick J. Leahy, Chairman of the SenateACLU contends that DOJ did not release the DOJ White Paper inresponse to its FOIA request, nor list it on its Vaughn index. See Br.for ACLU at 21 n.7. The Government responds that ACLU had narrowedits request to exclude “draft legal analyses,” Letter from Eric A.O.Ruzicka to Sarah S. Normand (Apr. 3, 2012), and that the DOJ WhitePaper was “part of document number 60 on the Vaughn index submitted bythe Office of Legal Counsel as an attachment to a responsive e-mail.See Br. for Appellees at 25 n.8. The OLC’s Vaughn index describesdocument number 60 as “E-mail circulating draft legal analysisregarding the application of domestic and international law to the useof lethal force in a foreign country against U.S. citizens in certaincircumstances, and discussion regarding interagency deliberationsconcerning the same” and invokes Exemption 5.Apparently, OLCexpected ACLU to understand “circulating” to mean “attachment.”The Government offers no explanation as to why the identical textof the DOJ White Paper, not marked “draft,” obtained by Isikoff, wasnot disclosed to ACLU, nor explain the discrepancy between thedescription of document number 60 and the title of the DOJ WhitePaper.24Judiciary Committee on May 22, 2013 (“Holder Letter”).11In thatletter Holder stated, “The United States . . . has specificallytargeted and killed one U.S. citizen, Anwar al-Aulaqi,” HolderLetter at unnumbered second page, and acknowledged that UnitedStates counterterrorism operations had killed Samir Khan andAbdulrahman al-Awlaki, who, he states, were not targeted by theUnited States, see id. He also stated, “[T]he Administration hasdemonstrated its commitment to discussing with the Congress andthe American people the circumstances in which it could lawfullyuse lethal force in a foreign country against a U.S. citizen whois a senior operational leader of al-Qa’ida or its associatedforces, and is actively engaged in planning to kill Americans.”Id.He also stated, “The decision to target Anwar al-Aulaki waslawful . . . .” Id. at fourth unnumbered page.President Obamadelivered an address at the National Defense University on May23, 2013.12In that address, the President listed al-Awlaki’sterrorist activities and acknowledged that he had “authorized thestrike that took him out.”Discussion11The Holder Letter is available at http://www.justice.gov/ag/AGletter-5-22-13.pdf.12The President’shttp://wh.gov/hrTq.address25isavailableviaalinkatI. FOIA Standards.FOIA calls for “broad disclosure of Government records.” CIAv. Sims, 471 U.S. 159, 166 (1985).subject to several exemptions.Act’sgoalofbroadThe disclosure obligation isHowever, “consistent with thedisclosure,theseexemptionshaveconsistently been given a narrow compass.” Dep’t of Interior v.Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001)(internal quotation marks omitted).Exemptions 1 (classifieddocuments), 3 (documents protected by statute), and 5 (privilegeddocuments), outlined above, have been invoked in this litigation.“The agency asserting the exemption bears the burden of proof,and all doubts as to the applicability of the exemption must beresolved in favor of disclosure.” Wilner, 592 F.3d at 69.Tomeet its burden of proof, the agency can submit “[a]ffidavits ordeclarations giving reasonably detailed explanations why anywithheld documents fall within an exemption.”ACLU v. Dep’t ofJustice, 681 F.3d 61, 69 (2d Cir. 2012) (internal quotation marksomitted).We review de novo a district court’s grant of summaryjudgment in FOIA litigation. See Wilner, 592 F.3d at 69.Whenan agency claims that a document is exempt from disclosure, wereview that determination and justification de novo. See id.26When the claimed exemptions involve classified documents in thenational security context, the Court must give “substantialweight to an agency's affidavit concerning the details of theclassified status of the disputed record.”ACLU, 681 F.3d at 69(emphasis in original) (internal quotation marks omitted).II. Appellants’ ClaimsNarrowing the scope of the Shane request (OLC opinions thataddress the legal status of targeted killings) and the Savagerequest (OLC memoranda analyzing the circumstances under whichit would be lawful to kill a United States citizen who is deemedto be a terrorist), Appellant N.Y. Times presses on appeal itsrequest to OLC for disclosure of the OLC-DOD Memorandum.N.Y.Times also requests a Vaughn index of all withheld documents,instead of the no number, no list and Glomar responses it hasreceived. See Br. for N.Y. Times at 51-52. ACLU seeks disclosureof the OLC-DOD memorandum; what it refers to as “the UnclassifiedMemos,” Br. for ACLU at 50, 61, which are documents nos. 9 and10 on DOD’s Vaughn index, see Dist. Ct. Op., 915 F. Supp. 2d at545; and “certain OLC memoranda that the agencies have notaddressed in this litigation but whose existence they haveofficially acknowledged in public statements,” Br. for ACLU at50.ACLU also requests Vaughn indices and asks that OIP be27required “to renew its search for responsive documents.” Br. forACLU at 61.III. The OLC-DOD MemorandumThe OLC-DOD Memorandum, as described by OLC, is an “OLCopinion pertaining to the Department of Defense marked classified. . .[t]hat . . . contains confidential legal advice to theAttorney General, for his use in interagency deliberations,regarding a potential military operation in a foreign country.”Bies Decl. ¶ 30.OLCwithheldtheOLC-DODMemorandumasprotectedfromdisclosure by Exemption 5 “because it is protected by thedeliberative process and attorney-client privileges.” Id.DODwithheld the document under Exemptions 1 and 5 “because thecontent of the document contains information about militaryoperations, intelligence sources and methods, foreign governmentinformation, foreign relations, and foreign activities.” NellerDecl.¶17.informationGeneralintheNellerOLC-DODstatedMemorandumthattheclassified“isnotreasonablysegregable.” Id.In upholding the application of Exemption 1 to the OLC-DODMemorandum, the District Court first ruled that the affidavitssuppliedbyseniorGovernment28officialsdemonstratedthatclassification had been properly made. See Dist. Ct. Op., 915 F.Supp. 2d at 535.The Court then ruled that legal analysis maybe classified, citing three district court opinions.13See id.After pointing out that Exemption 1 applies to documents properlyclassified pursuant to an Executive Order and that ExecutiveOrder No. 13526 “applies to any information that ‘pertains to’military plans or intelligence activities (including covertaction), sources or methods,” id., the Court stated, “I see noreason why legal analysis cannot be classified pursuant to E.O.13526 if it pertains to matters that are themselves classified,”id.In considering the application of Exemption 5 to the OLC-DODMemorandum, the District Court noted the Government’s claim thatboth the deliberative process and attorney-client privilegesprotected the document, and observed that N.Y. Times did notdisagree that the document might at one time have been withheldunder both privileges. See id. at 544.After determining that Exemptions 1 and 5 applied to the13New York Times Co. v. U.S. Dep’t of Justice, 872 F. Supp. 2d309, 312-13, 317-18 (S.D.N.Y. 2012), ACLU v. Office of the Director ofNational Intelligence, No. 10 Civ. 4419, 2011 WL 5563520, at *8(S.D.N.Y. Nov. 15, 2011), and Center for International EnvironmentalLaw v. Office of the U.S. Trade Representative, 505 F. Supp. 2d 150,154 (D.D.C. 2007).29OLC-DODMemorandum,theCourtconsideredandrejectedthePlaintiffs’ claims that the Government had waived application ofthese exemptions.With respect to waiver of Exemption 1, theCourt stated that waiver occurs only where the government has“officially” disclosed the information sought, Dist. Ct. Op., 915F. Supp. 2d at 536 (citing Halpern v. FBI, 181 F.3d 279, 294 (2dCir.1989)),andthatofficialdisclosureofclassifiedinformation occurs only if the classified information is “‘asspecific as the information previously released,’” “‘match[es]the information previously disclosed,’” and was “‘made publicthrough an official and documented disclosure,’” id. (quotingWilson, 586 F.3d at 186).The District Court ruled that noofficial disclosure had been made concerning documents containingoperational details of targeted killings, sought by ACLU, seeid., and that none of the public pronouncements cited by thePlaintiffs “reveals the necessary detailed legal analysis thatsupports the Administration’s conclusion that targeted killing,whetherofcitizensorotherwise,islawful,”id.at538(footnote omitted).With respect to waiver of Exemption 5, the District Courtruled that the deliberative process privilege had not been waivedbecause “there is no evidence that the Government continually30relieduponandrepeatedinpublictheargumentsmadespecifically in the OLC-DOD Memo,” id. at 549 (emphasis inoriginal) (internal quotation marks omitted), and that “it issheer speculation that this particular OLC memorandum . . .contains the legal analysis that justifies the Executive Branch’sconclusion that it is legal in certain circumstances to targetsuspected terrorists, including United States citizens, forkilling away from a ‘hot’ field of battle,” id.The Court sawno need to consider the plaintiffs’ claim of waiver in thecontext of the attorney-client privilege because the deliberativeprocessprivilegeprotectedtheOLC-DODMemorandumunderExemption 5. See id.We agree with the District Court’s conclusions that the OLCDOD Memorandum was properly classified and that no waiver of anyoperational details in that document has occurred.With respectto the document’s legal analysis, we conclude that waiver ofExemptions 1 and 5 has occurred.14orpartofadocumentmay“Voluntary disclosures of allwaiveanotherwisevalidFOIAexemption,” Dow Jones & Co. v. U.S. Dep’t of Justice, 880 F.Supp. 145, 150-51 (S.D.N.Y. 1995) (citing Mobil Oil Corp. v.14We therefore need not consider the Appellants’ claim that thelegal analysis in the OLC-DOD Memorandum was not subject toclassification.31E.P.A., 879 F.2d 698, 700 (9th Cir. 1989)), vacated in part onother grounds, 907 F. Supp. 79 (S.D.N.Y. 1995), and the attorneyclient and deliberative privileges, in the context of Exemption5, may be lost by disclosure, see Brennan Center for Justice v.U.S. Dep’t of Justice, 697 F.3d 184, 208 (2d Cir. 2012).(a) Loss of Exemption 5.Exemption 5 “‘properly construed,calls for disclosure of all opinions and interpretations whichembody the agency’s effective law and policy, and the withholdingof all papers which reflect the agency's group thinking in theprocess of working out its policy and determining what its lawshall be.’” Id. at 196 (quoting NLRB v. Sears, Roebuck & Co., 421U.S. 132, 153 (1975)).At the same time, we recognize that “thelaw extends the privilege to legal advice given by a lawyer tohis client [because] statements by the lawyer often reveal –expressly or by necessary implication –assumptions of factbased on statements by the client,” George A. Davidson & WilliamH. Voth, Waiver of the Attorney-Client Privilege, 64 Oregon L.Rev. 637, 650 (1986).In considering waiver of the legal analysis in the OLC-DODMemorandum, we note initially the numerous statements of seniorGovernmentkillingofofficialssuspecteddiscussingtheterrorists,32lawfulnesswhichtheoftargetedDistrictCourtcharacterized as “an extensive public relations campaign toconvince the public that [the Administration’s] conclusions[about the lawfulness of the killing of al-Awlaki] are correct.”Dist. Ct. Op., 915 F. Supp. 2d at 524.In a March 25, 2010,speechAmericanattheannualmeetingoftheSocietyofInternational Law in Washington, D.C., then-Legal Adviser of theStateDepartmentHaroldHongjuKohsaid,“U.S.targetingpractices, including lethal operations conducted with the use ofunmannedaerialvehicles,complywithincluding the laws of war.” JA 113, 124.allapplicablelaw,In a February 22, 2012,speech at the Yale Law School, Jeh Johnson, then-General Counselof DOD, “summarize[d] . . . some of the basic legal principlesthat form the basis for the U.S. military’s counterterrorismefforts against Al Qaeda and its associated forces,” JA 399, andreferring explicitly to “targeted killing,” said, “In an armedconflict, lethal force against known, individual members of theenemy is a long-standing and long-legal practice,” JA 402.In a March 5, 2012, speech at Northwestern University,Attorney General Holder said, “[I]t is entirely lawful – underboth United States law and applicable law of war principles – totarget specific senior operational leaders of al Qaeda andassociated forces.” JA 449. He discussed the relevance of the Due33Process Clause, id., and maintained that killing a senior alQaeda leader would be lawful at least in circumstances where[f]irst, the U.S. government has determined, after athorough and careful review, that the individual posesan imminent threat of violent attack against the UnitedStates; second, capture is not feasible; and third, theoperation would be conducted in a manner consistentwith applicable law of war principles.JA 450.Amplifying this last point, he stated that “use oflethal force by the United States will comply with the fourfundamental law of war principles governing the use of force:. . . necessity[,] . . . distinction[,] . . . proportionality[,]. . . [and] humanity.” Id.As the District Court noted, “TheNorthwestern Speech [by the Attorney General] discussed the legalconsiderations that the Executive Branch takes into considerationbefore targeting a suspected terrorist for killing” and “thespeech constitutes a sort of road map of the decision-makingprocess that the Government goes through before deciding to‘terminate’ someone ‘with extreme prejudice.’” Dist. Ct. Op., 915F. Supp. 2d at 537.In an April 30, 2012, speech at the Wilson Center inWashington D.C., John O. Brennan, then-Assistant to the Presidentfor Homeland Security and Counterterrorism, said, “Yes, in fullaccordance with the law, and in order to prevent terrorist34attacks on the United States and to save American lives, theUnited States Government conducts drone strikes against specifical-Qaida terrorists, sometimes using remotely piloted aircraft,often referred to publicly as drones.” JA 95.On Feb. 7, 2013,Brennan, testifying on his nomination to be director of CIA,said, “The Office of Legal Counsel advice establishes the legalboundaries within which we can operate.” Brennan Hearing at 57.Evenifthesestatementsassuringthepublicofthelawfulness of targeted killings are not themselves sufficientlydetailed to establish waiver of the secrecy of the legal analysisin the OLC-DOD Memorandum, they establish the context in whichthe most revealing document, disclosed after the District Court’sdecision, should be evaluated.That document is the DOJ WhitePaper, officially released on Feb. 4, 2013. See note 9, above.Before considering the relevance of the DOJ White Paper to theGovernment’s claim to continued secrecy and privilege of thelegal analysis in the OLC-DOD Memorandum, we describe thatMemorandum, which we have examined in camera, in some detail.The OLC-DOD Memorandum is a 41-page classified document,dated July 16, 2010, captioned:MEMORANDUM FOR THE ATTORNEY GENERAL35Re: [redacted15]It was prepared on the letterhead of OLC and signed by David J.Barron, Acting Assistant Attorney General.TheOLC-DODMemorandumhasseveralparts.Afterintroductory paragraphs, Part I(A) reports [redacted].I(B)andI(C)[redacted].describePartII(B)[redacted].explainsPartII(A)[redacted].PartsconsidersPartIII(A)explains [redacted], and Part III(B) explains [redacted].IV explains [redacted].Part V explains [redacted].twoPartPart VIexplains [redacted].The 16-page, single-spaced DOJ White Paper [redacted] in itsanalysis of the lawfulness of targeted killings. [redacted] TheDOJ White Paper explains why targeted killings do not violate 18U.S.C. §§ 1119 or 2441, or the Fourth and Fifth Amendments to theConstitution, and includes an analysis of why section 1119encompasses the public authority justification.Even though theDOJ White Paper does not discuss 18 U.S.C. § 956(a)[redacted].After the District Court’s decision, Attorney General Holderpublicly acknowledged the close relationship between the DOJWhite Paper and previous OLC advice on March 6, 2013, when he15We have deleted classification codes from the caption andthroughout the document.36said at a hearing of the Senate Committee on the Judiciary thatthe DOJ White Paper’s discussion of imminence of threatenedaction would be “more clear if it is read in conjunction with theunderlying OLC advice.”16 Oversight of the U.S. Department ofJustice Before the Senate Committee on the Judiciary, 113th Cong.(Mar. 6, 2013).After senior Government officials have assured the publicthattargetedkillingsare“lawful”andthatOLCadvice“establishes the legal boundaries within which we can operate,”and the Government makes public a detailed analysis [redacted],waiver of secrecy and privilege as to the legal analysis in theMemorandum has occurred.The recent opinion of the District Court for the NorthernDistrict of California, First Amendment Coalition v. U.S. Dep’tof Justice, No. 4:12-cv-01013-CW (N.D. Cal. April 11, 2014),denying an FOIA request for the OLC-DOD Memorandum, is readilydistinguishable because the Court, being under the impressionthat “there has been no ‘official disclosure’ of the WhitePaper,” id., slip op. at 24, did not assess its significance,16The statement was made in a response to a question from SenatorMike Lee. A webcast of the hearing is available via a link athttp://www.judiciary.senate.gov/hearings/hearing.cfm?id=e0c4315749c10b084028087a4aa80a73, at 1:51:30.37whereas in our case, the Government has conceded that the WhitePaper, with its detailed analysis of legal reasoning, has in factbeen officially disclosed, see footnote 10, supra.In resisting disclosure of the OLC-DOD Memorandum, theGovernment contends that making public the legal reasoning in thedocument will inhibit agencies throughout the Government fromseeking OLC’s legal advice.The argument proves too much.Ifthis contention were upheld, waiver of privileges protectinglegal advice could never occur. In La Raza, we explained that“[l]ike the deliberative process privilege, the attorney-clientprivilege may not be invoked to protect a document adopted as,or incorporated by reference into, an agency’s policy.” 411 F.3dat 360.Here, the Government has done so by publicly assertingthat OLC advice “establishes the legal boundaries within whichwe can operate”; it “cannot invoke that relied-upon authority andthen shield it from public view.”207-08.AgenciessophisticatedseekingenoughtoOLCknowBrennan Center, 697 F.3d atlegalthatinadvicethesearesurelycircumstancesattorney/client and deliberative process privileges can be waivedand the advice publicly disclosed.We need not fear that OLCwill lack for clients.TheGovernmentalsoargues38thatbecausetheOLC-DODMemorandumreferstoearlierOLCdocumentsthatremainclassified, those assessing the legal reasoning in the OLC-DODMemorandumopportunitymighttofindseethethereasoningpreviousdeficientdocuments.withoutHowever,anthereasoning in the OLC-DOD Memorandum is rather elaborate, andreaders should have no difficulty assessing the reasoning on itsown terms.Moreover, the Government had no similar concern whenit released the DOJ White Paper, the reasoning of which cannotbe properly assessed, on the Government’s argument, withoutseeing the OLC-DOD Memorandum.Finally, the Government alwayshas the option of disclosing redacted versions of previous OLCadvice.The loss of protection for the legal analysis in the OLC-DODMemorandum does not mean, however, that the entire document mustbe disclosed.FOIA provides that “[a]ny reasonably segregableportion of a record shall be provided to any person requestingsuch record after deletion of the portions which are exempt underthis subsection.” 5 U.S.C. § 552b.The Government’s waiverapplies only to the portions of the OLC-DOD Memorandum thatexplain legal reasoning.These are Parts II, III, IV, V, and VIof the document, and only these portions will be disclosed. Evenwithin those portions of the document, there are matters that the39Government contends should remain secret for reasons set forthin the Government’s classified ex parte submission, which we havereviewed in camera.One of those reasons concerns [redacted] the Governmentpersuasively argues warrants continued secrecy. [redacted]Wewill redact all references to that [redacted].Two arguments concern facts [redacted] that no longer meritsecrecy.One is the identity of the country in which al-Awlakiwas killed. [redacted17]The other fact [redacted] that the Government contendsmerits secrecy is the identity of the agency, in addition to DOD,that had an operational role in the drone strike that killed alAwlaki.Both facts have been redacted from this public opinion.[redacted][redacted][redacted][redacted][redacted][redacted](b) Loss of Exemption 1.17Much of the above discussion[redacted]40concerning loss of Exemption 5 is applicable to loss of Exemption1.As the District of Columbia Circuit has noted, “Ultimately,an agency’s justification for invoking a FOIA exemption issufficient if it appears ‘logical’ or ‘plausible.’” Wolf v. CIA,473 F.3d 370, 374-75 (D.C. Cir. 2007) (quoting Gardels v. CIA,689 F.2d 1100, 1105 (D.C. Cir. 1982)). But Gardels made it clearthat the justification must be “logical” and “plausible” “inprotecting our intelligence sources and methods from foreigndiscovery.” 689 F.2d at 1105.The District Court noted the Government’s contention that“‘[i]t is entirely logical and plausible that the legal opinioncontains information pertaining to military plans, intelligenceactivities, sources and methods, and foreign relations.’ (Gov’tMemo. in Opp’n/Reply 6).” Dist. Ct. Op., 915 F. Supp. 2d at 540.But the Court then astutely observed, “[T]hat begs the question.In fact, legal analysis is not an ‘intelligence source ormethod.’” Id.We recognize that in some circumstances the very fact thatlegal analysis was given concerning a planned operation wouldrisk disclosure of the likelihood of that operation, but that isnot the situation here where drone strikes and targeted killingshave been publicly acknowledged at the highest levels of the41Government.analysisWe also recognize that in some circumstances legalcouldbesointertwinedwithfactsentitledtoprotection that disclosure of the analysis would disclose suchfacts. Aware of that possibility, we have redacted, as explainedabove, the entire section of the OLC-DOD Memorandum that includesany mention of intelligence gathering activities. [redacted18]The three-part test for “official” disclosure, relevant toExemption 1, which the District Court took from Wilson, 586 F.3dat 536, has been sufficiently satisfied. [redacted] is “‘asspecific as the information previously released’” [redacted], it“‘match[es] the information previously disclosed,’” and was“‘made public through an official and documented disclosure.’”Dist. Ct. Op., 915 F.3d at 536 (quoting Wilson, 586 F.3d at 186).In reaching this conclusion, we do not understand the “matching”aspect of the Wilson test to require absolute identity.such a requirement would make little sense.Indeed,A FOIA requesterwould have little need for undisclosed information if it had tomatch precisely information previously disclosed.1918[redacted]19Although we conclude that the three-part test of Wilson hasbeen satisfied, and Wilson remains the law of this Circuit, we notethat a rigid application of it may not be warranted in view of itsquestionable provenance. Wilson took the test from Wolf v. CIA, 473F.3d 370, 378 (D.C. Cir. 2007), which took the test from Fitzgibbon v.42With the redactions and public disclosures discussed above,it is no longer either “logical” or “plausible” to maintain thatdisclosure of the legal analysis in the OLC-DOD Memorandum risksdisclosinganyaspectof“militaryplans,intelligenceactivities, sources and methods, and foreign relations.”Therelease of the DOJ White Paper, discussing why the targetedkilling of al-Awlaki would not violate several statutes, makesCIA, 911 F.2d 755, 765 (D.C. Cir. 1990). Fitzgibbon purported to findthe test in Afshar v. Dep’t of State, 702 F.2d 1125, 1133 (D.C. Cir.1983). The issue in Afshar was whether several books submitted to CIAfor clearance contained official disclosure of details of CIA’srelationship with SAVAK, Iran’s intelligence service prior to 1979 andthe existence of a CIA station in Tehran prior to 1979.Afsharrejected the claim of official disclosure for three reasons: (1) noneof the books revealed a continuing relationship between CIA and SAVAKafter 1963, the date of the earliest withheld document; (2) the booksprovided only a general outline of such a relationship; and (3) noneof the book was an official and documented disclosure. The secondreason was supported by a citation to Lamont v. Dep’t of Justice, 475F. Supp. 761, 772 (S.D.N.Y. 1979), with a parenthetical stating thatthe withheld information must have “already been specifically revealedto the public” (emphasis in Afshar). Lamont did not assert specificrevelation as a requirement for disclosure; it observed that theplaintiff had raised a factual issue as to whether the informationsought had been specifically revealed. More important, Afshar, theultimate source of the three-part test does not mention a requirementthat the information sought “match[es] the information previouslydisclosed.”Wilson also cited Hudson River Sloop Clearwater, Inc. v. Dep’t ofthe Navy, 891 F.2d 414 (2d Cir. 1989).Clearwater also citedFitzgibbon and Afshar and drew from those opinions more rigidity thanwas warranted. The issue in Clearwater was simply whether the Navyhad previously disclosed, as the plaintiff claimed, that it wasplanning to deploy nuclear weapons at the New York Harbor Homeport.The Court rejected the claim, pointing out that the Navy had said onlythat the ships to be stationed at the Homeport were capable ofcarrying nuclear weapons. See id. at 421.43this clear. [redacted] in the OLC-DOD Memorandum adds nothing tothe risk. Whatever protection the legal analysis might once havehad has been lost by virtue of public statements of publicofficials at the highest levels and official disclosure of theDOJ White Paper.IV. Legal Analysis in Other Withheld Documents20In addition to seeking at least the legal analysis in theOLC-DOD Memorandum, ACLU also seeks disclosure of the legalanalysis in documents numbered 9 and 10 on DOD’s unclassifiedVaughn index and in other OLC legal memoranda the existence ofwhich ACLU contends have been officially acknowledged in publicstatements. See Br. for ACLU at 50.ACLU contends that SenatorFeinstein said at the confirmation hearing of Brennan to be CIAdirector that there are eleven such memoranda, see id. at 50n.25, of which four were provided to the Senate Select Committeeon Intelligence, see id. at 24 & n.9.20Other than the legal analysis in the documents considered inthis section, it is unclear whether the Appellants are seeking onappeal any other withheld documents. See, e.g., Br. for ACLU at 50(“Plaintiffs do not challenge the bulk of those withholdings.”). Inany event, except as to the OLC-DOD Memorandum discussed in SectionIII, above, the documents discussed in this Section IV, and theindices discussed in Section V, below, on the current record, weaffirm the District Court’s decision to withhold all other documentssought. After the Government submits its classified Vaughn indices onremand, the District Court may, as appropriate, order the release ofany documents that are not properly withheld.44Documents numbered 9 and 10 are OLC legal memoranda, whichweremadeavailableinspection.CourtthattothisCourtexparteforincameraAs to these documents, we agree with the DistrictthedeclarationofRichardC.Gross,BrigadierGeneral, United States Army, JA 863, adequately supports theapplication of Exemption 5. See Dist. Ct. Supp. Op., 2013 WL238928, at *1.As General Gross pointed out, these briefdocuments (two and four pages respectively) are informal andpredecisional.One does not even identify the sender or thereceiver. They mention legal authorities, but in no way resemblethe detailed, polished legal analysis in the disclosed DOJ WhitePaper.Atmost,theyare“partofaprocessbywhichgovernmental decisions and policies are formulated, [or] thepersonal opinions of the writer prior to the agency’s adoptionof a policy.” Public Citizen, Inc. v. Office of Management andBudget, 598 F.3d 865, 875 (D.C. Cir. 2010)(alteration inoriginal) (internal quotation marks omitted). See also JudicialWatch,Inc.(protectingv.asFDA,449F.3ddeliberative141,“the151(D.C.Cir.give-and-take2006)ofconsultative process”) (internal quotation marks omitted).theNowaiver of Exemption 5 has occurred with respect to these twodocuments.45[redacted]V. Glomar and No Number, No List ResponsesAs set forth above, OLC, DOD, and CIA submitted eitherGlomar or no number, no list responses to the N.Y. Times and ACLUrequests, in addition to Vaughn indices.For clarification, weset forth in the margin a chart showing the revised responses ofthe three agencies.21numberofresponsiveAn agency may withhold information on thedocumentsandadescriptionoftheircontents if those facts are protected from disclosure by a FOIAexemption.See Wilner, 592 F.3d at 67-69; Hayden v. NationalSecurity Agency, 608 F.2d 1381, 1384 (D.C. Cir. 1979).However,we agree with the D.C. Circuit that “[s]uch a response would onlybe justified in unusual circumstances, and only by a particularlypersuasive affidavit.” ACLU, 710 F.3d at 433.The Government’s core argument to justify the Glomar and no21OLC:DOD:CIA:Glomar to NYTimes;no number, no list toACLU as to classifieddocuments, exceptOLC-DOD Memorandumno number, no list toShane, Glomar toSavage, except OLCDOD Memorandum; nonumber, no list toACLU as to classifieddocuments, exceptOLC-DOD MemorandumGlomar to NYTimes; nonumber, no list toACLU46number, no list responses, as it was with the effort to withholdthe OLC-DOD Memorandum, is that identification of any documentthat provides legal advice to one or more agencies on thelegalityoftargetedkillings“wouldtendtodisclosetheidentity of the agency or agencies that use targeted lethal forceagainst certain terrorists who are U.S. citizens . . . .” Br. forAppelleesat37.IfoneofthoseagenciesisCIA,theGovernment’s argument continues, disclosure of any informationin a Vaughnindex that “would tend to disclose the identity” ofthat agency must be protected because, the Government claims,“[T]he government has never disclosed (with the exception of theBin Laden operation) whether the CIA has an operational role inthe use of targeted lethal force or is authorized to use suchforce.”Id. at 38.[redacted22]The Vaughn index submitted by OLC in cameramust be disclosed, and DOD and CIA must submit classified Vaughnindices to the District Court on remand for in camera inspectionand determination of appropriate disclosure and appropriateredaction.As was also true of the OLC-DOD Memorandum, however, therequirement of disclosing the agencies’ Vaughn indices does not22[redacted]47necessarily mean that either the number or the listing of alldocuments on those indices must be disclosed.The Appelleesargue persuasively that with respect to documents concerning acontemplated military operation, disclosure of the number of suchdocuments must remain secret because a large number might alertthe enemy to the need to increase efforts to defend againstattacks or to avoid detection and a small number might encouragea lessening of such efforts.Accordingly, all listings afternumber 271 on OLC’s Vaughn index will remain secret. See Wilner,592 F.3d at 70 (upholding Glomar response as to identificationofdocumentsthatwouldreveal“detailsof[a]program’soperations and scope”). The descriptions of listing numbers 1-4,6,69,72,80-82,87,92,103-04,244-49,and256revealinformation entitled to be protected. Listing numbers 10-49, 5156, 84-86, 94, 101, 106-09, 111-12, 114-15, 251, 255, 257-61, and266-67 describe email chains (or copies of chains).Because thePlaintiffs informed the District Court that they were not seekingthese items, see Dist. Ct. Op., 915 F. Supp. 2d at 545, theselistings need not be disclosed.No reason appears why the number, title, or description ofthe remaining listed documents needs to be kept secret.Listingnumber 5 is the OLC-DOD Memorandum; listing numbers 7-9, 50, 250,48262-65,and269-71describedocumentsandattorneynotesconcerning legal advice; listing numbers 57-68, 70-71, 73-79, 83,88-91, 93, 95-100, 102, 105, 110, 113, 116-22, and 144-45 aredescribed as including factual information concerning al-Awlaki;listing numbers 123-30 are described as unclassified open sourcematerials; listing numbers 131-43 and 148-237 are described asdrafts of the OLC-DOD Memorandum; listing numbers 238-43 aredescribed as drafts of other documents; listing numbers 146-47are described as drafts of Document 86A, a listing that does notappear on the OLC’s Vaughn index; and listing numbers 244, 246,248, 252-54, 256, and 268 are described as including [redacted].Some, perhaps all, of the information in many of thesedocumentsmightbeprotectedinformation or predecisional.asclassifiedintelligenceIf the Plaintiffs challenge theapplicability of a cited exemption, the District Court, after incamera inspection, will be able to determine which of thesedocuments need to be withheld and which portions of thesedocumentsneedtoberedactedasexemptions that have not been waived.subjecttooneormoreAt this stage, we decideonly that the number, title, and description of all documentslisted on OLC’s classified Vaughn index must be disclosed, withthe exception of listing numbers 1-4, 6, 69, 72, 80-82, 87, 92,49103-04, 244-49; 10-49, 51-56, 84-86, 94, 101, 106-09, 111-12,114-15, 251, 255-61, 266-67; and all listings after listingnumber 271.Unlike OLC, DOD and CIA did not provide this Court withclassified Vaughn indices, and we are unable to distinguish amonglisted document numbers, which titles or descriptions meritsecrecy. We will therefore direct that, upon remand, DOD and CIAwill provide the District Court with classified Vaughn indiceslisting documents responsive to the Plaintiffs’ requests.Fromthese indices, the District Court, with the guidance provided bythis opinion, should have little difficulty, after examiningwhatever further affidavits DOD and CIA care to submit to claimprotection of specific listings, to determine which listings onthese indices may be disclosed.(prescribingasimilarprocedureSee ACLU, 710 F.3d at 432afterrejectingaGlomarresponse).VI. Adequacy of OIP’s SearchFinally, ACLU argues that OIP did not make an adequatesearch because it did not disclose thirty e-mail chains withother DOJ offices that were found during OLC’s search forresponsive records.See Br. for ACLU at 60.However, as thisCourt has recognized, a search is not inadequate merely because50it does not identify all responsive records. See Grand CentralPartnership, Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir. 1999).The adequacy of a search is not measured by its results, butrather by its method. See Weisberg v. U.S. Dep’t of Justice, 745F.2d 1476, 1485 (D.C. Cir. 1984).To show that a search isadequate, the agency affidavit “must be relatively detailed andnonconclusory,andsubmittedingoodfaith.”GrandCentralPartnership, 166 F.3d at 489 (internal quotation marks omitted).The affidavit submitted by an OIP official, JA 412-419 ¶¶ 7-34,easily meets these requirements, and the November 3, 2011, cutoff date was reasonable as the date on which the search wascommenced. See Edmonds Institute v. U.S. Dep’t of Interior, 383F. Supp. 2d 105, 110-11 (D.D.C. 2005).ConclusionFor the reasons stated above, we conclude that:(1) a redacted version of the OLC-DOD Memorandum(attached as Appendix A to this opinion) must bedisclosed;(2) a redacted version of the classified Vaughnindex submitted by OLC must be disclosed, includingthe number, title, and description of all documents,with the exception of listing numbers 1-4, 6, 10-49,5151-56, 69, 72, 80-82, 84-87, 92, 94, 101, 103-04,106-09, 111-12, 114-15, 244-49, 251, 255-61, 266-67;and all listings after listing number 271;(3) [redacted];(4) the Glomar and “no number, no list” responsesare insufficiently justified;(5) DOD and CIA must submit Vaughn indices to theDistrictCourtdeterminationforofincameraappropriateinspectiondisclosureandandappropriate redaction; and(6) the OIP search was sufficient.We therefore affirm in part, reverse in part, and remand.23Appendix AOLC-DOD Memorandum after appropriate redactions and deletionof classification codes[In this redacted version of the opinion, the entire redactedversion of the OLC-DOD Memorandum has been redacted. Seefootnote 1, supra.]23Prior to filing, we have made this opinion available to theGovernment in camera to afford an opportunity to advise whether anyclassified information, not intended to be disclosed by this opinion,has been inadvertently disclosed.52