By
Originally written in March 2016
We’ve heard a lot about Merrick Garland’s sterling CV and seasoned age, but how does he fare as an opinion writer?
For clues, I pored over his 2013 opinion in ACLU v. CIA, a Freedom of Information Act case about whether the CIA could refuse to confirm or deny that it had records related to drone strikes. (For a unanimous panel, Chief Judge Garland concluded that the CIA could not so refuse.)
Here’s what I took away.
1. Like Judge Posner, he sometimes indulges in helpful meta-commentary.
For reasons that will become clear in a moment, the CIA did not justify its Glomar response by contending that it was necessary to prevent disclosing whether or not the United States engages in drone strikes.
But we are getting ahead of ourselves.
2. Like Justices Scalia, Kagan, and Roberts, he has a knack for apt transitions and flow.
The defendant is, after all, the Central Intelligence Agency. And it strains credulity to suggest that an agency charged with gathering intelligence affecting the national security does not have an “intelligence interest” in drone strikes, even if that agency does not operate the drones itself.
But there is more
And there is still more.
But again, there is more.
3. He shows some flair and force in his prose style.
Just how detailed a disclosure must be made, even in an index, is another matter.
There may be cases where the agency cannot plausibly make the former (Glomar) argument with a straight face, but where it can legitimately make the latter.
The collapse of the CIA’s Glomar response does not mark the end of this case.
4. He mostly shuns stilted language like “regarding,” “subsequently,” “moreover,” “proceeded,” and “assuming arguendo.”
The plaintiffs requested the release of ten categories of documents pertaining to drone strikes, each of which sought documents about drones, but none of which was limited to drones operated by the CIA.
The ACLU then filed suit against the CIA . . . .
Nor was the CIA’s Glomar response limited to documents about drones operated by the Agency.
The motion went on to hint that the Agency might abandon its Glomar response in favor of something less absolute, if only slightly less.
Even if we are overreading that acknowledgment, however, the official statements of the President and Messrs. Brennan and Panetta render it impossible to believe that . . . .
5. He avoids the ill-advised but widespread practice of slashing the word “that.”
Although these statements do not acknowledge that the CIA itself operates drones, they leave no doubt that some U.S. agency does. The CIA does not dispute that these statements qualify as official acknowledgments of at least that much.
6. He appreciates the judicious use of semicolons for contrasts and dashes for elaborations.
The only reason the Agency has given for refusing to disclose whether it has documents is that such disclosure would reveal whether it has an interest in drone strikes; it does not contend that it has a reason for refusing to confirm or deny the existence of documents that is independent from its reason for refusing to confirm or deny its interest in that subject.
The CIA has proffered no reason to believe that disclosing whether it has any documents at all about drone strikes will reveal whether the Agency itself—as opposed to some other U.S. entity such as the Defense Department—operates drones.
7. He’s human.
The occasional glitch or clunker sneaks in:
The CIA responded with what is commonly known as a “Glomar response,” declining either to confirm or deny the existence of any responsive records.
To maintain parallel structure, he needed a “to” before “deny.”
In response, the ACLU argued both that: (1) the mere existence or nonexistence of records responsive to its requests was not exempt under FOIA Exemption 1 or 3; and (2) even if it were, the existence of such records had already been officially acknowledged by prior disclosure.
Like “either . . . or,” the “both . . . and” construction requires parallel structure. So you would need another “that” before “(2).” (Plus there’s no basis for a colon after the first “that.”) But it’s probably better to scrap the “that” structure and just introduce the list with something like “In response, the ACLU made two arguments: (1) . . . and (2).”
In the New York litigation, the CIA said that it did not want to file a Vaughn index at all, but instead submit what it called a “no number, no list” response . . . .
I think he meant “[T]he CIA said that it did not want to file a Vaughn index at all but instead wanted to submit what it called a ‘no number, no list’ response.”
Such a response would only be justified in unusual circumstances, and only by a particularly persuasive affidavit.
Move that first “only” to after “justified.”
Overall, I’d give Chief Judge Garland a very solid A-. Some predict that he’d swing to the middle of the Court’s ideological spectrum. My guess is that he’d write in the middle of the Court’s prose spectrum as well, and that is high praise indeed.
