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Preliminary Injunction Opinion, Syria Lawsuit

In its ruling on the preliminary injunction, the court helpfully agreed that our request was “a matter of current exigency to the American public”:

But do the requests touch on “a matter of current exigency to the American public,” and would “delaying a response . . . compromise a significant recognized interest,” Al-Fayed, 254 F.3d at 310? Likely, the answer to both questions is yes. Regarding nationwide “exigency”: In its requests, submitted the day after the April 6 missile strikes against Syria, Protect Democracy explained that “the President’s decision to initiate military action is of the utmost importance to the public,” and that “whether the President has the legal authority to launch [such] a military 7 strike” is similarly critical. Pl.’s MPI, Exs. D, E at 2. Few would take issue with these assertions. But as evidence that they were justified, one need look no further than the widespread media attention—including by some of the nation’s most prominent news outlets— paid both to the April 6 strike and its legality, as early as the date of Protect Democracy’s requests.1 Under the regulations promulgated by both DOD and State, such media coverage is strong evidence of an “urgency to inform” the public. See 32 C.F.R. § 286.8(e)(3) (DOD) (“The existence of numerous articles published on a given subject can be helpful in establishing the requirement that there be an ‘urgency to inform’ the public on the topic.”); 22 C.F.R. § 171.11 (State) (defining “[u]rgently needed information” as being “[o]rdinarily” related to “a breaking news story of general public interest”). There is little doubt, in other words, that “the subject matter of the request[s] [is] central to a pressing issue of the day.” Wadelton v. Dep’t of State, 941 F. Supp. 2d 120, 123 (D.D.C. 2013).2  

The Court also agreed that being involved in the debate over the legality of the strikes “is itself a harm in an open democracy.”:

Relatedly, the Court also finds it likely that a significant delay in processing Protect Democracy’s requests would “compromise a significant recognized interest.” Al-Fayed, 254 F.3d at 310. In particular, if production is unduly delayed, both Protect Democracy and the public at large will be “precluded . . . from obtaining in a timely fashion information vital to the current and ongoing debate surrounding the legality of” a high-profile government action, EPIC I, 416 F. Supp. 2d at 41—namely, military strikes against the Syrian government. Being closed off from such a debate is itself a harm in an open democracy. See Elec. Frontier Found. v. Office of Dir. of Nat. Intelligence, 2007 WL 4208311, at *7 (N.D. Cal. Nov. 27, 2007) (“[O]ngoing public and congressional debates about issues of vital national importance cannot be restarted or wound back.”) (internal quotations omitted).

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