Am. Civil Liberties Union v. Dep't of Def.

• Decision Date: 18 January 2017
• Docket Number: 04 Civ. 4151 (AKH)
• Citation: 229 F.Supp.3d 193
• Parties: AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs, v. DEPARTMENT OF DEFENSE, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

229 F.Supp.3d 193

AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs,

v.DEPARTMENT OF DEFENSE, et al., Defendants.

04 Civ. 4151 (AKH)

United States District Court, S.D. New York.

Signed January 18, 2017

Lawrence S. Lustberg, Jennifer Ching, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, Alicia Lorraine Bannon, Ana Isabel Munoz, Melanca Durham Clark, Gibbons P.C., Jennifer Brooke Condon, Seton Hall University School of Law, Newark, NJ, Alexa Rebecca Kolbi–Molinas, Alexander Abraham Abdo, Dror Ladin, Jameel Jaffer, Judy Rabinovitz, American Civil Liberties Union Foundation, New York, NY, for Plaintiffs.

Tara Marie La Morte, Michael James Byars, Sarah Sheive Normand, Amy Ann Barcelo, United States Attorney Office, New York, NY, for Defendants.

ORDER AND OPINION GRANTING SUMMARY JUDGMENT TO PLAINTIFF

ALVIN K. HELLERSTEIN, U.S.D.J.:

Plaintiffs seek release under the Freedom of Information Act of a cache of photographs taken at the Abu Ghraib prison and other military detention facilities in Iraq and Afghanistan by U.S. Army personnel between 2003 and 2005, which depict individuals apprehended and detained abroad after September 11, 2001. The Government resists production. Both plaintiffs and the Government move for summary judgment, the eighth such motion in this case.

This Court has previously ordered these photographs, or similar photographs, to be produced. Similar photographs have been published widely, without apparent repercussions.

Nevertheless, the Government resists production and certifies, through a certification issued by Secretary of Defense Ashton Carter dated November 7, 2015, that production of these photographs would endanger the lives of Americans deployed outside the United States.

In 2005, when over 140,000 American troops in Iraq were fully deployed and suffering casualties daily, General Richard B. Myers, Chairman of the Joint Chiefs of Staff, urged this Court not to order the release of the Abu Ghraib photographs. General Myers stated in his declaration that release of the photographs would endanger Americans in Iraq and Afghanistan by "inciting violence and riots against American troops and coalition forces." Myers Decl., Dkt. No. 115. Nevertheless, I ordered that the important values of both FOIA and judicial review of the executive's duty to carry out the will of Congress required disclosure of the photographs. Am. Civil Liberties Union v. Dep't of Def., 389 F.Supp.2d 547 (S.D.N.Y. 2005). The Second Circuit affirmed. Am. Civil Liberties Union v. Dep't of Def., 543 F.3d 59 (2d Cir. 2008).

Now, eleven years later, facing a different enemy in Iraq, with far fewer troops deployed, serving in an advisory rather than combat capacity, and with many fewer civilians deployed, the position of Secretary Carter, the current Secretary of Defense, remains unchanged: publication of additional photographs, he has certified, will endanger Americans deployed outside the United States.

The issues that I must decide are whether, as required by the Protected National Security Documents Act ("PNSDA"),¹ Secretary Carter's certification was based on an individualized review of the photographs at issue, and whether the Government has made clear to the Court the criteria and factual bases upon which the Secretary concluded that disclosure of each such photograph would endanger the safety of Americans deployed outside the United States. Resolutions of those questions are necessary to determine whether the Government has satisfied its burden to show that the photographs are exempt from production under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. For the reasons discussed in this opinion, I hold that Secretary Carter's certification is not a sufficient basis to withhold production of the photographs. Summary judgment for plaintiffs is granted.

Background

This litigation has its origin in FOIA requests filed by plaintiffs thirteen years ago, on October 7, 2003, seeking records related to the treatment of individuals apprehended abroad after September 11, 2001, and held by the United States at military bases or detention facilities outside the United States. See Compl., Dkt. No. 1 (June 2, 2004). Plaintiffs' requests have resulted in substantial waves of production by the Department of Defense ("DoD"), the Central Intelligence Agency ("CIA"), and other government agencies. As reflected by scores of orders, I have conducted public and in camera proceedings to regulate the Government's obligation to produce under FOIA. I have granted requests and overseen substantial productions, but I have also upheld exceptions to FOIA and overseen redactions to guard against breaches of national security. See generally, Am. Civil Liberties Union v. Dep't of Def. , 339 F.Supp.2d 501 (S.D.N.Y. 2004) ; Am. Civil Liberties Union v. Dep't of Def., 389 F.Supp.2d 547 (S.D.N.Y. 2005) (" ACLU I "); Am. Civil Liberties Union v. Dep't of Def. , No. 04 CIV. 4151 (AKH), 2006 WL 1638025 (S.D.N.Y. June 9, 2006) ; Am. Civil Liberties Union v. Dep't of Def. , No. 04 CIV. 4151 (AKH), 2006 WL 1722574 (S.D.N.Y. June 21, 2006) ; Am. Civil Liberties Union v. Dep't of Def. , 543 F.3d 59 (2d Cir. 2008) (" ACLU II "), vacated, 558 U.S. 1042, 130 S.Ct. 777, 175 L.Ed.2d 508 (2009) ; Am. Civil Liberties Union v. Dep't of Def. , 40 F.Supp.3d 377 (S.D.N.Y. 2014) (" ACLU III "), vacated and remanded (2d Cir. Jan. 6, 2016).

One category of documents has been the subject of repeated motion practice: photographs taken by U.S. personnel of enemy combatants in U.S. custody at the Abu Ghraib prison in Iraq. The Government's first motion for summary judgment in 2005 asked to exempt photographs taken by Sergeant Joseph Darby at Abu Ghraib ("Darby photographs") on the ground that production would compromise the privacy of the individuals depicted in the photographs. See 5 U.S.C. § 552(b)(6), (b)(7)(C). After I conducted an in camera review of all the Darby photographs and ordered redactions of all personal characteristics, the Government changed its position and instead invoked FOIA Exemption 7(F), which exempts from production records compiled for law enforcement purposes to the extent that disclosure "could reasonably be expected to endanger the life or physical safety of any individual." 5 U.S.C. § 552(b)(7)(F). Relying on declarations of the commanding general of American forces in Iraq and the Chief of Staff of all U.S. armed forces, the Government argued that publication of the Darby photographs would incite violence against American troops and Iraqi and Afghan personnel and civilians, and that redactions would not avert the danger. The Government further argued that terrorists would use the re-publication of the photographs, under order of a U.S. court, as a pretext for further acts of terrorism.

I denied the Government's motion, held that none of the FOIA exemptions applied, and ordered the Darby photographs to be produced. ACLU I, 389 F.Supp.2d at 579. I held that because of the redactions, the Government's concern about unwarranted invasions of privacy lacked merit. Id. at 571. As to Exemption 7(F), I allowed the Government's late argument, and denied its applicability on the merits. I held that a general threat to an unspecified group of individuals was not enough to justify withholding under Exemption 7(F), that FOIA favored production, and that this policy underlying FOIA outweighed a generalized concern that individuals might be exposed to increased risk of harm. "The terrorists in Iraq and Afghanistan," I ruled, "do not need pretexts for their barbarism; they have proven to be aggressive and pernicious in their choice of targets and tactics. They have driven exploding trucks into groups of children at play and men seeking work; they have attacked doctors, lawyers, teachers, judges and legislators as easily as soldiers. Their pretexts for carrying out violence are patent hypocrisies, clearly recognized as such except by those who would blur the clarity of their own vision." Id. at 576. Accordingly, I ordered the Government to produce the Darby photographs.

The Government appealed. After a third party published the Darby photographs, the Government withdrew its appeal as to those photographs. See Order, Dkt. No. 184, at 2 (April 10, 2006). The Government continued its appeal, however, against 29 additional photographs and one farther batch that the Government identified after the record closed, and which I ordered should be governed by my underlying order.

Amer. Civil Liberties Union v. Dep't. of Def., 04 Civ. 4151 (AKH), 2006 WL 1638025 (S.D.N.Y. June 9, 2006) ; 2006 WL 1722574 (S.D.N.Y. June 21, 2006).

The Second Circuit affirmed. ACLU II, 543 F.3d 59 (2d Cir. 2008). The Second Circuit ruled that Exemption 7(F) for law enforcement records that could reasonably be expected to endanger "any individual" did not apply to the photographs because the exemption, "by conditioning its application on a reasonable expectation of danger to an individual, excludes from consideration risks that are speculative with respect to any individual," such as the risk that release of the photographs might endanger "a group so vast as to encompass all United States troops, coalition forces, and civilians in Iraq and Afghanistan." Id. at 71. The Second Circuit also affirmed my rulings on the privacy exemptions. It reviewed the in camera proceedings, and was satisfied that "all identifying characteristics of the persons in the photographs" had been redacted. Id. at 85.

On April 23, 2009, the Government informed this Court that in light of the Second Circuit's decision, in addition to the photographs previously identified, it was "processing for release a substantial number of other images contained in Army CID reports" that were also responsive to plaintiffs' initial FOIA request. See Barcelo Decl. Ex. B, Dkt. No. 458 (Apr. 1, 2011). The Government represented that all photographs would be released by May 28, 2009.

However, following a public statement by President Obama on May 13,...