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

• Decision Date: 21 May 2012
• Docket Number: Nos. 10–4290–cv(L), 10–4289–cv(CON), 10–4647–cv(XAP), 10–4668–cv(XAP).,s. 10–4290–cv(L), 10–4289–cv(CON), 10–4647–cv(XAP), 10–4668–cv(XAP).
• Citation: 681 F.3d 61
• Parties: AMERICAN CIVIL LIBERTIES UNION, Center for Constitutional Rights, Incorporated, Physicians for Human Rights, Veterans for Common Sense, Veterans for Peace, Plaintiffs–Appellees–Cross–Appellants, v. DEPARTMENT OF JUSTICE, and its component Office of Legal Counsel, Central Intelligence Agency, Defendants–Appellants–Cross–Appellees, Department of Defense, and its components Department of Army, Department of Navy, Department of Air Force, Defense Intelligence Agency, Department of Homeland Security, Department of State, Department of Justice components Civil Rights Division, Criminal Division, Office of Information and Privacy, Office of Intelligence, Policy and Review, Federal Bureau of Investigation, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

681 F.3d 61

AMERICAN CIVIL LIBERTIES UNION, Center for Constitutional Rights, Incorporated, Physicians for Human Rights, Veterans for Common Sense, Veterans for Peace, Plaintiffs–Appellees–Cross–Appellants,

v.DEPARTMENT OF JUSTICE, and its component Office of Legal Counsel, Central Intelligence Agency, Defendants–Appellants–Cross–Appellees,Department of Defense, and its components Department of Army, Department of Navy, Department of Air Force, Defense Intelligence Agency, Department of Homeland Security, Department of State, Department of Justice components Civil Rights Division, Criminal Division, Office of Information and Privacy, Office of Intelligence, Policy and Review, Federal Bureau of Investigation, Defendants.

Nos. 10–4290–cv(L), 10–4289–cv(CON), 10–4647–cv(XAP), 10–4668–cv(XAP).

United States Court of Appeals,Second Circuit.

Argued: March 9, 2012.

Decided: May 21, 2012.

Tara M. La Morte, Assistant United States Attorney (Amy A. Barcelo, Sarah S. Normand, Assistant United States Attorneys, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY; (Tony West, Assistant Attorney General, Ian Heath Gershengorn, Deputy Assistant Attorney General, Douglas N. Letter, Matthew M. Collette, Attorneys, Civil Division, Appellate Staff, Department of Justice, Washington, D.C., on the brief), for Defendants–Appellants–Cross–Appellees.

Alexander A. Abdo (Jameel Jaffer, Judy Rabinovitz, American Civil Liberties Union Foundation, New York, NY; Lawrence S. Lustberg, Alicia L. Bannon, Gibbons, P.C., Newark, NJ; Michael Ratner, Gitanjali Gutierrez, Emilou MacClean, Shayana Kadidal, Center for Constitutional Rights, New York, NY; Beth Haroules, Arthur Eisenberg, New York Civil Liberties Union Foundation, New York, NY, on the brief), for Plaintiffs–Appellees–Cross–Appellants.

Before: WESLEY, CARNEY, Circuit Judges, and CEDARBAUM, District Judge.^*

WESLEY, Circuit Judge:

The Central Intelligence Agency (“CIA”), the Department of Justice (“DOJ”), and its component Office of Legal Counsel (“OLC”) (collectively the “Government”) appeal from a portion of an October 1, 2010 judgment of the United States District Court for the Southern District of New York (Hellerstein, J.), requiring the Government to disclose, pursuant to the Freedom of Information Act (“FOIA”), information redacted from two memoranda prepared by the OLC. The Government contends that the redactions are justified under FOIA because the information pertains to a highly classified, active intelligence method. We conclude that the Government may withhold this information under FOIA Exemption 1. We thus reverse the district court's judgment insofar as it required disclosure.

The American Civil Liberties Union (“ACLU”), Center for Constitutional Rights, Incorporated, Physicians for Human Rights, Veterans for Common Sense, and Veterans for Peace (collectively “Plaintiffs”) appeal from the same judgment insofar as it upheld the Government's withholding of records relating to the CIA's use of the Enhanced Interrogation Technique (“EIT”) of waterboarding and a photograph of high-value detainee Abu Zubaydah, taken while he was in CIA custody abroad. Plaintiffs contend that the records and photograph may not be withheld under either FOIA Exemption 1 or 3 because the President has declared the practice of waterboarding illegal and the Government has failed to justify adequately its withholding of the photograph. We disagree and hold that the President's declaration and prohibition of the future use of waterboarding do not affect the Government's otherwise valid authority to withhold the records under Exemption 3. We agree with the district court that both the records and photograph are exempt from disclosure under FOIA Exemption 3 and thus affirm that part of the judgment.

BACKGROUND

On October 7, 2003, Plaintiffs submitted a FOIA request to the CIA, DOJ, and other federal agencies, seeking the disclosure of records concerning (1) the treatment of detainees; (2) the deaths of detainees while in United States custody; and (3) the rendition, since September 11, 2001, of detainees and other individuals to countries known to employ torture or illegal interrogation methods. On January 31, 2005, Plaintiffs served a FOIA request on the OLC, incorporating by reference their October 7, 2003 request and enumerating a non-exhaustive list of documents falling within the scope of Plaintiffs' request.

Within a year of each request, Plaintiffs filed separate complaints seeking to compel the Government to release any responsive documents it had withheld from disclosure. With respect to the first action, the district court ordered the Government to produce or identify all records responsive to Plaintiffs' request. ACLU v. Dep't of Def., 339 F.Supp.2d 501, 505 (S.D.N.Y.2004). Since that time, the Government has disclosed thousands of documents in response to Plaintiffs' FOIA requests.

I. Facts and Procedural History Relevant to the Government's Appeal

Among the documents disclosed by the Government are four memoranda authored by the OLC between August 1, 2002 and May 30, 2005, analyzing legal questions with respect to the application of EITs to detainees held in CIA custody abroad. The Government initially withheld these memoranda in full, but subsequently, on April 16, 2009, released unclassified versions of the memoranda with limited redactions. The classified information at issue in the Government's appeal is discussed in two of these memoranda, dated May 10, 2005 and May 30, 2005, respectively. The Government redacted references to the classified information—along with other information not relevant to this appeal—pursuant to FOIA Exemptions 1 and 3 on the basis that records related to “intelligence methods,” “intelligence activities,” and CIA “functions” are exempt from disclosure.¹ The parties filed cross-motions for summary judgment with regard to these redactions from the OLC memoranda.

The district court reviewed the unredacted OLC memoranda in a series of ex parte, in camera sessions. It also reviewed several declarations from high-level executive branch officials supporting the Government's withholding of the redacted information. At the first session, the district court issued a preliminary ruling that all but one of the references to the classified information must be disclosed, without explaining why it treated that sole reference differently. With respect to the other references, the district court held that publicly disclosing that information would reveal not an intelligence method but only a source of the CIA's authority. The district court also found that the references are so general in nature that their disclosure would not compromise national security. The district court nevertheless permitted the Government to submit additional declarations justifying its position that the information was exempt from disclosure.

During a subsequent in camera session, the district court reaffirmed its preliminary ruling and explained that it viewed the classified information as a “source of authority” for interrogation rather than a “method of interrogation.” As a compromise, however, the district court offered to allow the Government to replace references to the classified information with alternative language meant to preserve the meaning of the text. The district court acknowledged the national security concerns potentially raised by the disclosure of some of the classified information, but nevertheless ordered that the Government either disclose the information or comply with the court's proposed compromise. The district court also ordered that references to the classified information in the transcript of the first ex parte, in camera proceeding be disclosed or otherwise released in accordance with the compromise. The district court memorialized its oral ruling in a December 29, 2009 order. The Government now appeals from that order.

II. Facts and Procedural History Relevant to Plaintiffs' Cross–Appeal

Many of the documents released by the Government in response to Plaintiffs' FOIA requests relate to the use of EITs. During the course of this litigation, the President prohibited the future use of certain EITs, including waterboarding, formerly authorized for use on high-value detainees.² On May 7, 2009, the district court ordered the Government to compile a list of documents related to the contents of 92 destroyed videotapes of detainee interrogations that occurred between April and December 2002 and which would otherwise have been responsive to Plaintiffs' FOIA requests. Pursuant to that order, the CIA identified 580 documents and selected a sample of 65 documents for the district court to review for potential release. Specifically, the sample records comprise:

• 53 cables (operational communications) between CIA headquarters and an interrogation facility;

• 3 emails postdating the videotapes' destruction;

• 2 logbooks detailing observations of interrogation sessions;

• 1 set of handwritten notes from a meeting between a CIA employee and a CIA attorney;

• 2 memoranda containing descriptions of the contents of the videotapes;

• 1 set of handwritten notes taken during a review of the videotapes;

• 2 records summarizing details of waterboard exposures from the destroyed videotapes; and

• 1 photograph of Abu Zubaydah dated October 11, 2002.

The Government withheld these records pursuant to FOIA Exemptions 1 and 3, and the parties filed cross-motions for summary judgment with regard to whether the records were exempt from disclosure.³

The Government defended its withholding of the records with three declarations of then-CIA Director Leon Panetta. The declarations explained that the records consist primarily of communications to CIA headquarters from a covert CIA facility where interrogations were being conducted, and include “sensitive intelligence and operational information concerning interrogations of Abu Zubaydah...