901 F.3d 125 (2nd Cir. 2018), 17-779, American Civil Liberties Union v. United States Department of Defense

Docket Nº:17-779
Citation:901 F.3d 125
Opinion Judge:Wesley, Circuit Judge
Party Name:AMERICAN CIVIL LIBERTIES UNION, Center for Constitutional Rights, Inc., Physicians for Human Rights, Veterans for Common Sense, Veterans for Peace, Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF DEFENSE, its components Department of Army, Department of Navy, Department of Air Force, Defense Intelligence Agency, United States Department of...
Attorney:Lawrence S. Lustberg, Gibbons P.C., Newark, N.J. (Avram D. Frey, Gibbons P.C., Newark, NJ; Dror Ladin, American Civil Liberties Union Foundation, New York, NY, on the brief) for Plaintiffs-Appellees. Benjamin H. Torrance, Assistant United States Attorney (Sarah S. Normand, Assistant United States...
Judge Panel:Before: Jacobs, Leval, and Wesley, Circuit Judges. Jacobs, Circuit Judge, concurring:
Case Date:August 21, 2018
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 125

901 F.3d 125 (2nd Cir. 2018)

AMERICAN CIVIL LIBERTIES UNION, Center for Constitutional Rights, Inc., Physicians for Human Rights, Veterans for Common Sense, Veterans for Peace, Plaintiffs-Appellees,

v.

UNITED STATES DEPARTMENT OF DEFENSE, its components Department of Army, Department of Navy, Department of Air Force, Defense Intelligence Agency, United States Department of the Army, Defendants-Appellants.[*]

No. 17-779

United States Court of Appeals, Second Circuit

August 21, 2018

Argued: March 13, 2018

Amended: August 22, 2018

Page 126

Lawrence S. Lustberg, Gibbons P.C., Newark, N.J. (Avram D. Frey, Gibbons P.C., Newark, NJ; Dror Ladin, American Civil Liberties Union Foundation, New York, NY, on the brief) for Plaintiffs-Appellees.

Benjamin H. Torrance, Assistant United States Attorney (Sarah S. Normand, Assistant United States Attorney; Chad A. Readler, Acting Assistant Attorney General, Douglas N. Letter, Matthew M. Collette, Catherine H. Dorsey, Attorneys, Appellate Staff Civil Division, Department of Justice, on the brief ) for Geoffrey S. Berman, United States Attorney for the Southern District of New York, for Defendants-Appellants.

Before: Jacobs, Leval, and Wesley, Circuit Judges.

OPINION

Wesley, Circuit Judge

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This appeal is the latest installment in lengthy litigation relating to photographs of detainees taken by U.S. Army personnel at military detention facilities in Afghanistan and Iraq in the wake of September 11, 2001. The American Civil Liberties Union and a number of other organizations (together, "ACLU") initially sought records— most notably, photographs— related to the treatment of detainees in U.S. custody via a Freedom of Information Act ("FOIA") request submitted on October 7, 2003, to the United States Department of Defense and its components1 (together, the "DoD") and other agencies (together with the DoD, the "Government"), and filed suit on June 2, 2004, after receiving no response.

The district court ordered the Government to produce or identify all responsive documents by October 15, 2004, Am. Civil Liberties Union v. Dep’t of Def. (ACLU I ), 339 F.Supp.2d 501, 505 (S.D.N.Y. 2004), and ordered release of the photographs with redactions on September 29, 2005, Am. Civil Liberties Union v. Dep’t of Def. (ACLU II ), 389 F.Supp.2d 547, 570-74 (S.D.N.Y. 2005).[2] In so doing, the court rejected arguments by the Government that the photographs could be withheld pursuant to three FOIA exemptions.3 See ACLU II, 389 F.Supp.2d at 570-79. The Government initially appealed but withdrew the appeal when a third party released the photographs without authorization.

During the pendency of the appeal, the Government identified additional photographs potentially responsive to the ACLU’s FOIA request and attempted to withhold these newly identified photographs under the same three exemptions.

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The district court again rejected these arguments, this time without written opinion, and ordered the release of the responsive photographs. Am. Civil Liberties Union v. Dep’t of Def. (ACLU III), 04-4151, 2006 WL 1638025, at *1 (S.D.N.Y. June 9, 2006); Am. Civil Liberties Union v. Dep’t of Def. (ACLU IV ), 04-4151, 2006 WL 1722574, at *1 (S.D.N.Y. June 21, 2006), vacated sub nom by

Dep’t of Def. v. Am. Civil Liberties Union, 558 U.S. 1042, 130 S.Ct. 777, 175 L.Ed.2d 508 (2009) (mem.).

The Government appealed, and this Court affirmed, holding that the FOIA exemptions did not apply. Am. Civil Liberties Union v. Dep’t of Def. (ACLU V ), 543 F.3d 59, 70-71, 83-84, 87, 91 (2d Cir. 2008), vacated sub nom by

Dep’t of Def. v. Am. Civil Liberties Union, 558 U.S. 1042, 130 S.Ct. 777, 175 L.Ed.2d 508. After this Court’s decision, the Government initially informed the district court that it was processing the photographs for release, including additional photographs it also thought responsive to the initial FOIA request, and it "represented that all photographs would be released by May 28, 2009." Am. Civil Liberties Union v. Dep’t of Def. (ACLU VII ), 229 F.Supp.3d 193, 199 (S.D.N.Y. 2017). However, the Government reversed its position at the direction of President Obama following a plea from the Prime Minister of Iraq that release of the photographs "would fuel insurrection and make it impossible to have a functioning government." Id. at 200. The Government filed a petition for a writ of certiorari. Id. at 199.

Before the Supreme Court took any action regarding the Government’s petition, Congress passed the Protected National Security Documents Act of 2009 ("PNSDA"), Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, § 565, 123 Stat. 2142 (2009). The PNSDA permits the government to withhold disclosure of any photograph "taken during the period beginning on September 11, 2001, through January 22, 2009" (the "time period requirement") that "relates to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States" (the "subject matter requirement"). PNSDA § 565(c)(1)(B). To withhold a photograph from disclosure under the PNSDA, the Secretary of Defense must issue a certification "stating that disclosure of that record would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States." Id. § 565(c)(1)(A). The Secretary’s certification expires after three years but may be renewed at any time and without limitation. Id. § 565(d)(2)-(3). The PNSDA also requires the Secretary to timely notify Congress of the issuance of any certification or renewal. Id. § 565(d)(4).

Following the PNSDA’s passage, Secretary Gates issued a certification on November 13, 2009 (the "2009 Certification"), stating that "[u]pon the recommendations of the Chairman of the Joint Chiefs of Staff, the Commander of U.S. Central Command, and the Commander of Multi-National Forces-Iraq," he had determined that disclosure of the photographs would endanger persons protected under the PNSDA and that the photographs were therefore "exempt from disclosure." Joint App. 196. The Supreme Court shortly thereafter granted the Government’s petition, vacated this Court’s opinion, and remanded in light of the PNSDA and the 2009 Certification. Dep’t of Def. v. Am. Civil Liberties Union, 558 U.S. 1042, 130 S.Ct. 777, 175 L.Ed.2d 508.

On remand to the Southern District of New York (Hellerstein, J. ), the ACLU

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argued that the PNSDA was a FOIA withholding statute and the court should review the Secretary’s endangerment determination de novo .4 In the ACLU’s view, the 2009 Certification was but a conclusion that failed to justify why "disclosure of [the] records now would cause harm." Joint App. 209. The district court disagreed. In announcing its decision from the bench on July 20, 2011, the court stated "it [is] clear to me that Secretary Gates had a rational basis for his certifications and that I could not second-guess it ... beyond looking for a rational basis the way [I] did. I find that rational basis." Id. at 237. The court acknowledged that the assessment of the impact of the photographs on the battlefield of Iraq was best left to the military expertise of the DoD. "I don’t think we have a very good understanding of what may or may not be dangerous on the battlefield in the crazy conditions that exist in Iraq at this point in time. And even there, the history of what’s involved ... shows to me that the Secretary of Defense has a rational basis ...." Id. at 224. The district court stated that even if "I might disagree with [Secretary Gates] ... I cannot say that there is a lack of a rational basis for what [he] has certified, and if you want me to do a de novo review, I’ve done it, by reason of my familiarity with the case, and that’s as far as I’ll go." Id.

Looking "to the plain language of the statute and its legislative history," the district court concluded that "[t]he legislative purpose here was to provide authorizing legislation to support the President’s determination that these images should not be disclosed, [and] should be exempt from FOIA." Id. at 238.

Over a year later, on November 9, 2012, Secretary Panetta issued a certification renewal (the "2012 Certification"). The ACLU challenged the sufficiency of that determination. Even though the 2009 and 2012 certifications were "virtually identical"— the district court’s words, not ours— the district court concluded that the 2012 Certification "[was] not sufficient to prevent publication of redacted photographs." Am. Civil Liberties Union v. Dep’t of Def. (ACLU VI), 40 F.Supp.3d 377, 380, 382 (S.D.N.Y. 2014), vacated, 15-1606 (2d Cir. Jan. 6, 2016), ECF No. 134. Despite the district courts recognition of the certifications marked...

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