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

• Decision Date: 27 January 2020
• Docket Number: 17 Civ. 3391 (PAE)
• Citation: 435 F.Supp.3d 539
• Parties: AMERICAN CIVIL LIBERTIES UNION and American Civil Liberties Union Foundation, Plaintiffs, v. DEPARTMENT OF DEFENSE, Central Intelligence Agency, Department of Justice, and Department of State, Defendants.
• Court: U.S. District Court — Southern District of New York

435 F.Supp.3d 539

AMERICAN CIVIL LIBERTIES UNION and American Civil Liberties Union Foundation, Plaintiffs,

v.DEPARTMENT OF DEFENSE, Central Intelligence Agency, Department of Justice, and Department of State, Defendants.

17 Civ. 3391 (PAE)

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

Signed January 27, 2020

Anna Natalia Diakun, Knight First Amendment Institute at Columbia University, New York City, NY, Brett Max Kaufman, Hina Shamsi, American Civil Liberties Union, New York, NY, for Plaintiffs.

Rebecca Sol Tinio, U.S. Attorney's Office, New York, NY, for Defendants.

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

This lawsuit under the Freedom of Information Act ("FOIA") concerns a request by plaintiffs American Civil Liberties Union and the American Civil Liberties Union Foundation (together, the "ACLU") for records held by federal agencies related to an operation carried out by the United States military on January 29, 2017, in al Ghayil, Yemen ("the Raid"). Specifically, the ACLU brought this action against four federal agencies—the Department of Defense ("DoD"), the Central Intelligence Agency ("CIA"), the Department of Justice ("DoJ" or "Justice"), and the Department of State ("DoS" or "State," and collectively with DoD, CIA, and Justice, "the Government")—seeking disclosure of documents relating to the Raid.

During this litigation, the parties have substantially narrowed the documents and issues in dispute. The ACLU now challenges Government withholdings in only 15 documents: three DoS documents and 12 DoD documents (together, the "Challenged Records").

Before the Court are cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, the Court grants the Government's motion for summary judgment—and denies the ACLU's cross-motion—as to 13 of the Challenged Records, and directs the Government to provide the remaining two documents for in camera review.

I. Background¹

A. The Air Raid in Yemen

On January 29, 2017, the U.S. military conducted an "intelligence-gathering raid" in al Ghayil, Yemen. One service member and an unspecified number of civilians died. According to news reports cited by the ACLU, in anticipation of the Raid, President Trump declared the area around al Ghayil, Yemen, a temporary "area of hostilities." This designation exempted the Raid from existing policy guidance that limited, in the interest of minimizing civilian casualties, the circumstances under which such a raid can lawfully be conducted.

Planning for the Raid began in 2016, during the Obama Administration. The government later revealed that the Raid was part of a larger plan to support a United Arab Emirates ("UAE") military offensive (the "Shabwah Offensive") against al Qaeda in the Arabian Peninsula ("AQAP") in Yemen.

B. Public Disclosures by White House Press Secretary Sean Spicer

In the days that followed, the White House's then-Press Secretary, Sean Spicer, three times fielded questions at press briefings about the Raid. Because its content is central to this dispute—particularly to the scope of official acknowledgment regarding the Raid—the Court quotes Spicer's second set of remarks in full.

On February 2, 2017, during a daily press briefing, the following exchange occurred:

Q (Reporter): On Yemen, it was initially described, the raid over the weekend, as a successful raid by the administration. There are now some questions and comments raised about the possibility of additional civilian casualties. So I've got a couple of questions for you on this one. Would you still stand by your characterization of the raid as "successful"? Was the President given multiple options about this raid, or just one? And were there consultations with the prior administration's national security officials, military officials about the raid moving forward?

MR. SPICER: Thank you. Actually, I'd like to just walk through that. I appreciate you bringing this up. There is—let's go through the tick-tock on that raid. On November 7th, CENTCOM submitted the plan to DOD. Clearly, that was under the last administration. Legal teams were involved immediately when it was submitted to DOD. On December 19th, the plan was approved by the Department of Defense and recommended that it be moved ahead. It was sent then to the National Security Council staff here in the White House. Again, this all happened under the previous administration.

On January 6th, there was an interagency deputies meeting. The deputies recommended at that time that they go ahead. It was so easily approved it was sent straight up. The conclusion to hold was, at that time, to hold for what they called a "moonless night ," which, by calendar, wouldn't occur until then-President-elect Trump was President Trump.

On January 24th, shortly after taking office, Secretary of Defense-then Mattis [sic] read the memo, resent it back up to the White House conveying his support. On the 25th of January, the President was briefed by General Flynn on Secretary Mattis's recommendation and the status of the operation, or potential operation.

The President asked to see Secretary Mattis and Joint Chiefs [sic] of Staff Dunford. He then, on that evening, had a dinner meeting, which included the President, the Vice President, Secretary Mattis, Chairman Dunford, Chief of Staff Priebus, Jared Kushner, Chief Strategist Bannon, General Kellogg, General Flynn, and CIA Director Pompeo where the operation was laid out in great extent. The indication at that time was to go ahead on Friday the 26th.

In the morning, the deputies committee met again. It was not a necessary step because they had previously recommended and also reaffirmed their support for that. On January 26th, the President signed the memo authorizing the action. So it was a very—not only was it a very, very though-out [sic] process by this administration, it had started back on November 7th in terms of—clearly well before that, but it was a move forward by CENTCOM on November 7th. This was a very, very well thought-out and executed effort.

Q: Where was the President the night of the raid? How did he learn about Chief Owens's death? And do you still stand by your characterization that it was successful?

MR. SPICER: The President was here in the residence. He was kept in touch with his national security staff. Secretary Mattis and others had kept him updated on both the raid and the death of Chief Owens, as well as the four other individuals that were injured. So he was kept apprised of the situation throughout the evening.

And again, I think—I would go back to what I said yesterday: It's hard to ever call something a complete success when you have the loss of life, or people injured. But I think when you look at the totality of what was gained to prevent the future loss of life here in America and against our people and our institutions, and probably throughout the world in terms of what some of these individuals could have done, I think it is a successful operation by all standards.

And again, I want to reiterate, it is tough to ever use the word "success" when you know that somebody has lost their life. But when you go back and look at an individual that dedicated their life to serving this country, and went over and over and over again knowing that this not only the risk that he took but wanted to do it because he knew the threat that these kind of individuals pose to our country and to our people, that's—while not a success that you lost to [sic] him, you know that he died in sacrifice for someone else here in this nation.

Dkt. 119 ("Fourth Daikun Decl."), Ex. 4 at 11–13 (Feb. 2, 2017 press briefing) (emphasis added); see also Dkt. 37 ("Daikun Decl."), Ex. 6 at 12 (Jan. 31, 2017 press briefing); id. , Ex. 4 at 10–11 (February 7, 2017 press briefing).

C. Other Public Statements Regarding the Raid

The ACLU contends that Government officials made several other public statements regarding the Raid. The Court reviews the most relevant ones here.

On August 4, 2017, a Pentagon spokesman, Capt. Jeff Davis, provided a press briefing, which was covered in several outlets. See Fourth Daikun Decl., Exs. 11 (Military Times article), 14 (article on DoD website); Dkt. 128 ("Fifth Diakun Decl."), Exs. 1 (Washington Examiner article), 2 (Washington Post article). Davis confirmed that the Raid was among the first U.S. actions taken in support of the UAE's Shabwah Offensive, targeting AQAP in Yemen, and that the U.S. military had provided various forms of military and intelligence support to the UAE Offensive, including conducting more than 80 airstrikes against AQAP in the region and a limited number of ground operations. Additionally, Davis explained that a small number of U.S. troops were providing "intelligence sharing" support to the operation, and the military was providing midair refueling and overhead reconnaissance for forces involved in the operation. Fifth Diakun Decl., Ex. 2 (Washington Post article). According to Davis, all these actions were "based upon the authorities granted" for the Raid, which permitted, inter alia , ground operations where necessary. Fourth Daikun Decl., Ex. 14 (DoD article); see id. , Ex. 11 (Military Times article).² In addition, a set of unclassified slides, dated October 18, 2017, and titled "BATAAN Amphibious Ready Group 24^th Marine Expeditionary Unit Post-Deployment Brief," revealed that that Group had at least some connection to at least one Shabwah Offensive operation, although details were not provided. Id. , Ex. 12 (BATAAN slides), at 5; see also Fifth Diakun Decl., Ex. 2 (noting that the "Bataan Amphibious Ready Group, a collection of U.S. Navy ships loaded with Marines, is in the region").

The Government has also made official acknowledgments of broadly applicable legal and policy standards, which the ACLU argues necessarily apply to operations like the Raid. In particular, the White House released reports on the legal framework for the use of force abroad in 2016 and 2018. The 2018...