American Civil Liberties Union v. Dept. of Defense, Civil Action No. 08-437 (RCL).
| Decision Date | 16 October 2009 |
| Docket Number | Civil Action No. 08-437 (RCL). |
| Citation | 664 F.Supp.2d 72 |
| Parties | AMERICAN CIVIL LIBERTIES UNION, American Civil Liberties Union Foundation, Plaintiffs, v. DEPARTMENT OF DEFENSE, Central Intelligence Agency, Defendants. |
| Court | U.S. District Court — District of Columbia |
Arthur B. Spitzer, American Civil Liberties Union, Washington, DC, Benjamin E. Wizner, American Civil Liberties Union Foundation, New York, NY, for Plaintiffs.
James J. Schwartz, U.S. Department of Justice, Washington, DC, for Defendants.
Before the Court is defendants' Motion [21] for Summary Judgment. Previously, this Court granted defendants' Motion [9] for Summary Judgment on October 29, 2008. Plaintiffs appealed on December 10, 2008. Upon defendants' request, the Court of Appeals remanded the case to this Court on May 19, 2009 so that defendants could reevaluate plaintiffs' Freedom of Information Act ("FOIA") requests in light of three executive orders issued by President Obama on January 22, 2009, and the declassification and public release of portions of four legal opinions of the Office of Legal Counsel ("OLC") on April 16, 2009.
On remand, defendants reprocessed plaintiffs' FOIA request and provided plaintiffs the requested documents, invoking FOIA exemptions 1 and 3 to justify certain redactions. Defendants then moved for summary judgment on August, 28, 2009. Plaintiffs oppose the motion and argue that FOIA exemptions 1 and 3 do not justify defendants' redactions. The Court concludes that defendants properly invoked exemptions 1 and 3 to redact certain information from the documents and will grant defendants' Motion [21] for Summary Judgment.
This Court's October 29, 2008, Memorandum Opinion [13] contains the facts in this case prior to appeal. See ACLU v. Dep't of Defense, 584 F.Supp.2d 19, 22 (D.D.C.2008). Accordingly, the Court will only discuss the developments subsequent to that Memorandum.
On December 10, 2008, plaintiffs appealed this Court's October 29, 2008 Order granting summary judgment for defendants. (Notice of Appeal [15].) Before the parties filed their briefs in the Court of Appeals, defendants decided to reevaluate their redactions in light of several events. (Hilton Decl ¶ 22.) First, on January 22, 2009, President Obama issued the following executive orders:
• Executive Order No. 13491, which limited interrogation techniques used by the government to only those authorized by the Army Field Manual and ordered the CIA to close any detention centers it operated, Exec. Order No. 13491, 74 Fed.Reg. 4893 (Jan. 27, 2009);
• Executive Order No. 13492, which ordered the Department of Defense to close the detention facility at Guantanamo Bay within one year and mandated that a "review of the status of each individual currently detained at Guantanamo shall commence immediately" to determine whether detainees should be transferred, prosecuted, or receive some other disposition, Exec. Order No. 13492, 74 Fed.Reg. 4897 (Jan. 27, 2009); and
• Executive Order No. 13493, which established a Special Task Force to review the lawful options available to the government with respect to the apprehension, detention, and disposition of suspected terrorists. Exec. Order No. 13493, 74 Fed.Reg. 4901 (Jan. 27, 2009).
To comply with these Executive Orders, the CIA stopped using enhanced interrogation techniques ("EITs") and closed its detention facilities. (Hilton Decl. ¶ 22.)
Second, on April 16, 2009, President Obama declassified and released to the public four legal opinions issued by the OLC that discussed the legality of EITs. (Id. ¶ 23.) The release did not declassify all information relating to the legality of EITs; rather it constituted only "a limited declassification of information relating to the legality of EITs." (Id.) Last, on August 24, 2009, the government released a declassified version of the CIA's Inspector General's Report ("IG Report") that details interrogation techniques and conditions of confinement.
In addition to the above government disclosures, on April 30, 2009, the New York Review of Books published a forty page report of the International Committee of the Red Cross ("ICRC") that contained accounts of the treatment of the high value detainees in CIA custody.
On May 19, 2009, the Court of Appeals remanded the case to this Court upon defendants' request. (Hilton Decl. ¶ 24.) The CIA then reprocessed plaintiffs' FOIA request, which sought unredacted versions of Combatant Status Review Tribunal ("CSRT") hearing transcripts and copies of all records provided to the CSRT by the detainees or their Personal Representative, in light of the government's recent disclosures. (Id.) As a result, the CIA released one transcript in its entirety, except for names and signatures of Department of Defense personnel, and provided redacted versions of the five remaining transcripts and three detainee statements. (Id. ¶¶ 24, 27-34.) To justify the redactions, defendants invoked FOIA Exemptions 1 and 3. (Id.)
The Freedom of Information Act requires federal agencies to disclose agency records upon request. 5 U.S.C. § 552(a). Disclosure of agency records, however, "is not always in the public interest." CIA v. Sims, 471 U.S. 159, 167, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985). As a result, Congress enacted nine exemptions that agencies may invoke to withhold documents. See 5 U.S.C. § 552(b). Agencies, however, cannot simply withhold the entire document; rather they must provide a "reasonably segregable portion of [the] record ... after deletion of the portions which are exempt under this subsection." 5 U.S.C. § 552(b). District courts review agency decisions to withhold classified information de novo, and the agency bears the burden of proving its claim for exemption. Id. § 552(a)(4)(B).
At issue here are FOIA Exemptions 1 and 3. Exemption 1 allows agencies to withhold records that are authorized to be kept secret by an Executive Order and that are properly classified pursuant to that Executive Order. 5 U.S.C. § 552(b)(1). In invoking Exemption 1, defendants rely upon Executive Order No. 12,958, Fed.Reg. 19,825 (Apr. 17, 1995),1 which provides a detailed system for classifying documents that the government determines should be kept secret. Pursuant to this Executive Order, agencies may classify information concerning "intelligence sources or methods." Id. § 1.4(c). An agency may only classify such information, however, if the agency determines that public release of the information would damage the national security of the United States. Id. § 1.1(a)(4).
Exemption 3 applies where an agency establishes that the withheld information is "specifically exempt from disclosure by statute." 5 U.S.C. § 552(b)(3). In invoking Exemption 3, defendants rely upon the National Security Act of 1947 and the Central Intelligence Agency Act of 1949. Like Executive Order No. 12,958, the National Security Act of 1947 and Central Intelligence Agency Act allow the withholding of "intelligence sources and methods." 50 U.S.C. § 403-1(i)(1); 50 U.S.C. § 403g; (see also Hilton Decl. ¶¶ 27-34).
Neither exemption will apply if the government already officially disclosed the requested information. Plaintiffs bear the burden of proving official disclosure of the specific information requested. Afshar v. Dep't of State, 702 F.2d 1125, 1130 (D.C.Cir.1983).
Federal Rule of Civil Procedure 56(c) provides that summary judgment should be granted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." In a FOIA case, a court may grant summary judgment on the basis of agency declarations, provided that the declarations are reasonably specific and submitted in good faith. See Halperin v. CIA, 629 F.2d 144, 148 (D.C.Cir. 1980). Courts give substantial weight to such agency declarations in cases concerning national security. Id. Indeed, courts have "consistently deferred to executive affidavits predicting harm to the national security, and have found it unwise to undertake searching judicial review." Ctr. for Nat'l Sec. Studies v. Dep't of Justice, 331 F.3d 918, 927 (D.C.Cir.2003). If, however, a court is not satisfied with the agency's affidavit, the court may, within its discretion, conduct an in camera review of the withheld documents. See Horowitz v. Peace Corps, 428 F.3d 271, 282 (D.C.Cir. 2005).
Affording substantial weight to defendants' declaration, the Court concludes that defendants properly invoked Exemptions 1 and 3 to withhold information that is responsive to plaintiffs' FOIA request. Moreover, in camera review is neither necessary nor appropriate, and plaintiffs' First Amendment argument is without merit. Accordingly, the Court will grant defendants' motion for summary judgment.
Plaintiffs argue that defendants cannot withhold the requested records under Exemptions 1 and 3 because the records, which pertain to interrogation techniques and conditions of confinement, are not "intelligence sources and methods." Plaintiffs further argue that Exemption 1 does not apply because disclosure of the detainees' accounts of interrogation and imprisonment would not damage national security. The Court is not persuaded by these arguments and concludes that defendants properly invoked Exemptions 1 and 3.
Plaintiffs contend that the records are not "intelligence sources and methods" for three reasons: (1) the withheld information has been declassified and is widely available; (2) the President banned the use of EITs and closed the CIA's detention...
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