American Civil Liberties Union v. Dept. of Defense

Decision Date22 September 2008
Docket NumberDocket No. 06-3140-cv.
PartiesAMERICAN CIVIL LIBERTIES UNION, Center for Constitutional Rights, Physicians for Human Rights, Veterans for Common Sense, Veterans for Peace, Plaintiffs-Appellees, v. 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 Justice, and its Components Civil Rights Division, Criminal Division, Office of Information and Privacy, Office of Intelligence Policy and Review, Federal Bureau of Investigation, Department of State, and Central Intelligence Agency, Defendants-Appellants.
CourtU.S. Court of Appeals — Second Circuit

Amrit Singh, American Civil Liberties Union Foundation (Jameel Jaffer, Judy Rabinovitz, Lucas Guttentag, American Civil Liberties Union Foundation; Lawrence S. Lustberg, Megan Lewis, Gibbons, Del Deo, Dolan Griffinger & Vecchione, P.C.; William Goodman, Michael Ratner, Center for Constitutional Rights; Beth Haroules, Arthur Eisenberg, New York Civil Liberties Union Foundation), New York, NY, for Plaintiffs-Appellees.

Michael J. Garcia, United States Attorney for the Southern District of New York (Sean H. Lane, Heather K. McShain, Peter M. Skinner, Jeffrey S. Oestericher, Assistant United States Attorneys, of Counsel), New York, NY, for Defendants-Appellants.

Before: McLAUGHLIN, HALL, Circuit Judges, and GLEESON, District Judge.1

JOHN GLEESON, United States District Judge:

The United States Department of Defense and Department of the Army (referred to here as "the defendants") appeal from orders of the United States District Court for the Southern District of New York (Alvin K. Hellerstein, District Judge) directing them to release 21 photographs pursuant to the Freedom of Information Act ("FOIA" or "the Act"), 5 U.S.C. § 552 (2006). The photographs depict abusive treatment of detainees by United States soldiers in Iraq and Afghanistan.

On appeal, the defendants contend that the exemption in § 552(b)(7)(F) for law enforcement records that could reasonably be expected to endanger "any individual" applies here because the release of the disputed photographs will endanger United States troops, other Coalition forces, and civilians in Iraq and Afghanistan. They further claim that, notwithstanding the redactions ordered by the district court of 20 of the 21 photographs, disclosure will result in unwarranted invasions of the personal privacy of the detainees they depict, justifying nondisclosure under § 552(b)(6) and (7)(C).

We hold that FOIA exemption 7(F) does not apply to this case. We further hold that the redactions ordered by the district court render the privacy exemptions unavailable to the defendants. Accordingly, we affirm.

BACKGROUND

On October 7, 2003, the plaintiffs filed joint requests with the defendants and various other agencies pursuant to FOIA, 5 U.S.C. § 552 (2006), seeking records related to the treatment and death of prisoners held in United States custody abroad after September 11, 2001, and records related to the practice of "rendering" those prisoners to countries known to use torture. On June 2, 2004, having received no records in response to the requests, the plaintiffs filed the complaint in this case, alleging that the agencies had failed to comply with the law.

On August 16, 2004, to facilitate the search for relevant records, the plaintiffs provided a list of records they claimed were responsive to the FOIA requests. Among the records listed were 87 photographs and other images of detainees at detention facilities in Iraq and Afghanistan, including Abu Ghraib prison. The images from Abu Ghraib (the "Abu Ghraib photos") depicted United States soldiers engaging in abuse of many detainees. The soldiers forced detainees, often unclothed, to pose in dehumanizing, sexually suggestive ways.

The defendants initially invoked only FOIA exemptions 6 and 7(C) as their ground for withholding the Abu Ghraib photos. Those provisions authorize withholding where disclosure would constitute an "unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6), (7)(C). The defendants contended in their motion for summary judgment that these personal privacy exemptions warranted the withholding of the Abu Ghraib photos in order to protect the privacy interests of the detainees depicted in them. The plaintiffs argued in their cross-motion that redactions could eliminate any unwarranted invasions of privacy.

More than two months after oral argument of the cross-motions, the defendants added another justification for withholding the Abu Ghraib photos: exemption 7(F). That exemption authorizes withholding of records "compiled for law enforcement purposes" where disclosure "could reasonably be expected to endanger the life or physical safety of any individual." § 552(b)(7)(F). According to the defendants, release of the Abu Ghraib photos could reasonably be expected to endanger the life or physical safety of United States troops, other Coalition forces, and civilians in Iraq and Afghanistan.

On September 29, 2005 the district court rejected the defendants' arguments and ordered the disclosure of the Abu Ghraib photos. See ACLU v. Dep't of Def., 389 F.Supp.2d 547, 579 (S.D.N.Y.2005) (the "Abu Ghraib order"). It determined that redaction of "all identifying characteristics of the persons in the photographs" would prevent an invasion of privacy interests. Id. at 571. To the extent that an invasion of privacy might occur in spite of the redactions, the court found that such an invasion would not be "unwarranted" since the public interest involved "far outweighs any speculative invasion of personal privacy." Id. at 572-73.

The district court also rejected the defendants' eleventh-hour "supplemental" argument related to exemption 7(F). Without deciding whether the exemption's protection of "any individual" extended as far as the defendants claimed, the court concluded that in any event, "the core values that Exemption 7(F) was designed to protect are not implicated by the release of the [Abu Ghraib] photographs, but . . . the core values of FOIA are very much implicated." Id. at 578. The district court stated, "Our nation does not surrender to blackmail, and fear of blackmail is not a legally sufficient argument to prevent us from performing a statutory command." Id. at 575. While acknowledging the "risk that the enemy will seize upon the publicity of the photographs and seek to use such publicity as a pretext for enlistments and violent acts," the court balanced that risk against the benefits of "education and debate that such publicity will foster," and ordered the photos released in redacted form. Id. at 578.

The defendants appealed the Abu Ghraib order, but in March 2006, while the appeal was pending, many of the Abu Ghraib photos were published on the internet by a third party. The appeal was thereafter withdrawn.

After the appeal was withdrawn, the plaintiffs sought clarification regarding other detainee abuse images, and the defendants confirmed that they were withholding an additional 29 images, again based on exemptions 6, 7(C) and 7(F). Whereas the Abu Ghraib photos were taken at that one location, the 29 photographs were taken in at least seven different locations in Afghanistan and Iraq, and involved a greater number of detainees and U.S. military personnel. And while many of the Abu Ghraib photos depicted unclothed detainees forced to pose in degrading and sexually explicit ways, the detainees in the 29 photographs were clothed and generally not forced to pose. The photographs were part of seven investigative files of the Army's Criminal Investigations Command ("Army CID"), and were provided to Army CID in connection with allegations of mistreatment of detainees. In three of the investigations, Army CID found probable cause to believe detainee abuse had occurred related to the photographs at issue here. Soldiers under scrutiny in two of the investigations have been punished under the Uniform Code of Military Justice.

On April 10, 2006, the district court established an expedited procedure for determining whether the 29 images could properly be withheld.2 By orders dated June 9, 2006 and June 21, 2006, the district court ordered the release of 21 of the disputed photos, all but one in redacted form. The 21 photographs were from six of the seven Army CID investigative files; the district court found that the photographs from one of the files showed no suggestion of abuse and thus need not be produced. Since the defendants' basis for withholding the 29 photographs had been the same as their basis for withholding the Abu Ghraib photos, the district court adopted the reasoning of the Abu Ghraib order.

The defendants' appeal of the June 2006 orders is now before us. There is no cross-appeal, and thus neither the order permitting the withholding of eight photographs nor the order directing redactions of the photographs to be disclosed is before us. We refer here to the 21 photographs in dispute as the "Army photos."

DISCUSSION
A. Governing Legal Standards

The Freedom of Information Act requires that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules ..., shall make the records promptly available to any person," 5 U.S.C. § 552(a)(3)(A), unless the records fall within one of the Act's nine exemptions, § 552(b)(1)-(9). The Act is broadly conceived to reflect "a general philosophy of full agency disclosure," and its exemptions are exclusive, FLRA v. U.S. Dep't of Veterans Affairs, 958 F.2d 503, 508 (2d Cir.1992), and "must be narrowly construed," John Doe Agency v. John Doe Corp., 493 U.S. 146, 152, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (internal quotation omitted)); see also ...

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