Amnesty Int'l U.S. v. Cent. Intelligence Agency

Citation728 F.Supp.2d 479
Decision Date02 August 2010
Docket NumberNo. 07 Civ. 5435 (LAP),07 Civ. 5435 (LAP)
PartiesAMNESTY INTERNATIONAL USA, Center for Constitutional Rights, Inc., & Washington Square Legal Services, Inc., Plaintiffs, v. CENTRAL INTELLIGENCE AGENCY, Department of Defense, Department of Homeland Security, Department of Justice, Department of State, and Their Components, Defendants.
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

David Seaton Brown, Madeleine Ann Hensler, Morrison & Foerster LLP, Margaret Lockwood Satterthwaite, Amna Amber Akbar, New York University School of Law, Gitanjali S. Gutierrez, New York, NY, for Plaintiff.

Jeannette Anne Vargas, Brian Marc Feldman, Emily Ewell Daughtry, Heather Kirsten McShain, U.S. Attorney's Office, New York, NY, for Defendant.

OPINION AND ORDER

LORETTA A. PRESKA, Chief Judge.

Plaintiffs Amnesty International USA ("AI"), the Center for Constitutional Rights, Inc. ("CCR"), and Washington Square Legal Services ("WSLS," and together with AI and CCR, "Plaintiffs") served four requests for records (the "Requests") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, on Defendant Central Intelligence Agency ("CIA" or "Defendant"). 1 Currently before the Court are the CIA's motion forsummary judgment [dkt. no. 141] and Plaintiffs' cross-motion for partial summary judgment [dkt. no. 158] which raise the questions of whether the CIA adequately searched for the requested records and properly invoked several of the exemptions set forth in the 5 U.S.C. § 552(b).2 For the reasons set forth herein, the Court concludes that the CIA's search for responsive records was adequate, except for its search for records relating to the CIA's use of the "attention grasp" technique in its interrogations of suspected terrorists. In addition, the Court finds that the CIA's assertion of the various FOIA Exemptions and its Glomar responses are, for the most part, justified. Accordingly, the CIA's motion and Plaintiff's cross-motion are GRANTED in part and DENIED in part.

I. BACKGROUND
A. The Requests

Collectively, Plaintiffs have submitted four FOIA requests to the CIA and other agencies seeking records relating to the detention and treatment of detainees. The specifics of each request will be discussed in turn.

i. The CCR FOIA Request

On December 21, 2004, CCR submitted a FOIA request for "records relating to the identity of, transport and location(s) of, authority over, and treatment of all unregistered, CIA, and 'ghost' Detainees interdicted, interrogated, and detained by any agency or department of the United States." (Hilton Decl., Ex. B and Brown Decl., Ex. A ("CCR FOIA Request") at 3.) The CCR FOIA Request contained seventeen separate record requests which sought:

1. All records that propose, authorize, report on, or describe, or that discuss the legality or appropriateness of holding Unregistered, CIA, and/or "Ghost" Detainees in special CIA or other agency facilities for purposes of interrogation.
2. All records that discuss the creation, use and/or closure of the various centers at which the CIA and/or any other agency of the federal government has held, and/or continues to hold Unregistered, CIA, and/or "Ghost" Detainees.
3. All records reflecting the use of any private companies, other U.S. officials or citizens, and/or officials or citizens of any foreign governments regarding the interdiction, arrest, transfer, detention, questioning, interrogation, and/or other treatment of any Unregistered, CIA, or "Ghost" Detainee[.]
4. All records reflecting standards or policies governing who may be held as an Unregistered, CIA, and/or "Ghost" Detainee and what procedural protections or guidelines, if any, are used to review the arrest, detention, and treatment of these Detainees.
5. Every location from September 11, 2001 to the present at which the CIA or any other governmental agency has been or is now holding Unregistered, CIA, or "Ghost" Detainees, the dates of operation of each such facility, whether the facility remains open at this time, the purpose of the facility, a complete list of the Detainees held at the facility (both past and current with indications as to this status), a list of techniques used for interrogation at each facility, and a list of personnel who have worked and those who continue to work at each Center.
6. All records concerning the treatment of the Unregistered Detainees held in any CIA or other governmental facility in the world. Please include all records discussing the following interrogation methods at such facilities, including but not limited to records discussing their legality or appropriateness: using "stress and duress" techniques on Detainees; using force against them; subjecting them to physical injury; requiring them to stand or kneel for prolonged periods; depriving them of sleep, food or water; holding them in awkward and painful positions for prolonged periods; denying them painkillers or medical treatment; administering or threatening to administer mind altering substances, "truth serums" or procedures calculated to disrupt the senses or personality; subjecting them to prolonged interrogation under bright lights; requiring them to be hooded, stripped, or blindfolded; binding their hands and feet for prolonged periods of time; isolating them for prolonged periods of time; subjecting them to violent shaking; subjecting them to intense noise; subjecting them to heat or cold; or threatening harm to them or other individuals.
7. All records setting forth or discussing policies, procedures or guidelines relating to the detention, questioning, interrogation, transfer, and treatment (including, but not limited to the interrogation with use of torture or other cruel, inhuman or degrading treatment or punishment) of the Unregistered, CIA, and/or "Ghost" Detainees, including but not limited to policies, procedures or guidelines relating to the methods listed above.
8. All records relating to measures taken, or policies, procedures or guidelines put in place, to ensure that CIA Detainees were not, are not or will not be tortured or subjectedto cruel, inhuman or degrading treatment or punishment. Please include all records indicating how any such policies, procedures or guidelines were, are, or will be, communicated to personnel involved in the interrogation or detention of CIA Detainees.
9. All records indicating or discussing actual or possible violations of, or derivations from, the policies, procedures or guidelines referred to in Paragraph 4, above.
10. All records indicating or discussing serious injuries, illnesses, and/or deaths of any Unregistered, CIA, and/or "Ghost" Detainees.
11. All records, including autopsy reports and death certificates, relating to the deaths of any Unregistered, CIA, and/or "Ghost" Detainees.
12. All records relating to investigations, inquiries, or disciplinary proceedings initiated in relation to actual or possible violations of, or derivations from, the policies, procedures or guidelines referred to in Paragraph 4, above, including but not limited to records indicating the existence of such investigations, inquiries or disciplinary proceedings.
13. All records relating to the actual or alleged torture or other cruel, inhuman or degrading treatment or punishment of any Unregistered, CIA, and/or "Ghost" Detainee.
14. All records relating to policies, procedures or guidelines governing the role of health personnel in the interrogation of the Unregistered, CIA, and/or "Ghost" Detainees, including but not limited to the role of health personnel in the medical, psychiatric, or psychological assessment of Detainees immediately before, during or immediately after interrogation. Please include all records indicating how any such policies, procedures or guidelines were, are or will be communicated to personnel involved in the interrogation or detention of Detainees.
15. All records relating to medical, psychiatric or psychological assessment of any Unregistered, CIA, and/or "Ghost" Detainee or guidance given to interrogators by health personnel immediately before, during or immediately after the interrogation of any Unregistered, CIA, and/or "Ghost" Detainees.
16. All records indicating whether and to what extent the International Committee for the Red Cross ("ICRC") had, has or will have access to Unregistered, CIA, and/or "Ghost" Detainees, including but not limited to records related to particular decisions to grant or deny the ICRC access to any Detainee or group of Detainees.
17. All records indicating whether and to what extent any other non-governmental organization or foreign government had, has or will have access to the Unregistered, CIA, and/or "Ghost" Detainees, including but not limited to records related to particular decisions to grant or deny them access to any Detainee or group of Detainees.

( Id. at 4-6.)

ii. The AI Requests

On April 25, 2006, AI, together with the WSLS, submitted two separate FOIA requests to the CIA. ( See Hilton Decl. Ex. F and Brown Decl., Ex. B ("First AI FOIA Request"); Hilton Decl., Ex. G and Brown Decl., Ex. C ("Second AI FOIA Request").)The First AI FOIA Request, entitled "Request ... Concerning Detainees, including 'Ghost Detainees/Prisoners,' 'Unregistered Detainees/Prisoners,' and 'CIA Detainees/Prisoners[,]' " sought "any records reflecting, discussing or referring to the policy and/or practice concerning:"

1. The apprehension, transfer, detention, and interrogation of persons within the Scope of Request, including but not limited to:
(a) The transfer of intelligence by one or more U.S. agencies or government officials to one or more foreign agencies or officials, in connection with the apprehension or detention of a person.
(b) A request or direction by one or more U.S. agencies or government officials to one or more foreign agencies or officials regarding the apprehension of any person, and any related agreement concerning such apprehension.
(c) The apprehension of a person in a foreign country by, with the involvement of, or in the presence of
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