ACLU v. DOD

Concerning Freedom of Information Act requests for information related to detainee treatment

Introduction

This case arises from a series of Freedom of Information Act ("FOIA") requests filed by the American Civil Liberties Union ("ACLU") with the Department of Defense ("DOD"), Central Intelligence Agency ("CIA") and Department of Justice Office of Legal Counsel ("OLC") in 2003 and 2004. In the requests, ACLU sought release of documents related to the mistreatment, rendition, and death of detainees held outside the United States. In particular, the ACLU sought the release of two sets of documents (1) images of detainee abuse at Abu Ghraib and other detention facilities, and (2) memoranda and other records held by CIA and OLC related to the use of torture and other "enhanced interrogation techniques." The Government initially withheld all of the requested materials, arguing that they were exempt from disclosure under the FOIA, but eventually most of the documents were released in part.

Background

Detainee Photos -- Exemption 7(F)

Following initiation of the case, ACLU identified a list of records responsive to their FOIA requests, including "87 photographs and other images of detainees at detention facilities in Iraq and Afghanistan, including Abu Ghraib prison." Some of the photos were published by a third party on the Internet in 2006, and the DOD subsequently identified additional responsive photographs. The lower court ordered the DOD to release of 21 photos in 2006, after the judge supervised redactions to "eliminate the possibility of identification of the individuals who were depicted in the photographs" and rejecting the DODs argument that the images should be withheld under FOIA Exemption 7(F). See ACLU v. DOD, 389 F. Supp. 2d 547 (S.D.N.Y. 2005); ACLU v. DOD, No. 04-4151, 2006 WL 1638025 (S.D.N.Y. June 9, 2006).

FOIA Exemption 7(F) permits an agency to withhold "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to endanger the life or physical safety of any individual.” On appeal, the U.S. Court of Appeals for the Second Circuit upheld the lower court's ruling and found that the DOD had "failed to identify an individual who could reasonably be expected to be endangered within the meaning of exemption 7(F)." ACLU v. DOD, 543 F.3d 59, 91 (2d Cir. 2008). Specifically, the court ruled that while "[t]he phrase “any individual” in exemption 7(F) may be flexible, but is not vacuous." Id at 67. The court went on to emphasize that "[w]hile all harms in the end are suffered by individuals, there is a crucial difference between a showing that disclosure 'could reasonably be expected to endanger life or physical safety' and exemption 7(F)'s requirement that disclosure “could reasonably be expected to endanger the life or physical safety of any individual.” The court held that "by conditioning its application on a reasonable expectation of danger to an individual, [Exemption 7(F)] excludes from consideration risks that are speculative with respect to any individual." Id at 71. The court concluded that "in order to justify withholding documents under exemption 7(F), an agency must identify at least one individual with reasonable specificity and establish that disclosure of the documents could reasonably be expected to endanger that individual." Id.

The United States petitioned the Supreme Court for review of the Second Circuit's ruling but, while the petition was pending, Congress passed the Protect National Security Documents Act of 2009 ("PNSDA"), Section 565 of the Department of Homeland Security Appropriations Act, 2010, Pub. L. 111-83, Title V, § 565, Oct. 28, 2009, 123 Stat. 2184-85. After the new law was passed, Secretary of Defense Robert Gates issued a certification prohibiting the release of the images subject to ACLU's requests. The Supreme Court then granted the Petition for Certiorari and vacated the Second Circuit opinion in light of the subsequent Congressional and Executive actions. The case was remanded to the lower court for further proceedings related to other documents in the case.

On remand, the lower court determined that the photographs were properly withheld pursuant to Secretary Gates' 2009 certification under the PNSDA. However, that certification was set to expire on November 13, 2012, and a Secretary Leon E. Panetta issued a new certification in early November 2012. The lower court then considered a renewed challenge to the withholding of the photographs, and held that "the 2012 Recertification, standing alone, is insufficient to meet the government's burden to justify its withholding the photographs from disclosure." ACLU v. DOD, ___ F. Supp. 2d ___, 2014 WL 4243307 at *11 (S.D.N.Y. Aug. 27, 2014). However, the court provided the Government with an opportunity to "create a record" to justify its "invocation of the PNSDA." Id.

CIA and OLC Torture Documents -- Exemptions 1 and 3

On December 12, 2008, the ACLU moved for the Court to order the OLC and the CIA to release in unredacted form three memoranda that discuss the legal basis for ongoing interrogation of prisoners in secret detention facilities. The ACLU sought to uncover "the extent to which United States government officials . . . secretly authorized abusive interrogation of prisoners held in secret detention abroad in possible violation of domestic and international law." The ACLU cited as its primary goals oversight of improper government conduct and exposure of secret law.

On July 10, 2009, the CIA moved to withhold 65 operational documents, including cables, memoranda, emails, and a single photograph under exemptions to the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). These documents all relate to the contents of 92 destroyed videotapes of detainee interrogations that occurred between April and December 2002. The CIA argued that this information was classified pursuant to an Executive Order and that the information pertains to intelligence sources and methods, which the agency's statute protects from public disclosure.

On December 29, 2009, the Judge published his conclusions, which followed a closed door ("in camera") session for the Court to review disputed material and listen to arguments from the agency. The Court had reviewed samples of the disputed documents and read classified declarations from the National Security Agency and the CIA. The Court decided not to defer to the Government's determination that the disputed information should be withheld under FOIA Exemptions b(1) and b(3), and found instead that the information should be released. The Court did also stipulate that some portions would be redacted, ordering that "specific words be inserted in brackets to replace the actual text of the documents in certain limited instances, with the inserted words used to preserve the meaning of the text."

On October 10, 2010, the lower court issued its final ruling on the CIA and OLC withholdings, granting in part and denying in part the ACLU and Government's cross motions for summary judgment. Both parties subsequently appealed the Second Circuit, which issued its opinion on May 21, 2012, reversing the lower courts ruling in part and upholding all of the government's redactions under Exemptions 1 and 3. ACLU v. DOD, 681 F.3d 61 (2d Cir. 2012).

EPIC's Interest in ACLU v. DOD

EPIC is a leading advocates for transparency and open government, and frequently files requests under the Freedom of Information Act seeking disclosure of internal government documents to further the public interest. EPIC has previously challenged the improper withholding of OLC memoranda and other materials under Exemptions 1, 3, 5, and 7. EPIC has also sought disclosure of government protocols, and challenged broad claims under Exemption 7(F).

In EPIC v. DHS, No. 1:13-cv-00260 (D.D.C. filed Feb. 27, 2013), EPIC sued the Department of Homeland Security to obtain Standard Operating Procedure 303, an agency protocol governing the shutdown of communications networks. EPIC filed the FOIA request in this case after government security officials shut down a cell phone network in the San Francisco Bay Area Rapid Transit ("BART") system in response to a planned protest. The lower court ruled that the agency improperly withheld SOP 303, and that the document did not satisfy the requirements of Exemptions 7(F) and 7(E). On appeal, a three-judge panel of the D.C. Circuit ruled that the agency had properly withheld some portions of the document under Exemption 7(F), and remanded the case to the lower court to determine whether any material was reasonably segregable.

In EPIC v. NSA, No. 1:10-cv-01533 (D.D.C. filed Sept. 13, 2010), EPIC sued the National Security Agency to produce documents about an "Information Assurance" partnership with Google in the wake of announcements that hackers in China launched a "highly sophisticated" cyberattack. The NSA responded by denying EPIC's request, citing the same FOIA exemption, Exemption b(3), the DOD has cited here in refusing to respond to the ACLU's request. EPIC has filed a complaint and also a motion for summary judgment.

In EPIC v. DHS, No. 1:09-cv-02084 (D.D.C. filed Nov. 9, 2009), EPIC sued the Department of Homeland Security to produce 2000 body scanner images and training materials concerning the devices under the Freedom of Information Act. EPIC has requested that the federal court hearing the case reconsider its earlier decision allowing the DHS to keep the images secret. The Court reasoned that the images would allow terrorists "to circumvent detection by TSA and carry threatening contraband onboard an airplane," relying on a legal theory in its decision, "Exemption High b(2)," that was recently struck down by the Supreme Court. EPIC argues in its motion that the Department of Homeland Security is unlawfully withholding information about the airport scanners from the public.

In EPIC v. Dep't of Justice, No. 1:06-00214 (D.D.C. filed Jan. 2006), EPIC sued to obtain the legal memoranda justifying the Bush Administration's warrantless wiretapping program. EPIC first requested these documents in December 2005, after the New York Times reported that President Bush secretly issued an executive order in 2002 authorizing the National Security Agency to conduct warrantless surveillance of internationational telephone and Internet communications on American soil. In January 2006, EPIC filed a lawsuit against the DOJ to compel the immediate disclosure of these records. On March 18, 2011, the Justice Deparment turned over two legal memos concerning the program. The memos, dated November 2, 2001 and May 6, 2004, contain portions of the Bush Administration's justifications for the program, but are heavily redacted. The Obama Administration withheld three other memos in their entirety, citing the same FOIA exemptions, Exemption b(1) and Exemption b(3), that the DOD has cited in this case.

Legal Documents

U.S. Supreme Court (No. 09-160)

U.S. Court of Appeals for the Second Circuit (Nos. 06-3140, 10-4290, 10-4289, 10-4647, 10-4668)

  • ACLU v. DOD, 681 F.3d 61 (2d Cir. 2012) (affirming in part and reversing in part the district court order and finding that the redacted portions of the OLC memos and CIA documents under Exemptions 1 and 3)
  • ACLU v. DOD, 543 F.3d 39 (2d Cir. 2008) (affirming the district court order that the photographs cannot be withheld under Exemption 7(F))

U.S. District Court for the Southern District of New York (No. 04-cv-4151)

  • ACLU v. DOD, ___ F. Supp. 2d ___, 2014 WL 4243307 (S.D.N.Y. Aug. 27, 2014) (finding that Secretary Panetta's 2012 Certification was insufficient to satisfy the requirements of the PNSDA because the DOD failed to provide evidence that the Secretary had evaluated the potential security impact of releasing each individual photograph)
  • ACLU v. DOD, 827 F. Supp. 2d 217 (S.D.N.Y. 2011) (finding that CIA detention videotapes were subject to disclosure and that the agency improperly destroyed those tapes subsequent to the court's order, and awarding ACLU reasonable attorneys fees as a result but denying the ACLU's motion for civil contempt)
  • ACLU v. DOD, 723 F. Supp. 2d 621 (S.D.N.Y. 2010) (finding that the CIA Director's determinations that certain documents should be exempt from disclosure because they would reveal intelligence sources and methods are not subject to review based on the legality of the underlying activities and that the CIA had not waived its right to withhold the documents)
  • ACLU v. DOD, 406 F. Supp. 2d 330 (S.D.N.Y. 2005), judgment entered (Jan. 10, 2006) (denying the ACLU's motion for partial relief from the court's prior decision upholding the CIA's Glomar response with respect to a DOJ memorandum and Presidential directive related to detainee treatment)
  • ACLU v. DOD, 357 F. Supp. 2d 708 (S.D.N.Y. 2005) (denying CIA's motion to the court's order requiring the agency to search for and review responsive records)
  • ACLU v. DOD, 396 F. Supp. 2d 459 (S.D.N.Y. 2005) (denying the CIA's motion for reconsideration of the court's order to produce the OLC memo to the CIA interpreting the Convention Against Torture)
  • ACLU v. DOD, 389 F. Supp. 2d 547 (S.D.N.Y. 2005) (granting in part and denying in part cross motions for summary judgment filed by ACLU, DOD, and CIA with respect to four issues and finding that (1) DOD properly withheld reports and documents related to the International Committee of the Red Cross, (2) photographs and videotapes of detainee abuse held by DOD were not exempt from disclosure when properly redacted, (3) CIA's Glomar response with respect to a DOJ memo and Presidential Directive were proper, and (4) CIA's Glomar response with respect to an OLC memo interpreting the Convention Against Torture was not proper)
  • ACLU v. DOD, 351 F. Supp. 2d 265 (S.D.N.Y. 2005) (finding that the CIA failed to satisfy the "operational files exemption" and therefore must search for and review responsive records under the FOIA)
  • ACLU v. DOD, 339 F. Supp. 2d 501 (S.D.N.Y. 2004) (ordering the defendant agencies to "produce or identify all responsive documents" within 30 days)

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