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American Civil Liberties Union and American Civil Liberties Union Foundation v. United States Department of Defense and Central Intelligence Agency

January 18, 2011

AMERICAN CIVIL LIBERTIES UNION AND AMERICAN CIVIL LIBERTIES UNION FOUNDATION, APPELLANTS
v.
UNITED STATES DEPARTMENT OF DEFENSE AND CENTRAL INTELLIGENCE AGENCY, APPELLEES



Appeal from the United States District Court for the District of Columbia (No. 1:08-cv-00437)

The opinion of the court was delivered by: Sentelle, Chief Judge:

Argued September 23, 2010

Before: SENTELLE, Chief Judge, GRIFFITH, Circuit Judge, and SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge SENTELLE.

Appellants, the American Civil Liberties Union and the American Civil Liberties Foundation (jointly "ACLU"), submitted Freedom of Information Act ("FOIA") requests to the Department of Defense and the Central Intelligence Agency ("CIA") seeking documents related to fourteen "high value" detainees held at the U.S. Naval Base in Guantanamo Bay, Cuba. In response, the government released redacted versions of the requested documents, from which specific information relating to the capture, detention, and interrogation of the detainees had been withheld. The government defended the redactions as justified by FOIA exemptions 1 and 3, which permit the government to withhold information related to "intelligence sources and methods." We agree with the district court that the information withheld by the government was exempt from FOIA disclosure. We also conclude that the district court did not abuse its discretion by declining to perform in camera review. For these reasons, we affirm the judgment of the district court.

I. Background

Since January of 2002, the United States has operated a detention facility at the United States Naval Base at Guantanamo Bay, Cuba, for detainees captured in the war on terror. In a September 2006 speech, President Bush revealed that fourteen "suspected terrorist leaders and operatives" had been held and questioned outside of the United States in a separate program operated by the CIA. Remarks on the War on Terror, 42 WEEKLY COMP. PRES. DOC. 1569, 1570 (Sept. 6, 2006). In his speech, the President announced that this program had been discontinued and that the fourteen detainees were being transferred to Guantanamo Bay. Id. at 1573-74. After their transfer, these so-called "high value" detainees received hearings before Combatant Status Review Tribunals ("CSRTs").

Although the Department of Defense had publicly posted redacted transcripts of the detainees' CSRT proceedings, the ACLU submitted Freedom of Information Act requests to the Department seeking full CSRT transcripts of the 14 detainees and all records provided to the CSRTs by or on behalf of the detainees. In response to the request, the government identified and released the following: eight unclassified CSRT transcripts; six redacted CSRT transcripts; an unclassified version of a one-page document submitted by detainee Abu Zubayduh to the CSRT; an unclassified version of two pages of "Detainee Session Notes" prepared by the Personal Representative of detainee Majid Khan and submitted to the CSRT; a redacted version of a two-page written statement of detainee Khalid Sheikh Muhammad that was submitted to the CSRT; a redacted version of a seven-page written statement of detainee Hambali that was submitted to the CSRT; and a redacted version of a one-page written statement of detainee Bin Lap that was submitted to the CSRT.

From the redacted documents, the CIA withheld all information relating to the capture, detention, and interrogation of the "high value" detainees.

The ACLU filed the present action in the district court challenging the government's withholdings. The government stood by its withholdings and filed affidavits in support of its position. The government principally relied on the affidavit of Wendy Hilton, the Associate Information Review Officer of the National Clandestine Service of the CIA, to justify the redactions as information protected by FOIA exemptions 1 and 3. See 5 U.S.C. § 552(b) (listing nine exemptions from FOIA disclosure requirements). Exemption 1 provides for the exemption of records that are:

(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.

5 U.S.C. § 552(b)(1). As applicable to the claimed exemption in this case, Executive Order 12,958, as amended, sets out eight categories of information subject to classification, including "intelligence activities," "intelligence sources or methods," and the "foreign relations or foreign activities of the United States." Exec. Order No. 12,958 § 1.4(c)-(d), 60 Fed. Reg. 19,825 (Apr. 17, 1995), as amended by Exec. Order No. 13,292, 68 Fed. Reg. 15,315 (Mar. 25, 2003) (hereinafter "Exec. Order No. 12,958"). Exemption 3 provides for the exemption of records that are "specifically exempted from disclosure by statute," thereby incorporating the protections of other shield statutes. 5 U.S.C. § 552(b)(3).

The government moved for summary judgment to dispose of the ACLU's lawsuit. On October 29, 2008, the district court granted the government's motion, ruling that the government had complied with the ACLU's FOIA request insofar as it was required to do so, and that it had provided sufficient support for the claimed exemptions. See A.C.L.U. v. Dep't of Defense, 584 F. Supp. 2d 19, 26 (D.D.C. 2008).

The ACLU appealed the district court's decision to this court, but before the parties filed their briefs, four events caused the government to reevaluate its redactions to the requested documents. First, in January 2009, President Obama issued three executive orders: Executive Order 13,491 limiting the use of interrogation techniques to those listed in the Army Field Manual and ordering the CIA to close any detention centers it operated; Executive Order 13,492 ordering the

Department of Defense to close the detention facility at Guantanamo Bay within one year; and Executive Order 13,493 establishing a taskforce to review the lawful options available to the government with respect to the apprehension, detention, and disposition of suspected terrorists. See Exec. Order Nos. 13,491-93, 74 Fed. Reg. 4893-902 (Jan. 22, 2009). Second, in April 2009, President Obama declassified and released to the public four legal memoranda issued by the Department of Justice Office of Legal Counsel ("OLC") that discussed the legality of enhanced interrogation techniques. Third, also in April 2009, the New York Review of Books published a leaked report from the International Committee of the Red Cross ("Red Cross") that contained accounts of the treatment of the fourteen "high value" detainees while in CIA custody. Finally, in August 2009, the government released a declassified version of the CIA Inspector General's report that detailed the CIA's interrogation techniques and discussed certain aspects of the detainees' conditions of confinement.

At the government's request, we remanded the case to the district court to provide the CIA with the opportunity to "reprocess" the requested documents in light of the further developments. The CIA's additional efforts resulted in the release of one additional CSRT transcript in its entirety and the revision of the redactions to the remaining five transcripts and three detainee written statements. In August 2009, the government filed a new motion for summary judgment, relying on a second declaration from Wendy Hilton to support its claim that the information still redacted after the CIA's reprocessing was exempt from release under FOIA ...


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