10-4290-cv(L), 10-4289-cv(CON), 10-4647-cv(XAP), 10-4668-cv(XAP) ACLU v. Dep’t of Justice

1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 6 7 August Term, 2011 8 9 (Argued: March 9, 2012 Decided: May 21, 2012) 10 11 Docket Nos. 10-4290-cv(L), 10-4289-cv(CON), 10-4647-cv(XAP), 12 10-4668-cv(XAP) 13 14 15 AMERICAN CIVIL LIBERTIES UNION, CENTER FOR CONSTITUTIONAL RIGHTS, 16 INCORPORATED, PHYSICIANS FOR HUMAN RIGHTS, VETERANS FOR COMMON SENSE, 17 VETERANS FOR PEACE, 18 19 Plaintiffs-Appellees-Cross-Appellants, 20 21 –v.– 22 23 DEPARTMENT OFJUSTICE, and its component Office of Legal 24 Counsel, CENTRAL INTELLIGENCE AGENCY, 25 26 Defendants-Appellants-Cross-Appellees, 27 28 DEPARTMENT OF DEFENSE, and its components Department of Army, 29 Department of Navy, Department of Air Force, Defense 30 Intelligence Agency, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF 31 STATE, DEPARTMENT OF JUSTICE components Civil Rights Division, 32 Criminal Division, Office of Information and Privacy, Office 33 of Intelligence, Policy and Review, Federal Bureau of 34 Investigation, 35 36 Defendants. 37 38 39 1 Before: 2 WESLEY, CARNEY, Circuit Judges, and CEDARBAUM, District Judge.* 3 4 Appeal and cross-appeal from a judgment of the United 5 States District Court for the Southern District of New York 6 (Hellerstein, J.), granting the parties’ motions for partial 7 summary judgment with respect to Plaintiffs’ Freedom of 8 Information Act request for the disclosure of records 9 concerning the treatment of detainees in United States 10 custody abroad since September 11, 2001. The Government 11 challenges the portion of the judgment requiring it to 12 disclose information in two memoranda pertaining to what the 13 Government considers a highly classified, active 14 intelligence method. Plaintiffs challenge the judgment 15 insofar as it sustained the Government’s withholding of 16 certain records relating to the use of waterboarding and a 17 photograph of a high-value detainee in custody. We agree 18 with the district court that the materials at issue in 19 Plaintiffs’ cross-appeal are exempt from disclosure. The 20 district court erred, however, in requiring the Government 21 to disclose the classified information redacted from the two 22 memoranda. 23 24 AFFIRMED in part and REVERSED in part. 25 26 27 28 TARA M. LA MORTE, Assistant United States Attorney 29 (Amy A. Barcelo, Sarah S. Normand, Assistant 30 United States Attorneys, on the brief), for 31 Preet Bharara, United States Attorney for the 32 Southern District of New York, New York, NY; 33 (Tony West, Assistant Attorney General, Ian 34 Heath Gershengorn, Deputy Assistant Attorney 35 General, Douglas N. Letter, Matthew M. 36 Collette, Attorneys, Civil Division, Appellate 37 Staff, Department of Justice, Washington, 38 D.C., on the brief), for Defendants- 39 Appellants-Cross-Appellees.

* The Honorable Miriam Goldman Cedarbaum, of the United States District Court for the Southern District of New York, sitting by designation.

2 1 ALEXANDER A. ABDO (Jameel Jaffer, Judy Rabinovitz, 2 American Civil Liberties Union Foundation, New 3 York, NY; Lawrence S. Lustberg, Alicia L. 4 Bannon, Gibbons, P.C., Newark, NJ; Michael 5 Ratner, Gitanjali Gutierrez, Emilou MacClean, 6 Shayana Kadidal, Center for Constitutional 7 Rights, New York, NY; Beth Haroules, Arthur 8 Eisenberg, New York Civil Liberties Union 9 Foundation, New York, NY, on the brief), for 10 Plaintiffs-Appellees-Cross-Appellants. 11 12 13 14 WESLEY, Circuit Judge:

15 The Central Intelligence Agency (“CIA”), the Department

16 of Justice (“DOJ”), and its component Office of Legal

17 Counsel (“OLC”) (collectively the “Government”) appeal from

18 a portion of an October 1, 2010 judgment of the United

19 States District Court for the Southern District of New York

20 (Hellerstein, J.), requiring the Government to disclose,

21 pursuant to the Freedom of Information Act (“FOIA”),

22 information redacted from two memoranda prepared by the OLC.

23 The Government contends that the redactions are justified

24 under FOIA because the information pertains to a highly

25 classified, active intelligence method. We conclude that

26 the Government may withhold this information under FOIA

27 Exemption 1. We thus reverse the district court’s judgment

28 insofar as it required disclosure.

29 The American Civil Liberties Union (“ACLU”), Center for

3 1 Constitutional Rights, Incorporated, Physicians for Human

2 Rights, Veterans for Common Sense, and Veterans for Peace

3 (collectively “Plaintiffs”) appeal from the same judgment

4 insofar as it upheld the Government’s withholding of records

5 relating to the CIA’s use of the Enhanced Interrogation

6 Technique (“EIT”) of waterboarding and a photograph of high-

7 value detainee Abu Zubaydah, taken while he was in CIA

8 custody abroad. Plaintiffs contend that the records and

9 photograph may not be withheld under either FOIA Exemption 1

10 or 3 because the President has declared the practice of

11 waterboarding illegal and the Government has failed to

12 justify adequately its withholding of the photograph. We

13 disagree and hold that the President’s declaration and

14 prohibition of the future use of waterboarding do not affect

15 the Government’s otherwise valid authority to withhold the

16 records under Exemption 3. We agree with the district court

17 that both the records and photograph are exempt from

18 disclosure under FOIA Exemption 3 and thus affirm that part

19 of the judgment.

20 BACKGROUND

21 On October 7, 2003, Plaintiffs submitted a FOIA request

22 to the CIA, DOJ, and other federal agencies, seeking the

4 1 disclosure of records concerning (1) the treatment of

2 detainees; (2) the deaths of detainees while in United

3 States custody; and (3) the rendition, since September 11,

4 2001, of detainees and other individuals to countries known

5 to employ torture or illegal interrogation methods. On

6 January 31, 2005, Plaintiffs served a FOIA request on the

7 OLC, incorporating by reference their October 7, 2003

8 request and enumerating a non-exhaustive list of documents

9 falling within the scope of Plaintiffs’ request.

10 Within a year of each request, Plaintiffs filed

11 separate complaints seeking to compel the Government to

12 release any responsive documents it had withheld from

13 disclosure. With respect to the first action, the district

14 court ordered the Government to produce or identify all

15 records responsive to Plaintiffs’ request. ACLU v. Dep’t of

16 Def.,

(S.D.N.Y. 2004). Since that

17 time, the Government has disclosed thousands of documents in

18 response to Plaintiffs’ FOIA requests.

19 I. Facts and Procedural History Relevant to the Government’s 20 Appeal

21 Among the documents disclosed by the Government are

22 four memoranda authored by the OLC between August 1, 2002

23 and May 30, 2005, analyzing legal questions with respect to

5 1 the application of EITs to detainees held in CIA custody

2 abroad. The Government initially withheld these memoranda

3 in full, but subsequently, on April 16, 2009, released

4 unclassified versions of the memoranda with limited

5 redactions. The classified information at issue in the

6 Government’s appeal is discussed in two of these memoranda,

7 dated May 10, 2005 and May 30, 2005, respectively. The

8 Government redacted references to the classified

9 information—along with other information not relevant to

10 this appeal—pursuant to FOIA Exemptions 1 and 3 on the basis

11 that records related to “intelligence methods,”

12 “intelligence activities,” and CIA “functions” are exempt

13 from disclosure.1 The parties filed cross-motions for

14 summary judgment with regard to these redactions from the

15 OLC memoranda.

16 The district court reviewed the unredacted OLC

1 Exemption 1 provides for the nondisclosure of matters 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.”

(b)(1). Exemption 3 provides for the nondisclosure of matters that are “specifically exempted from disclosure by statute,” provided that the statute “requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue” or “establishes particular criteria for withholding or refers to particular types of matters to be withheld.”

§ 552(b)(3).

6 1 memoranda in a series of ex parte, in camera sessions. It

2 also reviewed several declarations from high-level executive

3 branch officials supporting the Government’s withholding of

4 the redacted information. At the first session, the

5 district court issued a preliminary ruling that all but one

6 of the references to the classified information must be

7 disclosed, without explaining why it treated that sole

8 reference differently. With respect to the other

9 references, the district court held that publicly disclosing

10 that information would reveal not an intelligence method but

11 only a source of the CIA’s authority. The district court

12 also found that the references are so general in nature that

13 their disclosure would not compromise national security.

14 The district court nevertheless permitted the Government to

15 submit additional declarations justifying its position that

16 the information was exempt from disclosure.

17 During a subsequent in camera session, the district

18 court reaffirmed its preliminary ruling and explained that

19 it viewed the classified information as a “source of

20 authority” for interrogation rather than a “method of

21 interrogation.” As a compromise, however, the district

22 court offered to allow the Government to replace references

7 1 to the classified information with alternative language

2 meant to preserve the meaning of the text. The district

3 court acknowledged the national security concerns

4 potentially raised by the disclosure of some of the

5 classified information, but nevertheless ordered that the

6 Government either disclose the information or comply with

7 the court’s proposed compromise. The district court also

8 ordered that references to the classified information in the

9 transcript of the first ex parte, in camera proceeding be

10 disclosed or otherwise released in accordance with the

11 compromise. The district court memorialized its oral ruling

12 in a December 29, 2009 order. The Government now appeals

13 from that order.

14 II. Facts and Procedural History Relevant to Plaintiffs’ 15 Cross-Appeal 16 17 Many of the documents released by the Government in

18 response to Plaintiffs’ FOIA requests relate to the use of

19 EITs. During the course of this litigation, the President

20 prohibited the future use of certain EITs, including

21 waterboarding, formerly authorized for use on high-value

22 detainees.2 On May 7, 2009, the district court ordered the

2 On January 22, 2009, the President issued an executive order terminating the CIA’s detention and interrogation program

8 1 Government to compile a list of documents related to the

2 contents of 92 destroyed videotapes of detainee

3 interrogations that occurred between April and December 2002

4 and which would otherwise have been responsive to

5 Plaintiffs’ FOIA requests. Pursuant to that order, the CIA

6 identified 580 documents and selected a sample of 65

7 documents for the district court to review for potential

8 release. Specifically, the sample records comprise:

9 • 53 cables (operational communications) between CIA 10 headquarters and an interrogation facility; 11 • 3 emails postdating the videotapes’ destruction; 12 • 2 logbooks detailing observations of interrogation 13 sessions; 14 • 1 set of handwritten notes from a meeting between a 15 CIA employee and a CIA attorney; 16 • 2 memoranda containing descriptions of the contents 17 of the videotapes; 18 • 1 set of handwritten notes taken during a review of 19 the videotapes; 20 • 2 records summarizing details of waterboard exposures 21 from the destroyed videotapes; and 22 • 1 photograph of Abu Zubaydah dated October 11, 2002.

and mandating that individuals in United States custody “not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2-22.3.” Exec. Order No. 13,491,

, 4,894 (Jan. 22, 2009). Moreover, in an April 29, 2009 news conference, the President explained the basis for his ban on the use of waterboarding: “[W]aterboarding violates our ideals and our values. I do believe that it is torture. I don’t think that’s just my opinion; that’s the opinion of many who’ve examined the topic. And that’s why I put an end to these practices.” President Barack Obama, News Conference by the President (Apr. 29, 2009), http://www.whitehouse.gov/the-press- office/news-conference-president-4292009.

9 1 2 The Government withheld these records pursuant to FOIA

3 Exemptions 1 and 3, and the parties filed cross-motions for

4 summary judgment with regard to whether the records were

5 exempt from disclosure.3

6 The Government defended its withholding of the records

7 with three declarations of then-CIA Director Leon Panetta.

8 The declarations explained that the records consist

9 primarily of communications to CIA headquarters from a

10 covert CIA facility where interrogations were being

11 conducted, and include “sensitive intelligence and

12 operational information concerning interrogations of Abu

13 Zubaydah.” Panetta Decl. ¶ 5, June 8, 2009. With respect

14 to Exemption 3, the declarations explained that, if

15 disclosed, the records would “reveal intelligence sources

16 and methods” employed by the CIA, as well as “the

17 organization and functions of the CIA, including the conduct

18 of clandestine intelligence activities to collect

19 intelligence from human sources using interrogation

20 methods.”

. With respect to Exemption 1, the

3 The Government also withheld portions of the records pursuant to other FOIA Exemptions. Plaintiffs do not challenge those withholdings on appeal.

10 1 declarations asserted that the records were properly

2 classified pursuant to Executive Order No. 12,958 and that

3 their disclosure could reasonably be expected to result in

4 harm to national security.

5 In response, Plaintiffs argued that the EITs were not

6 “intelligence methods” within the meaning of the CIA’s

7 withholding authorities because they had been repudiated,

8 and, in the case of waterboarding, declared unlawful by the

9 President. Plaintiffs also argued that the CIA had failed

10 to provide any explanation for withholding the photograph of

11 Abu Zubaydah under either Exemption 1 or 3.

12 On September 30, 2009, the district court reviewed the

13 photograph and a portion of the sample records in an ex

14 parte, in camera session. The district court made

15 preliminary rulings upholding the Government’s nondisclosure

16 of all but one document. That document is not at issue in

17 Plaintiffs’ cross-appeal. With respect to the photograph of

18 Abu Zubaydah, the Government asserted that it was “actually

19 a CIA photo of a person in custody,” and the court accepted

20 the Government’s position that a photograph of a detainee

21 reveals “a lot more information” than the detainee’s

22 identity. During the public hearing, the district court

11 1 rejected Plaintiffs’ argument that the President’s

2 declaration was a sufficient basis for rejecting the

3 Government’s position. The district court explained that it

4 would “decline to rule on the question of legality or

5 illegality in the context of a FOIA request.” J.A. 1105-06.

6 Rebuffing Plaintiffs’ argument that the photo should be

7 produced because the Government offered no justification for

8 its withholding, the district court sustained the

9 withholding and explained that “the image of a person in a

10 photograph is another aspect of information that is

11 important in intelligence gathering.” J.A. 1115.

12 The district court memorialized its rulings in an

13 October 13, 2009 order. In sustaining the withholding of

14 the records under FOIA Exemption 3, the district court

15 concluded that the CIA had satisfied its burden of showing

16 that the release of the records could reasonably be expected

17 to lead to unauthorized disclosure of intelligence sources

18 and methods. The district court also rejected Plaintiffs’

19 argument that records relating to illegal activities are

20 beyond the scope of Exemption 3.

21 In a July 15, 2010 order, the district court denied

22 Plaintiffs’ motion for reconsideration of its October 2009

12 1 order. In doing so, the district court reaffirmed its view

2 that neither statutory language nor case law supports

3 Plaintiffs’ contention that the legality of the underlying

4 intelligence source or method bears upon the validity of an

5 Exemption 3 withholding.

6 On October 1, 2010, the district court entered partial

7 final judgment pursuant to Federal Rule of Civil Procedure

8 54(b), granting Plaintiffs summary judgment with regard to

9 the Government’s withholding of the classified information

10 in the two OLC memoranda, and granting the Government

11 summary judgment with regard to the nondisclosure of records

12 related to the contents of the destroyed videotapes and the

13 photograph. Plaintiffs limit their cross-appeal to those

14 records reflecting the CIA’s use of waterboarding and to the

15 photograph of Abu Zubaydah.

16 DISCUSSION

17 The Freedom of Information Act “calls for broad

18 disclosure of Government records.” CIA v. Sims,

159, 166 (1985). But public disclosure of certain

20 government records may not always be in the public interest.

21 Thus, Congress provided that some records may be withheld

22 from disclosure under any of nine exemptions defined in 5

13

(b).

.

2 An agency withholding documents responsive to a FOIA

3 request bears the burden of proving the applicability of

4 claimed exemptions. Wilner v. NSA,

(2d Cir.

5 2009). “Affidavits or declarations . . . giving reasonably

6 detailed explanations why any withheld documents fall within

7 an exemption are sufficient to sustain the agency’s burden.”

8 Carney v. U.S. Dep’t of Justice,

(2d Cir.

9 1994). We review the adequacy of the agency’s

10 justifications de novo. Wilner,

. In the

11 national security context, however, we “must accord

12 substantial weight to an agency’s affidavit concerning the

13 details of the classified status of the disputed record.”

14 Wolf v. CIA,

(D.C. Cir. 2007) (internal

15 quotation marks omitted); see also Sims, 471 U.S. at 179.

16 Summary judgment is appropriate where the agency affidavits

17 “describe the justifications for nondisclosure with

18 reasonably specific detail, demonstrate that the information

19 withheld logically falls within the claimed exemption, and

20 are not controverted by either contrary evidence in the

21 record nor by evidence of agency bad faith.” Wilner, 592

22 F.3d at 73. Ultimately, an agency may invoke a FOIA

14 1 exemption if its justification “appears logical or

2 plausible.” Id. (internal quotation marks omitted).

3 I. The Government’s Appeal—The OLC Memoranda

4 The Government contends that the information redacted

5 from the OLC memoranda may be withheld from disclosure under

6 either FOIA Exemption 1 or 3. In our view, Exemption 1

7 resolves the matter easily.4 Exemption 1 permits the

8 Government to withhold information “specifically authorized

9 under criteria established by an Executive order to be kept

10 secret in the interest of national defense or foreign

11 policy” if that information has been “properly classified

12 pursuant to such Executive order.”

(b)(1).

13 The Government contends that the redacted information was

14 properly classified under Executive Order No. 12,958, as

15 amended, which authorized the classification of information

16 concerning “intelligence activities (including special

17 activities), intelligence sources or methods, or

18 cryptology.” Exec. Order No. 12,958 § 1.5(c),

19,825 (Apr. 17, 1995), as amended by Exec. Order No.

4 Because the FOIA Exemptions are independent of each other, we need only discuss why we conclude that the Government may invoke FOIA Exemption 1 to justify withholding the redacted information in the OLC memoranda. See Wilner,

(citing Larson v. Dep’t of State,

(D.C. Cir. 2009)).

15 1 13,292,

(Mar. 25, 2003) (hereinafter

2 “Exec. Order No. 12,958”).5 Executive Order No. 12,958 also

3 required as a condition to classification that an original

4 classification authority “determine[] that the unauthorized

5 disclosure of the information reasonably could be expected

6 to result in damage to the national security” and “is able

7 to identify or describe the damage.”

§ 1.1(a)(4), 68

8 Fed. Reg. at 15,315.6

9 The district court held that the exemption was

10 inapplicable because, in its view, the information pertains

11 to a “source of authority” rather than a “method of

12 interrogation.” J.A. 1174-75.7 On appeal, as it did in the

13 district court, the Government contends that the information

14 pertains to an intelligence method and an intelligence

5 Executive Order No. 12,958 and all amendments thereto have since been superseded by Executive Order No. 13,526,

(Dec. 29, 2009). For purposes of Exemption 1, the propriety of a classification decision is considered under the criteria of the executive order that applied when the decision was made. See Halpern v. FBI,

(2d Cir. 1999). 6 The parties do not dispute whether the remaining criteria for proper classification have been satisfied. See Exec. Order No. 12,958 § 1.1(a), 68 Fed. Reg. at 15,315. 7 Addressing only the applicability of Exemption 3, the district court concluded that the information does not pertain to an “intelligence method” and therefore was not exempt. It made no express ruling on whether the information relates to an “intelligence activity” under FOIA Exemption 1.

16 1 activity, and that each category provides a basis for

2 classification under Executive Order No. 12,958. In support

3 of this contention, the Government has submitted

4 declarations from General James L. Jones, then-Assistant to

5 the President for National Security and National Security

6 Advisor; General Michael V. Hayden, then-Director of the

7 CIA; Leon Panetta, then-Director of the CIA; and Wendy M.

8 Hilton, Information Review Officer for Detainee-Related

9 Matters for the CIA.

10 Based on our ex parte and in camera review of the

11 unredacted OLC memoranda and the Government’s classified

12 declarations, we agree with the Government that the redacted

13 information was properly classified because it pertains to

14 an intelligence activity. Plaintiffs concede that, even if

15 we were to characterize the information as a “source of

16 authority,” “withholding [a] source of authority itself is

17 . . . proper if disclosing it would reveal . . .

18 intelligence sources, methods, or activities.” Pls.’ Br.

19 40-41. We give substantial weight to the Government’s

20 declarations, which establish that disclosing the redacted

21 portions of the OLC memoranda would reveal the existence and

22 scope of a highly classified, active intelligence activity.

17 1 See Doherty v. U.S. Dep’t of Justice,

, 52 (2d

2 Cir. 1985).

3 We reject any notion that to sustain the Government’s

4 assertion that the withheld information concerns a protected

5 “intelligence activity” under Executive Order No. 12,958 is

6 effectively to exempt the CIA from FOIA’s mandate. In

7 response to Plaintiffs’ FOIA requests and related court

8 orders, the Government has already produced substantial

9 information about its use of EITs, including almost all of

10 the contents of the OLC memoranda. With regard to the

11 limited material it has withheld from disclosure, the

12 Government has sustained its burden by “giving reasonably

13 detailed explanations” of how the information pertains to a

14 classified intelligence activity. Carney,

.

15 On appeal, Plaintiffs do not dispute that the

16 Government has established that public disclosure of the

17 redacted information “reasonably could be expected to result

18 in damage to the national security.” Exec. Order No. 12,958

19 § 1.1(a)(4), 68 Fed. Reg. at 15,315. Nor do we. “[W]e have

20 consistently deferred to executive affidavits predicting

21 harm to the national security, and have found it unwise to

22 undertake searching judicial review.” Ctr. for Nat’l Sec.

18 1 Studies v. U.S. Dep’t of Justice,

(D.C.

2 Cir. 2003). “Recognizing the relative competencies of the

3 executive and judiciary, we believe that it is bad law and

4 bad policy to second-guess the predictive judgments made by

5 the government’s intelligence agencies” regarding whether

6 disclosure of the information redacted from the OLC

7 memoranda would pose a threat to national security. Wilner,

8

(internal quotation marks omitted).

9 The Government’s declarations describe in persuasive

10 detail how revealing the redacted information would cause

11 exceptionally grave harm to national security by (1)

12 “damaging on-going activities and relationships with foreign

13 intelligence liaison partners, which are of utmost

14 importance to the CIA’s overseas intelligence operations,”

15 Hilton Decl. ¶ 9(a), May 7, 2010; (2) “alerting our

16 adversaries of the existence of [the] intelligence method,

17 which would give them the opportunity to alter their conduct

18 to adapt to this new information and make future

19 intelligence operations more dangerous and less effective,”

20 id. ¶ 9(b); and (3) “increasing the risks for all

21 individuals involved in those operations, including CIA

22 officers and assets,” id. ¶ 9(c). According substantial

19 1 weight and deference to the CIA’s declarations, see Doherty,

2 775 F.2d at 52, we conclude that it is both logical and

3 plausible that the disclosure of the information pertaining

4 to a CIA intelligence activity would harm national security.

5 Furthermore, we reject the district court’s suggestion

6 that certain portions of the redacted information are so

7 general in relation to previously disclosed activities of

8 the CIA that their disclosure would not compromise national

9 security. It is true that the Government has disclosed

10 significant aspects of the CIA’s discontinued detention and

11 interrogation program, but its declarations explain in great

12 detail how the withheld information pertains to intelligence

13 activities unrelated to the discontinued program. Hilton

14 Decl. ¶ 6. And even if the redacted information seems

15 innocuous in the context of what is already known by the

16 public, “[m]inor details of intelligence information may

17 reveal more information than their apparent insignificance

18 suggests because, much like a piece of jigsaw puzzle, each

19 detail may aid in piecing together other bits of information

20 even when the individual piece is not of obvious importance

21 in itself.” Wilner,

(alterations and

22 internal quotation marks omitted); see also Sims,

1 at 178; ACLU v. U.S. Dep’t of Defense,

, 625

2 (D.C. Cir. 2011). Again, it is both logical and plausible

3 that disclosure of the redacted information would jeopardize

4 the CIA’s ability to conduct its intelligence operations and

5 work with foreign intelligence liaison partners.

6 Both parties contend that the district court’s

7 compromise, whereby the Government could avoid public

8 disclosure of the redacted information by substituting a

9 purportedly neutral phrase composed by the court, exceeded

10 the court’s authority under FOIA. We agree. FOIA does not

11 permit courts to compel an agency to produce anything other

12 than responsive, non-exempt records. See 5 U.S.C.

13 § 552(a)(4)(B). If the Government altered or modified the

14 OLC memoranda in accordance with the compromise, the

15 Government would effectively be “creating”

16 documents—something FOIA does not obligate agencies to do.

17 See, e.g., Kissinger v. Reporters Comm. for Freedom of the

18 Press,

(1980); Pierce & Stevens Chem.

19 Corp. v. U.S. Consumer Prod. Safety Comm’n,

,

20 1388 (2d Cir. 1978). Moreover, given the “relative

21 competencies of the executive and judiciary,” the district

22 court erred in “second-guess[ing]” the executive’s judgment

21 1 of the harm to national security that would likely result

2 from disclosure, by crafting substitute text that—in its own

3 view—would avoid the harms that could result from disclosure

4 of the information in full. See Wilner,

.

5 The district court’s apparent reliance on the

6 Classified Information Procedures Act (“CIPA”), 18 U.S.C.

7 app. 3, §§ 1-16, as a basis for the compromise was

8 erroneous.8 Contrary to the district court’s assertion,

9 CIPA applies exclusively to criminal cases. See 18 U.S.C.

10 app. 3, §§ 2-3, 5. Indeed, CIPA is codified as the third

11 appendix to Title 18 of the U.S. Code, which concerns crimes

12 and criminal procedure, and we have found no case law

13 supporting the district court’s adoption of CIPA in a FOIA

14 context such as this.9

8 Although the district court referred to the “CISA, Confidential Information Securities Act,” J.A. 1184-85, it appears that the court intended to refer to CIPA because there is no Confidential Information Securities Act and the court described the statute as providing a procedure for the introduction of classified information at trial. Id. 9 The procedures of CIPA contrast sharply with those of FOIA. For example, under CIPA, when the court authorizes a defendant to disclose classified information during trial, the Government may move for the substitution of a summary of such classified information in lieu of the information itself, 18 U.S.C. app. 3, § 6(c), “to harmonize a defendant’s right to obtain and present exculpatory material upon his trial and the government’s right to protect classified material in the national interest,” United States v. Pappas,

(2d Cir. 1996) (internal quotation marks omitted). Significantly, the

22 1 The Government sufficiently explained that the withheld

2 information pertains to an “intelligence activity” and that

3 disclosure of the information would likely result in harm to

4 national security. The Government’s declarations are not

5 contradicted by the record, and there is no evidence of bad

6 faith by the Government in this regard. Accordingly, the

7 Government has sustained its burden of proving that the

8 information redacted from the OLC memoranda is exempt from

9 disclosure under FOIA Exemption 1. See Wilner,

73. We therefore reverse the district court’s judgment

11 insofar as it required disclosure of the information—either

12 in full or in accordance with the district court’s

13 compromise—in the OLC memoranda and the transcript of the

14 district court’s ex parte, in camera proceeding.

15 II. Materials at Issue in Plaintiffs’ Cross-Appeal

16 The district court agreed with the Government that the

17 records related to the contents of destroyed videotapes of

18 detainee interrogations and a photograph of high-value

Government retains ultimate control and may prevent a criminal defendant from disclosing classified information, with the consequence of the court either dismissing the indictment or taking another action adverse to the prosecution. See 18 U.S.C. app. 3, § 6(e). By contrast, the Government cannot walk away from a FOIA case in order to avoid disclosure of classified information.

23 1 detainee Abu Zubaydah in CIA custody may be withheld from

2 disclosure under FOIA Exemption 3. Plaintiffs challenge the

3 withholding of only those records relating to the CIA’s use

4 of waterboarding and the photograph.

5 Exemption 3 permits the Government to withhold

6 information from public disclosure provided that: (1) the

7 information is “specifically exempted from disclosure by

8 statute”; and (2) the exemption statute “requires that the

9 matters be withheld from the public in such a manner as to

10 leave no discretion on the issue” or “establishes particular

11 criteria for withholding or refers to particular types of

12 matters to be withheld.”

(b)(3); see Sims,

13 471 U.S. at 167-68. Here, the Government contends that the

14 records and photograph pertain to an “intelligence method”

15 under section 102A(i)(1) of the National Security Act of

16 1947 (“NSA”) and CIA “functions” under section 6 of the

17 Central Intelligence Act of 1949, which include the

18 collection of intelligence through human sources, see 50

-4a(d).10 Plaintiffs do not dispute that these

10 Section 102A(i)(1) of the National Security Act of 1947, as amended,

et seq., requires the Director of National Intelligence to “protect intelligence sources and methods from unauthorized disclosure.”

(i)(1). Section 6 of the Central Intelligence Act of 1949, as amended,

et seq., provides that the CIA shall be exempted

24 1 statutes qualify as exemption statutes under Exemption 3.

2 See Larson,

; Baker v. CIA,

, 667

3 (D.C. Cir. 1978). Thus, our only remaining inquiry is

4 whether the withheld material relates to an intelligence

5 method or functions of the CIA. Larson,

;

6 Phillippi v. CIA,

, 1015 n.14 (D.C. Cir.

7 1976).11

8 A. The Interrogation Records

9 Plaintiffs contend that the records regarding the use

10 of waterboarding in particular instances do not relate to an

11 “intelligence method” because the President has declared the

12 practice of waterboarding illegal. Relying on the Supreme

13 Court’s decision in CIA v. Sims, Plaintiffs argue that the

14 CIA may decline to disclose only records relating to those

15 intelligence methods that fall within the CIA’s charter.

16 Plaintiffs argue that because an illegal activity cannot be

17 said to “fall within the Agency’s mandate to conduct foreign

from “the provisions of any other law which require the publication or disclosure” of the “functions” of the Agency. 50 U.S.C. § 403g. 11 Because, as previously discussed, FOIA exemptions are independent of each other, we explain only our conclusion that the Government may invoke FOIA exemption 3 to justify withholding the interrogation records and the photograph. See supra note 4. We do not address the possible coverage provided these materials by Exemption 1.

25 1 intelligence,” Sims, 471 U.S. at 169, waterboarding cannot

2 be an “intelligence method” within the meaning of the CIA’s

3 withholding authorities.12

4 We do not agree. Sims offers no support for

5 Plaintiffs’ proposed limitation upon the CIA’s ability to

6 protect information relating to intelligence methods. On

7 the contrary, the Sims Court emphasized that the NSA “vested

8 in the Director of Central Intelligence very broad authority

9 to protect all sources of intelligence information from

10 disclosure,” and that judicial “narrowing of this authority

11 not only contravenes the express intention of Congress, but

12 also overlooks the practical necessities of modern

13 intelligence gathering—the very reason Congress entrusted

14 this Agency with sweeping power to protect its ‘intelligence

15 sources and methods.’” Sims, 471 U.S. at 168–69. According

16 to the Court, the “plain meaning” of “intelligence sources

17 and methods” in this context, “may not be squared with any

12 Plaintiffs concede that an illegal act may produce information that may be properly withheld under FOIA Exemptions 1 and 3. Plaintiffs do not seek disclosure of information that may otherwise be classified for reasons apart from the fact that it would disclose details of the use of waterboarding. To the extent the records discuss such information, such as questions asked during an interrogation or intelligence gathered from an interrogation session, Plaintiffs agree that the information should be segregated and may remain classified.

26 1 limiting definition that goes beyond the requirement that

2 the information fall within the Agency’s mandate to conduct

3 foreign intelligence.” Id. at 169.13

4 Here, Plaintiffs argue that the provision of the NSA

5 requiring the Director of National Intelligence to “ensure

6 compliance with the Constitution and laws of the United

7 States,” see

(f)(4), delimits the

8 Director’s obligation under section 102A(i)(1) to “protect

9 intelligence sources and methods from unauthorized

10 disclosure,” see

(i)(1), and the

11 concomitant rights under FOIA to decline to disclose. The

12 statutory language does not, however, draw any such

13 limitation, and to do so by judicial device would flout

14 Sims’s clear directive against constricting the CIA’s broad

15 authority in this domain. Again, Sims expressly rejected

16 any limitation on the CIA’s duty to protect information

17 “beyond the requirement that the information fall within the

18 Agency’s mandate to conduct foreign intelligence.” Sims,

19 471 U.S. at 169. Plaintiffs’ argument lacks support in

20 either the statute’s text or in the case law interpreting

13 The statutory provision at issue in Sims was a materially identical precursor to section 102A(i)(1) of the NSA. See Sims, 471 U.S. at 167–68.

27 1 that text.

2 Moreover, we are wary of the practical difficulties

3 that would likely arise were the category of protectable

4 intelligence methods circumscribed as Plaintiffs propose.

5 In FOIA actions in which the government seeks to withhold

6 information related to an intelligence method, an

7 information officer and then the court would potentially be

8 forced to engage in a complex inquiry to determine whether

9 the government has sufficiently demonstrated the legality of

10 the method to justify withholding. In this respect, we

11 question how the court and the agency would handle varying

12 assessments of legality. What becomes of information

13 concerning a method that the President, on advice of

14 counsel, considers legal, but which is later declared

15 unlawful by a federal court or by a subsequent

16 administration? Relatedly, is the legality of a method to

17 be determined as of the time of the method’s use or may a

18 forward-looking proscription also apply retroactively to

19 prevent reliance on an exemption? The matter currently

20 before us helps illustrate the point. Even if we assumed

21 that a President can render an intelligence method “illegal”

22 through the mere issuance of public statements, or, more

28 1 formally, through adoption of an executive order, and if we

2 further assumed that President Obama’s Executive Order

3 coupled with his statements describing waterboarding as

4 “torture” were sufficient in this regard, we would be left

5 with the difficult task of determining what retroactive

6 effect, if any, to assign that designation. In our view,

7 such an “illegality” inquiry is clearly beyond the scope and

8 purpose of FOIA. See Wilner,

.

9 Finally, we also note that prior courts faced with

10 similar questions have declined to address the legality of

11 an intelligence method as part of a FOIA analysis. In ACLU

12 v. U.S. Department of Defense, the District of Columbia

13 Circuit rejected the very argument raised by Plaintiffs

14 here: that an interrogation technique formerly authorized

15 for use on high-value detainees is no longer a protectable

16 “intelligence method” for FOIA purposes if the President

17 bans its future use. See

. After noting

18 that Sims “says nothing suggesting that the change in the

19 specific techniques of intelligence gathering by the CIA

20 renders unprotected sources and methods previously used,”

21 the court held that “the President’s prohibition of the

22 future use of certain interrogation techniques . . . does

29 1 not diminish the government’s otherwise valid authority to

2 . . . withhold [information] from disclosure under

3 exemptions 1 and 3.”

4 In Wilner v. NSA, our Court considered whether the

5 government could refuse to confirm or deny the existence of

6 records obtained under the since-discontinued Terrorist

7 Surveillance Program (“TSP”). 592 F.3d at 64–65. The

8 plaintiffs in Wilner claimed that the government had

9 illegally obtained information about them through the TSP.

10 They argued that the NSA improperly refused to disclose this

11 information because any such records would have been

12 obtained in violation of the U.S. Constitution. Id. at 77.

13 In concluding that the government properly withheld the

14 information at issue under FOIA Exemption 3, we declined to

15 reach “the legality of the underlying Terrorist Surveillance

16 Program,” reasoning that this question was “beyond the

17 scope” of the plaintiffs’ FOIA action. Id. at 77.

18 We recognize that the plaintiffs in Wilner did not make

19 the precise argument advanced here: that the statutory

20 meaning of “intelligence methods” precludes the government

21 from employing that label for a technique that the President

22 has declared to be unlawful and thus outside the CIA’s

30 1 charter. But in our view, Wilner’s principle is equally

2 applicable here—a judicial determination of the legality of

3 waterboarding is beyond the scope of this FOIA action. For

4 the foregoing reasons, we reject Plaintiffs’ argument that

5 the Government could not withhold information relating to

6 waterboarding on the grounds that waterboarding is now

7 “illegal” and therefore beyond the CIA’s mandate.

8 According substantial weight to the CIA’s declarations,

9 see Wolf,

, we have no difficulty in

10 concluding that the records in question, which we have

11 reviewed in camera, relate to an intelligence method within

12 the meaning of the NSA, and, accordingly, may be withheld.

13 The parties agree that waterboarding was an interrogation

14 method used by the CIA in connection with its foreign

15 intelligence-gathering activities. Because the CIA’s

16 declarations are not contradicted by the record or

17 undermined by any allegations of bad faith,14 the Government

18 has sustained its burden of proving that the records

19 relating to the CIA’s use of waterboarding are exempt from

14 In addition, Director Panetta confirmed that the records were withheld not to suppress evidence of any unlawful conduct but rather to protect intelligence sources and methods. We accord a “presumption of good faith” to this declaration, Carney,

.

31 1 disclosure under FOIA Exemption 3. See Wilner,

73, 76-77.

3 B. The Photograph of Abu Zubaydah

4 Plaintiffs contend that the CIA failed to provide any

5 justification for withholding a photograph of Abu Zubaydah

6 taken while he was in CIA custody abroad and that the post

7 hoc explanations offered by the Government’s counsel do not

8 suffice to justify the withholding. We disagree. In a June

9 8, 2009 unclassified declaration, Director Panetta explained

10 that all of the records he reviewed in connection with his

11 invocation of FOIA Exemptions 1 and 3, including the

12 photograph, are “related to the contents of 92 destroyed

13 videotapes of detainee interrogations that occurred between

14 April and December 2002.” Panetta Decl. ¶ 3, June 8, 2009.

15 Director Panetta further declared that “miscellaneous

16 documents” in the sample records, including the photograph,

17 “contain[] TOP SECRET operational information concerning the

18 interrogations” of Abu Zubaydah. Id. ¶ 5. On appeal, the

19 Government has expanded upon Director Panetta’s

20 justification for withholding by explaining that the

21 photograph necessarily “relates to” an “intelligence source

22 or method” because it records Abu Zubaydah’s condition in

32 1 the period during which he was interrogated.

2 We have reviewed the photograph in camera. Our

3 examination has been informed by our contemporaneous review

4 of other sample records. Like the district court, we

5 observe that a photograph depicting a person in CIA custody

6 discloses far more information than the person’s identity.

7 We agree with the district court that the image at issue

8 here conveys an “aspect of information that is important to

9 intelligence gathering,” J.A. 1115, and that this

10 information necessarily “relates to” an “intelligence source

11 or method.” The Government’s justification for withholding

12 the photograph is thus both “logical and plausible.” See

13 Wilner,

. Moreover, Director Panetta’s

14 declaration is entitled to substantial weight, see Wolf, 473

15 F.3d at 374, and this Court must adopt a “deferential

16 posture in FOIA cases regarding the uniquely executive

17 purview of national security,” Wilner,

18 (internal quotation marks omitted). Accordingly, we affirm

19 the district court’s conclusion that the Government has

20 adequately justified its withholding of the photograph under

21 FOIA Exemption 3.

22

33 1 CONCLUSION

2 For the foregoing reasons, the judgment of the district

3 court is hereby AFFIRMED in part and REVERSED in part. We

4 affirm the judgment of the district court insofar as it

5 sustained the Government’s withholding of records relating

6 to the CIA’s use of waterboarding and the photograph of Abu

7 Zubaydah. We reverse that part of the judgment that

8 requires the Government either to disclose the classified

9 information in the OLC memoranda and the transcript of the

10 district court’s ex parte, in camera proceeding, or to

11 substitute language proposed by the district court.

34