United States District Court, S.D. New York
September 26, 2005.
ASSOCIATED PRESS, Plaintiff,
UNITED STATES DEPARTMENT OF DEFENSE, Defendant.
The opinion of the court was delivered by: JED RAKOFF, District Judge
Pursuant to the Freedom of Information Act ("FOIA"),
5 U.S.C. § 552, the Associated Press seeks to ascertain the identities of
the Guantanamo detainees who were involved in the proceedings
before the military Tribunals created for the purpose of
determining whether a given detainee is an enemy combatant. The
Department of Defense opposes the release of such information,
not on the grounds of national security, but, purportedly, in the
interests of protecting the detainees' privacy. While some might
think it strange, even hypocritical, that the military officials
who held the detainees incommunicado for so many months now
express such solicitude for the detainees' privacy rights, the
Department of Defense maintains that it is simply carrying out
the mandate of FOIA's Exemption 6, which permits the withholding
of certain information "the disclosure of which would constitute
a clearly unwarranted invasion of personal privacy."
5 U.S.C. § 552(b)(6).*fn1 One may well wonder, however, whether the detainees themselves
want their identities concealed. Accordingly, the Court, by
Memorandum Order dated August 29, 2005, directed the Department
of Defense to find out, by submitting to each detainee a simple
written form on which each detainee could answer, "yes" or "no,"
whether he wanted his identifying information released.*fn2
The Department now moves for reconsideration. It is settled law
in this District that a motion for reconsideration is neither an
occasion for repeating old arguments previously rejected nor an
opportunity for making new arguments that could have been
previously advanced, see, e.g., Horvath v. Deutsche
Lufthansa, AG, 2004 U.S. Dist. LEXIS 1733, at *6 (S.D.N.Y. Feb.
9, 2004); Range Rd. Music, Inc. v. Music Sales Corp.,
90 F. Supp. 2d 390, 392 (S.D.N.Y. 2000); Marino v. United States,
1998 U.S. Dist. LEXIS 12687, at *7 (S.D.N.Y. Aug. 13, 1998). Yet
the Department's motion simply rehashes three arguments
previously rejected and adds a fourth, new argument that, having
not been previously advanced, has now been waived.
First, the Department of Defense repeats its argument that FOIA
entrusts the government with asserting the detainees' privacy interests, and that the Court may not endeavor to ascertain the
detainees' own preferences. Compare Govt. 8/12/05 Letter Br. at
1-3, with Govt. Mem. Supp. Recons. at 3-5. The Court did not
overlook this argument; it rejected it. The Court has authority
to order discovery to determine whether withheld information
falls within a FOIA exemption, see Carney v. United States
Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994), and "[t]he
primary interest at stake in FOIA exemption analysis belongs to
the individual, not the agency holding the information," Sherman
v. U.S. Dep't of the Army, 244 F.3d 357, 363 (5th Cir.
2001).*fn3 What could be more relevant to assessing this
interest in the present situation than finding out the privacy
preferences of the very persons Exemption 6 is designed to
Second, the Department repeats its related argument that FOIA
mandates a categorical determination as to whether the
information the Associated Press seeks should be disclosed.
Compare Govt. Reply Mem. Supp. Summ. J. at 8-10, with Govt.
Mem. Supp. Recons. at 5-7. Although categorical decisions in FOIA
cases are appropriate at times, a categorical decision is not
appropriate here. See United States Dep't of Justice v.
Reporters Comm. for Freedom of the Press, 489 U.S. 749, 776
(categorical decisions appropriate only where "a case fits into a genus in which the balance characteristically
tips in one direction").
Third, the Department repeats its argument that the
questionnaire approach somehow imposes an undue logistical
burden. Compare Govt. 8/12/05 Letter Br. at 3-4 and Second
Supp. Hacker Decl. with Govt. Mem. Supp. Recons. at 10-12. It
is hard to see how the simple half-page, one-question, yes-or-no
format proposed by the Court could be anything but efficient,
inexpensive, and direct. The Department's claims in this regard
are a model of hyperbole. For example, the Department claims that
"[c]ompliance with the Court's order would also divert DOD
translators and interpreters, which are already in limited
supply, thereby compromising key military functions at
Guantanamo." Govt. Mem. Supp. Recons. at 11. But how long does it
take to translate the six or seven sentences that constitute this
simple questionnaire? In seeking to bring the Department's
treatment of the detainees within the ambit of law, the Supreme
Court has not hesitated to impose far greater logistical burdens.
See Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004) (describing as
"unlikely" the government's claim that providing due process to
enemy combatants "will have dire impact on the central of war
making that the government forecasts").
Fourth, the Department improperly makes a new argument in its
motion, arguing for the first time that the questionnaire
approach somehow encroaches on the President's constitutional
authority to wage war as Commander in Chief of the armed forces.
See Govt. Mem. Supp. Recons. at 9-10. As noted, a party is
barred from making for the first time in a motion for reconsideration an argument it
could readily have raised when the underlying issue was being
briefed but chose not to do so. See Horvath, 2004 U.S. Dist.
LEXIS at *6.
Moreover, even putting aside the clear waiver, DOD's argument
is without merit. The Memorandum Order directs DOD to present the
detainees with a single, straightforward question that can be
answered by checking "yes" or "no." This is not much different
from (though far less onerous than) asking a party to respond to
an interrogatory request or document subpoena. Cf. Nixon v.
United States, 418 U.S. 683 (1974). Given the simplicity of the
procedure, the conclusory assertion that it "intrudes on the
relationship between the military and the captured enemy
combatants," Govt. Mem. Law Supp. Recons. at 10, is wholly
unpersuasive. Indeed, as noted, the Supreme Court has approved
far more intrusive judicial involvement in the conduct of these
detentions. See Hamdi, 124 S. Ct. at 2649 ("While we accord
the greatest respect and consideration to the judgments of
military authorities in matters relating to the actual
prosecution of a war, and recognize that the scope of that
discretion necessarily is wide, it does not infringe on the core
role of the military for the courts to exercise their own
time-honored and constitutionally mandated roles of reviewing and
resolving claims like those presented here."). See also
Sanchez v. U.S., 813 F.2d 593 (2d Cir. 1987); Abu Ali v.
Aschroft, 350 F. Supp. 2d 28, 61-64 (D.D.C. 2004).
Accordingly, the Department of Defense's motion for
reconsideration is hereby denied. The Department is ordered to submit to each detainee the appended questionnaire, duly
translated as necessary, by no later than October 14, 2005, and
to submit to the Court, by no later than October 28, 2005, an
affidavit (if necessary, under seal) summarizing the responses,
thereby putting the Court in a position to meaningfully resolve
the underlying FOIA request.
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