The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.
ORDER AND OPINION DENYING PLAINTTIFFS' MOTION FOR RECONSIDERATION: FOIA EXEMPTION THREE APPLIES DESPITE CLAIMS THAT UNDERLYING INTELLIGENCE SOURCES OR METHODS VIOLATE THE CONSTITUTION OR STATUTES OF THE UNITED STATES
The issue before me is whether, under the Freedom of Information Act (FOIA), determinations by the Director of the Central Intelligence Agency (CIA), to exempt disclosures revealing intelligence sources and methods, are subject to review by the district court to ascertain if those sources and methods were illegal. I hold that determinations by the CIA Director to claim such exemptions are not subject to district court review for illegality.
I.A Brief History of the Case
These proceedings under FOIA date back to 2003, when Plaintiffs served FOIA requests on the Department of Justice (DOJ), the CIA, and other federal agencies, seeking disclosure of records pertaining to the treatment of detainees, deaths of detainees while in U.S. custody, and the rendition of detainees and other individuals to countries known to employ torture. Thousands of documents were produced, and I have issued orders and opinions ruling on various of the issues presented by the parties.*fn1
In 2005, Plaintiffs served a FOIA request on DOJ's Office of Legal Counsel, specifying documents of particular interest. Defendants produced certain unclassified documents and a Vaughn index providing substantiation why other documents were exempt. See Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973) (requiring as justification for claims of exemption "a relatively detailed analysis in manageable segments" and outlining guidelines for indexing). Comparing that which was produced and exempted against published news reports, it became clear to Plaintiffs that OLC had not disclosed certain memoranda that had authorized the use of enhanced interrogation techniques against detainees, and Plaintiffs filed a motion for preliminary injunction to compel such disclosure. Again, Defendants claimed exemption to withhold the memoranda in their entirety, and provided Vaughn indices in support.
Plaintiffs also moved for summary judgment respecting these documents and others-Plaintiffs' fourth motion for summary judgment in this case. Meanwhile, during the course of Plaintiffs' demands and motions, a national election ensued, administrations changed, and President Obama, on January 27, 2009, issued Executive Order 13491, which terminated the CIA terrorist detention and interrogation program, ordered the closure of the CIA detention and interrogation program, ordered the closure of CIA detention facilities, prescribed interrogation techniques for individuals in U.S. custody, and revoked any inconsistent executive directives, orders, or regulations. The Administration also voluntarily released, although with substantial redactions, the OLC memoranda sought by Plaintiffs. Plaintiffs' motion became limited to two of the memoranda-the "Second OLC Memo," dated May 10, 2005, and the "Fourth OLC Memo," dated May 30, 2005.
Plaintiffs also filed a fifth motion for summary judgment, focused on documents related to videotapes of interrogations of a particular detainee that had been destroyed, in the face of court orders requiring production of the videotapes. Allegedly, hundreds of hours of video were destroyed. Plaintiffs have moved to hold the Government in contempt for the destruction of the video footage. Motion for Contempt and Sanctions, ACLU v. Dep't of Def., No. 04 Civ. 4151 (AKH) (Doc. No. 254) (Dec. 12, 2007). In response, I ordered Defendants to produce records relating to the contents of the destroyed tapes, known as "Paragraph 3 Documents," and to the acts of destruction, known as "Paragraph 4 Documents." Order Regulating Government's Proposed Work Plan, ACLU v. Dep't of Def., No. 04 Civ. 4151 (Apr. 20, 2009) (Doc. No. 339). There are approximately 580 Paragraph 3 Documents, and they include contemporaneous records of interrogations, interrogation logbooks, a photograph, and other documents. I deferred hearings with regard to the Paragraph 4 Documents pending certain investigations then in progress, and permitted the parties to move forward with motions on the Paragraph 3 Documents.
II.In Camera Consideration of Plaintiffs' Motions
On September 30, 2009, I conducted an in camera, ex parte review of the documents at issue in the fourth and fifth motions for summary judgment. Government attorneys and a court reporter were present. I reviewed the documents and expressed preliminary rulings, and at times, posed questions to the Government attorneys about the documents. The transcript of this proceeding was classified but was released, in redacted form, several weeks later.*fn2 After the ex parte session ended, I heard oral argument in open court on various of the legal issues at hand, and expressed initial rulings, in particular, on the issue I am now asked by the Plaintiffs to reconsider, the effect of alleged illegality on Exemption 3 claimed by the CIA for not producing responsive documents.
Regarding the fifth motion for summary judgment, involving documents related to the destruction of the videotapes, I deferred to the security classifications imposed by the CIA Director and, with limited exceptions, I ruled in favor of withholding all Paragraph 3 Documents. Regarding the fourth motion for summary judgment, I ruled that the redacted portions of the two OLC memoranda contained information concerning intelligence activities, sources and methods, and information that would reveal the identities of CIA consultants, and I held that such information is specifically exempted from disclosure by statute. I ordered disclosure of information in three instances, but gave defendants an opportunity to return in several weeks to offer more persuasive authority to justify withholding the information. In response, the Government submitted two classified declarations, and I reviewed these ex parte and in camera, again with Government attorneys and a court reporter present. After considering the classified declarations, I adhered to my preliminary rulings and ordered disclosure of the information. The transcript of the proceedings was made public in redacted form.*fn3
Plaintiffs moved for reconsideration of my oral rulings expressed in open court on September 30, 2009, and in my orders filed October 13, 2009 and December 29, 2009, and I granted that motion. The motion gave both sides the opportunity to fully brief the issues on the basis of the full public record, to express objections, if any, to the proceedings that I had conducted in camera, and to enable me to consider the issue afresh and to express my considered views in this opinion.
Plaintiffs' motion seeks disclosure of names of certain detainees and all contemporaneous cables describing the application of enhanced interrogation techniques against a specific detainee.*fn4 Plaintiffs contend that the Government should not be allowed to withhold information relating to "intelligence sources and methods" that were illegal, and that the names of detainees who were subjected to secret detention and the contents of destroyed videotapes should not properly be considered to be intelligence sources or methods. Plaintiffs contend that Congress intended to limit "intelligence sources and methods" to those consistent with the Constitution and laws of the United States and that only those sources or methods may be properly withheld in a FOIA action.
To resolve the motions for summary judgment, I must make a de novo review of the Government's withholding of the requested information, but in doing so, must accord "substantial weight" to agency affidavits. Hayden v. National Security Agency, 608 F.2d 1381, 1384 (D.C. Cir. 1979); Weissman v. CIA, 565 F.2d 692, 697 n.10 (D.C. Cir. 1977). Defendants have the burden of justifying nondisclosure by establishing the applicability of an exemption to the particular material. 5 U.S.C. § 552(a)(3); Hayden, 608 F.2d at 1386. The exemptions should be interpreted narrowly "to provide the maximum access consonant with the overall purposes of the Act. " See Hayden, 608 F.2d at 1386; Phillippi v. CIA, 546 F.2d 1009, 1011 n.2 (D.C. Cir. 1976). As in any other action, summary judgment in a FOIA litigation "may be granted only if the moving party ...