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American Civil Liberties Union v. Department of Defense

United States District Court, S.D. New York

August 27, 2014

AMERICAN CIVIL LIBERTIES UNION et al, Plaintiffs,
v.
DEPARTMENT OF DEFENSE et al, Defendants

Page 378

For American Civil Liberties Union, Plaintiff: Lawrence S. Lustberg, LEAD ATTORNEY, Jennifer Ching, Gibbons, Del Deo, Dolan, Griffinger & Vecchione (Newark), Newark, N.J. USA; Alexa Rebecca Kolbi-Molinas, Jameel Jaffer, Judy Rabinovitz, American Civil Liberties Union Foundation (NYC), New York, N.Y. USA; Alexander Abraham Abdo, American Civil Liberties Union, Women's Rights Proj, New York, N.Y. USA; Alicia Lorraine Bannon, Melanca Durham Clark, Gibbons P.C. (NJ), Newark, N.J. USA; Jennifer Brooke Condon, Seton Hall University School of Law, Center For Social Justice, Newark, N.J. USA; Marcellene Elizabeth Hearn, American Civil Liberties Union Foundation, New York, N.Y. USA.

For Center For Constitutional Rights, Inc., Physicians For Human Rights, Veterans For Common Sense, Veterans For Peace, Plaintiffs: Lawrence S. Lustberg, LEAD ATTORNEY, Jennifer Ching, Gibbons, Del Deo, Dolan, Griffinger & Vecchione (Newark), Newark, N.J. USA; Alexander Abraham Abdo, American Civil Liberties Union, Women's Rights Proj, New York, N.Y. USA; Alicia Lorraine Bannon, Melanca Durham Clark, Gibbons P.C. (NJ), Newark, N.J. USA; Jameel Jaffer, Marcellene Elizabeth Hearn, American Civil Liberties Union Foundation (NYC), New York, N.Y. USA; Jennifer Brooke Condon, Seton Hall University School of Law, Newark, N.J. USA.

For Central Intelligence Agency, Defendant: Tara Marie La Morte, LEAD ATTORNEY, Heather Kirsten McShain, Michael J. Byars, Sean H. Lane, U.S. Attorney's Office, SDNY (Chambers Street), New York, N.Y. USA; Amy Ann Barcelo, United States Attorney Office, New York, N.Y. USA; Peter M. Skinner, U.S. Attorney's Office, SDNY (St Andw's), New York, N.Y. USA.

For Department of The Army, Defendant: Tara Marie La Morte, LEAD ATTORNEY, Michael J. Byars, U.S. Attorney's Office, SDNY (Chambers Street), New York, N.Y. USA; Amy Ann Barcelo, United States Attorney Office, New York, N.Y. USA.

For Federal Bureau of Investigation, Defendant: Tara Marie La Morte, LEAD ATTORNEY, Heather Kirsten McShain, Michael J. Byars, U.S. Attorney's Office, SDNY (Chambers Street), New York, N.Y. USA; Amy Ann Barcelo, United States Attorney Office, New York, N.Y. USA.

For Advance Publications, Inc., American Society of Newspaper Editors, Cbs Broadcasting, Inc., Cbs Broadcastings, Inc., Investigative Reporters And Editors, Inc., Nbc Universal, Inc., Reporters Committee For Freedom of The Press, The E.W. Scripps Company, The Hearst Corporation, The National Newspaper Association, The New York Times Co., The Newspaper Guild-Cwa, The Radio-Television News Directors Association, The Society of Professional Journalists, The Tribune Company, Amici: David Brian Smallman, Wollmuth Maher & Deutsch LLP, New York, N.Y. USA.

For American Legion, Amicus: Charles Gardner Mills, LEAD ATTORNEY, Glen Cove, N.Y. USA.

Page 379

ORDER AND OPINION GRANTING, IN PART, PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

ALVIN K. HELLERSTEIN, United States District Judge.

In September 2005 and June 2006, I ruled that the Department of Defense was required by the Freedom of Information Act (" FOIA" ) to release photographs depicting the prisoners at Abu Ghraib prison and other sites in degrading portrayals. All photographs had been redacted to mask individual identities. See Am. Civil Liberties Union v. Dep't of Def, 389 F.Supp.2d 547, 571 (S.D.N.Y. 2005) (" ACLU I " ); Am. Civil Liberties Union v. Dep't of Def, 2006 WL 1638025 (S.D.N.Y. June 9, 2006); Am. Civil Liberties Union v. Dep't of Def, 2006 WL 1722574 (S.D.N.Y. June 21, 2006). The Court of Appeals affirmed. Am. Civil Liberties Union v. Dep't of Def, 543 F.3d 59 (2d Cir. 2008) (" ACLU II " ). At that point, President Obama announced that the photographs would be made public. At that time, large numbers of similar photographs were then freely circulating on the internet.

In that context, Nouri al-Maliki, Prime Minister of Iraq, asked President Obama not to release the photographs for fear of the consequences. The government filed a petition for certiorari and, at President Obama's request, Congress enacted the Protected National Security Documents Act (" PNSDA" ).[1] The law amended FOIA to provide that the photographs could be made exempt from disclosure for a three-year certification by the Secretary of Defense to the effect that publication would endanger American lives.

In a previous order, I upheld the certification of Secretary of Defense Robert Gates of November 13, 2009. See Dkt. Nos. 469, 474. The issue now at hand is whether or not I should uphold Secretary of Defense Leon Panetta's Certification of November 9, 2012. Both sides tender the issue to me by separate motions for summary judgment.

Page 380

I hold, for the reasons discussed below, that Secretary Panetta's certification is not sufficient to prevent publication of redacted photographs. It was conclusory as to all, when it should have been focused on each separate photograph as the PNSDA requires. And the government failed to show that it had adequate basis for the certification.

BACKGROUND

This litigation has its origin in FOIA requests the plaintiffs filed on October 7, 2003, seeking records related to the treatment and death of prisoners held in United States custody abroad after September 11, 2001, and records related to the practice of " rendering" those prisoners to countries known to use torture. On June 2, 2004, having received no records in response to the requests, the plaintiffs filed their complaint in this case, alleging that the defendant agencies, the Central Intelligence Agency, the Department of Homeland Security, the Department of Justice, the Department of Defense, Department of State (and some of their components) had failed to comply with the law. I held that defendants were required by FOIA to identify responsive documents, and to produce those that were not covered by exemptions. Am. Civil Liberties Union v. Dep't of Def, 339 F.Supp.2d 501 (S.D.N.Y. 2004).

In August 2004, the plaintiffs provided the defendants with a set of documents to illustrate the type of records that would be responsive to their request, including photographs and videos that Army Specialist Joseph Darby had provided to the Department of the Army Criminal Investigative Command (" Darby Images" ). The Darby Images were taken at Abu Ghraib prison in Iraq and included images of unclothed detainees posed in " dehumanizing, sexually suggestive ways." ACLU II, 543 F.3d at 64. In March 2006, the Darby Images, and others like them, were published by a third-party on the internet and the government stopped fighting their release. Id. at 65.

In April 2006, the government acknowledged that it possessed 29 additional photographs responsive to the plaintiffs' FOIA request. These 29 photographs " were taken in at least seven different locations in Afghanistan and Iraq," and involved additional detainees and different U.S. U.S. military personnel. Id. The government is believed to possess many more, perhaps hundreds or thousands of such photographs.[2] It has agreed that any additional responsive documents that it has withheld on the same basis as the 29 images would also be governed by any final ruling on appeal regarding those 29.

In June 2006, I supervised redactions to eliminate the possibility of identification of the individuals who were depicted in the photographs, and I ordered the release of 21 of the disputed photographs. The Second Circuit affirmed my decision on September 22, 2008. Id. In its affirmance, the Second Circuit rejected the government's arguments that these photographs should not be disclosed under FOIA. Among the arguments rejected by the Second Circuit was the government's argument that the photographs fell under FOIA Exemption 7(F), because their disclosure could reasonably be expected to incite violence against United States troops, other Coalition forces, and civilians in Iraq and Afghanistan. Id. at 67.

Page 381

The government filed a petition to the United States Supreme Court for certiorari on August 7, 2009. However, on October 28, 2009, the PNSDA became law, as part of the Department of Homeland Security Appropriations Act of 2010, providing a framework for withholding publication of the photographs.

Secretary of Defense Robert Gates then certified, on November 13, 2009, pursuant to the PNSDA, that " a collection of photographs ... assembled by the Department of Defense that were taken in the period between September 11, 2001 and January 22, 2009, and that relate to the treatment of individuals engaged, captured or detained after September 11, 2001 by the Armed Forces of the United States in operations outside the United States," not be published. The photographs covered by the Secretary's certification included the photographs that were mentioned in the Second Circuit's decision, ACLU II, 543 F.3d 59. Secretary Gates certified that " [u]pon the recommendations of the Chairman of the Joint Chiefs of Staff, the Commander of U.S. Central Command, and the Commander of the Multi-National Forces-Iraq," he had determined that " public disclosure of the photographs would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States government deployed outside the United States." Secretary Gate's certification did not elaborate on the bases of the recommendations given to him by the Joint Chiefs of Staff, the Commander of U.S. Central Command, and the Commander of the Multi-National Forces-Iraq.

Following Secretary Gate's Certification, the United States Supreme Court granted certiorari and remanded this case to the Second Circuit for further proceedings in light of the PNSDA and the certification. See Dep't of Def v. Am. Civil Liberties Union, 558 U.S. 1042, 130 S.Ct. 777, 175 L.Ed.2d 508 (2009). On July 7, 2010, the Second Circuit then remanded the case to me.

The parties again cross-moved for partial summary judgment, to uphold and to impeach, the Secretary's Certification. The plaintiffs argued that the Court was required to conduct a review, de novo, of the Secretary of Defense's determination that release of the photographs would endanger U.S. citizens, service members, or employees. The government argued that the Court's only role was to establish that the Secretary of Defense had issued a certification.

On July 20, 2011, after oral arguments on that motion, I denied the plaintiffs' motion, and granted the government's motion. Without specifically ruling on the standard of review I should apply, I ruled that " it [i]s clear to me that Secretary Gates had a rational basis for his certifications and that I could not second guess-it." Tr. at 36:6-8. I stated that, " by reason of my familiarity with the case," I had effectively conducted a de novo review of Secretary Gates's decision, had found that there was a rational basis for it, and would not 'opine' on whether there is or is not a danger in the battlefield because of the disclosure of pictures of this sort." Tr. at 23:21-24:2. I ruled that the legislative history of the statute, especially statements by Senators Lieberman and Graham who sponsored the bill, made clear that the PNSDA was passed in order " to provide authorizing legislation to support the President's determination that these images should not be disclosed." Tr. at 37:16-19. The Obama administration had changed its attitude following a request from the Prime Minister of Iraq that the United States government not publish the photographs for fear that their publication

Page 382

would fuel insurrection and make it impossible to have a functioning government. See Tr. at 34:7-23. From that history, I ...


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