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Center for Constitutional Rights v. Central Intelligence Agency

United States Court of Appeals, Second Circuit

September 2, 2014

CENTER FOR CONSTITUTIONAL RIGHTS, Plaintiff-Appellant,
v.
CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION, DEFENSE INTELLIGENCE AGENCY, UNITED STATES SOUTHERN COMMAND, Defendants-Appellees. [*]

Argued June 25, 2014

Petition for certiorari filed at, 12/01/2014

Appeal from the United States District Court for the Southern District of New York. No. 12 Civ. 135 (NRB) -- Naomi Reice Buchwald, Judge.

Appellant Center for Constitutional Rights seeks disclosure by the government, pursuant to the Freedom of Information Act (" FOIA" ), of certain videos and photographs of a high-profile Guantanamo Bay detainee, Mohammed al-Qahtani, who is believed to be the so-called " 20th hijacker" in the September 11, 2001 terrorist attacks on the United States.

We agree with the United States District Court for the Southern District of New York (Naomi Reice Buchwald, Judge) that the government has met its burden of establishing that these images are exempt from disclosure pursuant to FOIA Exemption 1, which authorizes non-disclosure of records that are properly authorized by Executive order to be kept secret in the interest of " national defense or foreign policy." 5 U.S.C. § 552(b)(1). The declarations submitted by the government establish with adequate specificity that government release of images depicting al-Qahtani--one of the most high-profile Guantanamo Bay detainees, whose treatment at Guantanamo has been widely publicized--could logically and plausibly harm national security because these images are uniquely susceptible to use by anti-American extremists as propaganda to incite violence against United States interests domestically and abroad.

Accordingly, we AFFIRM the September 12, 2013 judgment of the District Court.

LAWRENCE S. LUSTBERG (Joseph A. Pace, on the brief), Gibbons P.C., Newark, NJ, for Plaintiff-Appellant Center for Constitutional Rights.

TARA M. LA MORTE (Emily E. Daughtry, Benjamin H. Torrance, on the brief), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Defendants-Appellees Central Intelligence Agency et al.

Before: CABRANES, CARNEY, and DRONEY, Circuit Judges.

OPINION

Page 162

José A. Cabranes, Circuit Judge

Appellant Center for Constitutional Rights (" CCR" ) seeks disclosure, pursuant to the Freedom of Information Act (" FOIA" ), principally by the Department of Defense (" DoD" ) and the Federal Bureau of Investigation (" FBI" and, jointly with the DoD, the " government" ) of certain videos and photographs of a high-profile Guantanamo Bay detainee, Mohammed al-Qahtani, who is believed to be the so-called " 20th hijacker" in the September 11, 2001 terrorist attacks on the United States.

Page 163

We hold that the government has met its burden of establishing that these images are exempt from disclosure pursuant to FOIA Exemption 1, which authorizes non-disclosure of records that are properly authorized by Executive order to be kept secret in the interest of " national defense or foreign policy." 5 U.S.C. § 552(b)(1). The declarations submitted by the government establish with adequate specificity that release of images depicting al-Qahtani--one of the most high-profile Guantanamo Bay detainees, whose treatment at Guantanamo has been widely publicized--could logically and plausibly harm national security because these images are uniquely susceptible to use by anti-American extremists as propaganda to incite violence against United States interests domestically and abroad.

Accordingly, we affirm the September 12, 2013 judgment of the United States District Court for the Southern District of New York (Naomi Reice Buchwald, Judge ) ...


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