United States District Court, S.D. New York
ORDER AND OPINION GRANTING SUMMARY JUDGMENT TO
K. HELLERSTEIN, U.S.D.J.
seek release under the Freedom of Information Act of a cache
of photographs taken at the Abu Ghraib prison and other
military detention facilities in Iraq and Afghanistan by U.S.
Army personnel between 2003 and 2005, which depict
individuals apprehended and detained abroad after September
11, 2001. The Government resists production. Both plaintiffs
and the Government move for summary judgment, the eighth such
motion in this case.
Court has previously ordered these photographs, or similar
photographs, to be produced. Similar photographs have been
published widely, without apparent repercussions.
Nevertheless, the Government resists production and
certifies, through a certification issued by Secretary of
Defense Ashton Carter dated November 7, 2015, that production
of these photographs would endanger the lives of Americans
deployed outside the United States.
2005, when over 140, 000 American troops in Iraq were fully
deployed and suffering casualties daily, General Richard B.
Myers, Chairman of the Joint Chiefs of Staff, urged this
Court not to order the release of the Abu Ghraib photographs.
General Myers stated in his declaration that release of the
photographs would endanger Americans in Iraq and Afghanistan
by "inciting violence and riots against American troops
and coalition forces." Myers Decl., Dkt. No. 115.
Nevertheless, I ordered that the important values of both
FOIA and judicial review of the executive's duty to carry
out the will of Congress required disclosure of the
photographs. Am. Civil Liberties Union v. Dep't of
Def., 389 F.Supp.2d 547 (S.D.N.Y. 2005). The Second
Circuit affirmed. Am. Civil Liberties Union v. Dep't
of Def, 543 F.3d 59 (2d Cir. 2008).
eleven years later, facing a different enemy in Iraq, with
far fewer troops deployed, serving in an advisory rather than
combat capacity, and with many fewer civilians deployed, the
position of Secretary Carter, the current Secretary of
Defense, remains unchanged: publication of additional
photographs, he has certified, will endanger Americans
deployed outside the United States.
issues that I must decide are whether, as required by the
Protected National Security Documents Act
("PNSDA"),  Secretary Carter's certification was
based on an individualized review of the photographs at
issue, and whether the Government has made clear to the Court
the criteria and factual bases upon which the Secretary
concluded that disclosure of each such photograph would
endanger the safety of Americans deployed outside the United
States. Resolutions of those questions are necessary to
determine whether the Government has satisfied its burden to
show that the photographs are exempt from production under
the Freedom of Information Act ("FOIA"), 5 U.S.C.
§ 552. For the reasons discussed in this opinion, I hold
that Secretary Carter's certification is not a sufficient
basis to withhold production of the photographs. Summary
judgment for plaintiffs is granted.
litigation has its origin in FOIA requests filed by
plaintiffs thirteen years ago, on October 7, 2003, seeking
records related to the treatment of individuals apprehended
abroad after September 11, 2001, and held by the United
States at military bases or detention facilities outside the
United States. See Compl., Dkt. No. 1 (June 2,
2004). Plaintiffs' requests have resulted in substantial
waves of production by the Department of Defense
("DoD"), the Central Intelligence Agency
("CIA"), and other government agencies. As
reflected by scores of orders, I have conducted public and
in camera proceedings to regulate the
Government's obligation to produce under FOIA. I have
granted requests and overseen substantial productions, but I
have also upheld exceptions to FOIA and overseen redactions
to guard against breaches of national security See
generally, Am. Civil Liberties Union v. Dep't of
Def., 339 F.Supp.2d 501 (S.D.N.Y. 2004); Am. Civil
Liberties Union v. Dep't of Def., 389 F.Supp.2d 547
(S.D.N.Y. 2005) (''ACLU I”); Am. Civil
Liberties Union v. Dep't of Def, No. 04 CIV. 4151
(AKH), 2006 WL 1638025 (S.D.N.Y. June 9, 2006); Am. Civil
Liberties Union v. Dep'tof Def., No. 04 CIV. 4151
(AKH), 2006 WL 1722574 (S.D.N.Y. June 21, 2006); Am.
Civil Liberties Union v. Dep't of Def, 543 F.3d 59
(2d Cir. 2008) ("ACLU II), vacated, 558 U.S.
1042 (2009); Am. Civil Liberties Union v. Dep't of
Def, 40 F.Supp.3d 377 (S.D.N.Y. 2014) ("ACLU
III), vacated and remanded (2d Cir. Jan. 6, 2016).
category of documents has been the subject of repeated motion
practice: photographs taken by U.S. personnel of enemy
combatants in U.S. custody at the Abu Ghraib prison in Iraq.
The Government's first motion for summary judgment in
2005 asked to exempt photographs taken by Sergeant Joseph
Darby at Abu Ghraib ("Darby photographs") on the
ground that production would compromise the privacy of the
individuals depicted in the photographs. See 5
U.S.C. § 552(b)(6), (b)(7)(C). After I conducted an
in camera review of all the Darby photographs and
ordered redactions of all personal characteristics, the
Government changed its position and instead invoked FOIA
Exemption 7(F), which exempts from production records
compiled for law enforcement purposes to the extent that
disclosure "could reasonably be expected to endanger the
life or physical safety of any individual." 5 U.S.C.
§ 552(b)(7)(F). Relying on declarations of the
commanding general of American forces in Iraq and the Chief
of Staff of all U.S. armed forces, the Government argued that
publication of the Darby photographs would incite violence
against American troops and Iraqi and Afghan personnel and
civilians, and that redactions would not avert the danger.
The Government further argued that terrorists would use the
re-publication of the photographs, under order of a U.S.
court, as a pretext for further acts of terrorism.
denied the Government's motion, held that none of the
FOIA exemptions applied, and ordered the Darby photographs to
be produced. ACLU I, 389 F.Supp.2d at 579. I held
that because of the redactions, the Government's concern
about unwarranted invasions of privacy lacked merit.
Id. at 571. As to Exemption 7(F), I allowed the
Government's late argument, and denied its applicability
on the merits. I held that a general threat to an unspecified
group of individuals was not enough to justify withholding
under Exemption 7(F), that FOIA favored production, and that
this policy underlying FOIA outweighed a generalized concern
that individuals might be exposed to increased risk of harm.
"The terrorists in Iraq and Afghanistan, " I ruled,
"do not need pretexts for their barbarism; they have
proven to be aggressive and pernicious in their choice of
targets and tactics. They have driven exploding trucks into
groups of children at play and men seeking work; they have
attacked doctors, lawyers, teachers, judges and legislators
as easily as soldiers. Their pretexts for carrying out
violence are patent hypocrisies, clearly recognized as such
except by those who would blur the clarity of their own
vision." Id. at 576. Accordingly, I ordered the
Government to produce the Darby photographs.
Government appealed. After a third party published the Darby
photographs, the Government withdrew its appeal as to those
photographs. See Order, Dkt. No. 184, at 2 (April
10, 2006). The Government continued its appeal, however,
against 29 additional photographs and one further batch that
the Government identified after the record closed, and which
I ordered should be governed by my underlying order.
Amer. Civil Liberties Union v. Dep 't. of Def,
04 Civ. 4151 (AKH), 2006 WL 1638025 (S.D.N.Y. June 9, 2006);
2006 WL 1722574 (S.D.N.Y. June 21, 2006).
Second Circuit affirmed. ACLU II, 543 F.3d 59 (2d
Cir. 2008). The Second Circuit ruled that Exemption 7(F) for
law enforcement records that could reasonably be expected to
endanger "any individual" did not apply to the
photographs because the exemption, "by conditioning its
application on a reasonable expectation of danger to an
individual, excludes from consideration risks that are
speculative with respect to any individual, " such as
the risk that release of the photographs might endanger
"a group so vast as to encompass all United States
troops, coalition forces, and civilians in Iraq and
Afghanistan." Id. at 71. The Second Circuit
also affirmed my rulings on the privacy exemptions. It
reviewed the in camera proceedings, and was
satisfied that "all identifying characteristics of the
persons in the photographs" had been redacted.
Id. at 85.
April 23, 2009, the Government informed this Court that in
light of the Second Circuit's decision, in addition to
the photographs previously identified, it was
"processing for release a substantial number of other
images contained in Army CID reports" that were also
responsive to plaintiffs' initial FOIA request.
See Barcelo Decl. Ex. B, Dkt. No. 458 (Apr. 1,
2011). The Government represented that all photographs would
be released by May 28, 2009.
following a public statement by President Obama on May 13,
2009, made in response to the Prime Minister of Iraq's
request that the photographs not be produced, the Solicitor
General filed a petition for a writ of certiorari seeking
review of the Second Circuit's opinion. While the
petition for certiorari was pending, in response to
continuing pressure on the President by the Prime Minister of
Iraq, Congress passed the Protected National Security
Documents Act. Pub. L. No. 111-83, 123 Stat. 2142. The PNSDA
provided a temporal and qualified exception to the
Government's obligation to produce the photographs under
Notwithstanding any other provision of the law to the
contrary, no protected document, as defined in subsection
(c), shall be subject to disclosure under section 552 of
title 5, United States Code, or any other proceeding under
that section. PNSDA § 565(b).
the PNSDA, a "protected document" must:
(a) be a "photograph" that "relates to the
treatment of individuals engaged, captured, or detained after
September 11, 2001, by the Armed Forces of the United States
in operations outside of the United States, "
id. § 565(c)(1)(B)(ii);
(b) have been created "on September 11, 2001 through
January 22, 2009, " id. § 565(c)(1)(B)(i);
(c) be a record "for which the Secretary of Defense has
issued a certification, as described in subsection (d),
stating that disclosure of that record 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." Id. §
(d), in turn, provides:
The Secretary of Defense shall issue a certification if the
Secretary of Defense determines that disclosure of that
photograph 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. Id. § 565(d)(1).
statute further provides that any such certification
"shall expire 3 years after the date on which the
certification" - or a renewed certification if the
original certification has expired - is issued by the
Secretary of Defense. Id. § 565(d)(2). Finally,
the PNSDA provides for direct Congressional oversight of any
certification issued under the PNSDA, by requiring the
Secretary to provide "timely notice" to Congress
when he issues a certification or a renewal certification
pursuant to the PNSDA. Id. § 565(d)(4).
November 2009, shortly after the passage of the PNSDA,
then-Secretary of Defense Robert Gates signed a certification
exempting the photographs then at issue in this
litigation. On the basis of the Gates certification,
the Supreme Court granted the Government's petition for
certiorari, vacated the Second Circuit's judgment
upholding this Court's September 2005 disclosure order,
and remanded the action for further consideration in light of
the PNSDA and the Gates certification. See Dep 't of
Def. v. Am. Civil Liberties Union, 558 U.S. 1042 (2009).
The Second Circuit, in turn, remanded the case to me.
parties again cross-moved for partial summary judgment based
on the adequacy of Secretary's certification. On July 21,
2011, after oral argument on the motions, I denied
plaintiffs' motion and granted the Government's
motion, and upheld Secretary Gates' certification.
See Dkt. No. 469. Without specifically ruling what
standard of review should apply, I found that it was clear
from the record that "Secretary Gates had a rational
basis for his certifications and that I could not second
guess-it." Hr'g Tr., Dkt. No. 474, at 36:6-8 (July
20, 2011). 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" as to whether "there is or is not a
danger in the battlefield because of the disclosure of
pictures of this sort." Id. at 23:21-24:2.
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." Id. at 37:16-19. President Obama
had made this determination in response to a request from the
Prime Minister of Iraq that the United States government not
publish the photographs for fear that their publication would
fuel insurrection and make it impossible to have a
functioning government. Id. at 34:7-23. In light of
that history, I upheld Secretary Gates' certification.
the PNSDA, the Gates certification was set to expire on
November 13, 2012. Several days before expiration, Secretary
of Defense Leon E. Panetta issued a certification, virtually
identical to the 2009 Gates certification. The parties once
again moved for partial summary judgment upholding and
impeaching the 2012 Panetta certification. I granted
plaintiffs' motion in part. I first resolved whether the
PNSDA qualified as an exemption statute under FOIA Exemption
3, which protects from disclosure documents that are
"specifically exempted from disclosure by statute,
" provided that certain conditions are met. I held that
"[t]he PNSDA is an exemption (3) statute, since it
provides criteria for the withholding of certain documents
from the public under FOIA[.]" ACLU III, 40
F.Supp.3d at 382. Accordingly, "[t]he agency asserting
the exemption [from FOIA] bears the burden of proof, and all
doubts as to the applicability of the exemption must be
resolved in favor of disclosure." Id. at 383
(internal quotation marks omitted). I then rejected the
Government's argument that the Panetta certification,
standing alone, satisfied the Government's burden to show
why the photographs at issue could be withheld.
Government's review of the photographs leading up to the
2012 Panetta certification began approximately three months
prior to the scheduled expiration of the 2009 certification.
One attorney, Megan Weis, a deputy general counsel in the
Army Office of the General Counsel, carried out the review.
She began by gathering and reviewing all the photographs
subject to the 2009 certification. She then placed the
photographs into three categories and "created a
representative sample of five to ten photographs in each
category to provide to senior military commanders for their
review and judgment of the risk from public disclosure of
each category." Weis Decl., Dkt. No. 530, ¶ 8 (Dec.
19, 2014). Factors for creating the three categories included
the "extent of any injury suffered by detainee, whether
U.S. service members were depicted, and the location of
detainee in the photograph." Id.
then sent the samples of five to ten photographs from each
category to three high level generals, who each reviewed the
samples and recommended re certifying all the photographs.
Id. ¶¶ 9-12. Weis then provided DoD's
General Counsel with the representative sample, the
Generals' recommendations, a draft renewal of the
certification, and a CD containing all of the photographs.
Id. ¶ 13. The DoD General Counsel met with
Secretary of Defense Panetta, and discussed whether to renew
the certification. Panetta then signed the draft
certification prepared by Weis. Id.
that the Government had not satisfied its burden. The Panetta
certification was "expressed in conclusory fashion, and
relate[d] to all the photographs at issue-likely hundreds or
thousands." It "track[ed] the language of the
statute, without providing any specific explanation for why
the Secretary certified the photographs, except to state that
based on the recommendations of certain senior military
officials, the Secretary determined that the photographs met
the criteria of the statute." ACLU III, 40
F.Supp.3d at 383. Noting that Congress enacted the PNSDA
against the "background norm of broad disclosure of
Government records, " and that Congress was aware that
FOIA "provided for de novo judicial review of
agency invocations of FOIA exceptions, " I held that
"the PNSDA should be read as providing for judicial
review of the basis for the Secretary of Defense's
certification." Id. at 387-88. Finally, after
noting that the "condition provided by the PNSDA for
withholding disclosure is that each individual photograph, if
disclosed, alone or with others" would endanger
Americans abroad, I held that "the government, to invoke
the PNSDA, must prove that the Secretary of Defense