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American Civil Liberties Union v. Department of Defense

United States District Court, S.D. New York

January 18, 2017

DEPARTMENT OF DEFENSE, et al., Defendants.



         Plaintiffs 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.

         This 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.

         In 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).

         Now, 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.

         The issues that I must decide are whether, as required by the Protected National Security Documents Act ("PNSDA"), [1] 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.


         This 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).

         One 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.

         I 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.

         The 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).

         The 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.

         On 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.

         However, 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 FOIA:

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).

         Under 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); and
(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. § 565(c)(1)(A).

         Subsection (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).

         The 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).

         In 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.[2] 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.

         The 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.

         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." 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.

         Under 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.

         The 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.

         Weis 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.

         I held 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 ...

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