Al Adahi v. Obama (D.C. Cir. June 13, 2010) (first reversal of a GTMO habeas grant)

July 13, 2010

* Al Adahi v. Obama (D.C. Cir. June 13, 2010) (reversal of GTMO habeas grant)

A D.C. Circuit panel (Randolph, joined by Henderson and Kavanaugh) for the first time has reversed a district court decision granting habeas to a GTMO detainee, with instructions to the district court to deny the writ instead. Previously, Circuit panels have affirmed the denial of habeas (al-Bihani, Awad), and reversed a denial with instructions to reconsider (Bensayah).

The 19-page opinion is here. Key passages (please note that Acrobat had trouble with character recognition in copying text from this pdf, so you might find some weird typos below – be sure to refer to the original linked document, of course):

In the summer of 2001, a thirty-nine year-old Yemeni security guard took a six-month leave of absence from his job to move to Afghanistan. Leaving his wife and his two children, he stayed at the Kandahar home of his brother-in-law, a close associate of Usama bin Laden. Twice he met personally with bin Laden. From Kandahar he moved into a guesthouse used as a staging area for al-Qaida recruits. He then attended al-Qaida’s A1 Farouq training camp, where many of the September 1 lth terrorists had trained. He traveled between Kabul, Khost, and Kandahar while American

forces were launching attacks in Afghanistan. Among other explanations for his movements, he claimed that he had decided to take a vacation. After sustaining injuries requiring his hospitalization, he crossed the Pakistani border on a bus carrying wounded Arab and Pakistani fighters. This man, Mohammed Al-Adahi, who is now a detainee at Guantanamo Bay Naval

Base, admits all of this but insists he was not a part of al-Qaida and never fough against the United States.

Although we doubt, for the reasons stated above, that the Suspension Clause requires the use of the preponderance standard, we will not decide the question in this case. As we did in Al-Bihani, we will assume arguendo that the government must show by a preponderance of the evidence that Al-Adahi was part of al-Qaida.

[B]efore we get to the specifics we need to mention an error that affects much of the district court’s evaluation of the evidence. The error stems from the court’s failure to appreciate conditional probability analysis. …”Many mundane mistakes in reasoning can be traced to a shaky grasp of the notion of conditional probability." JOHN ALLENP AULOSI, NNUMERACYM:A THEMATICAILLL ITERACY AND ITS CONSEQUENC6E3S (1988). The key consideration is that although some events are independent (coin flips, for example), other events are dependent: "the occurrence of one of them makes the occurrence ofthe other more or less likely . . . ." …Those who do not take into account conditional probability are prone to making mistakes in judging evidence. They may think that if a particular fact does not itself prove the ultimate proposition (e.g., whether the detainee was part of al-Qaida), the fact may be tossed aside and the next fact may be evaluated as if the first did not exist. Prandy-Binett, 5 F.3d at 559-60. This is precisely how the district court proceeded in this case: Al- Adahi’s ties to bin Laden "cannot prove" he was part of Al- Qaida and this evidence therefore "must not distract the Court." Mem. Op. at 18. The fact that Al-Adahi stayed in an al-Qaida guesthouse "is not in itself sufficient to justify detention." Id. At 20. Al-Adahi’s attendance at an al-Qaida training camp "is not sufficient to carry the Government’s burden of showing that hewas a part" of al-Qaida. Id. at 25. And so on. The government is right: the district court wrongly "required each piece of the government’s evidence to bear weight without regard to all (or indeed any) other evidence in the case. This was a fundamental mistake that infected the court’s entire analysis." Br. Of Appellants at 42. Having tossed aside the government’s evidence, one piece at a time, the court came to the manifestly incorrect – indeed startling – conclusion that "there is no reliable evidence in the record that Petitioner was a member of al-Qaida and/or the Taliban." Mem. Op. at 41. When the evidence is properly considered, it becomes clear that Al-Adahi was – at the very least – more likely than not a part of al-Qaida. And that is all the government had to show in order to satisfy the preponderance standard.

The court characterized the rest of the evidence about Al-Adahi’s meetings with bin Laden as "sensational and compelling" but not "actual, reliable evidence that would justifl" detention. Mem. Op. at 41. The court’s statements are incomprehensible. On what possible ground can the court say that the evidence on this subject was,on the one hand, "compelling," and yet say, on the other hand,

that it was not "actual" and "reliable"? All that comes to mind is the idea that two personal meetings with bin Laden are not enough to prove that an individual is part of al-Qaida. If that is what the court intended, then it was once again engaging in the mistaken reasoning we mentioned in connection with conditional probability analysis.

The district court dealt with this evidence in the following way: "the guesthouse evidence is not in itself sufficient to justify detention." Mem. Op. at 20. Note the "not in itself." Again the court erred. Al-Adahi’s voluntary decision to move to an al-Qaida guesthouse, a staging area for recruits heading for a military training camp, makes it more likely – indeed, very likely – that Al-Adahi was himself a recruit. There is no other sensible explanation for his actions. This is why we wrote in Al- Bihani that an individual’s attendance at an al-Qaida guesthouse is powerful – indeed "overwhelming[]" – evidence that the individual was part of al-Qaida. 590 F.3d at 873 n.2. Al-Adahi left the guesthouse after a few days and, as expected, entered al-Qaida’s A1 Farouq training camp. By then it was August 200 1. At least eight of the September 1 1 th hijackers had trained at A1 Farouq. While Al-Adahi was there,he received training in rocket-propelled grenades, other weapons, and basic physical fitness, as well as some classroom instruction. His statements to interrogators indicated that he had a deep knowledge of the operation of A1 Farouq. He described

camp leaders in a manner that showed he was familiar with them; he reported details of the camp’s training regimen and layout; and he identified the types of weapons used for training.

He also knew the training routines of other recruits. The district court seemed to think it important to determine Al-Adahi’s motive for attending the al-Qaida training camp. We do not understand why. Whatever his motive, the significant points are that al-Qaida was intent on attacking the United States and its allies, that bin Laden had issued a fatwa announcing that every Muslim had a duty to kill Americans, and that Al-Adahi voluntarily affiliated himself with al-Qaida. [EMPHASIS ADDED] According to Al-Adahi, he stayed at A1 Farouq for seven to ten days, and then was expelled for smoking tobacco, a violation of a camp rule. The government introduced evidence casting doubt on Al-Adahi’s explanation for leaving the camp. This evidence – which included Al-Adahi’s own statements – showed that trainees expelled from A1 Farouq were treated as spies and beaten. Al-Adahi left A1 Farouq unharmed. His story was that

the camp’s instructors treated him gently because they were close to his brother-in-law Riyadh. The government offered another explanation. Al-Adahi did not spend a great deal of time in the camp because he needed little training. He was not a green, untested, recruit. He had served in the Yemeni army, and he had been working as a security guard in Yemen. As to his loyalty to the al-Qaida cause, his sister was married to one of bin Laden’s most trusted associates.

The court appeared to rule that an individual must embrace every tenet of al-Qaida before United States forces may detain him. There is no such requirement. See Awad, slip op. at 19. When the government shows that an individual received and executed orders from al-Qaida members in a training camp, that evidence is sufficient (but not necessary) to prove that the individual has affiliated himself with al-Qaida. See id. ; Gherebi v. Obama, 609 F. Supp. 2d 43, 69 (D.D.C. 2009). Al-Adahi’s statements confirm that he received and followed orders whilehe was at A1 Farouq. His attendance at an al-Qaida military training camp is therefore – to put it mildly – strong evidence that he was part of al-Qaida. In Al-Bihani, we stated that if a person stays in an al-Qaida guesthouse or attends an al-Qaida training camp, this constitutes "overwhelming" evidence that the United States had authority to detain that person. 590 F.3d at873 n.2

The district court ended its discussion of Al-Adahi’s training at A1 Farouq with the following statement: Al-Adahi’s "admission that he trained at A1 Farouq is not sufficient to carry the Government’s burden of showing that he was a part, or substantial supporter, of enemy forces." Id. at 25. We disagree that this evidence, standing alone, was insufficient. See Al-Bihani, 590 F.3d at 873 n.2. In any event, we are sure that the court erred in treating this evidence as if it stood alone.

Al-Adahi also claims his statements should be suppressed pursuant to the Third Geneva Convention. Even if the Convention had been incorporated into domestic U.S. law and even if it provided an exclusionary rule, Congress has provided explicitly that the Convention’s provisions are not privately enforceable in habeas proceedings. See Military Commissions Act of 2006 5 5, Pub. L. No. 109-366, 120 Stat. 263 1-32; Noriega v. Pastrana, 564 F.3d 1290, 1296-97 (1 lth Cir. 2009); Boumediene v. Bush, 476 F.3d 981, 988 n.5 (D.C. Cir.2007).

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Int’l Counsel Bureau v. DoD (D.D.C. July 12, 2010)

July 13, 2010

* Int’l Counsel Bureau v. DoD (D.D.C. July 12, 2010) (partially granting and partially denying summary judgment in GTMO FOIA requests)

An opinion yesterday by Judge Bates, partially granting and partially denying cross-summary judgment motions in a FOIA action relating to records of four GTMO detainees. The full 22-page opinion is here, and I’ve included most but not all of the text below for ease of reference.

In March 2008, ICB submitted a FOIA request to the Defense Department seeking records of four Kuwaiti citizens detained at Guantanamo: Fawzi Khaled Abdullah Fahad Al Odah, Khalid Abdullah Misha’al Al-Mutairi, Fouad Mahmoud Al Rabiah and Fayiz Mohammed Ahmed Al Kandari ("detainees"). ICB requested, among other things,

[a]ny recording, including any image, photograph, picture, film, drawing, painting, video, videotape, tape recording, audiotape, CD, or DVD, depicting or reflecting the image, likeness, voice, audible action, or any other aspect or activity of any [of the four detainees].

Compl., Ex. A at 1-2.

The Defense Department searched its records and located fifty-nine photographs, forty-five videos and one audiotape responsive to plaintiffs’ request. The Department withheld these records in their entirety, relying on exemptions 1, 2, 3, and 6 to FOIA’s general rule of disclosure. See id. The Department also determined that it would be impractical to segregate any non-exempt information from the records. See id. at 36-37. The Department moved for summary judgment, and ICB moved for partial summary judgment….

The Court granted in part and denied in part both parties’ motions. The Court first concluded that the Department’s search for responsive materials was inadequate. For example, the Department "did not search records maintained by Defense Department components other than those within Joint Task Force-Guantanamo." Id. at 39. Nor, apparently, had it searched "records of the … Detainees other than those documenting housing, care, feeding or security." Id. Accordingly, the Court ordered the Department to conduct an additional search. Id. at 40-41.

The Court also concluded that it could not evaluate the propriety of the Department’s withholdings on the record before it. The Department’s Vaughn index, the Court found, was "inadequate," as it failed to "subdivide the document[s] under consideration into manageable parts cross-referenced to the relevant portion of the government’s justification." Id. at 42 (internal quotation marks omitted). And the Department’s declarations did not cure these deficiencies, as they did "not explain with the necessary detail how a particular exemption supports the Department’s decision to withhold a responsive document." Id. Thus, the Court concluded that it could not "fairly assess the propriety of the exemption claims because there is a dearth of reasonably specific detail about how the exemptions apply to the documents as a whole." Id. (internal quotation marks omitted). Instead, the Court instructed the Department that if it "wishes to maintain its exemption claims, it must supplement its Vaughn submission." Id.

*2 The Department has now conducted a new search of its records. It has also offered several declarations–some new, and some submitted with its previous motion for summary judgment–as well as a new Vaughn index. In the latter, the Department identifies responsive records consisting of forty-seven photographs, forty-five videos, and five audiotapes. [FN2] See Def.’s Renewed Mot. for Summ. J. ("Def.’s Mot.") [Docket Entry 36], at 2; Def.’s Reply in Supp. of Renewed Mot. ("Def.’s Reply") [Docket Entry 42], Ex. 4 (Corrected Second Vaughn Index ("Vaughn Index")). Both parties have filed renewed motions for summary judgment addressing whether the Department’s new search was adequate, and whether the Department is justified in withholding the records.

FN2. In other words, the Department’s new search appears to have located four additional audiorecordings, no additional videorecordings, and twelve fewer photographs. The Department does not explain how its new search produced fewer responsive photographs.

II. Propriety of the Department’s Withholdings

*5 The Department has withheld virtually all records responsive to ICB’s request on the grounds that they fall within FOIA exemptions 1, 2, 3, or 6. The agency bears the burden of justifying any withholding. See 5 U.S.C. § 552(a)(4)(B); see also Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 861 (D.C.Cir.1980) ("[T]he burden is on [the agency] to establish [its] right to withhold information from the public."). "[W]hen an agency seeks to withhold information, it must provide a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply." Morley, 508 F.3d at 1122 (internal quotation marks omitted). This justification–taking the form of either a Vaughn index or sufficiently detailed affidavits, or both–"must explain specifically which of the nine statutory exemptions to FOIA’s general rule of disclosure supports the agency’s decision to withhold a requested document or to delete information from a released document." Founding Church of Scientology, Inc. v. Bell, 603 F.2d 945, 947 (D.C.Cir.1979); see also Vaughn, 484 F .2d at 827. "[A] ‘categorical description of redacted material coupled with categorical indication of anticipated consequences of disclosure is clearly inadequate.’ " Morley, 508 F.3d at 1122 (quoting King v. Dep’t of Justice, 830 F.2d 210, 224 (D.C.Cir.1987)).

A. Video-and audiorecordings

Citing FOIA exemptions 1 and 2, the Department has withheld in their entirety all forty-five responsive videorecordings it has located, as well as one audiorecording. [FN7] The Court will address exemption 2 first.

FN7. The Department has released to ICB four additional redacted audiorecordings. See Vaughn Index. ICB "does not challenge th[is] production," Pls.’ Mot. at 1 n. 1, and hence the Court will grant the Department summary judgment as to these recordings.

1. Exemption 2

Exemption 2 protects material that is "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). Such protection is afforded only to material that meets two criteria. First, the material must be "used for predominantly internal purposes." Crooker v. Bureau of Alcohol, Tobacco and Firearms, 670 F.2d 1051, 1073 (D.C.Cir.1981) (en banc). Second, the agency must show either that "disclosure [of the material] may risk circumvention of agency regulation" or that "the material relates to trivial administrative matters of no genuine public interest." Schwaner v. Dep’t of the Air Force, 898 F.2d 793, 794 (D.C.Cir.1990) (citations and internal quotation marks omitted). "Predominantly internal documents the disclosure of which would risk circumvention of agency statutes are protected by the so-called ‘high 2’ exemption," and "[p]redominantly internal documents that deal with trivial administrative matters fall under the ‘low 2’ exemption." Schiller v. Nat’l Labor Relations Bd., 964 F.2d 1205, 1207 (D.C.Cir.1992).

Here, only the "high 2" exemption is at issue. [FN8] In order to withhold materials under the high 2 exemption, an agency must show that their disclosure "would significantly risk circumvention of federal regulations or statutes." Elliott v. Dep’t of Agric., 596 F.3d 842, 847 (D.C.Cir.2010) (emphasis added); see also Crooker, 670 F.2d at 1074 ("We add the word ‘significantly’ to stress the narrow scope of our construction of Exemption 2; in all cases in which the Government relies on Exemption 2, it remains the Government’s burden to prove the ‘significant risk.’ ").

FN8. In its renewed motion for summary judgment, the Department invokes the ‘low 2’ exemption for the telephone numbers, fax numbers, and addresses of Department personnel. See Def.’s Mot. at 14. It appears that the Department is referring to information contained in various detainee medical records, documents for which the Court has already granted summary judgment in the Department’s favor. See Int’l Counsel Bureau, 657 F.Supp.2d at 36 n. 1.

*6 All forty-five withheld videorecordings in this case relate to forced cell extractions ("FCEs"). FCEs generally occur "when a detainee has demonstrated conduct that can be charcterized as combative, will not voluntarily leave his cell, or is exhibiting self-harmful behavior and will not respond to guard force instructions." O’Connor Decl. ¶ 7. In the context of an FCE, "Combat Camera will film the series of events from the preparation of the FCE team members, to the completion of the operation when the detainee is moved to the medical facility for evaluation of possible injury, and the medical examination of any member of the FCE team who may be injured during the FCE." Id. Combat Camera also "film[s] other events unrelated to FCE operations and or detainee movements," but it has reviewed the FCE videos at issue here, "and they only contain images pertaining to the FCE[s] and not of other unrelated activities or events." Id. ¶¶ 7-8.

To support its argument that the withheld FCE videorecordings fall within the high 2 exemption, the Department offers two declarations. First, Brigadier General Rafael O’Ferrall states that the videos’ release "would permit hostile entities to gain specific knowledge of the operational methods employed in certain circumstances, which would provide them an opportunity to develop countermeasures or resistence tactics that could also be used in other U.S. military detention facilties." Def.’s Mot., Decl. of Rafael O’Ferrall ("O’Ferrall Decl."), ¶ 27. Similarly, O’Connor offers that "the videos show the inside of the detention facilities, the cell numbers and other details of the operations of the detention camps that if released will provide information that may be utilized to circumvent security measures and disrupt good order and discipline in the camps." O’Connor Decl. ¶ 13.

These declarations fail to meet the Department’s burden under exemption 2. O’Ferrall and O’Connor briefly describe how the videos, if released, could lead to "circumvention of federal regulations or statutes." See O’Ferrall Decl. ¶ 27 (detainees may "develop countermeasures"); O’Connor Decl. ¶ 13 (detainees could "circumvent security measures"). But neither declaration indicates that there is a "significant risk" that such circumvention will occur. See Crooker, 670 F.2d at 1074 ("[I]t remains the government’s burden to prove the ‘significant risk.’ "). O’Ferrall’s declaration simply offers that disclosure "would provide [hostile entities] an opportunity to develop countermeasures." O’Ferrall Decl. ¶ 27 (emphasis added). And O’Connor’s statement is similarly hedged: information in the videos "may be utilized to circumvent security measures." O’Connor Decl. ¶ 13 (emphasis added). Neither declaration, then, offers any assessment as to the likelihood that such harms will result if the videos are released. And without any information as to the likelihood that detainees or others will use the information contained in these videos to "develop countermeasures" or "circumvent security measures," the Court cannot conclude, as a matter of law, that the videos’ release would create a "significant risk" that they will do so. See Hidalgo v. Fed. Bureau of Investigation, 541 F.Supp.2d 250, 253-54 (D.D.C.2008) (a declaration stating that individuals "could scheme" to circumvent investigations is insufficient under exemption 2).

*7 The Department’s justification for withholding the audiorecording pursuant to exemption 2 is similarly infirm. The Department offers only that its release "would permit hostile entities to gain specific knowledge of the operational methods employed in certain circumstances, which would provide them an opportunity to develop countermeasures or resistance tactics that could also be used in other U.S. military detention facilities." O’Ferrall Decl. ¶ 28. This is, word for word, the same explanation O’Ferrall offers for withholding the videorecordings under exemption 2, and it is inadequate for the same reason. The Court therefore will deny the Department summary judgment on its exemption 2 claims.

2. Exemption 1

FOIA’s exemption 1 permits agencies to withhold records if they are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). To show that it has properly withheld information under FOIA Exemption 1, an agency must show both that the information was classified pursuant to the proper procedures, and that the withheld information meets the standard for classification. See Salisbury v. United States, 690 F.2d 966, 971-72 (D.C.Cir.1982).

In this case, the Department has withheld the recordings at issue based on Executive Order 12,958, as amended by Executive Order 13,292. See O’Ferrall Decl. ¶¶ 12-13. Pursuant to these Executive Orders, information may be classified if "the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security." Exec. Order. No. 13,292, 68 Fed.Reg. 15,315 (Mar. 28, 2003).

The Department provides several declarations to justify its decision to withhold the videorecordings under exemption 1. [FN9] "In the context of national security exemptions, such declarations merit ‘substantial weight.’ " Campbell v. Dep’t of Justice, 164 F.3d 20, 30 (D.C.Cir.1998) (quoting King, 830 F.2d at 217); accord Morley, 508 F.3d at 1124 ("[T]he text of Exemption 1 itself suggests that little proof or explanation is required beyond a plausible assertion that information is properly classified."). Nonetheless, even when applying exemption 1, "conclusory affidavits that merely recite statutory standards, or are overly vague or sweeping will not, standing alone, carry the government’s burden." Larson v. Dep’t of State, 565 F.3d 857, 864 (D.C.Cir.2009) (citing Hayden v. Nat’l Sec. Agency, 608 F.2d 1381, 1388 (D.C.Cir.1979)). "[D]eference is not equivalent to acquiescence," and a declaration in support of an exemption 1 withholding "may justify summary judgment only if it is sufficient ‘to afford the FOIA requester a meaningful opportunity to contest, and the district court an adequate foundation to review, the soundness of the withholding.’ " Campbell, 164 F.3d at 30 (quoting King, 830 F.2d at 218).

FN9. It appears, but is not clear, that the Department contends that the entirety of the recordings are properly withheld under exemption 1. Compare Vaughn Index (offering no limitation to its exemption 1 claim), with O’Connor Decl. ¶ 12 (arguably suggesting that only portions of the videos are withheld under exemption 1). Despite the Court’s prior admonition, then, the Department still has not "subdivide[d] the documents under consideration into manageable parts cross-referenced to the relevant portion of the government’s justification." Int’l Counsel Bureau, 657 F.Supp.2d at 42 (internal quotation marks omitted).

*8 Rear Admiral David Thomas explains why the Department has withheld these videos pursuant to exemption 1:

Disclosure of the classified information and sensitive internal procedures, developed specifically for military detention operations, contained in these videos would be harmful to national security. Such disclosure would allow hostile entities to develop counter-tactics for use in military detention facilities, placing military members at risk and impeding the lawful conduct of military detention operations.

Thomas Decl. ¶ 30; see also Copeman Decl. ¶ 25 (same). O’Connor further offers that at least portions of these videos–depictions of "the detainee being returned to his cell"–are "properly exempted under b(1) for having information that may be used to develop counter-tactics." O’Connor Decl. ¶ 12.

Based on these declarations, taken together, the Court concludes that at least portions of the FCE videos are properly withheld under exemption 1. The declarations indicate that these videos show, among other things, how military personnel at Guantanamo Bay forcibly move prisoners in and out of their cells. They further explain that these "sensitive internal procedures," if released, would permit individuals "to develop counter-tactics," thus "placing military members at risk." These declarations therefore offer the "little proof or explanation" necessary, Morely, 508 F.3d at 1124, to show that, if released, at least portions of the videos "reasonably could be expected to result in damage to the national security." Larson, 565 F.3d at 865 ("We have consistently deferred to executive affidavits predicting harm to the national security, and have found it unwise to undertake searching judicial review." (internal quotation marks omitted)).

Although it may be clear how videos showing the movement of detainees in and out of their cells would permit hostile entities to develop counter-tactics, the Department’s declarations do not justify withholding the entirety of the videos under exemption 1. As O’Connor explains, FCE videos generally include "the preparation of the FCE team members" and "the medical examination of any member of the FCE team who may be injured during the FCE." O’Connor Decl. ¶ 7. [FN10] The Department’s declarations, however, offer no explanation of how these portions of the videos–during which no detainees would be present–would permit detainees to develop counter-tactics. O’Connor does state that

FN10. The Department has not provided the Court with any details as to the contents of these particular videos, except that they "only contain images pertaining to the FCE[s] and not of other unrelated activities or events." Id. ¶ 8.

[p]ost extraction activities are withheld due to the participation of U.S. military personnel who are involved in the examination and or treatment, if necessary, of the detainee once taken to the medical examination facility, and of the U.S. military guard force once the detainee is taken back to the block where his cell is located.

O’Connor Decl. ¶ 12. But O’Connor does not indicate how the mere "participation of U.S. military personnel" in post-extraction activities, without more, "reasonably could be expected to result in damage to the national security." It is thus the sort of "overly vague" and "sweeping" declaration that "will not, standing alone, carry the government’s burden." Larson, 565 F.3d at 864. Accordingly, the Court will require the Department once again to supplement its declarations. [FN11]

FN11. Because it appears that each of these videos contains at least some information that is properly withheld under exemption 1, the Court might normally evaluate the Department’s contention that "any non-exempt material these videos might contain is not reasonably segregable." O’Connor Decl. ¶ 18; see 5 U.S.C. § 552(b) ("Any reasonably segregable portions of a record shall be provided to any person requesting such record after deletion of the portions that are exempt…."). On the record before it, however, the Court cannot evaluate this claim. The videos comprise nearly 500 hours of film, averaging over ten hours per video. See O’Connor Decl. ¶ 8. But, save for the ISN number of the detainee involved and the date it was made, the Department’s Vaughn index provides no information as to each video’s length or unique content. And the Department’s declarations offer only vague descriptions of the sort of events generally filmed in the FCE context. See id. ¶ 7. Without any sense of what share of the videos consists of non-exempt material, the Court cannot assess the Department’s representation that the "kind and amount of editing" required to segregate material in this case "would require a team of technically qualified personnel …, at the least, several months." Id. ¶ 18.

*9 Although the Department’s declarations establish that at least some portions of the videorecordings are properly withheld under exemption 1, the same is not true for the remaining audiorecording. To justify withholding this recording, Thomas offers that "releasing it would risk disclosing intelligence sources and methods, causing harm to national security." Thomas Decl. ¶ 24. And O’Ferrall states that it should be withheld because "it contains information concerning that [sic] might identify intelligence sources and methods, and information that, if released, can cause damage to national security." O’Ferrall Decl. ¶ 17.

This is insufficient. The D.C. Circuit has made clear that "a ‘categorical description of redacted material coupled with categorical indication of anticipated consequences of disclosure’ " is " ‘clearly inadequate’ " to support withholding records, even under exemption 1. Campbell, 164 F.3d at 30 (quoting PHE, Inc. v. Dep’t of Justice, 983 F.2d 248, 250 (D.C.Cir.1993)). Unfortunately, these declarations offer nothing more than that. They do not indicate, even vaguely, how the audiorecording might identify intelligence sources and methods. Indeed, they do not even indicate what the audiorecording is–except that it is not a recording of a Combatant Status Review Tribunal. See Thomas Decl. ¶ 24. And, once again, they fall short of establishing that release could reasonably be expected to harm national security. See Larson, 565 F.3d at 865. Because the Department has not provided this information, it has not, as it must, "afford[ed] the FOIA requester a meaningful opportunity to contest, and the district court an adequate foundation to review, the soundness of the withholding." Campbell, 164 F.3d at 30 (internal quotation marks omitted). If it wishes to withhold this audiorecording under exemption 1, then, the Department must provide more support.

* * *

As indicated above, the Department has not established that it may withhold the recordings at issue under exemption 2. The Department has, on the other hand, shown that at least portions of the FCE videos are properly withheld under exemption 1. The Court will, therefore, deny both parties’ motions for summary judgment as to these recordings, and will permit the Department an additional opportunity to supplement its declarations. The Court affords the Department this further–and final–chance primarily because of the national security concerns assertedly at issue. In its additional submissions, the Department shall clearly indicate which portions of the recordings it seeks to withhold under exemptions 1 and 2, and should justify why it deems those portions of the recordings exempt from disclosure. In doing so, the Department should be mindful of the legal standards set out in this decision. Accordingly, it should ensure that its declarations or a new Vaughn index subdivide the recordings into manageable parts cross-referenced to the relevant portion of the claimed exemption. See Int’l Counsel Bureau, 657 F.Supp.2d at 42. The Department shall also confirm that its declarations permit the Court to assess whether it has complied with its segregability obligations. See Kishore v. Dep’t of Justice, 575 F.Supp.2d 243, 259 (D.D.C.2008) ("An agency must provide a detailed justification and not just conclusory statements to prove that it has released all reasonably segregable information." (internal quotation marks omitted)). The Court repeats that the Department is now being given a third opportunity to justify withholding these recordings; the Court will not offer it a fourth. [FN12]

FN12. The Department has also argued that portions of the recordings may be withheld under exemptions 3 and 6. See Vaughn Index; O’Connor Decl. ¶¶ 12, 14-17. Because the Department has argued that exemptions 1 and 2 justify withholding the recordings in their entirety, and because exemptions 3 and 6 would generally only apply when "the privacy of and identity of U.S. military personnel" could be revealed, O’Connor Decl. ¶ 12, the Court will not address the applicability of those narrower exemptions at this time. If the Department still wishes to withhold portions of these recordings based on those exemptions, it should ensure that its submissions adhere to the standards laid out in this opinion.

B. Photographs of the Detainees

*10 The Department seeks to withhold photographs of the detainees pursuant to FOIA exemption 6, which permits the withholding of "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6); see also Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 (1982) ("personnel and medical files" includes all records containing "information which applies to a particular individual"). [FN13] To determine what constitutes a "clearly unwarranted invasion of personal privacy," the court must "balance the individual’s right of privacy against the basic policy of opening agency action to the light of public scrutiny." Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C.Cir.2002) (internal quotation marks omitted). "This exemption creates a ‘heavy burden’; indeed, ‘under Exemption 6, the presumption in favor of disclosure is as strong as can be found anywhere in the Act.’ " Morley, 508 F.3d at 1127 (quoting Wash. Post Co. v. Dep’t of Health & Human Servs., 690 F.2d 252, 261 (D.C.Cir.1982)).

FN13. The Department’s Vaughn index indicates that it also seeks to withhold the photographs under exemptions 1, 2, and 3. But the Department has expressly disclaimed any reliance on exemption 1, see Def.’s Mot. at 8, and offers no argument in its briefs or declarations concerning the applicability of exemptions 2 or 3. O’Connor does state that exemption 3–which protects from disclosure records that are "specifically exempted … by statute," 5 U.S .C. § 552(b)(3)–"is properly claimed where the identity or image of U.S. military personnel deployed overseas may be revealed in the video or photographs." O’Connor Decl. ¶ 14. But the photographs at issue here, the Department notes, "do not depict anyone other than the four subject detainees." O’Ferrall Decl. ¶ 14.

The Department contends that exemption 6 permits it to withhold photographs of the detainees "because [their] release would disclose the identity of the detainees." Def.’s Mot. at 19; see O’Ferrall Decl. ¶ 30 ("Photographs have been withheld because they contain the detainee’s image which would identify that detainee."). The Department believes that such disclosure "would risk both [the detainees’] safety upon release, through reprisals, and would undermine their likely willingness to cooperate with the intelligence collection activities." Def.’s Mot. at 19.

The Department’s argument is flawed. For one, exemption 6 requires the Court to assess "the individual’s right of privacy." See Nat’l Ass’n of Home Builders, 309 F.3d at 32. Indeed, "[o]nly where a privacy interest is implicated does the public interest for which the information will serve become relevant and require a balancing of the competing interests." Associated Press v. Dep’t of Def., 554 F.3d 274, 291 (2d Cir.2009) (internal quotation marks omitted). The Department’s concerns about the detainees’ safety and intelligence value, on the other hand, have little to do with privacy. See id. at 292 (" ‘[T]he focus, in assessing a claim under Exemption 6, must be solely upon what the requested information reveals, not upon what it might lead to.’ " (quoting Dep’t of State v. Ray, 502 U.S. 164, 180 (1991) (Scalia, J., concurring in part and concurring in the judgment)) (emphasis in Ray )). [FN14]

FN14. In any event, the Department’s concerns about the detainees’ safety and intelligence value are no more supported than are most of the government’s exemption 1 and 2 justifications. See O’Connor Decl. ¶ 15.

Further, the government has already released a substantial amount of information about these detainees, including, among other things, their names, the names of their families and friends, and their employment histories. See ICB’s First Mot. for Partial Summ. J. [Docket Entry 17], Exs. 19-25. And the detainees’ photographs are already publicly available. See id., Ex. 36 (website screenshot). Any privacy interests weighing against "disclos[ing] the identity of the detainees," Def.’s Mot. at 19, then, are slight. See Hidalgo, 541 F.Supp.2d at 255 (privacy interest significantly lessened where information is "open and notorious").

*11 The Department contends that there is no public interest in these photographs. See Def.’s Mot. at 19; Nat’l Ass’n of Retired Fed. Employees v. Horner, 879 F.2d 873, 879 (D.C.Cir.1989) ("[S]omething, even a modest privacy interest, outweighs nothing every time."). The Court disagrees. The press has taken a substantial interest in the Guantanamo Bay detainees, and has reported extensively on them and their condition. See Pls.’ Mot. at 30-33 (collecting newspaper articles). Indeed, as Judge Hogan has noted, "[p]ublic interest in Guantanamo Bay generally … has been unwavering." In re Guantanamo Bay Detainee Litigation, 624 F.Supp.2d 27, 37 (D.D.C.2009). The Court need not linger on this point to conclude that photographs of these detainees taken at Guantanamo Bay are of significant public interest.

Because there is only a slight privacy interest in withholding these photographs of detainees from public view, and because the public has a substantial interest in their disclosure, the Court will grant ICB’s motion for summary judgment as to the withheld photographs." [FN15]

FN15. When it supplements its submissions with respect to the recordings, the Department shall also explain why its most recent search of its records revealed fewer unique photographs of the detainees than the previous search.

CONCLUSION

For the reasons detailed above, the Court will grant the Department’s motion for summary judgment as to the adequacy of its search, with the exception that the Department shall undertake an additional search of USCENTCOM’s files using an alternate spelling of the detainees’ names. The Court will also grant the Department’s motion with respect to the four redacted audiorecordings. The Court will deny without prejudice both parties’ motions for summary judgment as to the remaining audio-and videorecordings, and will require additional submissions from the Department to justify the withholdings. Finally, the Court will grant ICB’s motion for summary judgment as to the withheld photographs. A separate Order accompanies this Memorandum Opinion.


United States v. Ghailani (S.D.N.Y. July 12, 2010) (denying speedy trial motion)

July 13, 2010

* United States v. Ghailani (S.D.N.Y. July 12, 2010)

A very important ruling today by Judge Lewis Kaplan, denying Ahmed Khalfan Ghailani’s motion to dismiss the indictment on Speedy Trial grounds. (disclosure: I served as a clerk to Judge Kaplan years ago).

As you may recall, Ghailani is under indictment in relation to the 1998 East African embassy bombings, but until recently had been held for years at GTMO. He was transferred to New York for trial, and is viewed in some quarters as a test case for the various issues that might arise in this circumstance—including the speedy trial question. The full 48-page opinion is attached, and also appears here: http://www.nysd.uscourts.gov/cases/show.php?db=special&id=110.

Highlights and reasoning from the opinion:

– Ghailani was indicted in 1998, but remained at large until captured by a foreign state in 2004.

– He was in CIA custody for about two years after that.

– He then was transferred to DOD custody, at GTMO. He was brought to New York for trial in June 2009 (after about five years in US custody). He moved to dismiss the indictment on 6th Amendment speedy trial grounds.

-“Ghailani contends that his arrest in 2004 presented the government with a choice: it either could have prosecuted him at that time on this indictment or it could have detained and questioned him in the interests of national security. But it could not do both.” (p. 17)

– Whether the speedy trial right has been violated depends on the circumstances, including among others the reason for the delay.

– As to the years in CIA custody, the government had a substantial reason not to prosecute: “Suffice it to say here that, on the record before the Court and as further explained in the Supplement [a classified supplement to the opinion], the CIA Program was effective in obtaining useful intelligence from Ghailani throughout his time in CIA custody.” (p. 10)

– As to the years at GTMO, however, the government’s justification was less different. In contrast to the intelligence-gathering justification for delaying prosecution during the CIA custody phase, the detention at GTMO was focused simply on preventing Ghailani’s return to hostilities. And that could have been achieved even if he’d been transferred to Bureau of Prisons custody in order to face trial on the indictment. The Court also was not persuaded that delay in prosecution was justified separately by any need to have Ghailani present at GTMO for his CSRT proceeding, or in relation to the military commission investigation relating to him.

– Balancing all the relevant factors, including the assessment of the government’s justification for delay noted above, the Court concluded that the delay during the period of CIA custody was relatively clearly appropriate, while the subsequent three-year delay while he was at GTMO presented a closer case. That said, there was no evidence that the government obtained or sought to obtain trial advantage as a result of that delay, nor that Ghailani as a result was obliged to remain in custody when otherwise he would have been free (in this case he would have been in custody at GTMO throughout this period, as an enemy combatant, regardless of whether the government had ever decided to prosecute him).

– In sum: “Although the delay of this proceeding was long and entirely the product of decisions for which the executive branch of our government is responsible, the decisions that caused the delay were not made for the purpose of gaining any advantage over Ghailani in the prosecution of this indictment. Two years of the delay served compelling interests of national security. None of the five year delay of this prosecution subjected Ghailani to a single day of incarceration that he would not otherwise have suffered. He would have been detained for that entire period as an enemy combatant regardless of the pendency of this indictment. None of that delay prejudiced any interests protected by the Speedy Trial Clause in any significant degree. In these specific circumstances, Ghailani’s right to a speedy trial has not been infringed.” (pp. 4-5)

– The Court also rejected speedy trial arguments under Fed. R. Crim. P. 48(b) (on the ground that it is coterminous with the 6th Amendment right), under Fed. R. Crim. P. 5 and 9 (on the ground that those deadlines start to run only upon criminal arrest), and under the Speedy Trial Act (18 USC 3161(c)(1)) (on the ground that the Act does not begin to run until the defendant’s first appearance before a judge). (p. 17 n. 66)

x1xSpeedy.pdf