Khadr v. Obama (D.D.C. July 20, 2010)

July 20, 2010

* Khadr v. Obama (D.D.C. July 20, 2010)

Judge Bates has issued a 15-page opinion (here) that grants Khadr’s request to file a second amended habeas petition, but also leaves in place a Councilman abstention-based stay pending resolution of his military commission proceeding.


scholarship: Richards on the flaws in the smallpox bioterrorism preparedness plan

July 20, 2010

* Forthcoming Scholarship

"THE UNITED STATES SMALLPOX BIOTERRORISM PREPAREDNESS PLAN: RATIONAL RESPONSE OR POTEMKIN PLANNING?" (see attached)

Edward Richards (LSU Law School)

National Security Forum Symposia Issue, William Mitchell Law Review

Smallpox is perhaps the most frightening bioterrorism agent because we do not need to imagine its effects. Smallpox killed and disfigured hundreds of thousands of people within living memory, even with the availability of effective vaccines. Before the vaccine age, smallpox was one of the great plagues, evolving with human civilization because it affects no other species. While malaria and tuberculosis are also great killers, they kill by stealth. Smallpox strikes terror because it kills quickly and horribly.

Smallpox was a major bogeyman after the terrorist attacks on September 11, 2001. The Bush administration launched a major smallpox vaccination campaign, and the Centers for Disease Control and Prevention (CDC) was directed to develop a national response plan for a smallpox bioterrorism attack. This article analyzes the smallpox response plan within the larger context of public health emergency response post-Katrina and post-H1N1. It concludes that the response plan depends on infrastructure that has been destroyed by decades of state budget cuts, and that the plan would not be effective for the most likely outbreak scenarios. The article proposes an alternative response plan based on the rebuilding of critical public health infrastructure and identifies the public trust issues that have to be addressed for any communicable disease response plan to succeed.

The article contains hot links to critical historical documents that are archived on the author’s WWW site. Some of these are no longer available from governmental sources.

Richards (full final) 7.20.2010.pdf


ACLU v. Dep’t of Defense (S.D.N.Y. July 15, 2010) (rejecting proposed illegality exception to FOIA exemption 3 (sources and methods))

July 20, 2010

* ACLU v. Dep’t of Defense (S.D.N.Y. July 15, 2010)

Judge Hellerstein in this opinion holds that there is no illegality exception to FOIA exemption 3 (protecting sources and methods). ACLU had argued that the court should consider whether the sources and methods at issue were illegal, and if so that the court should reject the invocation of exemption 3 as to them. The full opinion appears below:

United States District Court,

S.D. New York.

AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs,

v.

DEPARTMENT OF DEFENSE, et al., Defendants.

No. 04 Civ. 4151(AKH).

July 15, 2010.

Lawrence S. Lustberg, Jennifer Ching, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, Jennifer Brooke Condon, Seton Hall University School of Law, Melanca Durham Clark, Gibbons P.C., Newark, NJ, Alexa Rebecca Kolbi-Molinas, Alexander Abraham Abdo, Jameel Jaffer, Judy Rabinovitz, American Civil Liberties Union Foundation, New York, NY, for Plaintiffs.

Heather Kirsten McShain, Peter M. Skinner, Sean H. Lane, U.S. Attorney’s Office, David Brian Smallman, Wollmuth Maher & Deutsch LLP, New York, NY, Charles Gardner Mills, Charles G. Mills, Glen Cove, NY, for Defendants.

ORDER AND OPINION DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION: FOIA

EXEMPTION THREE APPLIES DESPITE CLAIMS THAT UNDERLYING INTELLIGENCE SOURCES OR

METHODS VIOLATE THE CONSTITUTION OR STATUTES OF THE UNITED STATES

ALVIN K. HELLERSTEIN, District Judge:

*1 The issue before me is whether, under the Freedom of Information Act (FOIA), determinations by the Director of the Central Intelligence Agency (CIA), to exempt disclosures revealing intelligence sources and methods, are subject to review by the district court to ascertain if those sources and methods were illegal. I hold that determinations by the CIA Director to claim such exemptions are not subject to district court review for illegality.

I. A Brief History of the Case

These proceedings under FOIA date back to 2003, when Plaintiffs served FOIA requests on the Department of Justice (DOJ), the CIA, and other federal agencies, seeking disclosure of records pertaining to the treatment of detainees, deaths of detainees while in U.S. custody, and the rendition of detainees and other individuals to countries known to employ torture. Thousands of documents were produced, and I have issued orders and opinions ruling on various of the issues presented by the parties. [FN1]

FN1. See, e.g., ACLU v. Dep’t of Def., 339 F.Supp.2d 501 (S.D.N.Y.2004) (ordering the Department of Defense to timely comply with FOIA requirements); ACLU v. Dep’t of Def., 389 F.Supp.2d. 547 (S.D.N.Y.2005) (ordering release of photographs depicting treatment of detainees at Abu Ghraib prison facility in Iraq); ACLU v. Dep’t of Def., No. 04 Civ. 4151(AKH), 2005 U.S. Dist. LEXIS 25814 (S.D.N.Y. Oct. 21, 2005) (rejecting Government’s argument that memorandum interpreting the Convention Against Torture involved "intelligence sources and methods" and ordering disclosure of that memorandum); Order Regulating Proceedings, ACLU v. Dep’t of Def., No. 04 Civ. 4151(AKH) (Doc. No. 305) (S.D.N.Y. Aug. 8, 2008); Order Resolving Fourth and Fifth Summary Judgment Motions, ACLU v. Dep’t of Def., No. 04 Civ. 4151(AKH) (Doc. No. 398) (S.D.N.Y. Dec. 29, 2009) (ordering, inter alia, disclosure of certain information contained in legal memoranda prepared by White House Office of Legal Counsel and ruling that Government could withhold certain operational cables).

In 2005, Plaintiffs served a FOIA request on DOJ’s Office of Legal Counsel, specifying documents of particular interest. Defendants produced certain unclassified documents and a Vaughn index providing substantiation why other documents were exempt. See Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.Cir.1973) (requiring as justification for claims of exemption "a relatively detailed analysis in manageable segments" and outlining guidelines for indexing). Comparing that which was produced and exempted against published news reports, it became clear to Plaintiffs that OLC had not disclosed certain memoranda that had authorized the use of enhanced interrogation techniques against detainees, and Plaintiffs filed a motion for preliminary injunction to compel such disclosure. Again, Defendants claimed exemption to withhold the memoranda in their entirety, and provided Vaughn indices in support.

Plaintiffs also moved for summary judgment respecting these documents and others–Plaintiffs’ fourth motion for summary judgment in this case. Meanwhile, during the course of Plaintiffs’ demands and motions, a national election ensued, administrations changed, and President Obama, on January 27, 2009, issued Executive Order 13491, which terminated the CIA terrorist detention and interrogation program, ordered the closure of the CIA detention and interrogation program, ordered the closure of CIA detention facilities, prescribed interrogation techniques for individuals in U .S. custody, and revoked any inconsistent executive directives, orders, or regulations. The Administration also voluntarily released, although with substantial redactions, the OLC memoranda sought by Plaintiffs. Plaintiffs’ motion became limited to two of the memoranda–the "Second OLC Memo," dated May 10, 2005, and the "Fourth OLC Memo," dated May 30, 2005.

Plaintiffs also filed a fifth motion for summary judgment, focused on documents related to videotapes of interrogations of a particular detainee that had been destroyed, in the face of court orders requiring production of the videotapes. Allegedly, hundreds of hours of video were destroyed. Plaintiffs have moved to hold the Government in contempt for the destruction of the video footage. Motion for Contempt and Sanctions, ACLU v. Dep’t of Def., No. 04 Civ. 4151(AKH) (Doc. No. 254) (Dec. 12, 2007). In response, I ordered Defendants to produce records relating to the contents of the destroyed tapes, known as "Paragraph 3 Documents," and to the acts of destruction, known as "Paragraph 4 Documents." Order Regulating Government’s Proposed Work Plan, ACLU v. Dep’t of Def., No. 04 Civ. 4151 (Apr. 20, 2009) (Doc. No. 339). There are approximately 580 Paragraph 3 Documents, and they include contemporaneous records of interrogations, interrogation logbooks, a photograph, and other documents. I deferred hearings with regard to the Paragraph 4 Documents pending certain investigations then in progress, and permitted the parties to move forward with motions on the Paragraph 3 Documents.

II. In Camera Consideration of Plaintiffs’ Motions

*2 On September 30, 2009, I conducted an in camera, ex parte review of the documents at issue in the fourth and fifth motions for summary judgment. Government attorneys and a court reporter were present. I reviewed the documents and expressed preliminary rulings, and at times, posed questions to the Government attorneys about the documents. The transcript of this proceeding was classified but was released, in redacted form, several weeks later. [FN2] After the ex parte session ended, I heard oral argument in open court on various of the legal issues at hand, and expressed initial rulings, in particular, on the issue I am now asked by the Plaintiffs to reconsider, the effect of alleged illegality on Exemption 3 claimed by the CIA for not producing responsive documents.

FN2. Transcript of Proceedings, ACLU v. Dep’t of Def., No. 04 Civ. 4151(AKH) (Doc. No. 392) (S.D.N.Y. Sept. 30, 2009). I conducted the in camera proceedings consistent with the protocol described in my February 6, 2008 memorandum, and attached as an annex to my order of May 8, 2008. See Order Granting Plaintiffs’ Motion for Reconsideration, ACLU v. Dep’t of Def., No. 04 Civ. 4151(AKH) (Doc. No. 292 (S.D.N.Y. May 8, 2008).

Regarding the fifth motion for summary judgment, involving documents related to the destruction of the videotapes, I deferred to the security classifications imposed by the CIA Director and, with limited exceptions, I ruled in favor of withholding all Paragraph 3 Documents. Regarding the fourth motion for summary judgment, I ruled that the redacted portions of the two OLC memoranda contained information concerning intelligence activities, sources and methods, and information that would reveal the identities of CIA consultants, and I held that such information is specifically exempted from disclosure by statute. I ordered disclosure of information in three instances, but gave defendants an opportunity to return in several weeks to offer more persuasive authority to justify withholding the information. In response, the Government submitted two classified declarations, and I reviewed these ex parte and in camera, again with Government attorneys and a court reporter present. After considering the classified declarations, I adhered to my preliminary rulings and ordered disclosure of the information. The transcript of the proceedings was made public in redacted form. [FN3]

FN3. Transcript of Proceedings, ACLU v. Dep’t of Def., No. 04 Civ. 4151(AKH) (Doc. No. 408) (S.D.N.Y. Oct. 29, 2009).

Plaintiffs moved for reconsideration of my oral rulings expressed in open court on September 30, 2009, and in my orders filed October 13, 2009 and December 29, 2009, and I granted that motion. The motion gave both sides the opportunity to fully brief the issues on the basis of the full public record, to express objections, if any, to the proceedings that I had conducted in camera, and to enable me to consider the issue afresh and to express my considered views in this opinion.

Plaintiffs’ motion seeks disclosure of names of certain detainees and all contemporaneous cables describing the application of enhanced interrogation techniques against a specific detainee. [FN4] Plaintiffs contend that the Government should not be allowed to withhold information relating to "intelligence sources and methods" that were illegal, and that the names of detainees who were subjected to secret detention and the contents of destroyed videotapes should not properly be considered to be intelligence sources or methods. Plaintiffs contend that Congress intended to limit "intelligence sources and methods" to those consistent with the Constitution and laws of the United States and that only those sources or methods may be properly withheld in a FOIA action.

FN4. When Plaintiffs first argued their fourth and fifth motions for summary judgment, they also sought disclosure of (1) names, titles, and other identifying information of certain CIA consultants in the Second OLC Memorandum at page 29 n. 33; (2) certain intelligence methods described in the Second OLC Memorandum at pages 5 and 29 and in the Fourth OLC Memorandum at pages 4-5, 7, and 11, and (3) the CIA standard interrogation policy, described in the Fourth OLC Memorandum at page 32 n. 29.

In the instant motion for reconsideration, Plaintiffs have limited their application to the names of certain detainees and their dates of capture, in the Second OLC Memorandum at pages 15-16 and 41, and in the Fourth OLC Memorandum at pages 5-8, 11, and 29.

III. Standard of Review

*3 To resolve the motions for summary judgment, I must make a de novo review of the Government’s withholding of the requested information, but in doing so, must accord "substantial weight" to agency affidavits. Hayden v. National Security Agency, 608 F.2d 1381, 1384 (D.C.Cir.1979); Weissman v. CIA, 565 F.2d 692, 697 n. 10 (D.C.Cir.1977). Defendants have the burden of justifying nondisclosure by establishing the applicability of an exemption to the particular material. 5 U.S.C. § 552(a)(3); Hayden, 608 F.2d at 1386. The exemptions should be interpreted narrowly "to provide the maximum access consonant with the overall purposes of the Act." See Hayden, 608 F.2d at 1386; Phillippi v. CIA, 546 F.2d 1009, 1011 n. 2 (D.C.Cir.1976). As in any other action, summary judgment in a FOIA litigation "may be granted only if the moving party proves that no substantial and material facts are in dispute and that he is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2); Founding Church of Scientology v. NSA, 610 F.2d 824, 836 (D.C.Cir.1979).

IV. Discussion

a. FOIA–Basic Policies

FOIA requires each federal agency to make available to the public a wide array of information, and sets out procedures by which requesters may obtain such information. See 5 U.S.C. § 552(a). FOIA "adopts as its most basic premise a policy strongly favoring public disclosure of information in the possession of federal agencies." Halperin v. F.B.I., 181 F.3d 279, 286 (2d Cir.1999). However, FOIA also "represents a balance struck by Congress between the public’s right to know and the Government’s legitimate interest in keeping certain information confidential." Ctr. for Nat’l Sec. Studies v. U.S. D.O.J., 331 F.3d 918, 925 (D.C.Cir.2003). Though they are narrowly construed, the exemptions "are intended to have meaningful reach and application." John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989); see Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001).

b. "Intelligence Sources and Methods"

The central issue in the instant motion is whether, notwithstanding prior official disclosures and an official repudiation of the underlying intelligence programs, the Government may, under Exemption 3, properly withhold the information at issue in this action. [FN5] Under Exemption 3, the Government may withhold "matters that … are specifically exempted from disclosure by statute, … provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3). In reviewing Exemption 3 claims, district courts must determine whether there is a withholding statute and, if so, whether the withheld material is within that statute’s coverage. CIA v. Sims, 471 U.S. 159, 167 (1985); Fitzgibbon v. CIA, 911 F.2d 755, 761-62 (D.C.Cir.1990). Here, the parties do not dispute that the first prong is satisfied. Sims, 471 U.S. at 167; National Security Act, 50 U.S.C § 403-1(i)(1) (providing that "[t]he Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure"); (CIA Act of 1949, 50 U.S.C. § 403g) (same). The gravamen of the dispute centers on the second prong–that is, whether the withheld material constitutes an "intelligence source [or] method" within the meaning of the National Security Act and the CIA Act.

FN5. Defendants also argue for withholding the information under Exemption 1. Exemption 1 provides that the Government is not obligated to disclose records that 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). Since I find that the Government may withhold the requested material under Exemption 3, I need not reach the issue of whether Exemption 1 would also apply.

In any event, I hold that, under Exemption 1, the Government is entitled to withhold the information. The requirements of Executive Order 12958, which governs the classification of national security information, have been satisfied. 68 Fed.Reg. 15315-34 (Mar. 28, 2003). Accordingly, the Government is specifically authorized to withhold the information in the interest of national security. 5 U.S.C. § 552(b)(1)(A). The records at issue logically fall within the scope of Executive Order 12958 and the CIA has followed the proper procedure in classifying those records. Id. § 552(b)(1)(B).

*4 Defendants have the burden to show that the "release of the requested information can reasonably be expected to lead to unauthorized disclosure of intelligence sources and methods." Phillippi, 546 F.2d at 1015 n. 14. The Director of National Intelligence has "very broad authority to protect all sources of information," and the Director, not the judiciary, must determine "whether disclosure … may lead to an unacceptable risk of compromising the Agency’s intelligence-gathering process." Sims, 471 U.S. at 168-69, 180. [FN6]

FN6. In Sims, the Supreme Court ruled on the importance of vesting this decision-making power in the Director of Central Intelligence, rather than the courts or Congress. 471 U.S. at 170 ("The legislative history of [Exemption 3] also makes clear that Congress intended to give the Director of Central Intelligence broad power to protect the secrecy and integrity of the intelligence process. The reasons are too obvious to call for enlarged discussion; without such protections the Agency would be virtually impotent."); see also Frugone v. CIA, 169 F.3d 772, 775 (D.C.Cir.1999) ("Mindful that courts have little expertise in either international diplomacy or counterintelligence operations, we are in no position to dismiss the CIA’s facially reasonable concerns.").

Plaintiffs contend that the detention and interrogation programs violate domestic and international law and have been officially repudiated, and therefore are not "intelligence sources and methods" that may be withheld in a FOIA action. Plaintiffs also contend that the Government, through prior official disclosures, waived its right to withhold information about the underlying programs. Plaintiffs maintain that, if construed in the manner advanced by Defendants, the withholding statute would be "entirely unbounded," and would allow the Government to withhold evidence of any "intelligence" technique, no matter how patently unconstitutional, illegal, or inhumane. Plaintiffs note that although Congress authorized the Director of National Intelligence to "protect intelligence sources and methods from unauthorized disclosure," Congress also charged the Director with "ensur[ing] compliance with the Constitution and laws of the United States." 50 U.S.C. § 403- 1(f)(4), § 403-1(i)(1). The Director is also instructed to "collect intelligence through human sources and by other appropriate means." Id. § 403- 4a. Plaintiffs argue that the statute should not be read to shield from disclosure illegal, banned, or repudiated "intelligence sources and methods" in one provision, while in another provision requiring compliance with the Constitution and laws of the United States" and the use of "appropriate" means to gather intelligence.

As an initial matter, contrary to Plaintiffs’ assertion, Exemption 3 is not "totally unbounded." The Director of National Intelligence must swear that "disclosure … may lead to an unacceptable risk of compromising the Agency’s intelligence-gathering process." Sims, 471 U.S. at 180. The Director’s affirmation is subject to judicial review, albeit, a review that is limited and deferential, in light of the responsibilities for national security of the Director and the agency over which he presides, and the limited competence of courts in relation to this responsibility. Ray v. Turner, 587 F.2d 1187, 1195 (D.C.Cir.1978); see Sims, 471 U.S. at 179 ("The decisions of the Director, who must of course be familiar with the ‘whole picture,’ as judges are not, are worthy of great deference given the magnitude of the national security interests and potential risks at stake.").

Plaintiffs also conflate the question whether the conduct of the Agency or its personnel is consistent with the Constitution and laws of the United States, and the question of disclosures under FOIA. The Director’s obligation to "ensure compliance with the Constitution and laws of the United States" is the Director’s obligation, and not necessarily the district court’s prophylaxis. Exemption 3 should not be a means for a district judge to second-guess the CIA Director’s judgment regarding what constitutes an "unacceptable risk … [to] the Agency’s intelligence-gathering process," or to require the Director to give detailed account to the judiciary that would analyze the nature of the intelligence source or method, the value to the overall CIA program, and the risk that disclosure might pose to national security. See Sims, 471 U.S. at 180; Ray, 587 F.2d at 1195.

*5 Plaintiffs’ contention, to limit Exemption 3 to "lawful" intelligence sources and methods, finds no basis in the statute. Congress demonstrated its ability to qualify and limit other FOIA exemptions in such a manner, but did not do so in Exemption 3. For example, Exemption 1 shields from disclosure only those documents that are "properly classified pursuant to [an] Executive Order." 5 U.S.C. § 552(b)(1) (emphasis added). Exemption 7 permits withholding information furnished by a confidential source pursuant to a "lawful national security investigation." Id. § 552(b)(7)(D) (emphasis added). In contrast, Exemption 3 permits Defendants to withhold information that is "specifically exempted from disclosure by statute," provided that the statute "leave[s] no discretion on the issue [of disclosure]" or if the statute "refers to particular types of matters to be withheld." Id. § 552(b)(3)(A)(i-ii). Here, the withholding statutes require the Director of National Intelligence to "protect intelligence sources and methods from unauthorized disclosure." 50 U.S.C § 403-1(i)(1), § 403g.

Case law also supports the Government’s position. In Sims, the Supreme Court permitted the Government to withhold identifying information of scientists involved in a covert CIA program researching the use of chemical, biological, and radiological materials to control human behavior. 471 U.S. at 161. The Supreme Court reversed a Court of Appeals’ decision that tied withholding the information to whether the Government needed to guarantee confidentiality to the scientists who worked on the program. Id. at 164. Sims rejected the Court of Appeals’ construction because it would have inserted limiting language into Exemption 3. The Court explained:

[Exemption 3] does not state … that the Director of Central Intelligence is authorized to protect intelligence sources only if such protection is needed to obtain information that otherwise could not be acquired. Nor did Congress state that only confidential or nonpublic intelligence sources are protected. [Exemption 3] contains no such limiting language. Congress simply and pointedly protected all sources of intelligence that provide, or are engaged to provide, information the Agency needs to perform its statutory duties with respect to foreign intelligence. The plain statutory language is not to be ignored.

Id. at 169-70.

Here, Plaintiffs similarly seek to insert "limiting language" into Exemption 3 that would tie the withholding statute to questions of legality of the particular intelligence source or method employed, and confer an unwarranted competence to the district court to evaluate national intelligence decisions. Id. at 169. This approach was rejected in Sims, and I do not accept it here. It is also worth noting that Sims upheld an Exemption 3 withholding despite an Executive Order officially repudiating parts of the underlying program that led to the death of human test subjects. Id. at 162 n. 2 (citing Exec. Order No. 12333, § 2.10, 3 C.F .R. 213 (1982)).

*6 In Wilner v. NSA, the Court of Appeals was confronted with a FOIA request to disclose whether the Government, under the auspices of the Terrorist Surveillance Program, intercepted communications between detainees held in Guantanamo Bay, Cuba, and their attorneys. 592 F.3d 60, 64 (2d Cir.2009). In response to the FOIA request, the Government filed "Glomar" responses [FN7]–neither confirming nor denying the existence of records showing whether such communications were intercepted–pursuant to Exemptions 1 and 3. Id. As in Sims, and the instant action, the court reviewed the FOIA action after an official disclosure and repudiation of the program at issue. Id. at 66. The Court of Appeals affirmed the District Court’s decision permitting the Government to withhold the information and declining to address the legality of the surveillance program, since the latter issue was "beyond the scope" of the FOIA action. Id. at 77.

FN7. The Government’s refusal to confirm or deny the existence of records is known as a "Glomar response." See Phillippi v. CIA, 546 F.2d 1009, 1011 (1976) (upholding CIA refusal to confirm or deny existence of records of CIA connection to activities of ship named the Hughes Glomar Explorer).

Navasky v. CIA is distinguishable. 499 F.Supp. 269, 274 (S.D.N.Y.1980). In Navasky, the district court rejected the CIA’s contention that Exemption 3 shielded from disclosure the names of authors and titles of books associated with the CIA’s clandestine book publishing activities. Id. at 274. The court found that such "covert propaganda activities" were not properly considered "intelligence," which the court defined as "a product resulting from the original collection of information." Id. at 274-75. Since, the court held, the book publishing program was not "intelligence," information about the program could not be withheld as an intelligence source or method under Exemption 3. Id . In contrast, the case on which I am asked to rule clearly involves "intelligence sources or methods."

The case law and the plain language of the statutes are clear. Courts are not invested with the competence to second-guess the CIA Director regarding the appropriateness of any particular intelligence source or method. Exemption 3 is not qualified in the way Plaintiff suggests. Declining to reach the legality of the underlying conduct is not, as Plaintiffs asserted at oral argument, an "abdication of … the Court’s responsibility … under the statutory structure." Oral Arg. Tr. at 18 (Mar. 24, 2010). It is the result commanded by the statute.

c. Prior Official Disclosures

Plaintiffs contend that prior official disclosures prevent Defendants from withholding the records at issue. Plaintiffs contend that public disclosures provide more than mere "abstract discussions" and convey "what the CIA actually did" to certain detainees. Plaintiffs point to the First OLC Memorandum, dated August 1, 2002, which describes the "enhanced interrogation techniques" that the CIA requested permission to use on Abu Zubaydah. Plaintiffs also cite a report officially released by the Office of Inspector General on August 24, 2009 which describes enhanced interrogation techniques as applied to a detainee identified as Al-Nashiri.

*7 A strict test applies for any claim of waiver by prior disclosure. Wilson v. CIA, 586 F.3d 171, 186 (2d Cir.2009). Information is officially disclosed only if the information at issue is as specific as the information previously released, the information at issue matches the information previously disclosed, and the prior disclosure was made through an official and documented release. Id.

The Government has not waived its right to withhold, for the information at issue is more extensive and more detailed than the previous disclosures. The contemporaneous communications shown to the Court in camera show intelligence sources and methods utilized with respect to a specific detainee. These documents go substantially beyond the Inspector General’s report and the OLC legal memoranda. As attested by Director Leon E. Panetta, none of the previously disclosed documents "were records generated during the course of CIA operations, or their equivalents." Supp. Panetta Decl. ¶ 5. Director Panetta also declared that disclosure would result in "exceptionally grave damage to clandestine human intelligence collection and foreign liaison relationships." Supp. Panetta Decl. ¶¶ 4-7; First Panetta Decl. ¶¶ 10-12, 25.

That some information concerning the interrogation and detention programs has been released does not mean that "releasing the documents poses any less of a threat to national security." Elec. Privacy Info. Ctr. v. DOJ, 584 F.Supp.2d 65, 71 (D.D.C.2008); see also ACLU v. Dep’t of Def., 664 F.Supp.2d 72 (D.D.C.2009) (rejecting ACLU’s argument that prior disclosures and official repudiation prevents assertion of Exemption 3; finding that "[t]he President never authorized full disclosure of [the] interrogation program; he merely ended it"). Moreover, the "judiciary owes some measure of deference to the executive in cases implicating national security, a uniquely executive purview." Id. (citing Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 926-27 (D.C.Cir.2003).

The descriptions of the enhanced interrogation techniques contained in the OLC memoranda and the Office of Inspector General report are substantially different from the CIA cables. The release of operational documents, unlike any other prior disclosures, would provide a multitude of operational details involving the application of various interrogation techniques in various circumstances, albeit to a particular detainee. The difference between the information officially released and the CIA operational records here is different in quality, degree, and kind. Accordingly, Defendants have not waived their right to withhold the information at issue.

V. Conclusion

For the reasons stated, I adhere to the rulings expressed in my previous orders resolving the fourth and fifth cross-motions for summary judgment. [FN8]

FN8. Order Resolving Fourth and Fifth Summary Judgment Motions, ACLU v. Dep’t of Def., No. 04 Civ. 4151(AKH) (Doc. No. 389) (S.D .N.Y. Oct. 13, 2009) (Doc. No. 389); Order Resolving Fourth and Fifth Summary Judgment Motions, No. 04 Civ. 4151(AKH) (Doc. No. 398) (S.D.N.Y. Dec. 29, 2009).

The Clerk shall mark the motion (Doc. No. 399) terminated.


People’s Mojahedin Org. of Iran v. U.S. Department of State (D.C. Cir. July 16, 2010)

July 20, 2010

* People’s Mojahedin Org. of Iran v. U.S. Department of State (D.C. Cir. July 16, 2010) (remanding to State Department for reconsideration of FTO designation)

In an opinion posted here, a D.C. Circuit panel (Tatel and Williams, with separate concurrence by Henderson) holds that the State Department failed to provide adequate process to PMOI in connection with PMOI’s effort to repeal its designation as a foreign terrorist organization. It’s the latest round in seemingly endless litigation regarding the process that the State Department must use when considering designation of an entity entitled to 5th Amendment procedural due process protections.

Key excerpts from the per curiam majority opinion:

On July 15, 2008, citing a change in its circumstances, the PMOI petitioned State and its Secretary for revocation of the PMOI’s FTO designation. After assembling a record comprised of materials submitted by both the PMOI and the U.S. intelligence community, including classified information, the Secretary rejected the PMOI’s petition on January 12, 2009. See In the Matter of the Review of the Designation of Mujahedin-e Khalq Organization (MEK), and All Designated Aliases, as a Foreign Terrorist Organization, 74 Fed.Reg. 1273, 1273-74 (Jan. 12, 2009). The PMOI now seeks review of the Secretary’s decision. We conclude that the Secretary failed to accord the PMOI the due process protections outlined in our previous decisions and therefore remand.

*4 This action began in July 2008, when the PMOI filed a petition for revocation of its 2003 Redesignation. The PMOI argued that the 2003 Redesignation should be revoked because of its dramatically changed circumstances since the Secretary’s and this court’s last reviews. It submitted evidence to the Secretary of its changed circumstances, asserting that, since its initial FTO designation in 1997, it had: ceased its military campaign against the Iranian regime and renounced violence in 2001; voluntarily handed over its arms to U.S. forces in Iraq and cooperated with U.S. officials at Camp Ashraf (where all of its members operating in Iraq are consolidated) in 2003; shared intelligence with the U.S. government regarding Iran’s nuclear program; in 2004 obtained "protected person" status under the Fourth Geneva Convention for all PMOI members at Camp Ashraf based on the U.S. investigators’ conclusions that none was a combatant or had committed a crime under any U.S. laws; disbanded its military units and disarmed the PMOI members at Ashraf, all of whom signed a document rejecting violence and terror; and obtained delisting as a terrorist organization from the United Kingdom (the Proscribed Organisations Appeal Commission and the Court of Appeal) in 2008 and from the European Union (the European Court of First Instance) in 2009. The PMOI also thrice supplemented its petition with additional information and letters in support from members of the U.S. Congress, members of the UK and European parliaments and retired members of the U.S. military, among others.

After reviewing an administrative record consisting of both classified and unclassified information, the Secretary denied the PMOI’s petition and published its denial in the Federal Register on January 12, 2009. See 74 Fed.Reg. at 1273-74. She also provided the PMOI with a heavily redacted 20-page administrative summary of State’s review of the record, which summary referred to 33 exhibits, many of which were also heavily or entirely redacted. See Admin. Summ. (Jan. 8, 2009) (Unclassified Version); Revised Admin. Summ. (Apr. 24, 2009) (Unclassified Version). The Secretary’s determination was based on the administrative record, "supporting exhibits and supplemental filings by the MEK in support of the Petition, as well as information from a variety of sources, including the U.S. Intelligence Community." Revised Admin. Summ. 2. She wrote that "in considering the evidence as a whole, the MEK has not shown that the relevant circumstances are sufficiently different from the circumstances that were the basis for the 2003 re-designation," and that "[a]s a consequence, the MEK continues to be a foreign organization that engages in terrorist activity … or terrorism … or retains the capability and intent to" do so. Id.; see 74 Fed.Reg. at 1273-74. Nevertheless she also noted:

In light of the evidence submitted by the MEK that it has renounced terrorism and the uncertainty surrounding the MEK presence in Iraq, the continued designation of the MEK should be re-examined by the Secretary of State in the next two years even if the MEK does not file a petition for revocation.

*5 Revised Admin. Summ. 20. Although the Secretary informed the PMOI of her decision the day before it was published in the Federal Register, she did not provide the organization any unclassified material on which she intended to rely. See Resp’ts’ Br. 20 (after denying revocation petition "[t]he State Department … provided to the PMOI an unclassified summary of the evidence in the record and the agency’s analysis of the issues").

The PMOI filed a timely petition for review on February 11, 2009 under 8 U.S.C. § 1189(c). It asks us to vacate the Secretary’s decision and remand with instructions to revoke its FTO designation based on a lack of substantial support in the record. Alternatively, the PMOI asks us to vacate its designation on the ground that the Secretary did not comply with the due process requirements set forth in our earlier decisions by failing to provide it with advance notice of her proposed action and the unclassified record on which she intended to rely, as well as by failing to provide it with any access to the classified record.

State submitted its classified administrative record on March 30, 2009 for ex parte and in camera review under 8 U.S.C. § 1189(c)(2); it subsequently filed a redacted, unclassified version in August 2009. In filing the latter document, State noted that it intended to file additional documents as soon as its declassification review was finished. It later supplemented the record with newly declassified material twice–once on September 8, 2009, the day the PMOI’s opening brief was due, and again on October 27, 2009, about two weeks before the PMOI’s reply brief due date. [FN3]

FN3. Among the disclosures in the declassified material: "the MEK trained females at Camp Ashraf in Iraq to perform suicide attacks in Karbala"; "the MEK solicits money under the false pretext of humanitarian aid to the Iranian population"; "an August 2008 U.S. Intelligence Community Terrorist Threat Assessment, clearly states that the MEK retains a limited capability to engage in terrorist activity or terrorism"; "[t]he MEK publicly renounced violence in 2001, but limited intelligence reporting indicates that the group has not ended military operations, repudiated violence, or completely or voluntarily disarmed"; "[t]he [intelligence community] assesses that although there has not been a confirmed terrorist attack by the MEK since the organization surrendered to Coalition Forces in 2003, the MEK retains a limited capability and the intent to use violence to achieve its political goals"; and "UN inspectors say that much of the information provided to the UN by the MEK about Iran’s nuclear program has a political purpose and has been wrong." Suppl. Admin. R. (filed Oct. 27, 2009).

[O]ur cases require the Secretary to notify the PMOI of the unclassified material "upon which [s]he propose[d] to rely" and to allow the PMOI "the opportunity to present, at least in written form, such evidence as [it] may be able to produce to rebut the administrative record or otherwise negate the proposition that" it is an FTO. NCRI I, 251 F.3d at 209.

*6 This did not happen here. The PMOI was notified of the Secretary’s decision and permitted access to the unclassified portion of the record only after the decision was final. [FN4] And even though the PMOI was given the opportunity to include in the record its own evidence supporting delisting, it had no opportunity to rebut the unclassified portion of the record the Secretary was compiling–an omission, the PMOI argues, that deprived it of the due process protections detailed in our previous decisions. See Pet’r’s Br. 23 ("[T]he Secretary’s decision is procedurally infirm because PMOI was given no opportunity to rebut the administrative record….").

FN4. Although we do not require advance notification of the Secretary’s decision upon an adequate showing that "earlier notification would impinge upon the security and other foreign policy goals of the United States," NCRI I, 251 F.3d at 208, State does not suggest the Secretary had this concern.

At oral argument, State suggested that the PMOI, now in possession of the unclassified portions of the record (including the newly declassified material), may go back to the Secretary and provide evidence to rebut it. See Arg. Tr. 26:19-20. We think a better approach is the one the then-Secretary took after remand in NCRI I, when, apparently faced with a similar time crunch, he made a designation that was to be reevaluated once he fully reviewed the supplemented record. See NCRI II, 373 F.3d at 155 ("At that time, the State Department assured NCRI that although ‘the present situation … requires continued designation of [NCRI] as an alias of MEK for now,’ upon the completion of review of NCRI’s submissions, ‘the Secretary will make a de novo determination in light of the entire record, including the material you have submitted.’ " (quoting Letter of Ambassador Francis X. Taylor, Coordinator for Counterterrorism, U.S. Dep’t of State, at 1 (Oct. 5, 2001))).

*8 Our reluctance to accept State’s "no harm, no foul" theory is greater in light of the fact that we are unsure what material the Secretary in fact relied on or to what portion of 8 U.S.C. § 1189(a)(1)(B) she found it relevant. While "it is emphatically not our province to second-guess the Secretary’s judgment as to which affidavits to credit and upon whose conclusions to rely," the Congress has required us to determine "whether the ‘support’ marshaled for the Secretary’s designation was ‘substantial.’ " NCRI II, 373 F.3d at 159 (quoting 8 U.S.C. § 1889A(b)(3)(D)). Some of the reports included in the Secretary’s analysis on their face express reservations about the accuracy of the information contained therein. See, e.g., Suppl. Admin. R., MEK-11 (describing "possible plans to attack [the] international zone in Baghdad" but conceding that "the ultimate sources of the information was [sic] unknown and as such, their access, veracity, and motivations were unknown"). Similarly, while including reports about the Karbala suicide attack plot described above, the Secretary did not indicate whether she accepted or discredited the reports and we do not know whether the PMOI can rebut the reports.

In other instances, the Secretary cited a source that it seemed to regard as credible but did not indicate to what part of the statute the source’s information was relevant. For example, her analysis described a federal grand jury indictment alleging that MEK has engaged in fraud in fundraising operations and she faulted the PMOI for failing to discuss its finances in its submission to the Secretary. Suppl. Admin. R. 11. It is unclear, however, whether the Secretary believes that fundraising under false pretenses is direct evidence of terrorist activity or instead bears on the PMOI’s "capability" to engage in terrorist activity in the future or its "intent" to do so. 8 U.S.C. § 1189(a)(1)(B). While we will not substitute our judgement for that of the Secretary in deciding which sources are credible, we must determine whether the record before her provides "a sufficient basis for a reasonable person to conclude" that the statutory requirements have been met. Kahane Chai, 466 F.3d at 129 (citing PMOI I, 182 F.3d at 25). Without knowing whether, or how, the Secretary evaluated the record material, we are unable to do so.

III.

As we noted in NCRI I, "[w]e recognize that a strict and immediate application of the principles of law which we have set forth herein could be taken to require a revocation of the designation[ ] before us[, but] … we also recognize the realities of the foreign policy and national security concerns asserted by the Secretary in support of th[e] designation." 251 F.3d at 209. We thus leave the designation in place but remand with instructions to the Secretary to provide the PMOI the opportunity to review and rebut the unclassified portions of the record on which she relied. In so doing, we emphasize two things:

*9 First, as earlier explained, the Secretary should indicate in her administrative summary which sources she regards as sufficiently credible that she relies on them; and she should explain to which part of section 1 189(a)(1)(B) the information she relies on relates. Second, although the Secretary must give the PMOI an opportunity to rebut the unclassified material on which she relies, [FN7] AEDPA does not allow access to the classified record as it makes clear that classified material "shall not be subject to disclosure for such time as it remains classified, except that such information may be disclosed to a court ex parte and in camera for purposes of judicial review." 8 U.S.C. § 1189(a)(4)(B)(iv)(II); see id. § 1189(c)(2) (providing for court’s "ex parte and in camera review" of "classified information used in making the designation"). Our cases under AEDPA have suggested that this procedure can satisfy due process requirements, at least where the Secretary has not relied critically on classified material and the unclassified material provided to the FTO is sufficient to justify the designation. See NCRI II, 373 F.3d at 159-60; PMOI II, 327 F.3d at 1243 ("We already decided in [NCRI I ] that due process required the disclosure of only the unclassified portions of the administrative record.") (emphasis in original); NCRI I, 251 F.3d at 202, 208-09 ("We acknowledge that in reviewing the whole record, we have included the classified material[, but] … we will not and cannot disclose the contents of the record," which "is within the privilege and prerogative of the executive"); see also Jifry v. Fed. Aviation Admin., 370 F.3d 1174, 1182, 1184 (D.C .Cir.2004) (pilot denied licensure has no right to access to classified record because "[t]he due process protections afforded … parallel those provided under similar circumstances in [NCRI I and PMOI II ], and are sufficient to satisfy our case law"); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 164 (D.C.Cir.2003) ("HLF’s complaint, like that of the Designated Foreign Terrorists Organizations in [NCRI I and PMOI II ], that due process prevents its designation [under a different law] based upon classified information to which it has not had access is of no avail."). We note, however, that none of the AEDPA cases decides whether an administrative decision relying critically on undisclosed classified material would comport with due process because in none was the classified record essential to uphold an FTO designation. But they do indicate that, for the purpose of today’s remand, affording PMOI an opportunity to review and rebut the unclassified portions of the record, coupled with the Secretary’s assurance that she has evaluated the material–and the sources therefor–that she relied on to make her decision, may be sufficient to provide the requisite due process.

FN7. State agrees that "only legitimately classified information should be redacted from the public version of the Administrative Record" and thus has reviewed and disclosed all material that it believes can be safely declassified consistent with national security interests. Resp’ts’ Br. 41.

For the reasons set forth above, the Secretary’s denial of the People’s Mojahedin of Iran’s petition for revocation of its 2003 designation as a foreign terrorist organization is remanded to the Secretary for further proceedings consistent with this opinion.

*10 So ordered.