Ghailani convicted on one conspiracy charge but acquitted on all other charges

November 17, 2010

* United States v. Ghailani (S.D.N.Y. Nov. 17, 2010)

Ahmed Ghailani has been acquitted on all charges except for one of the six conspiracy counts; it is not clear which count this was, though the Post suggests that it is not a murder conspiracy count. In any event, depending on which count this was, the maximum sentence could be anything from 10 years to life or even the death penalty. See here for a chart detailing the many charges and the max sentences. Please let me know if you have more detailed information about which precise charge was the count of conviction.

updated with indictment attached United States v. Yusuf (S.D. Cal.)

November 16, 2010

[Updated: indictment attached] United States v. Yusuf (S.D. Cal.)

I posted yesterday about the new al-Shabaab indictment, United States v. Yusuf. I’m reposting now in order to circulate the indictment. Not a great deal of additional information here. The 2339A charge is predicated on support for a violation of 18 USC 956(a), which is in turn the standard charge for conspiring to commit unlawful acts of violence outside the United States; 2339A charges frequently are predicated on 956(a). As to both the 2339A and 2339B charges, the nature of the “material support or resources” in question is specified as money and personnel.


United States v. Yusuf (S.D. Cal. Nov. 15, 2010)

November 16, 2010

* United States v. Yusuf (S.D. Cal. Nov. 15, 2010)

Yet another indictment related to al-Shabaab, combining a pair of material-support conspiracy charges (under 2339A and 2339B) as well as an investigative charge (false statements in relation to an int’l terrorism investigation). I don’t have the indictment, but the press release (not a lot of detail here) appears below:

SAN DIEGO – An indictment charging San Diego resident Nima Ali Yusuf, 24, with conspiracy to provide material support to terrorists, conspiracy to provide material support to al-Shabaab and making false statements to a government agency in a matter involving international terrorism, was unsealed today, Laura E. Duffy, U.S. Attorney for the Southern District of California, announced.

With the assistance of Customs and Border Protection, special agents of the FBI arrested Yusuf on Nov. 12, 2010. On Nov. 15, 2010, U.S. Magistrate Judge Nita L. Stormes arraigned Yusuf on the indictment. Yusuf will be held without bail pending a detention hearing scheduled for Nov. 18, 2010.

According to U.S. Attorney Duffy, the arrest arises from an investigation by the San Diego Joint Terrorism Task Force.

The charge of conspiracy to provide material support to terrorists carries a maximum penalty of 15 years in prison and a $250,000 fine. The charge of conspiracy to provide material support to a foreign terrorist organization carries a maximum penalty of 15 years in prison and a $250,000 fine. The charge of making false statements to a government agency in a matter involving international terrorism carries a maximum penalty of eight years in prison and a $250,000 fine.

An indictment itself is not evidence that the defendants committed the crimes charged. The defendant is presumed innocent until the government meets its burden in court of proving guilt beyond a reasonable doubt.

upcoming event: Targeted Killing Debate at UC-Irvine

November 11, 2010

* Upcoming event: Targeted Killing Debate at UC-Irvine

(see attached)

Thursday, November 18 at the University of California, Irvine School of Law, featuring Professor Gregory McNeal of the Pepperdine University School of Law and Ahilan Arulanantham, Director of the ACLU of Southern California’s National Security Project.

The debate will be moderated by Henry Weinstein, currently a Professor at UC Irvine and formerly the long-time legal reporter at the Los Angeles Times (more information here). The debate is cosponsored by the law school’s Federalist Society and American Constitution Society chapters.

All are welcome. Lunch will be served. Contact ari.yampolsky if there are any questions.

UC Irvine Targeted Assassination Debate Flier.pdf

forthcoming scholarship

November 11, 2010

* Forthcoming Scholarship (domestic intel edition)

Effective State, Local, and Tribal Police Intelligence: The New York City Police Department’s Intelligence Enterprise—A Smart Practice

John G. Comiskey

Thesis, Naval Postgraduate School (Master of Arts in Security Studies (Homeland Security and Defense))

March 2010

State, local, and tribal law enforcement (SLTLE) agencies play a significant role in homeland security. Their intelligence function supports their hometown and the nation’s homeland security. The New York City Police Department (NYPD) recognized that the same intelligence that secures the homeland is required to secure New York City. NYPD restructured its organizational structure and external business practices to acquire the requisite intelligence to secure NYC and in effect facilitated the nation’s homeland security. This thesis identifies NYPD’s intelligence practices as smart practice that SLTLE agencies should adopt, scaled and tailored to their realities and needs, to secure their hometowns and to compound a national effort to secure the homeland.

"Network Accountability for the Domestic Intelligence Apparatus"

Hastings Law Journal, Vol. 62, 2011
U of Maryland Legal Studies Research Paper No. 2010-48

DANIELLE KEATS CITRON, University of Maryland School of Law
Email: dcitron
FRANK A. PASQUALE, Seton Hall University – School of Law, Yale University – Yale Information Society Project, Princeton Center for Information Technology Policy, Yale Law School
Email: pasquafa

A new domestic intelligence network has made vast amounts of data available to federal and state agencies and law enforcement officials. The network is anchored by “fusion centers,” novel sites of intergovernmental collaboration that generate and share intelligence and information. Several fusion centers have generated controversy for engaging in extraordinary measures that place citizens on watch lists, invade citizens’ privacy, and chill free expression. In addition to eroding civil liberties, fusion center overreach has resulted in wasted resources without concomitant gains in security.

While many scholars have assumed that this network represents a trade-off between security and civil liberties, our study of fusion centers suggests they are, in fact, mutually reinforcing. Too often, fusion centers’ structure has been based on clever legal strategies for avoiding extant strictures on information-sharing, rather than objective analysis of terror threats. The “Information Sharing Environment” created by fusion centers has short-circuited traditional modes of agency accountability. Our twentieth-century model of agency accountability cannot meaningfully address twenty-first century agency coordination.

A new concept of accountability – network accountability – is needed to address the shortcomings of fusion centers. Network accountability has technical, legal, and institutional dimensions. Technical standards can render data exchange between agencies in the network better subject to review. Legal redress mechanisms can speed the correction of inaccurate or inappropriate information. We also propose a robust strategy for institutionalizing these aspects of network accountability, based on recent regulatory reform.

"Ordinary Citizens or a License to Kill? The Turn to Law in Regulating Britain’s Intelligence Services"

NYU School of Law, Public Law Research Paper No. 10-63

SIMON CHESTERMAN, New York University – School of Law, Singapore Programme, National University of Singapore – Faculty of Law
Email: chesterman

As the United States goes through yet another cycle of reform of its intelligence services, this article considers the impact that the formalization of intelligence agencies and their powers has had in Britain. Britain long adopted the legal fiction — manifestly false in practice if not in theory — that the representatives of MI5 and MI6 were merely “ordinary citizens.” In fact they exercised considerable power and the moves to establish a legal foundation for those powers and appropriate checks and balances in the past two decades were, as the European Court held, demanded by the rule of law. At the same time, however, Britain demonstrates some of the problems attendant to establishing such a legal regime. These include the question of how the mandate of intelligence services should be defined, as well as the possibility that powers granted by law may be exercised by a far wider range of actors than when a key check was the need to keep those powers and actors secret. Finally, Britain is of interest in showing the limitations of law in regulating socially-pervasive technologies, such as the closed-circuit television (CCTV) cameras that are ubiquitous in London and other cities large and small. The belated effort to regulate CCTV suggests lessons for other new technologies such as biometric identification and DNA databases.

ACLU v. DoD (S.D.N.Y. Oct. 25, 2010) (denying FOIA request)

November 11, 2010

* ACLU v. DoD (S.D.N.Y. Oct. 25, 2010) (denying FOIA request seeking information on detainees at the BTIF in Afghanistan)

This is a few weeks old at this point, but still worth noting. The full text of the opinion appears below:

Slip Copy, 2010 WL 4449375 (S.D.N.Y.)
(Cite as: 2010 WL 4449375 (S.D.N.Y.))

Only the Westlaw citation is currently available.

United States District Court,

S.D. New York.

AMERICAN CIVIL LIBERTIES UNION and American Civil Liberties Union Foundation,



DEPARTMENT OF DEFENSE, Central Intelligence Agency, Department of State, and

Department of Justice, Defendants.

No. 09 Civ. 8071(BSJ)(FM).

Oct. 25, 2010.

Memorandum and Order

BARBARA S. JONES, District Judge.

*1 This case involves requests for documents, under the Freedom of Information Act, regarding the detention of prisoners at the Bagram Theater Internment Facility at the Bagram Airfield in Afghanistan. Each set of parties submitted a motion for partial summary judgment regarding whether the Central Intelligence Agency improperly refused to process Plaintiffs’ request and whether the Department of Defense is improperly withholding facts related to Plaintiffs’ request. For the reasons provided below, Plaintiffs’ motion for partial summary judgment is DENIED and Defendants’ motion for partial summary judgment is GRANTED.


In April 2009, Plaintiffs submitted identical Freedom of Information Act ("FOIA") requests to the Department of Defense ("Defense"), the Central Intelligence Agency ("CIA"), the Department of Justice ("Justice"), and the Department of State ("State"). (Hilton Decl. Ex. A.) Plaintiffs seek documents pertaining to the detention and treatment of prisoners at the Bagram Internment Facility ("Bagram") in Afghanistan. The requested information includes, among other things: (1) the number of detainees at Bagram; (2) the names of the detainees; (3) the citizenship of the detainees; (4) dates of capture and length of detention; (5) places and circumstances of capture; (6) any transfer of the detainees from outside of Afghanistan to Bagram; (7) any agreements with the government of Afghanistan relating to the detainees’ detention; (8) the process for reviewing the appropriateness of the detainees’ detention; (9) potential transfer to the custody of Afghanistan; and (10) the condition of the detainees’ confinement. (Id. at 4-6.)

In May 2009, the CIA denied Plaintiffs’ request pursuant to FOIA Exemptions 1 and 3. [FN1] (Id. Ex. B.) The CIA explained that it could neither confirm nor deny the existence or nonexistence of records responsive to Plaintiffs’ request because "[t]he fact of the existence or nonexistence of [the] requested records is currently and properly classified and is intelligence sources and methods information that is protected from disclosure by" the Central Intelligence Agency Act. (Id.) This is known as a Glomar response. See Phillippi v. C.I.A., 546 F.2d 1009 (D.C.Cir.1976).

FN1. See 5 U.S.C. § 552(b)(1), (3) ("Exemption 1" and "Exemption 3").

In July 2009, Defense identified a document responsive to the first five categories of Plaintiffs’ request, but withheld the document in its entirety. (Barnea Decl. Ex. A.) Defense subsequently released a redacted version of the document in January 2010. (Barnea Decl. Ex. C.) The redacted version shows the names and partial Internee Serial Numbers ("ISNs") for the detainees. (Id.) The document also contains column headings for citizenship, dates of capture, amount of time detained at Bagram, locations of capture, circumstances of capture, and complete ISNs. (Id.) The information beneath these column headings is redacted, however. (Id.) Defense informed Plaintiffs that the redacted information was being withheld because it is exempt from disclosure pursuant to FOIA Exemptions 1 and 2. [FN2] (Hood Decl.; see also Bragg Decl.)

FN2. See 5 U.S.C. § 552(b)(1), (2) ("Exemption 1" and "Exemption 2").

*2 In September 2009, Plaintiffs filed the instant action, seeking an injunction compelling the CIA and Defense, among others, to process their FOIA requests and to release responsive records. [FN3] (Compl.¶ 4.)

FN3. Plaintiffs also administratively appealed both agency decisions. (Barnea Decl. Ex. B; see also Hilton Decl. Ex. C.) Neither appeal was decided before Plaintiffs commenced this action, however.


When presented with a FOIA request, the agency "must disclose its records ‘unless its documents fall within one of the specific, enumerated exemptions set forth in’ " FOIA. See Associated Press v. Dep’t of Def., 554 F.3d 274, 283 (2d Cir.2009) (citation omitted). In light of " ‘the strong presumption in favor of disclosure,’ " the agency bears the " ‘burden … to justify the withholding of any requested documents.’ " See id. (citation omitted). At summary judgment, "[a]ffidavits or declarations supplying facts indicating that the agency has conducted a thorough search and giving reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain the agency’s burden." Carney v. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir.1994) (citations omitted). Declarations submitted by the agency are " ‘accorded a presumption of good faith.’ " See id. (citation omitted).

Summary judgment is proper where the agency’s " ‘affidavits describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.’ " See Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 73 (2d Cir.2009) (citation omitted). "[C]onclusory affidavits that merely recite statutory standards, or are overly vague or sweeping will not … carry the government’s burden." Larson v. Dep’t of State, 565 F.3d 857, 864 (D.C.Cir.2009) (citation omitted). " ‘Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears logical or plausible.’ " Wilner, 592 F.3d at 73 (citation omitted).


I. The CIA Properly Invoked the Glomar Doctrine

In Wilner, the Second Circuit explained that an agency may properly invoke the Glomar doctrine and " ‘refuse to confirm or deny the existence of certain records … if [a] FOIA exemption would itself preclude the acknowledgement of such documents.’ " 592 F.3d at 68 (citations omitted). The agency " ‘resisting disclosure’ of the requested records ‘has the burden of proving the applicability of an exemption.’ " Id. (citation omitted). An agency may satisfy " ‘its burden by submitting a detailed affidavit showing that the information logically falls within the claimed exemptions.’ " Id. (citation omitted). In assessing a Glomar response, "a court must accord ‘substantial weight’ to the agency’s affidavits, ‘provided [that] the justifications for nondisclosure are not controverted by contrary evidence in the record or by evidence of … bad faith.’ " Id. (alterations in original) (citation omitted).

A. Exemption 1 Justifies the CIA’s Decision Not to Confirm or Deny the Existence or Nonexistence of Responsive Records

*3 Exemption 1 protects 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 [an] Executive order." 5 U.S.C. § 552(b)(1). Executive Order 13,526 provides that, in response to a FOIA request, "[a]n agency may refuse to confirm or deny the existence or nonexistence of requested records whenever the fact of their existence or nonexistence is itself classified under this order or its predecessors." Exec. Order No. 13,526, § 3.6(a) (Dec. 29, 2009). The fact of the existence or nonexistence of the requested records was classified under Executive Order 12,958, as amended by Executive Order 13,292, which was superseded by Executive Order 13,526 in June 2010. (See Hilton Decl. ¶ 2 n. 3.) Pursuant to Section 1.1 of Executive Order 12,958, "[i]nformation may be originally classified … only if all of the following conditions are met: (1) an original classification authority" classifies the information; "(2) the information is owned by, produced by or for, or is under the control of the United States Government; (3) the information falls within" at least one of the categories of information listed in Section 1.4 of this order; and "(4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to … national security … and the original classification authority is able to identify or describe the damage." Exec. Order 12,958, § 1.1(a)(1)-(4) § Apr. 17, 1995) (as amended by Exec. Order 13,292 (Mar. 25, 2003)).

Here, the parties dispute the last two requirements. With respect to the first two requirements, first, in support of their motion for partial summary judgment, the CIA submitted two declarations from Wendy M. Hilton, the Information Review Officer for detainee-related matters in the CIA. (Hilton Decl. ¶ 1.) Hilton, who holds "original classification authority at the TOP SECRET level," "determined that the CIA can neither confirm nor deny the existence or nonexistence of the requested records." (Id. ¶¶ 2, 3, 28, 29.) With respect to the second requirement, Hilton’s declaration states that the information "is owned by and under the control of the United States Government." (Id. ¶ 29.)

Before addressing the merits of the last two requirements, the Court notes that Plaintiffs withdrew all but two of their document requests for the CIA in their motion for partial summary judgment. Plaintiffs now only seek records regarding the rendition or transfer of detainees to Bagram (Request No. 6) and the interrogation and treatment of detainees (Request No. 10) from the CIA.

With respect to the third requirement, in her declaration, Hilton explains that she "determined that the existence or nonexistence of the requested records is a properly classified fact that concerns Sections 1.4(b) (foreign government information), (c) (intelligence activities and intelligence sources and methods), and (d) (foreign relations of the United States) (Hilton Decl. ¶ 29.)" See Exec. Order 12,958 § 1.4 (as amended by Exec. Order 13,292).

*4 In regard to the fourth requirement, and Request No. 6 in particular, Hilton explains that acknowledging the existence or nonexistence of responsive documents would disclose at a minimum "whether or not the CIA was involved in the transfer of individuals from outside Afghanistan and … the CIA’s association with or intelligence interest in the Bagram detainees or lack thereof." (Hilton Supp. Decl. ¶ 5.) Disclosure of documents responsive to this request would also "reveal information concerning the reach and limitations of the CIA’s operations, particularly with respect to the capture and transfer of individuals detained at Bagram." (Id.) In addition, according to Hilton, "confirming the existence or non-existence of records pertaining to the transfer of individuals across international borders would risk disclosure of the CIA’s liaison relationships (or lack thereof) and/or relationships with foreign government(s) (or lack thereof)." (Id. ¶ 6; see also Hilton Decl. ¶¶ 11-22, 31-48.)

With respect to Request No. 10, if the "CIA confirms the existence of the requested records," Hilton explains, "then, at the very least, it becomes known that the CIA has an intelligence interest in the Bagram detainees." (Hilton Supp. Decl. ¶ 7.) Conversely, should the CIA deny "it has records within the scope of the request, then it acknowledges a possible intelligence gap." (Id.) In the past, Hilton adds, groups hostile to the United States "have identified public disclosures similar to the disclosures sought by Plaintiffs in this case, and have adjusted their tactics and/or operations accordingly." (Id.) In addition, "it is not just the disclosure of intelligence sources and methods as a general matter that the CIA seeks to prevent," according to Hilton, "but also the use and/or application of those sources and methods as applied in particular circumstances." (Id . ¶ 8; see also Hilton Decl. ¶ 11- 22, 31-48.)

Plaintiffs reject the CIA’s explanation. First, Plaintiffs accuse the CIA of failing to process their request. According to Plaintiffs, "merely processing" their request, which Plaintiffs seemingly equate with acknowledging whether or not the CIA has responsive documents, would not reveal secret intelligence methods, tools, activities, the location of secret CIA activity, or secret CIA sources or targets.

Plaintiffs’ emphasis on "processing" their request is misplaced, however. Executive Order 13,526 and its predecessor, Executive Order 12,958, provide the specific procedure that must be followed when an agency invokes the Glomar doctrine in response to a FOIA request. Section 3.6(a) of Executive Order 13,526 provides that when the fact of the existence or nonexistence of requested records "is itself classified under this order or its predecessors," the "agency may refuse to confirm or deny the existence or nonexistence of requested records." In situations such as this, where the agency has determined that the requested records are classified under the terms of Executive Order 12,958, the responding agency may simply "refuse to confirm or deny the existence or nonexistence of requested records." Exec. Order 13,526, § 3.6(a). Thus, to the extent Plaintiffs suggest that the CIA needs to acknowledge the existence or nonexistence of responsive documents in order to "process" their request, Plaintiffs are wrong.

*5 Second and specifically to the merits of the CIA’s classification, the crux of Plaintiffs’ argument is that the CIA’s classification and determination of the harm that may result from acknowledging the existence of responsive records "is contradicted by volumes of contrary evidence that show that the CIA’s rendition or transfer of suspected terrorists to U.S. military custody at Bagram, and its interrogation of prisoners there, is publicly-acknowledged and well-known." In Wilner, the Second Circuit explained that public awareness is not the test, however, for determining whether an agency has forfeited the right to provide a Glomar response. Instead, an agency "loses its ability to provide a Glomar response" only "when the existence or nonexistence of the particular records covered by the Glomar response has been officially and publicly disclosed." 592 F.3d at 70 § emphasis added).

"A strict test applies to claims of official disclosure." Wilson v. C.I.A., 586 F.3d 171, 186 (2d Cir.2009). In Wilson, the Second Circuit explained that "[c]lassified information that a party seeks to obtain … is deemed to have been officially disclosed only if it (1) ‘[is] as specific as the information previously disclosed,’ (2) ‘match[es] the information previously disclosed,’ and (3) was ‘made public through an official and documented disclosure.’ " Id. (alterations in original) (citations omitted).

Here, Plaintiffs submit countless news accounts, statements from current and former government officials, and statements by other executive agencies regarding the CIA’s alleged involvement in the rendition and transfer of detainees to Bagram (Request No. 6) and in the interrogation of the Bagram detainees (Request No. 10). In Hilton’s supplemental declaration, however, she specifically represents that "no authorized United States Executive Branch official has officially acknowledged the CIA’s association or lack thereof with the ‘rendition and/or transfer,’ detention and treatment of individuals held at Bagram." (Hilton Supp. Decl. ¶ 3; see also Hilton Decl. ¶ 11.) In addition, with respect to news accounts and statements by former government officials, members of Congress, and other executive agencies, in Wilson, the Second Circuit expressly explained that such statements do not constitute "official disclosures." See 586 F.3d at 186-87 ("the law will not infer official disclosure of information classified by the CIA from (1) widespread public discussion of a classified matter; (2) statements made by a person not authorized to speak for the Agency; or (3) release of information by another agency, or even by Congress") (citations omitted).

While the statements Plaintiffs identify indicate that the CIA is involved in U.S. activities in Afghanistan, none of the statements specifically disclose the existence or nonexistence of records pertaining to the rendition or transfer of detainees to Bagram (Request No. 6) or the interrogation and treatment of detainees at Bagram (Request No. 10). See Wolf v. C.I.A., 473 F.3d 370, 378 (D.C.Cir.2007) ("Prior disclosure of similar information does not suffice; instead, the specific information sought by the plaintiff must already be in the public domain by official disclosure. The insistence on exactitude recognizes ‘the Government’s vital interest in information relating to national security and foreign affairs.’ ") (emphasis in original) (citations omitted); see also Wilner, 592 F.3d at 70 ("An agency is … precluded from making a Glomar response if the existence or nonexistence of the specific records sought by the FOIA reguest has been the subject of an official public acknowledgment. If the government has admitted that a specific record exists, a government agency may not later refuse to disclose whether that same record exists or not.") (emphasis added) (citations omitted).

*6 Plaintiffs also highlight the public nature of the CIA’s involvement in U.S. activities in Afghanistan in an effort to discredit the CIA’s explanation regarding the harm that may result to national security from acknowledging the existence or nonexistence of responsive records. "[E]ven if a fact … is the subject of widespread media and public speculation," however, "its official acknowledgment by an authoritative source might well be new information that could cause damage to the national security." See Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C.Cir.1983). Here, Hilton’s declarations explain that "official acknowledgment," which would "be new information," may result in the following damage to national security:

. "CIA’s official acknowledgment of records for detainees severely undermines the intelligence value of those individuals" because "[a]l-Qaida will assume that [the] CIA has interviewed the detainee, and that he or she is compromised; as a result, al-Qaida may alter existing operations as a countermeasure or deduce the likelihood of exposure for non-detained associates;" (Hilton Decl. ¶ 17)

. If the CIA acknowledges it "has no correspondence with the Afghan government regarding the detainees, terrorist organizations, like al-Qaida, could infer a gap in the intelligence activities of [the] CIA, the Afghan government, or both. A terrorist organization would likely exploit this gap to the detriment of the U.S. and Afghan governments, and the intelligence activities, sources and methods of [the] CIA;" (id. ¶ 20)

. "An acknowledgment of the requested records could be expected to disrupt ongoing and/or future intelligence activities. For example, any response other than a Glomar response necessarily would reveal classified information regarding where [the] CIA does and does not operate, and against whom. An acknowledgment would also reveal information regarding the nature of [the] CIA’s cooperation with foreign governments, or the absence thereof. The disclosure of such information could endanger a foreign government’s past or present leadership. And so, whether [the] CIA’s response shows it engaged in intelligence activities alone or in conjunction with a foreign government, any response other than a Glomar response reasonably could be expected to prompt a foreign government to restrict current or future intelligence activities in an area of operation;" (id. ¶ 32)

. "Because terrorist organizations and foreign intelligence services view discovery of CIA methodology as one of their primary defensive missions, anything other than a Glomar response in this matter-where Plaintiffs seek ‘all records’ pertaining to individuals detained at Bagram and related correspondence between the U.S. and Afghan governments-would be of great benefit, by enabling terrorist organizations to redirect their limited resources to identify potential CIA methods or circumvent [the] CIA’s monitoring efforts. As a result, [the] CIA’s intelligence efforts could be thwarted or made more difficult, reducing the CIA’s effectiveness, requiring a diversion of CIA resources, and resulting in a loss of valuable intelligence information;" (id. ¶ 37)

*7 . "[A]cknowleding the existence or non-existence of Category Six records necessarily would disclose at minimum (i) whether or not the CIA was involved in the transfer of individuals from outside Afghanistan and (ii) the CIA’s association with or intelligence interest in the Bagram detainees or lack thereof. Disclosure of whether the CIA was involved or not in these specific intelligence activities would reveal information concerning the reach and limitations of the CIA’s operations, particularly with respect to the capture and transfer of individuals detained at Bagram;" (Hilton Supp. Decl. ¶ 5.)

. If the "CIA confirms the existence" of documents responsive to Request No. 10, "then, at the very least, it becomes known that [the] CIA has an intelligence interest in the Bagram detainees. Conversely, if [the] CIA denies that it has records within the scope of the request, then it acknowledges a possible intelligence gap. In the past, foreign intelligence services and hostile groups, like al-Qaida, have identified public disclosures similar to the disclosures sought by Plaintiffs in this case, and have adjusted their tactics and/or operations accordingly." (Id. ¶ 7.)

Although Plaintiffs may disagree with the CIA’s assessment of the potential harm to national security based on public awareness of the CIA’s activities in Afghanistan, Plaintiffs have not presented contrary evidence that controverts the CIA’s justification for providing a Glomar response. In light of Hilton’s thorough declarations, which are filled with detailed examples, the Court finds that the CIA met its " ‘burden of proving the applicability’ " of Exemption 1. See Wilner, 592 F.3d at 68 (citation omitted).

Because Exemption 1 justifies the CIA’s decision to provide a Glomar response, the Court need not consider the applicability of Exemption 3. See id. at 72 ("Because defendants need only proffer one legitimate basis for invoking the Glomar response and FOIA Exemptions 1 and 3 are separate and independent grounds in support of a Glomar response, we consider only the applicability of FOIA Exemption 3.") (citation omitted).

II. Defense Properly Withheld the Redacted Portions of the Detainee List

In their reply brief, Plaintiffs indicate that they no longer challenge Defense’s withholding of the full ISNs for the detainees. Accordingly, the only remaining issues are whether Defense properly withheld information regarding the detainees’ citizenships, dates of capture, length of detention at Bagram, locations of capture, and circumstances of capture.

Defense contends that these categories of information are properly being withheld under Exemption 1 because the information is classified pursuant to Executive Order 12,958, as amended by Executive Order 13,292, the predecessor to Executive Order 13,526. As explained earlier, information is properly classified pursuant to Executive Order 12,958 where: " § 1) an original classification authority" classifies the information; "(2) the information is owned by, produced by or for, or is under the control of the United States Government; (3) the information falls within" at least one of the categories of information listed in Section 1.4 of the Order; and "(4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to … national security … and the original classification authority is able to identify or describe the damage." Exec. Order 12,958, § 1.1(a)(1)-(4) (as amended by Exec. Order 13,292).

*8 In support of its decision to withhold the requested categories of information, Defense submitted a declaration by Major General Jay W. Hood, the Chief of Staff for U.S. Central Command for Defense and an Original Classification Authority pursuant to Executive Order 12,958. (Hood Decl. ¶¶ 1, 3.) Major General Hood explains, first, that the five categories of information sought by Plaintiffs are classified (id. ¶ 5, 6). Major General Hood also explains, second, that the document with the redacted information was produced from a Government-controlled database. (Id. ¶ 4; Bragg Decl. ¶¶ 2, 4.)

In response to Plaintiffs’ objections that Major General Hood failed to adequately explain how each category of redacted information satisfies the third and fourth requirements for classification under Executive Order 12,958, Defense submitted a declaration by Major General Michael T. Flynn, the Director of Intelligence for the International Security Assistance Force and the United States Army Forces–Afghanistan. (Flynn Decl. ¶ 1.) With respect to the third requirement, Major General Flynn explains that: (1) information regarding the detainees’ citizenship is covered by Section 1.4(a) ("military plans, weapons systems, or operations") and (c) ("intelligence activities (including special activities), intelligence sources or methods, or cryptology"); (2) information regarding capture dates is covered by Sections 1.4(a) and (c); (3) information regarding capture locations is covered by Sections 1.4(a), (c), and (g) ("vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services"); (4) information regarding circumstances of capture is covered by Sections 1.4(a), (c), and (g); and (5) information regarding lengths of detention is covered by Sections 1.4(a), (c), and (g) (id. ¶¶ 5-9; see also Hood Decl. ¶ 5). See Exec. Order 12,958, § 1.4(a),(c), and (g) (as amended by Exec. Order 13,292).

With respect to the fourth requirement, Major General Flynn identifies the following possible damage to national security from disclosure of each category of information:

. Citizenship–disclosure, when connected with other information, "could hinder future intelligence collection efforts by revealing sources, methodology, and ultimately levels of cooperation/opposition." Release of this information "could cause damage to future military plans, operations, and detainee operations" by helping enemies predict "the direction of … future military operations which may target areas heavy with [particular] citizenship demographic[s]." In addition, "the strategic implications of the citizenship of detainees could negatively influence diplomatic relations with other countries, in particular, the country or countries of which such detainees are citizens." (Flynn Decl. ¶ 5.)

. Capture Dates–release of this information "could assist [enemies] in establishing a chronological pattern or identifying operational strategies which could be used to assist them in hiding or evading future intelligence gathering efforts, and anticipating counterterrorism or counterinsurgency efforts." When combined with other information, disclosure of the detainees’ capture dates "could provide organizations with insights into past and current strategies and tactics in military operations that lead to capture of the enemy." "[R]elease of this combined information could" also "provide material assistance to those who wish to penetrate, detect, prevent, avoid or otherwise damage the intelligence and detainee operations of the United States and might allow individuals of intelligence interest to anticipate and immunize themselves from such procedures." (Id. ¶ 6.)

*9 . Capture Locations–release of this information "could cause damage to military plans, intelligence activities, intelligence sources, and intelligence methods and could create a life and physical safety risk for any U.S. personnel" that remain in the locations where detainees were captured. When combined with other information, release of capture locations "could allow the enemy to detect some of the United States’ sources of intelligence that led to the capture of enemy combatants," which "would significantly dispute the United States’ efforts in Afghanistan by revealing information about U.S. objectives, raid locations, base camp locations, cordon and search locations, traffic control points, and border crossing points." (Id. ¶ 7.)

. Circumstances of Capture–disclosure of this information, which "is perhaps the most sensitive category," "could cause damage to military plans, intelligence activities, intelligence sources, and intelligence methods" by allowing "the opposition to intuit military [standard operating procedures], the sources of intelligence, or other critical operational factors." When combined with other information, disclosure of this information "could reveal critical tactical information about detainee collection points, detainee holding areas, evacuation procedures, and the handling process that could place intelligence operations and detainee operations at jeopardy." (Id. ¶ 8.)

. Length of Detention–release of this information, when combined with other information, could help the enemy "develop patterns of detention periods" and, subsequently, "correlate this data with the [standard operating procedures] surrounding intelligence and detention operation." Disclosure of this information, in conjunction with other requested information, "could assist the enemy in understanding [the Government’s] evidence gathering and prosecution strategy which could be used to predict and exploit detention procedures." Ultimately, this could "lead to less quality intelligence" and "more robust estimative intelligence by the enemy." (Id. ¶ 9.)

In light of the declarations by Major General Hood and Major General Flynn, the Court is satisfied that Defense has sufficiently demonstrated that each withheld category of information logically falls within Exemption 1 and that Defense has sufficiently identified and described the possible damage to U.S. national security. [FN4] See Wilner, 592 F.3d at 73 (citations omitted).

FN4. The Court also credits Defense’s argument that "an aggregate release" of the requested information "would create a mosaic of information" that "would greatly affect national security by giving the enemy a complete picture of [U.S.] military operations." (Flynn Decl. ¶ 11.) "[W]hen considered together," the requested information could, according to Major General Flynn, "reveal significant details of classified missions that, in turn, could place future mission operations in jeopardy" (id. ¶ 10) and endanger the lives of members of the armed forces (id. ¶ 11). See, e.g., C.I.A. v. Sims, 471 U.S. 159, 178 (1985) (observing that "[w]hat may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in its proper context" and that "bits and pieces of data ‘may aid in piecing together bits of other information even when the individual piece is not of obvious importance in itself’ ") (alteration in original) (citations omitted).

In spite of the two Defense declarations and the fact that Defense released several less-redacted versions of the list sought by Plaintiffs, Plaintiffs maintain that Defense has not sufficiently shown that each withheld category of information (or combinations thereof) are properly classified in their entirety. Plaintiffs point to the Guantanamo Bay detainee hearings and the recently instituted Detainee Review Board ("DRB") hearings at the Detention Facility in Parwan, Afghanistan. According to Plaintiffs, transcripts of the hearings for the Guantanamo detainees regularly disclose information pertaining to citizenship, length of detention, date of capture, location of capture, and circumstances of capture. Similarly, at several unclassified, open DRB hearings, members of human rights organizations observed open discussion of certain Bagram detainees’ places of origin, dates of capture, locations of capture, and circumstances of capture. (See Prasow Decl. ¶¶ 5-7.) Plaintiffs argue that Defense cannot treat as classified here what it treats as unclassified in DRBs and analogous Guantánamo detainee hearings.

*10 First, with respect to the Guantanamo hearings, there is no allegation that the information sought here "match[es] the information previously disclosed." See Wilson, 586 F.3d at 186 (alteration in original) (citations omitted). There is no allegation, for example, that any of the requested information for the Bagram detainees was officially disclosed in a Guantanamo hearing for which there is a public transcript. Because there is no exactitude between the information previously disclosed and the information sought here, whatever information the Government has decided to release regarding the Guantanamo detainees has no bearing on Plaintiffs’ requests in this case. See, e.g., Wolf, 473 F.3d at 378 (citations omitted).

With respect to the DRB hearings, because Plaintiffs did not raise this issue until after the Government filed its opposition and reply brief, the Court requested that the Government submit a sur-reply addressing the impact, if any, of the DRB hearings on Plaintiffs’ requests. In response to the Court’s request, Defense submitted a declaration by U.S. Navy Captain Gregory P. Belanger. Captain Belanger, who is currently assigned to the Office of the Staff Judge Advocate at Combined Joint Interagency Task Force ("CJIATF") 435 at Camp Phoenix in Afghanistan, was responsible for the administration of the DRB hearings, which involved Bagram detainees, at the Detention Facility in Parwan, Afghanistan. (Belanger Decl. ¶¶ 1-2.)

In his declaration, Captain Belanger explains that "each DRB hearing consists of an ‘open’ and a ‘closed’ session." (Id. ¶ 5.) During closed sessions, "classified information is presented only to the board members. All persons present at the closed session must have appropriate security clearance." (Id.) At open sessions, by contrast, "individual information that is generally unclassified–but is not necessarily so in the aggregate–is presented to the board in the presence of the detainee ." (Id.) Only a narrow category "of people other than the detainee, witnesses, and military personnel" are permitted to attend "open" sessions. (Id. ¶ 6.) Each category of attendees must be granted access by the CJIATF Commander or a higher authority. (Id.) In addition, the "level of access of each" category of persons "is limited to a specific military purpose." (Id.)

One category of persons who have been granted access to open DRB hearings are "members of certain non-governmental organizations (NGOs)." [FN5] (Id.) To date, a total of ten representatives from five NGOs have observed nine open DRB hearings on two separate dates. (Id. ¶¶ 10, 12.) Of those nine hearings, only three, including the ones observed by Plaintiffs’ declarant (see Prasow Decl.), involved detainees identified on the list sought by Plaintiffs. [FN6] (Id. Ex. B.) On account of the information heard by NGO representatives and members of the media at those hearings, Defense supplied a revised detainee list that un-redacts the pertinent, previously redacted information. (Id. ¶ 22 & Ex. B.) The "release of th[is] detainee-specific information" was, according to Captain Belanger, "a limited and discretionary release of" information. (Id. ¶ 22.)

FN5. The other three categories are: (1) detainee family members and relevant community leaders; (2) representatives of the government of Afghanistan with interest in a particular case; and (3) members of the news media. (Belanger Decl. ¶ 6.)

FN6. The list in question is limited to detainees who were detained as of June 22, 2009. (Barnea Decl. Ex. A.)

*11 Numerous courts have found, under similar circumstances, that the Government’s discretionary decision to release a limited set of information does not waive FOIA protection for similar information that is not discretionarily released. See, e.g., Students Against Genocide v. Dep’t of State, 257 F.3d 828, 835-36 (D.C.Cir.2001) (noting that "by releasing some photographs to plaintiff, the government [did not] waive[ ] its right to withhold any others") (citation omitted); Mobil Oil Corp. v. E.P.A., 879 F.2d 698, 701 (9th Cir.1989) (noting that courts "generally have found that the release of certain documents waives FOIA exemptions only for those documents released" ) (emphasis in original) (citations omitted); Ctr. for Biological Diversity v. Office of Mgmt. & Budget, No. C 07-04997 MHP, 2009 WL 1246690, at *11 (N.D.Cal. May 5, 2009) (noting that " ‘a waiver of exemption for these documents based on the release of related documents … would be contrary both to the case law on waiver and to the policies underlying FOIA and its exemptions’ ") (citations omitted). Because Defense voluntarily released the previously redacted information that NGO and media representatives heard and because that discretionary disclosure does not constitute a waiver for the rest of the requested information under Exemption 1, the Court is satisfied that the DRB hearings have no further bearing on Plaintiffs’ requests.

Beyond their Guantanamo and DRB arguments, Plaintiffs primarily attempt to poke holes in Defense’s explanation regarding why the requested information is, and needs to remain, classified under Executive Order 12,958. Although Plaintiffs disagree with Defense’s explanation, in light of the "substantial weight" accorded to agency affidavits, the Court will not conduct a detailed inquiry to determine whether it agrees with Defense’s explanation. See, e.g., Earth Pledge Found. v. C.I.A., 988 F.Supp. 623, 626 (S.D.N.Y.1996) (citations omitted). Accordingly, the Court declines Plaintiffs’ request for in camera review of the complete, un-redacted list.


For the reasons provided above, Plaintiffs’ motion for partial summary judgment (Dkt.20) is DENIED and Defendants’ motion for partial summary judgment (Dkt.11) is GRANTED.

If this Order does not resolve all of the outstanding issues in this case, the parties are directed to inform the Court of that fact by no later than November 1, 2010. Otherwise, the Court will issue an order instructing the Clerk of the Court to close this case on that date.


recent and upcoming events, forthcoming scholarship

November 10, 2010

1. Audio from UVA panel on targeted killing

On November 1st, the Federalist Society and the J.B. Moore Society of International Law at UVA sponsored a panel discussion on targeted killing, featuring Mike Lewis, Bob Turner, and John Echeverri-Gent, with Ken Anderson moderating. The audio is posted here:

2. Upcoming event: ABA Standing Committee Breakfast Series: W. Hays Parks (Senior Associate Deputy General Counsel, International Affairs, DoD), “National Security Law in Practice: The Department of Defense Law of War Manual”

The next edition of the Law of War Manual has been a long time coming, and needless to say it will be very interesting to hear anything by way of a preview of it.

The event will take place on November 18th, from 8 to 9 am, at the University Club (1135 16th Street NW, Washington, DC)

To register, check the date and mail a check (made out to ABA) to the address below

YOUR NAME______________________________PHONE_________________________

Nov 18 ___W. Hays Parks—–———————$25

Guest(s) $25/each

Total: _______

St. Cmte on Law and National Security

740 15th St NW, 9th Floor

Washington, DC 20005

Phone: 202-662-1035

3. Forthcoming Scholarship

"Islam and International Humanitarian Law: A Question of Compatibility?"

Israel Yearbook on Human Rights (preprint), Vol. 40, pp. 257-74, 2010

ROBERT PERRY BARNIDGE, University of Reading – School of Law
Email: r.barnidge

This article considers the question of compatibility between Islam and international humanitarian law. It begins by providing a broad overview of scholarly perspectives on an Islamic law of war, perspectives that find broad similarities between Islam and international humanitarian law. It then juxtaposes these findings with the philosophy of militant Islam on the conduct of hostilities. Finally, in tying together these thoughts, it stresses the challenges that liberal scholars face in attempting to reconcile these competing narratives in light of militant Islam’s philosophical resistance to moderation and uncompromising stance toward all things jahiliyya. These challenges are particularly acute given Islamist understandings of apostasy and militant Islam’s rejection of the discursive value of international law itself.

"George Washington and Executive Power"

JOHN YOO, University of California at Berkeley School of Law
Email: YOO

This paper examines current debates over the scope of presidential power through the lens of the Washington administration. We tend to treat Washington’s decisions with an air of inevitability, but the constitutional text left more questions about the executive unanswered than answered.

Washington filled these gaps with a number of foundational decisions – several on a par with those made during the writing and ratification of the Constitution itself. He was a republican before he was a Federalist, but ultimately Washington favored an energetic, independent executive, even at the cost of political harmony. He centralized decision-making in his office, so that there would be no confusion about his responsibility and accountability. He took the initiative in enforcing the law and followed his own interpretation of the Constitution. He managed diplomatic relations with other countries and set the nation’s foreign policy. At the end of his two terms, the Presidency looked much like the one described in The Federalist Papers.

None of this was foreordained. Washington could have chosen to mimic a parliamentary system or a balanced government with executive branch officials drawn from an aristocratic social class. He could have considered the Presidency as Congress’s clerk, committing himself solely to carrying out legislative directions. He might even have thought of himself as the servant of the states. But instead he read his constitutional powers broadly to lead the nation through its first growing pains; restore the country’s finances; keep the nation out of a dangerous European war; open the West to American expansion; and see the Constitution through the appearance of the first political parties.

"The Privilege of the Writ: The Supreme Court and Post-9/11 Detainee Habeas Corpus Entitlement"

JEREMY MODJESKA, Washington State University
Email: jeremy.modjeska

Habeas corpus is the right to challenge one’s detention in a court of law. With deep roots in common law, it is promulgated in U.S. law by the Constitution’s single sentence known as the Suspension Clause. Prior to 9/11, habeas corpus jurisprudence erected a framework of entitlements that vary according to a person’s location, citizenship, and alleged crimes. Plotted on a timeline of American history, many of the landmark cases that progressively articulated this framework are clustered around wartime, and the entitlement conventions that obtained reflected the terminology of traditional warfare. After 9/11, as the nature of warfare and enemies evolved, and the Executive claimed unprecedented authority to detain enemy combatants, Guantanamo Bay became the extraterritorial detention facility of choice. Beginning in 2004, the Supreme Court responded with a series of cases that created a minimal but definite foundation of habeas corpus entitlement and due process for Guantanamo detainees. This article looks primarily at these post-9/11 cases, the traditional notions of habeas corpus upon which they are predicated, and the possible shortcomings they evidence relative to Guantanamo and to other extraterritorial detention facilities.

"Nonattainder as a Liberty Interest"

Wisconsin Law Review, Forthcoming
Loyola-LA Legal Studies Paper No. 2010-11

AARON H. CAPLAN, Loyola Law School Los Angeles
Email: aaron.caplan

Existing constitutional doctrine does not deal well with government blacklists, such as the highly publicized federal No Fly List. Prior blacklisting cases have relied on a wide variety of legal theories, but are marked by internal disagreement and inconsistency in approach and result. The most commonly used theories ask whether the blacklists work a deprivation of liberty without due process, but there is no consensus as to when and whether government blacklists deprive listees of liberty, and if so, what kind of liberty. The problem arises in part from an unduly constricted conception of liberty as protecting the things that people want to do (call them privileges), without considering that it also implicates ways that people do not want to be treated (call them immunities).

This article proposes that the constitutional guarantee against bills of attainder – that is, the rule against singling out persons for punishment without trial – should be recognized as a due process liberty interest. In doing so, it finds deep resonances in lines of cases that have not previously been considered together. The proposal has two major benefits.

First, it provides a legal remedy that is currently unavailable to persons wrongly placed on government blacklists. Second, it offers coherence to a decentralized field. In particular, the proposal rectifies the much-criticized “stigma-plus” doctrine, which is best understood as a false start toward the protection of nonattainder as a liberty interest.

"Let the ‘Caroline’ Sink! Assessing the Legality of a Possible Israeli Attack on Iranian Nuclear Facilities and Why the Traditional Self-Defense Formula is Incompatible with the Nuclear Age"

The California International Law Journal, Vol. 18, No. 2, Spring 2010

YANIV ROZNAI, London School of Economics – Law Department
Email: y.roznai

This paper examines the legality of a possible Israeli pre-emptive attack on Iran’s nuclear facilities. Various arguments are examined, including whether such an attack violates the prohibition on the use of force; whether such an attack is a legal exercise of self-defense; whether such an attack is allowed due to existence of a customary law exception or existence of a state of war between the two states; and whether such an attack can be viewed as international law enforcement. The analysis conducted in this paper demonstrates that under current conditions an Israeli pre-emptive attack on Iran’s nuclear facilities cannot find convincing, legal support under any existing legal arguments.

This paper also examines whether traditional anticipatory self-defense criteria are suitable for the nuclear era. It is claimed that a strict interpretation of imminence is not suitable in the nuclear weapons age when states might face the threat of sudden and complete annihilation. Therefore, this paper suggests that the threat posed by a nuclear weapons and its means of delivery necessitates the relaxation of the traditional imminence requirement when assessing the legality of pre-emptive self-defense of a country facing a possible nuclear threat.

Lastly, the paper examines whether a possible attack can be deemed “illegal but justified”. Based on the idea that current self-defense rules seem incompatible with the nuclear age, it is claimed that Israel might view an attack on Iran’s nuclear facilities as justified – even if not legal – as a call for international law development along with technological progress.

"Communications Data Retention in an Evolving Internet"

International Journal of Law and Information Technology, Forthcoming

IAN BROWN, University of Oxford – Oxford Internet Institute
Email: ian.brown

The 2006 Data Retention Directive requires EU-based Internet Service Providers to store information on customers and their online communications. The Directive is being reviewed by the European Commission, and has been criticised in a number of recent national constitutional court judgments due to its impact on privacy. It is now being considered by the European Court of Justice. This article describes the likely impact on data retention of further developments in Internet usage, technology and law. It outlines the increasing use of private networks and member community sites that are not subject to the Directive, and the changes in surveillance technology and practice that some member states have proposed in response. It concludes by analysing the key factors to be taken into account in the EC and ECJ reviews, and suggests more proportionate and effective mechanisms for preserving appropriate law enforcement access to communications data.