D.C. Circuit Decision in ACLU v. Dep't of Defense

The D.C. Circuit today announced its decision in ACLU v. Dep't of Defense, a Freedom of Information Act ("FOIA") case in which the ACLU challenged the government's withholding of documents relating to the capture, detention, and interrogation of several "high-value" detainees. The case was back at the D.C. Circuit after a previous remand to the district court following the change in administrations. On remand the district court gave the government an opportunity to "reprocess" materials responsive to the ACLU's original FOIA request.  The CIA returned several additional documents, some with redactions, but claimed that the redacted information was exempt from disclosure under FOIA exemptions 1 and 3.  (FOIA Exemption 1 exempts from disclosure information that is "(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."  Exemption 3 pertains to material “specifically exempted from disclosure by statute,” thereby incorporating the protections of other shield statutes.) After the CIA's second round of disclosures, the district court, in an opinion by Chief Judge Lamberth, granted the government's motion for summary judgment. On appeal, as the D.C. Circuit summarized, the ACLU made three arguments why the withholding was improper:

[First,] the withheld information has already been declassified and is widely available to the public. Secondly, it contends that the interrogation techniques and conditions of confinement described in the requested documents have been prohibited by the President. Thirdly, it contends that the government lacks the authority to classify information derived from the detainee’s personal observations and experiences.

The ACLU drew from the fact that the New York Review of Books had published a leaked report authored by the International Committee of the Red Cross (“Red Cross”); that report, as described in the opinion, "contained accounts of the treatment of the fourteen 'high value' detainees while in CIA custody." The D.C. Circuit panel--consisting of Chief Judge Sentelle and Judges Griffith and Silberman--addressed each of the ACLU's arguments in turn.  In response to the first argument, Judge Sentelle, writing for the court, found that the information had not been "officially acknowledged" under criteria set by prior precedent. Specifically, there were substantial differences between the information that had been disclosed previously, and the prior disclosures were not made "through an official and documented disclosure." The court wrote:

As the ACLU readily admits, the Red Cross report was not released pursuant to a government declassification process, but was instead leaked to a journalist. We note at the outset that the Red Cross report is not a government document, and we are hard pressed to understand the ACLU’s contention that the release of a nongovernment document by a nonofficial source can constitute a disclosure affecting the applicability of the FOIA exemptions.

The ACLU's second argument, that the redacted information could be disclosed under FOIA because the interrogation techniques and conditions of confinement withheld from the requested documents have been prohibited by the President, was similarly unpersuasive to the panel:

To the extent that the ACLU’s claim rests on the ACLU’s belief that the enhanced interrogation techniques were illegal, there is no legal support for the conclusion that illegal activities cannot produce classified documents. In fact, history teaches the opposite. Documents concerning surveillance activities later deemed illegal may still produce information that may be properly withheld under exemption 1.

As to the ACLU’s third argument, that the government had no “authority to classify information derived from the detainees’ personal observations and experiences,” the D.C. Circuit was no more persuaded:

The fact that the information originated from detainees then in the government’s custody has no relevance to the unquestionable fact that the information so obtained is in the government’s control. Any documents generated in the process of interrogation are in the hands of the government and will remain subject to the government’s authority whether the detainees are retained, released, or transferred.