American Civil Liberties Union V Department of Defense

Freedom of Information Act Case: American Civil Liberties Union v Department of Defense in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): On January 18, 2011, the United States Court of Appeals for the District of Columbia Circuit issued a decision in American Civil Liberties Union v. Department of Defense affirming the lower court's grant of summary judgment for the U.S government. 628 F.3d 612 (D.C. Cir. 2011). The American Civil Liberties Union (“ACLU”) brought an action against the Department of Defense (“DOD”) and the Central Intelligence Agency (“CIA”) (collectively, the U.S government) pursuant to the Freedom of Information Act (“FOIA”), seeking information withheld from its FOIA production that related to the capture, detention, and interrogation of fourteen “high value” detainees originally held outside the U.S. and then transferred to Guantanamo. Id. at 617.

The district court granted the U.S. government's motion for summary judgment, finding that the information sought was properly withheld under two exemptions from disclosure under FOIA: exemption 1 covering records properly classified pursuant to executive order; and exemption 3 covering records exempted from disclosure by statute. Id. at 618. The ACLU appealed, but in 2009, before the appeal was decided, President Obama took several steps relating to interrogation techniques, detention at Guantanamo, and treatment of suspected terrorists. Id. at 618; see also World Encyclopedia of Law 2009 at 716-22 (discussing Executive Orders 13491 and 13492). Also in 2009, the U.S. government declassified Department of Justice Office of Legal Counsel memoranda pertaining to interrogation techniques and released a declassified version of a CIA report on interrogation techniques. In addition, a report by the International Committee of the Red Cross pertaining to the treatment of the fourteen “high value” detainees was leaked to the press and published.

The D.C. Circuit remanded in light of these developments and the U.S. government voluntarily modified its FOIA production by releasing one previously redacted record in its entirety and revising its redactions to other documents. 628 F.3d at 618. The lower court again granted summary judgment for the government and the ACLU again appealed, making four main arguments challenging the government's authority to withhold the information.

Developments

First, the ACLU claimed the withheld information had already been declassified and was publicly available. The court agreed with the government that “there are substantive differences between the disclosed documents and the information that has been withheld.” Id. at 621. In addition, the court held that the Red Cross report leaked to the press did not constitute an official government disclosure and therefore was irrelevant to the government's authority to withhold records. Id. at 621-22.

Second, the ACLU contended that the government could not properly withhold documents relating to interrogation techniques that were subsequently prohibited by the President. The court found “no legal support for the conclusion that illegal activities cannot produce classified documents.” Id. at 622.

Third, the ACLU asserted that the government could not withhold information derived from the detainees' own experiences and observations while continuing to detain them and thereby preventing them from making those statements public themselves. The court rejected this argument as “irrelevant to the reality that the information that the CIA wishes to withhold is within the government's control.” Id. at 623. It reasoned further that “Even if the detainees were to be released, erstwhile detainees might embellish or outright lie about their experiences, illustrating the government's continuing interest in keeping its own records secret.” Id.

Fourth, the ACLU argued that the withheld information had been so widely disseminated that its disclosure could no longer do any harm to national security interests. This argument too failed because the court accorded due deference to the CIA's assessment, which identified five reasons that disclosure might harm national security, only one of which had been specifically challenged by the ACLU. The court concluded that “it is both plausible and logical that the disclosure of information regarding the capture, detention, and interrogation of detainees would degrade the CIA's ability to carry out its mission.” Id. at 624. In addition, the court reiterated that information must be officially acknowledged, not just disseminated by any means, for its disclosure to be required. “[W]e have repeatedly rejected the argument that the government's decision to disclose some information prevents the government from withholding other information about the same subject.” Id. at 625.

The court also rejected the ACLU's challenge to the lower court's decision not to conduct an in camera review of the information withheld. The appeals court agreed with the lower court that the government's affidavit was sufficiently detailed and specific that such a review was not necessary to find that the exemptions to disclosure under FOIA were properly invoked.

Resources

See Also

• Use Of Force
• Arms Control
• Disarmament
• Nonproliferation
• Detainees
• Court Decisions
• Court Proceedings