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American Civil Liberties Union v. Department of Defense

October 16, 2009

AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, PLAINTIFFS,
v.
DEPARTMENT OF DEFENSE, CENTRAL INTELLIGENCE AGENCY, DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge

MEMORANDUM OPINION

I. INTRODUCTION

Before the Court is defendants' Motion [21] for Summary Judgment. Previously, this Court granted defendants' Motion [9] for Summary Judgment on October 29, 2008. Plaintiffs appealed on December 10, 2008. Upon defendants' request, the Court of Appeals remanded the case to this Court on May 19, 2009 so that defendants could reevaluate plaintiffs' Freedom of Information Act ("FOIA") requests in light of three executive orders issued by President Obama on January 22, 2009, and the declassification and public release of portions of four legal opinions of the Office of Legal Counsel ("OLC") on April 16, 2009.

On remand, defendants reprocessed plaintiffs' FOIA request and provided plaintiffs the requested documents, invoking FOIA exemptions 1 and 3 to justify certain redactions. Defendants then moved for summary judgment on August, 28, 2009. Plaintiffs oppose the motion and argue that FOIA exemptions 1 and 3 do not justify defendants' redactions. The Court concludes that defendants properly invoked exemptions 1 and 3 to redact certain information from the documents and will grant defendants' Motion [21] for Summary Judgment.

II. BACKGROUND

This Court's October 29, 2008, Memorandum Opinion [13] contains the facts in this case prior to appeal. See ACLU v. Dep't of Defense, 584 F. Supp. 2d 19, 22 (D.D.C. 2008). Accordingly, the Court will only discuss the developments subsequent to that Memorandum.

On December 10, 2008, plaintiffs appealed this Court's October 29, 2008 Order granting summary judgment for defendants. (Notice of Appeal [15].) Before the parties filed their briefs in the Court of Appeals, defendants decided to reevaluate their redactions in light of several events. (Hilton Decl ¶ 22.) First, on January 22, 2009, President Obama issued the following executive orders:

* Executive Order No. 13491, which limited interrogation techniques used by the government to only those authorized by the Army Field Manual and ordered the CIA to close any detention centers it operated, Exec. Order No. 13491, 74 Fed. Reg. 4893 (Jan. 27, 2009);

* Executive Order No. 13492, which ordered the Department of Defense to close the detention facility at Guantanamo Bay within one year and mandated that a "review of the status of each individual currently detained at Guantanamo shall commence immediately" to determine whether detainees should be transferred, prosecuted, or receive some other disposition, Exec. Order No. 13492, 74 Fed. Reg. 4897 (Jan. 27, 2009); and

* Executive Order No. 13493, which established a Special Task Force to review the lawful options available to the government with respect to the apprehension, detention, and disposition of suspected terrorists. Exec. Order No. 13493, 74 Fed. Reg. 4901 (Jan. 27, 2009).

To comply with these Executive Orders, the CIA stopped using enhanced interrogation techniques ("EITs") and closed its detention facilities. (Hilton Decl. ¶ 22.)

Second, on April 16, 2009, President Obama declassified and released to the public four legal opinions issued by the OLC that discussed the legality of EITs. (Id. ¶ 23.) The release did not declassify all information relating to the legality of EITs; rather it constituted only "a limited declassification of information relating to the legality of EITs." (Id.) Last, on August 24, 2009, the government released a declassified version of the CIA's Inspector General's Report ("IG Report") that details interrogation techniques and conditions of confinement. (Id. ¶ 56; Pls.' Opp'n Ex. F.)

In addition to the above government disclosures, on April 30, 2009, the New York Review of Books published a forty page report of the International Committee of the Red Cross ("ICRC") that contained accounts of the treatment of the high value detainees in CIA custody. (Pls.' Opp'n Ex. E.)

On May 19, 2009, the Court of Appeals remanded the case to this Court upon defendants' request. (Hilton Decl. ΒΆ 24.) The CIA then reprocessed plaintiffs' FOIA request, which sought unredacted versions of Combatant Status Review Tribunal ("CSRT") hearing transcripts and copies of all records provided to the CSRT by the detainees or their Personal Representative, in light of the government's recent disclosures. (Id.) As a result, the CIA released one transcript in its entirety, except for names and signatures of Department of Defense personnel, and provided redacted versions of the five ...


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