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Rosenberg v. U.S. Department of Defense

United States District Court, District of Columbia

September 27, 2018

CAROL ROSENBERG, et al., Plaintiffs,
v.
U.S. DEPARTMENT OF DEFENSE, Defendant.

          MEMORANDUM OPINION AND ORDER

          Amit P. Mehta, United States District Judge.

         I. INTRODUCTION

         Plaintiffs Carol Rosenberg, a reporter for the Miami Herald, and the Miami Herald Media Company bring this action against Defendant United States Department of Defense (“DOD”) pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Plaintiffs seek disclosure of emails to senior DOD officials sent by retired Marine Corps General John F. Kelly-then Commander of the U.S. Southern Command (“SOUTHCOM”)-relating to Joint Task Force Guantánamo (“JTF-GTMO”), a military task force based at the U.S. Naval Station at Guantánamo Bay, Cuba.

         After Plaintiffs filed this lawsuit, DOD conducted a search for responsive emails and located 256 email records and 92 attachments, totaling 548 pages. DOD released 548 pages to Plaintiffs, some in full and some with redactions. To justify its redaction and withholding of information from these documents, Defendant invokes FOIA Exemptions 1, 3, 5, 6, and 7(E). In response, Plaintiffs contest Defendant's redactions as unjustified.

         Based upon the court's in camera inspection of a representative sampling of the records produced to Plaintiffs, and for the reasons described below, the court finds that Defendant properly withheld information under Exemptions 3, 6, and 7(E). However, the court also finds that Defendant has not properly justified withholding other information under Exemptions 1 and 5. Accordingly, the court grants in part and denies in part Defendant's Motion for Summary Judgment and Plaintiffs' Motion for Summary Judgment.

         II. BACKGROUND

         A. Statutory Framework

         “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). Because of FOIA's critical role in promoting transparency and accountability, “[a]t all times courts must bear in mind that FOIA mandates a ‘strong presumption in favor of disclosure.'” Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991)). FOIA requires that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . shall make the records promptly available to any person, ” 5 U.S.C. § 552(a)(3)(A), unless the records fall within one of nine narrowly construed exemptions, see Id. § 552(b); Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973). “[T]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Nat'l Sec. Counselors v. CIA, No. 12-cv-284, 2018 WL 3978093, at *3 (D.D.C. Aug. 20, 2018) (alteration in original) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)). Moreover, “[e]ven when an exemption applies, the agency is obligated to disclose ‘[a]ny reasonably segregable portion of a record' after removing the exempt material and must note the ‘amount of information deleted, and the exemption under which the deletion is made.'” Bartko v. U.S. Dep't of Justice, 898 F.3d 51, 62 (D.C. Cir. 2018) (second alteration in original) (quoting 5 U.S.C. § 552(b)).

         In 2016, President Obama signed into law the FOIA Improvement Act of 2016, which amended the FOIA in various ways. See Pub. L. No. 114-185, 130 Stat. 538. As relevant here, the Act codified the “foreseeable harm” standard established in 2009 by then Attorney General Holder for defending agency decisions to withhold information. See S. Rep. No. 114-4, at 3 & n.8 (2015) (citing Office of Att'y Gen., Memorandum for Heads of Executive Departments and Agencies, Subject: Freedom of Information Act (Mar. 19, 2009)); S. Rep. No. 114-4, at 7-8. Pursuant to the “foreseeable harm” standard, the Department of Justice would “defend an agency's denial of a FOIA request only if (1) the agency reasonably fores[aw] that disclosure would harm an interest protected by one of [FOIA's] statutory exemptions, or (2) disclosure [were] prohibited by law.” U.S. Dep't of Justice, Guide to the Freedom of Information Act 25 (2009 ed.), https://www.justice.gov/archive/oip/foiaguide09/procedural-requirements.pdf (internal quotation marks omitted). By codifying this standard, Congress sought to establish a “presumption of openness” in FOIA. See H.R. Rep. No. 114-391, at 9 (2016); S. Rep. No. 114-4, at 3, 7.

         Accordingly, as amended by the FOIA Improvement Act, the statutory text now provides that: “An agency shall . . . withhold information under this section only if [ ] (I) the agency reasonably foresees that disclosure would harm an interest protected by [a FOIA] exemption described in [5 U.S.C. § 552(b)]; or (II) disclosure is prohibited by law[.]” 5 U.S.C. § 552(a)(8)(A). Stated differently, pursuant to the FOIA Improvement Act, an agency must release a record-even if it falls within a FOIA exemption-if releasing the record would not reasonably harm an exemption-protected interest and if its disclosure is not prohibited by law.[1] The “foreseeable harm” standard-and its applicability to DOD's discretionary redactions-plays a central role in the parties' disputes in this matter.

         B. Factual Background

         Since 2001, Plaintiff Carol Rosenberg has reported extensively on SOUTHCOM-a component of DOD responsible for American military operations in Central America, South America, and the Caribbean-including its operation of the Guantánamo Bay detention center. Compl., ECF No. 1, ¶¶ 7, 10. Rosenberg's reporting also included coverage of General Kelly during his tenure as Commander of SOUTHCOM from November 2012 to January 2016. Id.

         Following the presidential election on November 8, 2016, Rosenberg and the Miami Herald published a story reporting that then President-elect Trump had met with General Kelly and was considering him for a national security role in the new administration. Pls.' Cross-Mot. for Summ. J. & Opp'n to Def.'s Mot. for Summ. J., ECF No. 19 [hereinafter Pls.' Cross-Mot.], Pls.' Statement of Facts, ECF No. 19-2 [hereinafter Pl.'s Stmt.], ¶ 55; Pls.' Cross-Mot., Decl. of John Langford, ECF No. 19-3 [hereinafter Langford Decl.], Ex. I, ECF No. 19-4. Presuming that General Kelly would soon become a candidate for a national security position in the Trump administration, Rosenberg sent a FOIA request to DOD on November 11, 2016, seeking:

[A]ll emails by the former Southern Command commander retired Marine Gen. John F. Kelly to Lisa Monaco [the former Assistant to President Obama for Homeland Security and Counterterrorism] or those that also copied her on his correspondence.

         Compl., Ex. A, ECF No. 1-1 [hereinafter FOIA Request]. In the FOIA Request, Rosenberg cited “the sudden emergence of General Kelly as a potential candidate for a national security job in the Trump administration” as grounds for expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E). FOIA Request at 1. SOUTHCOM acknowledged receipt of Plaintiffs' FOIA request on November 23, 2016, but denied expedited processing on the basis that “a compelling need [was] not demonstrated.” Compl., Ex. B, ECF No. 1-2. Rosenberg administratively appealed the denial of expedited processing. Compl., Ex. C, ECF No. 1-3.

         During the pendency of the FOIA request, then President-elect Trump selected General Kelly for the position of Secretary of Homeland Security in early December 2016, Pl.'s Stmt. ¶ 57, and the U.S. Senate confirmed General Kelly on January 20, 2017, id. ¶ 59. After six months as Secretary of Homeland Security, General Kelly was named Chief of Staff to President Trump on July 29, 2017. Id. ¶ 62.

         C. Procedural Background

         Plaintiffs filed this lawsuit on March 30, 2017, challenging the government's failure to expedite processing of the FOIA request and its failure to disclose any responsive documents. See generally Compl. After DOD responded to Plaintiffs' Complaint on April 27, 2017, see Answer, ECF No. 8, the parties negotiated a schedule for DOD to review, process, and produce records, see generally Joint Status Report, ECF No. 11. In a series of rolling productions, DOD produced to Plaintiffs 256 emails and 92 attachments totaling 548 pages, invoking FOIA Exemptions 1, 3, 5, 6, and 7(E) for various redactions and withholdings across the production. See Third Joint Status Report, ECF No. 15, ¶¶ 3-4; see also Def.'s Mot. for Summ. J., ECF No. 18 [hereinafter Def.'s Mot.], Def.'s Statement of Facts, ECF No. 18-3, ¶¶ 6, 8. The responsive email records consist primarily of weekly updates sent by General Kelly to Lisa Monaco and other DOD senior officials about operations at JTF-GTMO, and the remainder are other email correspondence sent between DOD senior officials about General Kelly's weekly reports. The attachments are primarily routine weekly updates on JTF-GTMO sent by General Kelly to DOD senior officials.

         After production, DOD moved for summary judgment. See Def.'s Mot. The motion was supported by the declaration of Brigadier General Todd J. McCubbin, the Reserve Deputy Director of SOUTHCOM, see Def.'s Mot., Decl. of Todd J. McCubbin, ECF No. 18-2 [hereinafter McCubbin Decl.], as well as a Vaughn Index, see id., Ex. 4 [hereinafter Vaughn Index]. McCubbin's declaration explained the scope of the search conducted in response to Plaintiffs' FOIA request and the reasons for DOD's assertion of various FOIA exemptions to redact the records. See generally McCubbin Decl. In further support of its motion for summary judgment, DOD later submitted the declaration of Michael Droz, the Deputy Director of Operations of SOUTHCOM. See Def.'s Reply in Supp. of Summ. J. & Mem. of P. & A. in Opp'n to Pls.' Cross-Mot., ECF No. 22 [hereinafter Def.'s Reply], Second Decl. of Michael Droz, ECF No. 22-1 [hereinafter Droz Decl.]. Droz's declaration further elaborated on DOD's withholding of information from three records pursuant to Exemption 5. See id.

         Plaintiffs opposed DOD's motion, and filed a cross-motion for summary judgment, asserting that no proper basis exists for most of the government's redactions and withholdings. Pls.' Cross-Mot., Pls.' Mem. in Opp'n to Def.'s Mot. for Summ. J. & in Supp. of Pls.' Cross-Mot. for Summ. J., ECF No. 19-1 [hereinafter Pls.' Mem.], at 1. Plaintiffs also asked the court to conduct an in camera review of a representative sample of the documents at issue, see Pls.' Mem. at 42-43; Pls.' Reply in Further Supp. of Pls.' Cross-Mot., ECF No. 24 [hereinafter Pls.' Reply], at 23-25, which this court agreed to do.[2]

         The parties' motions are now ripe for disposition.

         III. STANDARD OF REVIEW

         Most FOIA cases are appropriately resolved on motions for summary judgment. See Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A court must grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is “genuine” only if a reasonable fact-finder could find for the nonmoving party, and a fact is “material” only if it is capable of affecting the outcome of litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to sustain its action' and directs the district courts to ‘determine the matter de novo.'” U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)). As a general matter, “[i]n FOIA cases, an agency defendant may be entitled to summary judgment if it can demonstrate that (1) no material facts are in dispute, (2) it has conducted an adequate search for responsive records, and (3) each responsive record that it has located has either been produced to the plaintiff, is unidentifiable, or is wholly exempt from disclosure.” Mattachine Soc'y of Wash., D.C. v. U.S. Dep't of Justice, 267 F.Supp.3d 218, 223 (D.D.C. 2017) (citing Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1350-51 (D.C. Cir. 1983)).

         Summary judgment in a FOIA case may be based solely on information provided in an agency's supporting affidavits or declarations if they are “relatively detailed and non-conclusory.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks omitted). The agency's affidavits or declarations must “describe the documents and the justifications for nondisclosure with reasonably specific detail” and “demonstrate that the information withheld logically falls within the claimed exemption.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Further, they must not be “controverted by either contrary evidence in the record [or] by evidence of agency bad faith.” Id.; Beltranena v. Clinton, 770 F.Supp.2d 175, 182 (D.D.C. 2011) (quoting Military Audit Project, 656 F.2d at 738). “To successfully challenge an agency's showing that it complied with the FOIA, the plaintiff must come forward with ‘specific facts' demonstrating that there is a genuine issue with respect to whether the agency has improperly withheld extant agency records.” Span v. U.S. Dep't of Justice, 696 F.Supp.2d 113, 119 (D.D.C. 2010) (quoting U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)). “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible.” Judicial Watch, Inc. v. U.S. Dep't of Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (internal quotation marks omitted).

         IV. DISCUSSION

         Defendant invokes FOIA Exemptions 1, 3, 5, 6, and 7(E) to justify its various redactions and withholdings. Plaintiffs challenge the applicability of all exemptions, save Exemption 3.[3] The court addresses the parties' disputes below, starting with Exemption 5.

         A. Exemption 5

         Exemption 5 applies to “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). The exemption protects information that would be “normally privileged in the civil discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). “Exemption 5 incorporates the privileges that the Government may claim when litigating against a private party, including the governmental attorney-client and attorney work product privileges, the presidential communications privilege, the state secrets privilege, and the deliberative process privilege.” Abtew v. U.S. Dep't of Homeland Sec., 808 F.3d 895, 898 (D.C. Cir. 2015).

         Here, DOD asserts the deliberative process privilege to withhold information from a number of the responsive email records and attachments.[4] See generally Vaughn Index; McCubbin Decl. ¶ 41 (stating that the information withheld contains “General Kelly's opinions, advice, and recommendations to [DOD] senior officials about developments at JTF-GTMO and deliberative discussions about policy issues and potential actions related to detention operations”). The deliberative process privilege allows an agency to withhold responsive records if the documents “reflect[] advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Sears, 421 U.S. at 150 (internal quotation marks omitted). The privilege “rests most fundamentally on the belief that were agencies forced to operate in a fishbowl, the frank exchange of ideas and opinions would cease and the quality of administrative decisions would necessarily suffer.” Army Times Publ'g Co. v. Dep't of Air Force, 998 F.2d 1067, 1070 (D.C. Cir. 1993) (internal quotation marks omitted).

         To invoke the privilege, an agency must show that the withheld information is both “predecisional” and “deliberative.” Judicial Watch, Inc. v. U.S. Dep't of Def., 847 F.3d 735, 739 (D.C. Cir. 2017). “Documents are ‘predecisional' if they are ‘generated before the adoption of an agency policy.'” Id. (quoting Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 874 (D.C. Cir. 2010)). “[A] document is deliberative if it is ‘a part of the agency give-and-take-of the deliberative process-by which the decision itself is made.'” Abtew, 808 F.3d at 899 (quoting Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975)).

         Plaintiffs challenge all of DOD's Exemption 5 withholdings as improper. Pls.' Mem. at 11. Plaintiffs assert as a general matter that DOD has not met its burden under the FOIA Improvement Act to show that reasonably foreseeable harm to an exemption-protected interest- here, the agency's deliberative process-would result from the release of the withheld material. See 5 U.S.C. § 552(a)(8)(A)(i)(I). Plaintiffs also contend that DOD has failed to identify the specific deliberative processes to which certain of its withholdings relate. The court addresses each issue in turn.

         1. Satisfaction of the FOIA Improvement Act's “Foreseeable Harm” Standard

         Plaintiffs' primary challenge to DOD's Exemption 5 withholdings relates to the FOIA Improvement Act's codification of the “foreseeable harm” standard. See 5 U.S.C. § 552(a)(8)(A). According to Plaintiffs, the FOIA Improvement Act requires agencies to make a specific showing that disclosure of each of its Exemption 5 withholdings would reasonably and foreseeably harm “‘the quality of agency decisions' by inhibiting ‘open and frank discussions among those who make them within the Government.'” See Pls.' Reply at 3 (quoting Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 9 (2001)); see also Pls.' Mem. at 11, 13. Pursuant to Plaintiffs' interpretation of the government's burden under the “foreseeable harm” standard, McCubbin's general assertion that disclosure of any of the information withheld under Exemption 5 “would jeopardize the free exchange of information between senior leaders within and outside of [DOD], ” McCubbin Decl. ¶ 62, is “plainly insufficient, ” see Pls.' Mem. at 11. In response, DOD asserts that Plaintiffs make too much of the FOIA Improvement Act's impact on the government's burden to justify a discretionary withholding under FOIA. Def.'s Reply at 17-18. According to DOD, the Act does not require an agency to go through the superfluous exercise of showing how each disclosure would harm its deliberative process, especially where, as here, the agency's declaration explains that disclosing any of General Kelly's “routine[] consult[ations] with senior D[O]D and White House officials . . . about ongoing operational issues at JTF-GTMO” would impede open discussion on these issues. See Id. at 20 (first and second alterations in original) (quoting McCubbin Decl. ¶ 41).

         The parties' dispute requires the court to determine what an agency must show to satisfy the FOIA Improvement Act's “foreseeable harm” standard for discretionary withholdings. Although two years have elapsed since the Act's passage in 2016, surprisingly little authority- precedential or persuasive-on this issue exists.[5] The court's search yielded only eight federal court cases that even mention the FOIA Improvement Act. Of these, only two cases-Edelman v. SEC, 239 F.Supp.3d 45 (D.D.C. 2017), and Ecological Rights Found. v. FEMA, No. 16-cv-05254, 2017 WL 5972702 (N.D. Cal. Nov. 30, 2017)-discuss the newly-codified “foreseeable harm” standard, and only Ecological Rights Foundation can be said to address the standard substantively.[6]

         In Ecological Rights Foundation, the court granted summary judgment in favor of a FOIA requester seeking disclosure of records protected under the deliberative process privilege. 2017 WL 5972702, at *7. Finding that the agency had failed to justify its invocation of the privilege, the court noted that the agency “fail[ed] to explain how disclosure would expose [the agency's] decision-making process so as to discourage candid discussion” and likewise “d[id] not provide any justification for how the agency would be harmed by disclosure as required by the FOIA Improvement Act of 2016[, ] 5 U.S.C. § 552(a)(8)(A)(i).” Id. at *6. The court concluded that “[a]bsent a showing of foreseeable harm to an interest protected by the deliberative process exemption, the documents must be disclosed.” Id.

         The court's insistence on strict compliance with the FOIA Improvement Act in Ecological Rights Foundation, coupled with the text of the Act itself, provides guidance as to what DOD must show here to justify its Exemption 5 withholdings. To satisfy the “foreseeable harm” standard, DOD must explain how a particular Exemption 5 withholding would harm the agency's deliberative process. DOD may take a categorical approach-that is, group together like records- but in that case, it must explain the foreseeable harm of disclosure for each category. Cf. Climate Investigations Ctr. v. U.S. Dep't of Energy, No. 16-cv-00124, 2018 WL 4500884, at *13 (D.D.C. Sept. 19, 2018). Defendant has failed to do so here, and the court therefore lacks sufficient information to determine whether the redacted material has been properly withheld.

         The court is unmoved by Defendant's argument that a more specific foreseeable-harm analysis would be duplicative. DOD submits that because the responsive records “are of the same type, ” disclosing the information withheld from the records “would yield the same kinds of harms, ” consistently “across the release.” Def.'s Reply at 21. In DOD's view, this general explanation is all that is required, “particularly where the nature of these documents is explained in detail.” Id. To be sure, the agency's declaration provides sufficiently detailed descriptions of the nature and substance of the withheld communications about JTF-GTMO operations between General Kelly and senior DOD officials. See generally McCubbin Decl. Indeed, the declaration provides that these communications run the gamut from discussions about “the performance of personnel”; “housing and recreational opportunities” for detainees; “operational changes related to noncompliant detainee behavior, including guard responses”; “operational changes related to facilities issues”; “possible changes to procedures for detainee communications”; general processes for “decision-making at JTF-GTMO”; “staffing issues”; “security protocols”; and “operational issues related to a possible new detention operation in the continental United States, ” to “appropriate next steps related to detainees' mental, physical, and emotional health”; “detainee movements”; and “media coverage.” McCubbin Decl. ¶¶ 43-62.

         But pointing out the breadth and variety of these categories of deliberative discussions only serves to undermine Defendant's argument that it has satisfied its statutory obligation. Cf. Prison Legal News v. Samuels, 787 F.3d 1142, 1149-50 (D.C. Cir. 2015) (explaining that while an agency “may justify its withholdings and redactions category-of-document by category-of-document, . . . [t]he range of circumstances included in the category must characteristically support an inference that the statutory requirements for [the] exemption are satisfied” (emphasis added) (internal quotation marks omitted)). The court can readily see, for example, that disclosure of the internal deliberations between General Kelly and high-ranking DOD officials about “a possible new detention operation in the continental United States” could result in reasonably foreseeable harm to future “honest and frank communication within the agency.” See Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). But, absent more detail from the agency, the court can less readily agree with the notion that disclosure of other, seemingly more benign, categories of withheld deliberative information-e.g., General Kelly's “opinions about the current state of facilities on base and recommendations and advice about maintenance issues, ” McCubbin Decl. ¶ 52-would reasonably result in the same level of harm to the exemption-protected interest.

         To be clear, the court does not read the statutory “foreseeable harm” requirement to go so far as to require the government to identify harm likely to result from disclosure of each of its Exemption 5 withholdings. A categorical approach will do. But the court agrees with Plaintiffs that the government must do more than perfunctorily state that disclosure of all the withheld information-regardless of category or substance-“would jeopardize the free exchange of information between senior leaders within and outside of the [DOD], ” id. ¶ 62. See Pl.'s Mem. at 11.

         Because Defendant has failed to satisfactorily show that the categories of information withheld under Exemption 5 would result in reasonably foreseeable harm to its deliberative process, the court denies Defendant's motion as to this exemption. In lieu of granting summary judgment in favor of Plaintiffs on this issue, however, the court will allow Defendant to supplement its declaration on remand to satisfy the “foreseeable harm” standard for its discretionary withholdings.

         As the agency will have another opportunity to supplement its declarations as to Exemption 5, the court need not fulsomely address Plaintiffs' other foreseeable harm arguments-namely, those charging that DOD can assert no harm from disclosure of discussions that: (1) conceal impermissible animus or embarrassing comments; (2) involve only mundane, minor, and uncontroversial decisions; and (3) relate to decisions that have already been made. See Pls.' Mem. at 13-17. DOD may choose to address the substance of these arguments in its supplemental declaration. Having reviewed some of the disputed withholdings in camera, the court will, however, make findings as to two categories of records, as follows.

         a. Information Involving Facially Illegitimate Deliberations

         Based upon the court's in camera review, the court rejects Plaintiffs' argument that DOD impermissibly withheld information in Records 72 and 320 in order to conceal animus toward detainees at JTF-GTMO, government ...


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