American Civil Liberties Union v. Department of Justice
2012 U.S. App. LEXIS 10213
| 2d Cir. | 2012Background
- FOIA requests sought records on detainee treatment, deaths in custody, and renditions to countries employing torture; OLC memoranda on Enhanced Interrogation Techniques (EITs) were redacted for classified reasons.
- District court reviewed unredacted memoranda in camera and allowed partial disclosure or substitution of language; district court proposed a compromise text.
- The President prohibited waterboarding for future use, and a photograph of Abu Zubaydah was at issue in cross-appeal.
- The Government withheld material under FOIA Exemptions 1 and 3, arguing classifications and national security need.
- Plaintiffs cross-appealed to obtain waterboarding records and the Abu Zubaydah photograph; district court upheld exemptions, leading to these appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Exemption 1Justifies withholding in OLC memoranda | ACLU argues illegality of waterboarding negates CIA mandate | Government shows information relates to intelligence activity and proper classification | Exemption 1 applies; disclose denied |
| Whether Exemption 3Justifies withholding waterboarding records and photo | Waterboarding legality negates CIA authority; photo unjustifyable to withhold | Records relate to intelligence methods/functions; exemptions valid | Exemption 3 applies; withholding sustained |
| Whether district court authority to substitute text violated FOIA | CIPA-like compromise not authorized; substitutions create documents | Compromise preserves meaning while avoiding disclosure | District court compromise not permitted; reverse as to substitute-text provision |
Key Cases Cited
- Wilner v. NSA, 592 F.3d 60 (2d Cir. 2009) (deference to agency affidavits; national security in FOIA context)
- Sims v. CIA, 471 U.S. 159 (U.S. 1985) (broad CIA authority to protect intelligence sources and methods)
- Carney v. DOJ, 19 F.3d 807 (2d Cir. 1994) (reasonableness of explanations sufficient for exemption)
- ACLU v. U.S. Dep't of Defense, 628 F.3d 612 (D.C. Cir. 2011) (President's prohibition does not diminish withholding authority)