American Civil Liberties Union et al v. Department of Defense et al

Filing 403

ORDER Granting 399 Motion for Reconsideration. The Government's opposition will be due 2/18/10; Plaintiffs' reply, by 3/1/10. I will hear argument in courtroom 14D, on the public record, on 3/11/10 at 2:30 pm.. (Signed by Judge Alvin K. Hellerstein on 1/26/10) (cd)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------- x : AMERICAN CIVIL LIBERTIES UNION, et al., : ORDER GRANTING MOTION : FOR RECONSIDERATION : Plaintiffs, : 04 Civ. 4151 (AKH) : -against: : DEPARTMENT OF DEFENSE, et al., : Defendants. ------------------------------------------------------------- x ALVIN K. HELLERSTEIN, U.S.D.J.: Plaintiffs, the American Civil Liberties Union and allied parties, move for reconsideration of my Order of December 29, 2009. That Order granted in part, and denied in part, Plaintiffs' fourth and fifth motions for summary judgment. Plaintiffs' motions for summary judgment sought disclosure, under the Freedom of Information Act, 5 U.S.C. § 552 et seq., and the striking down of the Government's claims of exemption, regarding various documents which the Government had identified pursuant to my previous orders. Plaintiffs' motion for reconsideration is granted. The issues, of extraordinary public moment, demand full adversarial treatment. The in camera procedures that I developed for review of the documents did not permit such adversarial treatment. See Proposed Protocol for Examining CIA Documents Where Exemption 1 is Claimed, ACLU v. Department of Defense (Feb. 6, 2008) (copy appended hereto). Vitally important questions need to be briefed and argued. For example, are documents describing the techniques and procedures allegedly used by the CIA in questioning persons detained by the armed forces of the United States and its allies

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exempt from disclosure under FOIA if those techniques and procedures allegedly violate applicable law? Plaintiffs are challenging the government's right to redact, under FOIA Exemptions 1 and 3,1 documents "related to the identity and dates of capture of detainees; intelligence methods and CIA standard interrogation policy; and the names, titles, and other identifying information of individuals consulted by the CIA," Plaintiffs' Motion for Reconsideration at 5; descriptions of "Enhanced Interrogation Techniques" relating to specific individuals that "differed from descriptions in the abstract contained in the previously-released OLC memoranda," Id. at 7 (internal quotations omitted); whether disclosure would "lead to an unacceptable risk of compromising the Agency's intelligence-gathering process," Id. at 9 (internal quotations omitted); whether judicial deference to the CIA director is owed if the intelligence methods, albeit not legal, are considered necessary to extract information considered vital from detainees unwilling to provide information, and the like. In most, but not all, instances, I gave deference to the decisions of the Director of the CIA, and upheld the redactions. Plaintiffs challenge my decision. Because of the process necessarily used, their motion for reconsideration is the only

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Exemptions 1 and 3 exclude from FOIA's disclosure requirements matters that are: (1) (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; ... (3) specifically exempted from disclosure by statute (other than section 552b of this title) provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld[.]

5 U.S.C. § 552(b)(1) & (b)(3).

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