Center for Constitutional Rights v. Department of Justice et al

Filing 60

MEMORANDUM AND ORDER granting 36 Motion for Summary Judgment; denying 17 Motion for Partial Summary Judgment. CCR's motion for partial summary judgment (Dkt. No. 17) is denied and the Government's cross motion for summary judgment (Dkt. No. 36) is granted. (Signed by Judge Naomi Reice Buchwald on 9/12/2013) Copies Mailed By Chambers. (ft) Modified on 9/12/2013 (ft).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
CENTER FOR CONSTITUTIONAL RIGHTS,
Plaintiff,
- against DEPARTMENT OF DEFENSE AND ITS COMPONENTS
DEFENSE INTELLIGENCE AGENCY AND UNITED
STATES SOUTHERN COMMAND; DEPARTMENT OF
JUSTICE AND ITS COMPONENTS FEDERAL BUREAU
OF INVESTIGATION AND EXECUTIVE OFFICE OF
UNITED STATES ATTORNEYS; and CENTRAL
INTELLIGENCE AGENCY,

MEMORANDUM AND ORDER
12 Civ. 135 (NRB)

Defendants.
----------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
The

Center

for

Constitutional

Rights

(“CCR”)

commenced

this action under the Freedom of Information Act (the “FOIA”),
5 U.S.C. § 552, against the United States Department of Defense
(the “DOD”) and its components the Defense Intelligence Agency
(the

“DIA”)

(“SouthCom”);

and
the

the
United

United

States

States

Department

Southern
of

Command

Justice

(the

“DOJ”) and its component the Federal Bureau of Investigation
(the “FBI”); and the Central Intelligence Agency (the “CIA”)
(collectively, the “defendant agencies” or the “Government”).1
In its FOIA requests, CCR seeks the public disclosure of
images of Mohammed al-Qahtani (“al-Qahtani”), whom the United
1

The Executive Office of United States Attorneys was dismissed from
this action on March 13, 2012. See Dkt. No. 11.

States has held at Guantánamo Bay, Cuba (“Guantánamo”) since
February

13,

2002.

The

DOD

and

the

FBI

have

admitted

to

possessing a number of responsive videotapes and photographs,
which these agencies now seek to withhold.

The CIA, on the

other hand, has filed a Glomar response asserting that it will
neither confirm nor deny the existence of responsive records.
To justify these responses, the defendant agencies invoke a
number of FOIA exemptions.
Presently before the Court are CCR’s motion for partial
summary judgment with respect to the DOD and the FBI and the
Government’s cross-motion for summary judgment on behalf of all
defendant agencies, including the CIA.2

For the reasons set

forth below, we find that the DOD and the FBI have properly
classified the videotapes and photographs of al-Qahtani in the
interest

of

national

appropriately

declined

responsive

records.

security,
to

and

that

the

confirm

or

deny

the

Accordingly,

we

deny

CCR’s

CIA

has

existence
motion

of
and

grant the Government’s cross-motion.

2

We heard oral argument on these motions on September 3,
References preceded by “Tr.” refer to the transcript of oral argument.

2

2013.

BACKGROUND3
I.

Al-Qahtani
Al-Qahtani is a Saudi national who is widely believed to

be the intended 20th hijacker during the terrorist attacks of
September 11, 2001.

See First Lustberg Decl. Ex. 6, at 1

(positing that al-Qahtani “would have been on United Airlines
Flight 93, the only hijacked aircraft that had four hijackers

3

Throughout this Memorandum and Order, we rely upon Plaintiff’s
Statement of Material Facts Pursuant to Local Rule 56.1 (“Pl.’s 56.1”),
filed October 3, 2012;
the Declaration of CCR’s Counsel, Lawrence S.
Lustberg (“First Lustberg Decl.”), filed October 3, 2012, and the exhibits
annexed thereto; the Declaration of CCR’s Counsel and al-Qahtani’s Habeas
Corpus Counsel, Sandra L. Babcock (“Babcock Decl.”), filed October 3, 2012;
the Declaration of the Defendant Agencies’ Counsel, Emily E. Daughtry
(“First Daughtry Decl.”), filed December 27, 2012, and the exhibits annexed
thereto; the Declaration of the Information Review Officer for the National
Clandestine Service of the CIA, Elizabeth Anne Culver (“Culver Decl.”),
filed December 27, 2012, and the exhibits annexed thereto; the Declaration
of the Section Chief of the Record/Information Dissemination Section,
Records Management Division, of the FBI, David M. Hardy (“First Hardy
Decl.”), filed December 27, 2012, and the exhibits annexed thereto; the
Declaration of the Associate Deputy General Counsel in the Office of General
Counsel of the DOD, Mark H. Herrington (“First Herrington Decl.”), filed
December 27, 2012; the Classified Declaration of the Associate Deputy
General Counsel in the Office of General Counsel of the DOD, Mark H.
Herrington (“Classified Herrington Decl.”), filed December 27, 2012 for the
Court’s in camera, ex parte review; the Declaration of the Chief of Staff of
the United States Central Command of the DOD, Major General Karl R. Horst
(“Horst Decl.”), filed December 27, 2012; the Declaration of the Deputy
Assistant Secretary of Defense for Rule of Law and Detainee Policy in the
DOD, William K. Lietzau (“Lietzau Decl.”), filed December 27, 2012, and the
exhibits annexed thereto; the Declaration of Chief of the FOIA Services
Section within the FOIA and Declassification Services Branch for the DIA,
Alesia Y. Williams (“Williams Decl.”), filed December 27, 2012, and the
exhibits annexed thereto; the Declaration of the Commander of Joint Task
Force-Guantánamo, Rear Admiral David B. Woods (“Woods Decl.”), filed
December 27, 2012, and the exhibits annexed thereto; Plaintiff’s Statement
of Material Facts Pursuant to Local Rule 56.1(b) (“Pl.’s 56.1(b)”), filed
February 4, 2013; the Third Declaration of the Section Chief of the
Record/Information Dissemination Section, Records Management Division, of
the FBI, David M. Hardy (“Third Hardy Decl.”), filed April 8, 2013, and the
Descriptive Index of Video Records (“Sealed Index”), filed ex parte and
under seal; and the Second Declaration of the Associate Deputy General
Counsel in the Office of General Counsel of the DOD, Mark H. Herrington
(“Second Herrington Decl.”), filed April 8, 2013.

3

instead of five”).
officials

denied

A month before the attacks, immigration

al-Qahtani

entry

to

the

United

States

at

Id.; see also First Lustberg

Orlando International Airport.

Decl. Ex. 31 (hereinafter “FBI-OIG”), at 78 n.46 (explaining
that al-Qahtani sought to enter the United States with “no
return ticket, no credit cards, and less than $3,000 cash”).
On December 15, 2001, Pakistani forces captured al-Qahtani on
the

Pakistan-Afghanistan

United States.

border

FBI-OIG 77.

and

turned

him

over

to

the

Approximately two months later, on

February 13, 2002, the United States transported al-Qahtani to
Guantánamo, see id., where he remains to this day.
As CCR correctly notes, agency reports and Congressional
hearings have revealed numerous facts concerning al-Qahtani’s
detention and interrogation, most frequently in the context of
official inquiries into the treatment of Guantánamo detainees.
See, e.g., FBI-OIG; First Lustberg Decl. Ex. 2 (hereinafter
“SASC Report”); First Lustberg Decl. Ex. 3 (hereinafter “Church
Report”);

First

Lustberg

Decl.

Ex.

4

(hereinafter

“Schmidt-

Furlow Report”); First Lustberg Decl. Ex. 7 (hereinafter “Fine
Statement”).

Specifically,

information

related

to

the

following subjects has been disclosed:
(1)

the dates, locations, and conditions of al-Qahtani’s
confinement, see, e.g., FBI-OIG 27-29, 77, 80-81;
SASC Report 58, 60-61, 108-09; Church Report 101;

4

(2)

the involvement of the DOD and the FBI in alQahtani’s interrogation, see, e.g., FBI-OIG 78, 8083, 102; SASC Report 57-58, 60; Fine Statement 6;

(3)

the techniques the interrogators used, see e.g., FBIOIG 83-84, 87, 102-03, 197; Fine Statement 6-7; SASC
Report 60, 109; Schmidt-Furlow Report 13-21; First
Lustberg Decl. Ex. 5, at 1-2;

(4)

al-Qahtani’s mental and physical state during his
interrogations, see, e.g., First Lustberg Decl. Ex.
20, at 111-12; FBI-OIG 103; First Lustberg Decl. Ex.
15 (hereinafter “Harrington Letter”), at 2; and

(5)

al-Qahtani’s ultimate cooperation with interrogators,
including the information he provided, see, e.g.,
FBI-OIG 118-19; First Lustberg Decl. Ex. 6, at 1-2.

Furthermore, the New York Times has published a photograph of
al-Qahtani.

See First Lustberg Decl. Ex. 28.

However, the

Government maintains that “the United States did not release”
this image.

Tr. 29:23.

The foregoing disclosures reveal that, between August 2002
and November 2002, FBI and military personnel subjected alQahtani to both “intense isolation,” see Harrington Letter 2,
and

“aggressive”

interrogation

techniques,

see

FBI-OIG

84

(internal quotation marks omitted); see also Fine Statement 6
(disclosing

that

“FBI

agents

saw

military

interrogators

use

increasingly harsh and demeaning techniques, such as menacing
Al-Qahtani
During

with

this

a

time,

snarling

dog

al-Qahtani

during
lost

his

interrogation”).

significant

amounts

of

weight, see First Lustberg Decl. Ex. 20, at 112, and exhibited
symptoms of “extreme psychological trauma,” including “talking

5

to

non-existent

people,

reporting

hearing

voices,

[and]

crouching in a corner of the cell covered with a sheet for
hours on end,” see Harrington Letter 2.
On November 23, 2003, military interrogators implemented
the

first

SASC

“Special

Report

subjected

74,

Interrogation

88.

al-Qahtani

Over
to

the

Plan”

next

“stress

against

54

days,

positions”

al-Qahtani.
interrogators

and

“20-hour

interrogations, tying a dog leash to his chain and leading him
through a series of dog tricks, stripping him naked in the
presence of a female, repeatedly pouring water on his head, and
instructing him to pray to an idol shrine.”
7;

see

also

practices

SASC

resulted

Report
in

82,

88.

al-Qahtani’s

In

Fine Statement 6-

December

2002,

hospitalization

blood pressure” and “low body core temperature.”

for

these
“low

FBI-OIG 103;

see also First Lustberg Decl. Ex. 22, at “07 December 2002.”
On

January

14,

2009,

the

Convening

Authority

for

Military

Commissions Susan J. Crawford reached the conclusion that the
treatment of al-Qahtani “met the legal definition of torture.”
First Lustberg Decl. Ex. 1, at 1.
CCR,

its

counsel

in

this

matter,

and

others

currently

represent al-Qahtani in a habeas corpus action stayed in the
United

States

District

Court

for

the

District

of

Columbia

before the Honorable Rosemary M. Collyer (the “Habeas Action”).
See

al-Qahtani

v.

Obama,

No.

6

05

Civ.

1971

(D.D.C.).

In

connection

with

their

representation

of

al-Qahtani

in

the

Habeas Action, counsel have viewed certain materials of which
CCR now seeks public disclosure.

Mem. of Law in Supp. of Pl.’s

Mot. for Partial Summ. J. (“Pl.’s Br.”) 10; see also Mem. & Op.
Order 3-4, al-Qahtani v. Obama, No. 05 Civ. 1971, Dkt. No. 192
(D.D.C.

Oct.

5,

2009)

(granting

discovery

with

respect

to

audio/video recordings of al-Qahtani made between November 15,
2002 to November 22, 2002).
II.

The FOIA Requests and Responses
A.

CCR’s FOIA Requests and Litigation

On March 4, 2010, CCR submitted FOIA requests to the DOD,
the DIA, SouthCom, the DOJ, the FBI, and the CIA.

See Woods

Decl. ¶ 5; Williams Decl. ¶ 5; First Hardy Decl. ¶ 5; Culver
Decl. ¶ 9.4
records:

In its requests, CCR sought three categories of

(1) videotapes of al-Qahtani made between February

13, 2002, when he arrived at Guantánamo, and November 30, 2005;
(2) photographs of al-Qahtani taken between February 13, 2002
and

November

records

of

30,

2005;

al-Qahtani

November 30, 2005.

and
made

(3)

any

between

other

audio

February

13,

or

visual

2002

See, e.g., Woods Decl. Ex. 1, at 2.

and
The

defendant agencies failed to issue timely responses to CCR’s
4

As the Government notes, “[t]he Woods, Williams, Culver, and First
Hardy Declarations describe the administrative process in detail. The facts
of the administrative process are not in dispute.” Mem. of Law in Opp’n to
Pl.’s Mot. for Partial Summ. J. and in Supp. of the Government’s Cross-Mot.
for Summ. J. (“Gov’t Br.”) 3, n.2.

7

requests.
CCR

Pl.’s 56.1 ¶ 3.

filed

the

instant

Accordingly, on January 9, 2012,

action,

seeking,

inter

alia,

the

immediate processing and release of all responsive records.
B.

The Defendant Agencies’ Responses

After the filing of this action, the defendant agencies
each provided CCR with a declaration detailing their searches
and bases for withholding responsive records, or, in the case
of the CIA, a Glomar response asserting that it would neither
Id. ¶ 5.

confirm nor deny the existence of responsive records.
In

addition,

the

DOD

offered

supplemental

declarations

in

opposition to CCR’s motion for partial summary judgment and in
support of the Government’s cross-motion.

See infra Section

II(A)(2).
1.
The

The DOD’s and the FBI’s Responses
DOD

and

the

FBI

collectively

categories of responsive records:

identified

four

(1) fifty-three videotapes

that depict al-Qahtani’s activities within his cell, as well as
his interaction with DOD personnel (the “FBI Videotapes”); (2)
one

videotape

Videotape”);

(3)

debriefings
photographs

showing

(the
of

forced

two

cell

videotapes

“Debriefing

al-Qahtani

extractions
depicting

DOD

and

the

FBI

“FCE

intelligence

Videotapes”);

(the

and

“Photographs”)

(collectively,

the “Withheld Videotapes and Photographs”).
the

(the

resist

8

disclosure

(4)

six

As detailed below,
of

the

Withheld

Videotapes

and

Photographs

on

the

basis

of

several

FOIA

exemptions.
a.

The FBI Videotapes:
Exemptions 1, 3, 6, 7(A), and
7(C) of the FOIA and Section (j)(2) of the Privacy
Act

The FBI Videotapes depict al-Qahtani’s activities within
his cell, as well as his interaction with DOD personnel at
Guantánamo between August 2002 and November 2002.
Decl. ¶ 29.

First Hardy

The FBI has provided an individualized description

of the 53 FBI Videotapes in an index filed ex parte for in
camera review.

See Third Hardy Decl. ¶ 2; Sealed Index; see

also Dkt. No. 55 (granting the Government’s request to file the
sealed index ex parte for in camera review).
As pertinent here, the DOD and the FBI seek to withhold
the FBI Videotapes in their entirety based on FOIA Exemption 1,
5 U.S.C. § 552(b)(1), which applies to information that is
properly

classified

in

the

interest

of

national

defense

or

See Woods Decl. ¶ 29; First Hardy Decl. ¶ 4.5

foreign policy.

The DOD and the FBI also seek to withhold the FBI Videotapes
pursuant

to

FOIA

Exemption

3,

5

U.S.C.

§

552(b)(3),

which

applies to documents specifically exempted from disclosure by
statute;

FOIA

Exemption

6,

id.

5

§

552(b)(6),

which

protects

Although the FBI maintains the original FBI Videotapes, the DOD
classified these records pursuant to its classification authorities. First
Hardy Decl. ¶ 30.
Accordingly, the FBI refers the Court to the DOD’s
declaration in support of withholding the FBI Videotapes pursuant to FOIA
Exemption 1. Id. ¶¶ 30, 38.

9

privacy interests in all records held by the Government; FOIA
Exemption

7(A),

id.

§

552(b)(7)(A),

which

provides

for

the

withholding of law enforcement records when disclosure would
reasonably

be

proceedings;
protects

FOIA

privacy

expected

to

Exemption
interests

interfere

7(C),
in

law

id.

§

with

enforcement

552(b)(7)(C),

enforcement

which

records;

Section (j)(2) of the Privacy Act, id. § 552a(j)(2).

and

Woods

Decl. ¶¶ 16, 32; First Hardy Decl. ¶ 4.6
b.

The FCE Videotape:

FOIA Exemptions 1, 3, and 6

The FCE Videotape, which was located by the DOD, depicts
two forced cell extractions (“FCE”) of al-Qahtani, at least one
of which occurred on September 8, 2004.
¶ 5; Woods Decl. ¶ 11.

First Herrington Decl.

According to the DOD’s declarations,

the recording of the first FCE lasts approximately 10 minutes
and 41 seconds.

First Herrington Decl. ¶ 5(a).

The recording

begins with a DOD officer identifying the reason for the FCE,
the name of the official who authorized the operation, and the
current date and time.
Decl. ¶ 11.

First Herrington Decl. ¶ 5(a); Woods

FCE team members then state their name, rank, and

function, and start toward al-Qahtani’s cell.

Id.

After an

interpreter speaks with al-Qahtani, the FCE team begins and

6

The FBI refers the Court to the DOD’s declaration in support of
withholding the FBI Videotapes pursuant to FOIA Exemptions 3, 6, and 7(C).
Id.
The FBI only discusses FOIA Exemption 7(A) and Section (j)(2) of the
Privacy Act in its own declaration. Id. ¶¶ 32-37.
10

successfully completes the FCE.
Thereafter,

medical

personnel

First Herrington Decl. ¶ 5(a).
check

al-Qahtani,

and

Id.

first

visible

al-Qahtani

is

not

independently

FCE

During the

team transfers al-Qahtani to a separate room.
FCE,

the

(i.e.,

outside the presence of military personnel) for more than one
second.

Id.

The

recording

of

the

minutes and 12 seconds.

second

FCE

lasts

Id. ¶ 5(b).

approximately

5

Unlike the recording of

the first FCE, the recording of the second FCE does not depict
any events prior to the FCE.

Id.

Rather, the recording begins

with FCE team members staged at al-Qahtani’s cell door.

Id.

The recording shows the FCE team extracting al-Qahtani from his
cell and moving him to a separate room.
9

seconds

of

the

video,

al-Qahtani

Id.
is

alone

outside the presence of military personnel.
to

withhold

the

FCE

Videotape

in

Exemptions 1, 3, and 6 of the FOIA.
c.
The

its

Id.

entirety

and

visible,

The DOD seeks
pursuant

to

Woods Decl. ¶ 16.

The Debriefing Videotapes:
Debriefing

During the final

Videotapes

Exemptions 1, 3, and 6
document

intelligence

debriefings of al-Qahtani taken in July 2002 and April 2004.
Id. ¶ 14.

The DOD has described the Debriefing Videotapes in

greater detail in a classified declaration submitted to this
Court ex parte for in camera review.

See generally Classified

Herrington Decl; see also infra n.10 (finding it appropriate to

11

consider the Classified Herrington Declaration).

The DOD seeks

to withhold the Debriefing Videotapes in their entirety on the
basis of FOIA Exemptions 1, 3, and 6.
d.

The Photographs:

Woods Decl. ¶ 16.

Exemptions 1, 6, 7(A), and 7(C)

The Photographs, which were located by the DOD,7 were taken
between 2002 and 2005.

Id. ¶¶ 9, 12.

Four of the Photographs

are forward-facing mug shots, and two of the Photographs show
al-Qahtani in profile.

Id.

The DOD seeks to withhold the

Photographs pursuant to Exemptions 1, 6, 7(A), and 7(C) of the
FOIA.

Id. ¶ 16.
C.

The CIA’s Response

On March 24, 2010, the CIA issued a Glomar response to
CCR’s

FOIA

confirm

request,

nor

deny

explaining

the

existence

that
or

the

CIA

could

nonexistence”

“neither

of

records

responsive to CCR’s request, because the “fact of the existence
or nonexistence of requested records is currently and properly
classified.”
appealed

the

Culver
CIA’s

Decl.

Ex.

response

on

A.

On

May

the

basis

26,

that

2010,
the

CCR

“CIA’s

involvement in Mr. al Qahtani[’s] interrogations is publically
known.”

Culver Decl. ¶ 11.

CCR’s appeal.

On August 17, 2011, the CIA denied

Culver Decl. Ex. C, at 2.

7

The FBI also identified two responsive photographs that originated
with the DOD. First Hardy Decl. ¶ 28. The FBI referred these photographs
to the DOD for a direct response. Id.

12

III. Subsequent Procedural History
On July 18, 2012, the Court stayed briefing in this matter
pending the outcome of a motion al-Qahtani filed in the Habeas
Action

seeking

to

modify

the

applicable

protective

orders

governing the use of classified information in that case.
Dkt. No. 13.

See

Specifically, al-Qahtani sought to amend the

protective orders in the Habeas Action to permit his counsel to
file

a

classified

declaration

in

this

action

concerning

information counsel learned in the course of representing al
Qahtani in the Habeas Action.

Id.

On August 30, 2012, Judge

Collyer denied al-Qahtani’s motion.

See First Daughtry Decl.

Ex. A.
According

to

Judge

Collyer,

al-Qahtani

failed

to

demonstrate that this Court has a “need to know” the classified
information from the Habeas Action.

Id.

Judge Collyer wrote:

Because the Government bears the burden of proof in a
FOIA case and can meet that burden based on a
sufficiently detailed agency affidavit, the only
question that a FOIA court addresses is whether the
affidavit adequately demonstrates the adequacy of the
search and the propriety of the FOIA exemptions
claimed . . . . Courts are unwilling to give any
weight to a FOIA requester’s personal views regarding
the propriety of classification or the national
security harm that would result from the release of
classified information.
Id., at 2.

Despite Judge Collyer’s ruling, CCR persists in

urging

Court

this

to

“consider

13

a

sealed

submission

from

Plaintiff’s counsel.”

Pl.’s Br. 14; see also Mem. of Law in

Opp’n to Defs.’ Cross-Mot. for Summ. J. (“Pl.’s Opp’n”) 18-20.
DISCUSSION
I.

Legal Standards
The “FOIA represents Congress’s balance ‘between the right

of the public to know and the need of the Government to keep
information in confidence.’”

N.Y. Times Co. v. U.S. Dep’t of

Justice, 872 F. Supp. 2d 309, 314 (S.D.N.Y. 2012) (quoting John
Doe

Agency

v.

John

Therefore,

although

disclosure

of

Doe

Corp.,

the

information

FOIA
in

493

U.S.

“strongly
the

146,

152

(1989)).

favor[s]

possession

of

public
federal

agencies,” Halpern v. Fed. Bureau of Investigation, 181 F.3d
279, 286 (2d Cir. 1999), the statute recognizes “that public
disclosure

is

not

always

in

the

public

interest,”

Cent.

Intelligence Agency v. Sims, 471 U.S. 159, 166-67 (1985), and
mandates that records need not be disclosed if they fall within
“one of the specific, enumerated exemptions set forth in the
Act,” Long v. Office of Pers. Mgmt., 692 F.3d 185, 190 (2d Cir.
2012) (internal quotation marks omitted); see also Wilner v.
Nat’l Sec. Agency, 592 F.3d 60, 68 (2d Cir. 2009) (describing
the Glomar standards).
“Summary judgment is the preferred procedural vehicle for
resolving FOIA disputes.”

Nat’l Immigration Project of Nat’l

Lawyers Guild v. U.S. Dep’t of Homeland Sec., 868 F. Supp. 2d

14

284, 290 (S.D.N.Y. 2012) (internal quotation marks omitted).
Where, as here, a plaintiff challenges an agency’s decision to
withhold responsive records and/or to file a Glomar response,
the agency bears the burden of establishing the applicability
of a FOIA exemption.
at 68.

Long, 692 F.3d at 190; Wilner, 592 F.3d

The agency may satisfy this burden through reasonably

detailed affidavits, which “are accorded a presumption of good
Long, 692 F.3d at 190-91 (quoting Carney v. U.S. Dep’t

faith.”
of

Justice,

19

F.3d

807,

quotation marks omitted).

812

(2d

Cir.

1994))

(internal

The FOIA expressly provides for de

novo review of an agency’s decision.

5 U.S.C. § 552(a)(4)(B).

In the context of national security, however, a court “must
accord substantial weight to an agency’s affidavit concerning
the details of the classified status of the disputed record.”
Am. Civil Liberties Union v. Dep’t of Justice, 681 F.3d 61, 69
(2d

Cir.

2012)

“Ultimately,

an

(internal

(“ACLU”)
agency

may

invoke

quotation
a

FOIA

marks

omitted).

exemption

justification ‘appears logical or plausible.’”

if

its

Id. (quoting

Wilner, 592 F.3d at 73).
“[O]nce the agency has satisfied its burden, the plaintiff
must make a showing of bad faith on the part of the agency
sufficient to impugn the agency’s affidavits or declarations or
provide some tangible evidence that an exemption claimed by the
agency

should

not

apply

or

summary

15

judgment

is

otherwise

inappropriate.”
Agency,

728

Amnesty

F.

Supp.

2d

Int’l
479,

USA
497

v.

Cent.

(S.D.N.Y.

Intelligence

2010)

(quoting

Carney, 19 F.3d at 812) (internal quotation marks omitted).

To

meet this burden, the plaintiff must offer more than “bare
allegations.”

Carney, 19 F.3d at 813.

Therefore, “[p]urely

speculative claims of bad faith will not suffice.”
Dep’t

of

Justice,

924

F.

Supp.

2d

289,

306

Plunkett v.

(D.D.C.

2013)

(internal quotation marks omitted).
II.

Analysis
As noted supra, CCR challenges in its motion for partial

summary judgment the DOD’s and the FBI’s refusal to disclose
the Withheld Videotapes and Photographs.

In its cross-motion,

the Government not only contends that the DOD and the FBI have
appropriately

withheld

the

responsive

records,

but

also

maintains that the CIA properly declined to confirm or deny the
existence of responsive records.

For the reasons set forth

below, we agree with the Government’s positions.
A.

The DOD and the FBI Have Satisfied Their Burden of
Establishing the Applicability of FOIA Exemption 1 to
All of the Withheld Videotapes and Photographs

1.

Analytical Framework

FOIA Exemption 1 permits agencies to withhold any records
that

are

“(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

16

fact properly classified pursuant to such Executive order.”
U.S.C. § 552(b)(1).

5

In this case, the DOD has classified all

of the Withheld Videotapes and Photographs as SECRET pursuant
to Executive Order 13,526, Exec. Order No. 13,526 § 1.2(a)(2)
(Dec. 29, 2009).8

See Woods Decl. ¶ 29; Horst Decl. ¶ 17;

Lietzau Decl. ¶ 4.

To justify these classifications, the DOD

must demonstrate, inter alia, that (1) the Withheld Videotapes
and Photographs “fall[] within one or more of the categories of
[classifiable]
§

1.1(a)(3),

information,”
and

(2)

“the

Exec.

unauthorized

Order

No.

disclosure

13,526
of

that

information reasonably can be expected to result in damage to
the national security,” id. § 1.1(a)(4).9
To satisfy this burden, the DOD asserts that the Withheld
Videotapes and Photographs are properly classified as “military
plans,

weapons

“intelligence

systems,
activities

or

operations,”
(including

id.
covert

§

1.4(a),
action),

intelligence sources or methods, or cryptology,” id. § 1.4(c),
or

“foreign

relations

States,” id. § 1.4(d).

or

foreign

activities

of

the

United

See Woods Decl. ¶ 29; Horst Decl. ¶ 8;

Lietzau Decl. ¶ 6, and that the release of these materials can
8

As noted supra, the FBI also asserts Exemption 1 protections.
See
supra n.5. However, the FBI refers the Court to the DOD’s declarations in
support of withholding. Id.; see also First Hardy Decl. ¶¶ 30, 38.
9
In this context, “damage to the national security” is defined as “harm
to the national defense or foreign relations of the United States from the
unauthorized disclosure of information, taking into consideration such
aspects of the information as the sensitivity, value, utility, and
provenance of that information.” Exec. Order No. 13,526 § 6.1(l).

17

reasonably

be

expected

to

damage

national

security,

see

generally Woods Decl.; Horst Decl.; Lietzau Decl.; Classified
Herrington Decl.
the

Withheld

categories

of

Although CCR purports to challenge whether

Videotapes

and

classifiable

Photographs

information

the

fall
DOD

within
has

the

invoked,

see, e.g., Pl.’s Br. 19, CCR centers its attack on the DOD’s
assertion that release of these materials would visit harm upon
national security.

As noted supra, the Government need only

demonstrate that it is logical or plausible that such harm
reasonably could occur.
2.
To

ACLU, 681 F.3d at 69.

The DOD’s Declarations
demonstrate

the

potential

harm

to

national

security

attendant to disclosure, the DOD offers the public declarations
of original classification authorities Major General Karl R.
Horst (“General Horst”), Rear Admiral David B. Woods (“Admiral
Woods”), and Deputy Assistant Secretary of Defense William K.
Lietzau

(“DASD

Lietzau”),

and

the

classified

declaration

of

Mark H. Herrington (“Herrington”), filed ex parte for in camera

18

review.10

As detailed below, General Horst, Admiral Woods, and

DASD Lietzau set forth independent justifications for the DOD’s
assertion

that

disclosure

Videotapes

and

Photographs

damage

national

provide

while

any

could

security.

additional

Videotape,

of

reasonably

Admiral

rationales

Herrington

of

portion

Woods

for

the

be

expected

and

DASD

withholding

provides

Withheld

“further

to

Lietzau
the

FCE

information

regarding damage to national security that could reasonably be
expected to result from disclosure of the Debriefing Videos.”
Gov’t Br. 17.
a.

General Horst

General
approximately

Horst

is

200,000

responsible
U.S.

for

Afghanistan, and the surrounding region.

oversight

personnel

military

the

in

of

Iraq,

Horst Decl. ¶ 1.

According to General Horst, disclosure of any portion of the
Withheld

Videotapes

and

Photographs

10

could

reasonably

be

Plaintiff urges the Court to refrain from considering the
Classified Herrington Declaration in the absence of further development of
the public record. Pl.’s Opp’n 18; see also Wilner, 592 F.3d at 68 (stating
that a “court should attempt to create as complete a public record as is
possible” before accepting an ex parte submission (internal quotation marks
omitted)). As plaintiff contends, courts are generally disinclined to rely
on ex parte submissions.
See, e.g., Wilner, 592 F.3d at 76 (recognizing
“our legal system’s preference for open court proceedings”). However, such
reluctance “dissipates considerably” where, as here, national security
concerns are at issue.
Order at 2, Am. Civil Liberties Union v. Dep’t of
Defense, 09 Civ. 8071 (BSJ) (S.D.N.Y. Jan. 23, 2012), Dkt. No. 102. Having
independently reviewed the Classified Herrington Declaration, we find that
“the risk associated with disclosure of the document in question outweighs
the utility of counsel, or adversary process, in construing a supplement to
the record.”
Id. at 3.
Accordingly, we properly consider the DOD’s ex
parte submission.
We note, however, that the contents of that submission
were not necessary to our resolution of the instant motions. See Tr. 17:721.

19

expected to harm national security by “endangering the lives
and physical safety” of U.S. military personnel, diplomats, and
Id. ¶ 10.

aid workers serving in Afghanistan and elsewhere.

To substantiate this claim, General Horst states that “enemy
forces

in

Afghanistan”

and

elsewhere

“have

previously

used

videos and photographs out of context to incite the civilian
population and influence government officials.”

Id. ¶ 12.

For

example, General Horst notes that the Taliban and associated
forces

have

interacting

used
with

“published

detainees”

against U.S. forces.
According

to

to

photographs
“garner

of

support

U.S.

forces

for

attacks”

the

Withheld

Id.

General

Horst,

disclosure

of

Videotapes and Photographs could also aid in the “recruitment
Id. ¶ 10.

and financing of extremists and insurgent groups.”

General Horst notes that any released portion of the Withheld
Videotapes

and

Photographs

could

be

“easily

manipulated”

to

attract new members to join the insurgency, as has occurred in
Id. ¶¶ 15-16.

the past.

General Horst states that extremist

groups could “pixelate[]” disclosed images of al-Qahtani “to
show

physical

bleeding,”

id.

signs
¶

of

15(c);

mistreatment,
overlay

such

“staged

as

audio”

bruising
on

or

released

video segments to “falsely indicate the[] mistreatment” of alQahtani where no mistreatment occurred, id. ¶ 15(b); and/or
“splice

released

footage”

of

20

al-Qahtani

“to

change

the

chronology or combination of events,” id. ¶ 15(a).

General

Horst states that extremists have previously used these tactics
to recruit, raise funds, and encourage solidarity.
b.

Id. ¶ 16.

Admiral Woods

Admiral

Woods

is

the

Guantanamo (“JTF-GTMO”).

Commander

of

Woods Decl. ¶ 1.

Joint

Task

Force–

In his declaration,

Admiral Woods maintains that disclosure of any portion of the
Withheld

Videotapes

and

Photographs

could

reasonably

be

expected to damage national security by “chilling” intelligence
collection

efforts

at

JTF-GTMO

and

elsewhere.

Id.

¶

25.

According to Admiral Woods, the public release of al-Qahtani’s
image will “make it substantially less likely that the detainee
will cooperate and provide information in the future” because
such release could provide “the appearance of cooperation with
the

United

States,”

regardless

notes

that,

whether

al-Qahtani

Id. ¶ 25 (emphasis omitted).

actually cooperated.
Woods

of

“in

some

cases,”

the

has

Admiral

appearance

of

cooperation has led to “retribution” against the detainee and
his family.
release

of

“exacerbate”
substantially
future.

Id. ¶ 24.
the

Therefore, Admiral Woods submits that

Withheld

al-Qahtani’s
less

likely”

Videotapes

“fears

of

that

he

Id. ¶ 25.

21

and

reprisal
will

Records
and

cooperate

will

make

it

in

the

According

to

Admiral

Woods,

disclosure

of

the

Withheld

Videotapes and Photographs could also be expected to dissuade
the cooperation of human sources other than al-Qahtani.
¶ 26.

Admiral Woods writes:

Id.

“If a potential source has any

doubts about the government’s ability to protect cooperative
relationships, that is, if he or she were to learn that the
government has disclosed the identity of another source -- or
the identity of a person suspected to be a source -- his or her
desire to cooperate would likely diminish.”

Id.

Admiral Woods

states that “[t]he loss of such sources, and the accompanying
critical intelligence they provide, would seriously affect the
national security of the United States.”
Admiral

Woods

classify

contends

images

Accordingly,

the

United

States’

current

of

that

and

former

detainees

consistently applied.”
c.

Id.

“policy
must

to
be

Id. ¶ 27.

DASD Lietzau

DASD

Lietzau

is

“responsible

for

developing

policy

recommendations and coordinating policy guidance relating to
individuals captured or detained” by the DOD.
¶ 1.

Lietzau Decl.

In his declaration, DASD Lietzau states that disclosure

of any portion of the Withheld Videotapes and Photographs could
reasonably
“providing

be
a

expected

means

for

to

damage

detainees

to

national

communicate

approved channels, including with enemy forces.”

22

security
outside
Id.

by
of

¶ 7.

DASD

Lietzau

released

to

notes:
any

“If

member

images

of

the

of

detainees

public

who

were

to

requests

be

them,

detainees would quickly learn that these videos and photographs
are a useful means for communicating with others, potentially
including al-Qaeda and associated enemy forces.”
According

to

DASD

Lietzau,

“[d]etainees

Id. ¶ 7(a).

have

attempted

to

communicate with al-Qaeda affiliates in the past,” including
through such “covert or surreptitious means.”

Id.

DASD Lietzau notes that release of the Withheld Videotapes
and

Photographs

could

also

cause

“international

partners

to

question the U.S. commitment to its longstanding policy and
practice

of

consistent
Lietzau

shielding

with

the

maintains

detainees

Geneva

that

from

public

Conventions.”

public

Id.

disclosure

of

curiosity,
¶

7.

the

DASD

Withheld

Videotapes and Photographs would subject al-Qahtani to “public
curiosity
degrading.”

in

ways

that

Id. ¶ 7(b).

could

be

seen

as

humiliating

or

Accordingly, DASD Lietzau posits that

disclosure of the Withheld Videotapes and Photographs “could
affect

the

practice

could,

in

turn,

of

dilute

other

states

protections

personnel in future conflicts.”

Id.

23

in

this

afforded

regard,
U.S.

which

service

d.

The DOD’s Additional Justifications for Withholding
the FCE Videotape and the Debriefing Videotapes

As

noted

supra,

Admiral

Woods

and

DASD

Lietzau

each

provide additional reasons for withholding the FCE Videotape,
and

Herrington

offers

further,

classified

concerning the Debriefing Videotapes.
that

disclosure

of

the

FCE

information

Admiral Woods maintains

Videotape

“could

result

in

the

development of tactics and procedures to thwart the actions of
the FCE team, thereby placing the safety and welfare of the
members

in

jeopardy.”

Woods

Decl.

¶

28.

Similarly,

DASD

Lietzau notes, inter alia, that disclosure of the FCE Videotape
could

harm

national

security

by

“encouraging

disruptive

behavior” by DOD detainees “simply to confirm their continued
resistance to the United States in the ongoing armed conflict.”
Id. ¶ 8(a).
3.

Analysis

“Recognizing the relative competencies of the executive
and judiciary,” we find it both logical and plausible that the
disclosure

of

any

Photographs

could

security.

ACLU,

omitted).
are

of

reasonably
681

F.3d

the

be

at

Withheld

expected

70

to

(internal

Videotapes
harm

and

national

quotation

marks

CCR contends that many of the DOD’s justifications

questionable

disclosures

portion

in

concerning

light

of

the

al-Qahtani.

24

Government’s
See,

e.g.,

extensive

Woods

Decl.

¶¶ 24-25 (positing that al-Qahtani would fear retaliation on
account
might

of

the

“appearance

produce,

Government

has

rather

of

cooperation”

than

confirmed).

the
In

that

actual

addition,

disclosure

cooperation
CCR

contends

the
that

other DOD justifications sweep far too broadly in the absence
of

more

(alleging

specific
that

detail.

See,

disclosure

of

any

Lietzau

e.g.,

portion

of

Decl.

the

¶

7

Withheld

Videotapes and Photographs would provide a means for detainees
to covertly communicate with their associates but failing to
describe

how

a

mug

shot

could

be

used

for

this

purpose).

Ultimately, however, we find that the DOD’s submissions
provide adequate justification for the Government’s invocation
of FOIA Exemption 1.
and

plausible

that

In particular, we find it both logical
extremists

would

utilize

images

of

al-

Qahtani (whether in native or manipulated formats) to incite
anti-American

sentiment,

to

raise

funds,

and/or

other loyalists, as has occurred in the past.

to

recruit

See Horst Decl.

¶¶ 15-16; accord Int’l Counsel Bureau v. U.S. Dep’t of Defense,
906 F. Supp. 2d 1, 7 (D.D.C. 2012) (finding it plausible that
“release

of

even

solo

images”

25

of

FCE

videotapes

could

be

“manipulated and/or used as a propaganda tool”).11

Such misuse

is particularly plausible in this case, which involves a highprofile detainee, the treatment of whom the Convening Authority
for Military Commissions Susan J. Crawford determined “met the
legal definition of torture.” First Lustberg Decl. Ex. 1, at 1.
Moreover, we find it entirely plausible that disclosure of
the Withheld Videotapes and Photographs could compromise the
Government’s

cooperative

relationships

with

other

Guantánamo

Woods Decl. ¶ 26; see also Associated Press v. U.S.

detainees.

Dep’t of Defense, 462 F. Supp. 2d 573, 576 (S.D.N.Y. 2006)
(deeming

it

plausible

that

“official

public

disclosure”

of

detainee photographs would “exacerbate the detainees’ fears of
reprisal,

thus

reducing

the

likelihood

that

detainees

cooperate in intelligence-gathering efforts”).12

would

Accordingly,

we conclude that the Government has satisfied its burden of
establishing the applicability of FOIA Exemption 1.
In its effort to avoid this result, CCR notes that the
Government has “safely released” (1) images of other detainees
and (2) extensive factual information concerning al-Qahtani.
11

See also Judicial Watch, Inc. v. U.S. Dep’t of Defense, 857 F. Supp.
2d 44, 61 (D.D.C. 2012) (upholding the CIA’s application of FOIA Exemption 1
to photographs and/or video records of Osama bin Laden based on the CIA’s
declaration that “release of any of the records reasonably could be expected
to inflame tensions among overseas populations,” “encourage propaganda,” or
“lead to retaliatory attacks against the United States” (internal quotation
marks omitted)), aff’d, 715 F.3d 937 (D.C. Cir. 2013).
12
Although we need not reach the issue, we note that the DOD has
provided other plausible reasons for withholding the FCE Videotape and
Debriefing Videotapes. See supra Section II(A)(2)(d).

26

Pl.’s Opp’n 17.

Thus, CCR contends that it is “highly suspect

that every image of al-Qahtani” will cause harm to national
security.
more

However, the facts about image release are far

Id.

nuanced

exceptions

than

of

(1)

CCR

acknowledges.

photographs

used

With

for

the

border

limited

control

and

military commission trials and (2) photographs taken by the
International Committee of the Red Cross (“ICRC”) and released
to

a

consenting

disclosed

any

images

identifiable.
Lustberg

Qahtani

does

in

family,13
which

a

the

Government

not

detainee

specific

has

is

Second Herrington Decl. ¶ 5; see also

Decl.

Government’s

detainee’s

Exs.

release
not

19,

25,

26,

of

written

diminish

its

images of al-Qahtani.

30,

First

32.

Further,

the

information

concerning

al-

explanations

for

withholding

To the contrary, the written record of

torture may make it all the more likely that enemy forces would
use al-Qahtani’s image against the United States’ interests.
See Judicial Watch, 857 F. Supp. 2d at 48 (“A picture may be

13

We do not reach the Government’s invocation of al-Qahtani’s privacy
interests.
Nonetheless, we note that al-Qahtani, unlike many other
detainees, has not permitted the ICRC to take his photograph.
Second
Herrington Decl. ¶ 6.
Given the extensive public record in this case, we
believe that al-Qahtani’s interest in avoiding further privacy invasions is
entitled to considerable weight. Although CCR suggests that al-Qahtani has
(or will) waive his privacy interests in the Withheld Videotapes and
Photographs, see Babcock Decl. ¶¶ 2-4; Pl.’s Opp’n 34, CCR has not produced
any such waiver.
In light Judge Collyer’s reason for staying the Habeas
Action (i.e., al-Qahtani’s incompetence), it is highly doubtful that alQahtani has the legal capacity to effect such a waiver. See Minute Order,
al-Qahtani v. Obama, No. 05 Civ. 1971 (D.D.C. April 20, 2012) (“continuing
the stay in this case because Petitioner is currently incompetent and unable
to assist effectively in this case”).

27

worth a thousand words.

And perhaps moving pictures bear an

even higher value.”).
In any event, the Government’s prior disclosures are “of
limited legal relevance” in the context of FOIA Exemption 1.
Azmy

v.

U.S.

Dep’t

(S.D.N.Y. 2008).

of

Defense,

562

F.

Supp.

2d

590,

598

As the Court of Appeals has made clear, the

“application of Exemption 1 is generally unaffected by whether
the information has entered the realm of public knowledge.”
Halpern, 181 F.3d at 294.

There is a “limited exception” to

this rule “where the government has officially disclosed the
specific information the requester seeks.”

Id.

This exception

applies only when the requested information “(1) is as specific
as

the

information

previously

information

previously

through

official

an

released,

disclosed,

and

and

documented

(3)

(2)
was

matches
made

disclosure.”

the

public

Wilson

v.

Cent. Intelligence Agency, 586 F.3d 171, 186 (2d Cir. 2009)
(internal quotation marks and alterations omitted).
concedes,

the

previously

Withheld

disclosed.

Videotapes
Pl.’s

and

Opp’n

Photographs
9.

As CCR
were

not

Therefore,

the

Government may properly withhold the records pursuant to FOIA
Exemption 1.

See, e.g., Wolf v. Cent. Intelligence Agency, 473

F.3d 370, 378 (D.C. Cir. 2007) (“[T]he fact that information
exists in some form in the public domain does not necessarily

28

mean that official disclosure will not cause harm cognizable
under a FOIA exemption.”).
Finally,
suggestion,

we

there

note
is

that,
no

contrary

evidence

to

that

any

CCR’s
of

speculative
the

Withheld

Videotapes or Photographs depict illegal conduct, evidence of
mistreatment,

or

embarrassment.

other
We

potential

have

sources

personally

of

governmental

reviewed

the

individualized description of the FBI Videotapes.14
Hardy Decl. ¶ 2; Sealed Index.

FBI’s

See Third

Having done so, we can confirm

the Government’s public representation that these records “do
not document any abuse or mistreatment.”

Reply Mem. of Law in

Further Supp. of the Government’s Mot. for Summ. J. 4.
For the foregoing reasons, we conclude that the Government
has satisfied its burden of establishing the applicability of
FOIA Exemption 1, while CCR has failed to proffer any “tangible
Carney, 19

evidence” that this exemption should not apply.
F.3d at 812.

In reaching this conclusion, we are mindful of

“the uniquely executive purview of national security.”
681

F.3d

quotation

at

76

marks

(quoting
omitted).

Wilner,
As

592
the

F.3d
Court

at
of

76)

ACLU,

(internal

Appeals

has

cautioned, “it is bad law and bad policy to second-guess the
14

Based on this review, we are satisfied that we do not have a “need to
know” classified information from the Habeas Action. And yet even if we did
have such a “need to know,” we would be reluctant to overrule Judge
Collyer’s decision. Thus, we deny plaintiff’s request to file a classified
declaration for in camera review.

29

predictive

judgments

agencies.”

Id.

at

made
70-71

by

the

government’s
Wilner,

(quoting

(internal quotation marks omitted).

intelligence
F.3d

592

at

76)

And we decline to do so

here.
B.

The CIA Appropriately Issued a Glomar Response

“To properly employ the Glomar response to a FOIA request,
an agency must ‘tether’ its refusal to respond to one of the
nine FOIA exemptions -- in other words, a government agency may
refuse to confirm or deny the existence of certain records if
the FOIA exemption would itself preclude the acknowledgment of
such documents.”

Wilner, 592 F.3d at 68 (internal quotation

marks,

and

citations,

alterations

omitted).

As

with

FOIA

responses more generally, “[i]n evaluating an agency’s Glomar
response,
agency’s

a

court

affidavits,

must

accord

provided

substantial

that

the

weight

to

the

justifications

for

nondisclosure are not controverted by contrary evidence in the
record or by evidence of bad faith.”

Id. (internal quotation

marks and alteration omitted).
Here,

the

CIA

contends

that

the

existence

of

any

responsive records must be withheld under FOIA Exemptions 1 and
3.

Culver Decl. ¶¶ 6-7.

argues

that

either

With respect to Exemption 1, the CIA

confirming

or

denying

the

existence

of

responsive records would necessarily reveal whether the CIA has
ever had any interest in al-Qahtani or his affiliates, id.

30

¶¶ 36-38; whether the agency uses interrogation as a means of
collecting

intelligence,

cooperates

with

other

id.

¶¶

47-48;

agencies,

and

such

whether

as

the

the

DOD,

CIA
for

intelligence purposes, id.

The CIA maintains that disclosure

of

could

reasonably

by,

inter

this

national

information
security

be

alia,

expected
aiding

to

damage

terrorist

organizations and extremist groups in avoiding CIA surveillance
and exploiting existing intelligence gaps, id. ¶¶ 37-39, and/or
harming the United States’ relationship with al-Qahtani’s home
country (i.e., Saudi Arabia), id. ¶ 42.
We are satisfied that the agency has provided sufficient
detail to justify its invocation of FOIA Exemption 1.15

See,

e.g., Am. Civil Liberties Union v. Dep’t of Defense, 752 F.
Supp. 2d 361, 368 (S.D.N.Y. 2010) (upholding the CIA’s Glomar
response to a FOIA request seeking records related to Bagram
detainees); Wolf, 473 F.3d at 376-77 (finding it “plausible
that

either confirming

or

denying

an

Agency

interest

in

a

foreign national reasonably could damage sources and methods by
revealing

CIA

intelligence

priorities,

sources

countermeasures

with

against

thereby

a

starting

the

CIA

and

reach

the

CIA’s

providing
point
thus

for
wasting

foreign
applying
Agency

resources”).

15

Therefore,
Exemption 3.

we

need

not

31

arguments

concerning

FOIA

CCR’s

sole

argument

to

the

contrary

is

that

“official

acknowledgements” have already detailed the CIA’s involvement
in detaining and interrogating al-Qahtani.
see also Pl.’s 56.1(b) ¶ 6.
cannot

satisfy

the

Pl.’s Opp’n 38-39;

However, the referenced statements

“strict

test”

for

official

disclosure,

Wilson, 586 F.3d at 186, because they were not made by the CIA
itself,

see

Culver

Decl.

¶

54

(“[N]o

authorized

CIA

or

Executive Branch official has officially and publicly confirmed
(or

denied)

whether

interrogations
details

of

regarding

agencies

share

CIA

al

personnel

Qahtani

how,

with

and

CIA

at

what

participated

Guantánamo
type,

regarding

of

Bay

in

or

provided

information

detainees

at

the

other

Guantánamo

Bay.”); see also Wilson, 586 F.3d at 186-87 (stating that “the
law

will

not

infer

official

disclosure

of

information

classified by the CIA from (1) widespread public discussion of
a

classified

authorized

matter, (2)

to

speak

for

statements
the

made

by

Agency, or

a

(3)

person

not

release

of

information by another agency, or even by Congress” (internal
citations omitted)).

Furthermore, the official acknowledgments

are not as specific as the classified information at issue here
--

namely,

the

existence

or

nonexistence

of

videotapes,

audiotapes, and photographs of al-Qahtani from the period 2002
to 2005.

Therefore, we find that the CIA’s Glomar response is

proper and sufficient.

32

CONCLUSION

For

the

foregoing

summary judgment

(Dkt.

reasons,

No.

17)

CCR's

motion

for

partial

is denied and the Government's

cross motion for summary judgment (Dkt. No. 36) is granted.

Dated:

New York, New York
September 12, 2013

L<2~

NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

Copies of the foregoing Memorandum and Order have been mailed
on this date to the following:
Attorneys for Plaintiff

Lawrence S. Lustberg, Esq.

Benjamin Z. Yaster, Esq.

Gibbons P.C.

One Gateway Center

Newark, NJ 07102-5310

Sandra L. Babcock, Esq.

Center for International Human Rights

Northwestern University School of Law

357 East Chicago Avenue

Chicago, IL 60611

Attorneys for Defendants

Tara M. La Morte, Esq.
Emily E. Daughtry, Esq.
United States Attorney's Office
Southern Dist ct of New York
86 Chambers Street
New York, NY 10007

33