Judicial Watch, Inc. v. U.S. Dep't of Def. , 913 F.3d 1106 ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 9, 2018 Decided January 25, 2019
No. 18-5017
JUDICIAL WATCH, INC.,
APPELLANT
v.
UNITED STATES DEPARTMENT OF DEFENSE AND CENTRAL
INTELLIGENCE AGENCY,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-00360)
Lauren M. Burke argued the cause and filed the briefs for
appellant. Paul J. Orfanedes entered an appearance.
Samantha L. Chaifetz, Attorney, U.S. Department of
Justice, argued the cause for appellees. With her on the brief
was Mark B. Stern, Attorney.
Before: ROGERS and SRINIVASAN, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge ROGERS.
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ROGERS, Circuit Judge: Judicial Watch unsuccessfully
requested, pursuant to the Freedom of Information Act
(“FOIA”), release of five memoranda that memorialized advice
to the President and his top national security advisers when the
President was considering whether to order a military strike on
Osama bin Laden’s compound in Pakistan. On appeal, Judicial
Watch challenges the government agencies’ invocation of
FOIA Exemptions 1, 3, and 5 as allowing the government to
operate under secret legal principles when “[t]he purpose of
FOIA is to shield the government from operating secretly under
the guise of legality.” Appellant’s Br. 7. For the following
reasons, we hold that the memoranda responsive to Judicial
Watch’s FOIA request are protected from disclosure under the
presidential communications privilege in Exemption 5 and
affirm.
I.
FOIA is a major breakthrough in providing government
transparency, see EPA v. Mink, 410 U.S. 73, 79 (1973),
“set[ting] forth a policy of broad disclosure of Government
documents in order ‘to ensure an informed citizenry, vital to
the functioning of a democratic society,’” FBI v. Abramson,
456 U.S. 615, 621 (1982) (citations omitted). Congress
determined, however, that “legitimate governmental and
private interests could be harmed by release of certain types of
information and provided nine specific exemptions under
which disclosure could be refused.” Id. The agencies invoked
Exemptions 1, 3, and 5 in denying Judicial Watch’s disclosure
request.
Exemption 1 permits agencies to withhold materials
“specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national
defense or foreign policy” and properly classified pursuant to
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such an Executive order. 5 U.S.C. § 552(b)(1). Executive
Order No. 13,526 allows agencies to classify material
pertaining to specified categories as falling within Exemption
1 if “unauthorized disclosure could reasonably be expected to
cause identifiable or describable damage to the national
security.” Exec. Order No. 13,526, § 1.4, 75 Fed. Reg. 707,
709 (Dec. 29, 2009). Exemption 3 permits the withholding of
material “specifically exempted from disclosure by statute”
that “establishes particular criteria for withholding or refers to
particular types of matters to be withheld.” 5 U.S.C.
§ 552(b)(3)(A)(ii). Section 102A(i)(1) of the National Security
Act of 1947, 50 U.S.C. § 3024(i)(1), authorizes the withholding
of materials relating to “intelligence sources and methods.” 50
U.S.C. § 403(d)(3); Larson v. Dep’t of State, 565 F.3d 857,
865 (D.C. Cir. 2009); see also CIA v. Sims, 471 U.S. 159, 167
(1985). Exemption 5 protects “inter-agency or intra-agency
memorandums . . . 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); see NLRB v. Sears, Roebuck & Co., 421 U.S. 132,
149 (1975). It covers the presidential communications
privilege, the deliberative process privilege, and the attorney-
client privilege. See Loving v. Dep’t of Def., 550 F.3d 32, 37
(D.C. Cir. 2008). In accord with the congressional
commitment to transparency, FOIA exemptions are to be
“narrowly construed,” yet not denied “meaningful reach and
application.” John Doe Agency v. John Doe Corp., 493 U.S.
146, 152 (1989).
In December 2015, Judicial Watch requested the
Department of Defense and the Central Intelligence Agency
(“CIA”) disclose information related to memoranda regarding
the capture or killing of Osama bin Laden in 2011. Earlier,
after the raid on Osama bin Laden’s compound in Pakistan had
been successfully completed, the General Counsel of the CIA
stated in prepared remarks at Harvard Law School that “[b]y
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the time the force was launched, the U.S. Government had
determined with confidence that . . . the operation would be
conducted in complete accordance with applicable U.S. and
international legal restrictions and principles.” Stephen W.
Preston, Remarks at Harvard Law School (Apr. 10, 2012),
https://www.cia.gov/news-information/speeches-
testimony/2012-speeches-testimony/cia-general-counsel-
harvard.html (Apr. 20, 2012) (quoted in Decl. of Antoinette B.
Shiner, Info. Rev. Off’r for the Litig’n. Info. Rev. Off., CIA
(“Shiner Decl.”) ¶ 7 (Aug. 16, 2016)). Ultimately, Judicial
Watch refined its requests to five memoranda:
 A memorandum written by Pentagon General Counsel
Jeh C. Johnson concerning any violation of Pakistani
sovereignty in seeking, capturing, and/or killing Osama
bin Laden in 2011.
 A memorandum written by CIA General Counsel
Stephen W. Preston regarding when the administration
must alert congressional leaders about the raid, capture,
and/or killing of Osama bin Laden in 2011.
 A memorandum written by National Security Council
Legal Adviser Mary B. DeRosa concerning a Navy
SEAL team going into a raid with the intention of
killing as a default option during the search, raid,
capture and/or killing of Osama bin Laden in 2011.
 A memorandum written by National Security Council
Legal Adviser Mary B. DeRosa regarding plans for
detaining Osama bin Laden in the event of his capture.
 A memorandum written by Joint Chiefs of Staff Legal
Adviser Rear Admiral James W. Crawford III regarding
options and/or plans for Osama bin Laden’s burial.
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After Judicial Watch filed suit in February 2016, the
agencies moved for summary judgment, arguing the five
memoranda were protected in full under the presidential
communications privilege in Exemption 5 because they
contained confidential analyses and recommendations that
were solicited by, and communicated to, the President and his
closest national security advisers. Further, because the
memoranda related to certain courses of action being
contemplated by the President, they argued the memoranda
were also protected by the deliberative process and the
attorney-client privileges in Exemption 5. And because the
memoranda contained classified information and information
protected by the National Security Act, the agencies argued that
their disclosure could reasonably be expected to harm national
security and therefore were protected under Exemptions 1 and
3. The agencies stated that a line-by-line review of the
memoranda indicated no reasonably segregable, non-exempt
portions could be publicly released.
Sworn declarations accompanying the summary judgment
motion explained that “[b]ecause the risks and the potential
consequences associated with conducting a raid . . . were
substantial, the President and his national security team
considered a number of variables and carefully weighed
different options for the operation.” Shiner Decl. ¶ 7. “Top
national security lawyers from the CIA, Department of
Defense, and the National Security Council formed an integral
part of that decision-making process.” Id. Their advice
“served as one consideration, among others, weighed by the
President and his national security advis[e]rs in advance of the
President’s decision to authorize the raid on bin Laden’s
compound.” Id. ¶ 8. That advice was “memorialize[d]” in five
written memoranda. Id. ¶ 7. Although certain details of the
raid have been made public, the parties to this legal advice have
6
maintained the confidentiality of these communications. See
id. ¶ 8; Decl. of Mark H. Herrington, Assoc. Dep. Gen.
Counsel, Dep’t of Def. (“Herrington Decl.”) ¶ 8 (Aug. 17,
2016).
The district court granted the motion for summary
judgment, ruling the five memoranda were protected from
disclosure under Exemptions 1, 3, and 5. Judicial Watch, Inc.
v. Dep’t of Defense, 245 F. Supp. 3d 19 (D.D.C. 2017). It
denied Judicial Watch’s motion to alter or amend the judgment
after the government clarified that its declarations did not
address when the memoranda were prepared, ruling that the
presidential communications privilege protected the
memoranda from disclosure regardless of whether the written
memoranda were created before or after briefing.
Judicial Watch appeals. Our review of the grant of
summary judgment is de novo, see Morley v. CIA, 508 F.3d
1108, 1114 (D.C. Cir. 2007), and our review of denial of the
motion to alter or amend judgment pursuant to Federal Rule of
Civil Procedure 59(e) is for abuse of discretion, Ciralsky v.
CIA, 355 F.3d 661, 671 (D.C. Cir. 2004).
II.
The Supreme Court has long recognized that “[a] President
and those who assist him must be free to explore alternatives in
the process of shaping policies and making decisions and to do
so in a way many would be unwilling to express except
privately.” United States v. Nixon, 418 U.S. 683, 708 (1974)
(Nixon I). The Court has conceived of the presidential
communications privilege as “fundamental to the operation of
Government and inextricably rooted in the separation of
powers under the Constitution” because it “relates to the
effective discharge of a President’s powers[.]” Id. at 708, 711.
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The privilege protects “the public interest in candid, objective,
and even blunt or harsh opinions in Presidential
decisionmaking.” Id. at 708. The Court concluded these
considerations “justify[] a presumptive privilege for
Presidential communications.” Id. The scope of the
presidential communications privilege is thus defined in terms
of communications that involve the Office of the President, the
exercise of the President’s responsibilities, and confidential
presidential decisionmaking. Nixon v. Adm’r of Gen. Servs.,
433 U.S. 425, 449 (1977) (Nixon II). The Supreme Court has
reaffirmed that the President’s ability to obtain frank and
informed opinions from his senior advisers is vital to the
President’s effective conduct of his duties. Id. at 448–49.
Bridging the gap since the Nixon cases, this court
examined the history and scope of the privilege in In re Sealed
Case, 121 F.3d 729, 744 (D.C. Cir. 1997). The court concluded
that the presidential communications privilege is properly
invoked with respect to “documents or other materials that
reflect presidential decisionmaking and deliberations and that
the President believes should remain confidential.” Id.Regarding its breadth, the court observed that the privilege “is
rooted in the need for confidentiality to ensure that presidential
decisionmaking is of the highest caliber,” id. at 750, and yet
must “be construed as narrowly as is consistent with ensuring
that the confidentiality of the President’s decisionmaking
process is adequately protected,” id. at 752. To “best serve[]”
the public interest, the court held that the privilege covered
“communications made by presidential advisers in the course
of preparing advice for the President . . . even when these
communications are not made directly to the President.” Id. at
751–52. “Given the need to provide sufficient elbow room for
advisers to obtain information from all knowledgeable
sources,” the privilege must extend beyond communications
made directly to the President to include communications
8
solicited and received by the President’s “immediate White
House advisers” or even certain members of their staffs, but
“should not extend to staff outside the White House in
executive branch agencies.” Id. at 752. Once the privilege
applies, the entirety of the document is protected. See id. at
745.
The court further elaborated on the scope of the privilege
when Judicial Watch requested documents from the Office of
the Pardon Attorney and the Office of the Deputy Attorney
General relating to pardon grants and applications considered
by the President. See Judicial Watch, Inc. v. Dep’t of Justice,
365 F.3d 1108, 1110 & n.2 (D.C. Cir. 2004). Relying on Nixon
I and II and the principles in In re Sealed Case, the court held
that the privilege protected from disclosure pardon documents
“solicited and received” by the President or his immediate
White House advisers but not “all agency documents prepared
in the course of developing the Deputy Attorney General’s
pardon recommendations for the President.” Id. at 1114. In
declining to extend the reach of the privilege, the court
explained that the same confidentiality and candor concerns
calling for application of the president communications
privilege “do not apply as forcefully,” id. at 1115, in view of
the stages of intermediate review of staff pardon
recommendations, some of which never reach the President.
Here, the extraordinary decision confronting the President
in considering whether to order a military strike on Osama bin
Laden’s compound in Pakistan cries out for confidentiality, and
the district court’s application of the presidential
communications privilege rested on consideration of the
appropriate factors, see Judicial Watch, 245 F. Supp. 3d at 28–
30. The decision required the exercise of an informed
judgment by the President as Commander in Chief, U.S.
CONST. art. 2, § 2, on a highly sensitive subject with serious
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direct and collateral consequences for foreign relations that
required a high degree of protection for “the President’s
confidentiality and the candor of his immediate White House
advisers,” Judicial Watch, 365 F.3d at 1123. Declarations filed
with the motion for summary judgment explained that the
President and his immediate advisers solicited and received the
advice of the top national security lawyers from the
Department of Defense, CIA, and National Security Council
relating to a potential military counterterrorism operation. See,
e.g., Shiner Decl. ¶¶ 7–8. The legal advice memorialized in
each memorandum concerned that covert military operation
and was shared only with the President and his closest advisers.
Id. The non-disclosure of that advice thereby protects “the
President’s ability to obtain frank and informed opinions from
his senior advis[e]rs,” an “acute [concern] in the national
security context, particularly in situations . . . where the
President is formulating a decision on a sensitive operation
with substantial foreign policy impacts.” Id. ¶ 9; see
Herrington Decl. ¶ 7. Although the presidential
communications privilege is a qualified privilege, subject to an
adequate showing of need, FOIA requests cannot overcome the
privilege because “the particular purpose for which a FOIA
plaintiff seeks information is not relevant in determining
whether FOIA requires disclosure,” Loving, 550 F.3d at 40(quoting In re Sealed Case, 121 F.3d at 737 n.5).
Judicial Watch does not contest the government’s
statement that “the memoranda memorialize legal advice that
was briefed to the President and his closest advis[e]rs.” Shiner
Decl. ¶ 8. Neither does it suggest the presidential
communications privilege is inapplicable where there is a
“need to protect military, diplomatic, or sensitive national
security secrets,” Nixon II, 433 U.S. at 447 (internal quotation
marks and citation omitted). Instead Judicial Watch points out
that it neither asked the government to disclose whether the
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memoranda or their contents were communicated to the
President or his senior advisers, nor for any presidential
deliberations or deliberative materials, and “asked only that the
memoranda be produced.” Appellant’s Br. 8. Further, Judicial
Watch observes, the government makes no claim that the
authors of the memoranda briefed the President or his senior
advisers directly, or even that they were the intended recipients
of the memoranda or reviewed the memoranda. Judicial Watch
understands the government only to claim that the memoranda
“memorialize” the analysis and advice briefed, thereby
implying they were prepared after the briefing. This is
significant, Judicial Watch maintains, because of lingering
“unanswered questions,” Appellant’s Br. 10. The district
court’s response to the government’s notice of clarification left
unknown when the briefing took place in relation to
preparation of the memoranda, who gave the briefing, and how
the briefers obtained the analysis and the advice they conveyed
to the President and his senior advisers. As a result, Judicial
Watch concludes, the district court failed to construe the
presidential privilege narrowly. “[A]llow[ing] the President
and Executive Branch to justify its actions without public
oversight . . . would allow [them] to engage in governance by
‘secret law.’” Id. (citation omitted).
Judicial Watch makes no effort to reconcile its position
that the timing of the preparation of the memoranda defeats
application of the presidential communications privilege with
this court’s precedent. In In re Sealed Case, 121 F.3d at 758,
the court held that notes taken to memorialize meetings and
telephone calls involving top White House advisers about the
investigation of the former Secretary of Agriculture were
protected from disclosure by the presidential communications
privilege because the notes reflected those advisers’
communications. In Loving, the court held that the privilege
applies to “documents reflecting presidential decisionmaking
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and deliberations, regardless of whether the documents are
predecisional or not.” 550 F.3d at 37 (internal quotation marks
and citation omitted).
That Judicial Watch claims only to seek the memoranda
and not presidential deliberations or deliberative materials
similarly ignores precedent. The district court properly relied
on the government’s declarations, see Larkin v. Dep’t of State,
565 F.3d 857, 862 (D.C. Cir. 2009), that the requested records
reflected the President’s decisionmaking with regard to the
military strike. Judicial Watch, 245 F. Supp. 3d at 28–29; see
Shiner Decl. ¶¶ 9–10; Herrington Decl. ¶¶ 6–8. The
memoranda Judicial Watch seeks are “documents . . . that
reflect presidential . . . deliberations and that the President
believes should remain confidential.” Judicial Watch, 365
F.3d at 1113 (quoting In re Sealed Case, 121 F.3d at 744).
Disclosure of the memoranda would reveal the President’s
deliberations. See In re Sealed Case, 121 F.3d at 744.
Judicial Watch’s suggestion that “unanswered questions,”
Appellant’s Br. 10, preclude application of the presidential
communications privilege fails for similar reasons. There is no
basis on this record to conclude that application of the privilege
is contrary to the limitations identified in our precedent. See
Judicial Watch, 365 F.3d at 1115; In re Sealed Case, 121 F.3d
at 752. In In re Sealed Case, the court held that notes of
meetings among White House advisers and drafts of press
briefings were protected from disclosure by the privilege, even
though it was undisputed that the President never saw these
documents, id. at 746–47. Nothing in the court’s analysis
implied that additional information would be required about
who took the notes or how the discussions at the meetings were
ultimately communicated to the President. Similarly, here, to
determine the applicability of the presidential communications
privilege, the government’s declarations did not need to be
12
more specific about who gave the briefings or how those
conducting the briefings obtained the analysis and advice they
conveyed, or the relationship of the briefer to the authors, the
President, and the President’s senior advisers, or whether and
how the results of the briefings were later conveyed to the
authors of the memoranda. Even assuming such information
would not be privileged, Judicial Watch fails to show why it
would be needed to determine the applicability of the
presidential communications privilege. It sufficed that the
President and his top national security advisers “solicited and
received,” Judicial Watch, 365 F.3d at 1114, the legal advice
memorialized in the five memoranda sought by Judicial Watch.
Finally, Judicial Watch contends that application of the
presidential communications privilege “would allow the
President and Executive Branch to engage in governance by
‘secret law.’” Appellant’s Br. 10 (citation omitted). The
“secret law” doctrine is typically applicable to “opinions and
interpretations which embody the agency’s effective law and
policy,” Sears, Roebuck & Co., 421 U.S. at 153 (internal
quotation marks and citation omitted); see Afshar v. Dep’t of
State, 702 F.2d 1125, 1139–41 (D.C. Cir. 1983). The materials
Judicial Watch seeks do not constitute or establish “law” in the
sense of setting forth a decision that binds subordinates or a
regulated party. Rather, the materials document advice given
up the chain to someone (the President) who then made a
decision. The government’s declaration explains that the
advice contained in the memoranda was not an “authorization
to conduct a given activity, but, rather, one step in the
Executive branch deliberations.” Shiner Decl. ¶ 9. Although
there may be some overlap between the presidential
communications and deliberative process privileges under
Exemption 5, see Judicial Watch, 365 F.3d at 1114–15, to the
extent this “secret law” argument echoes Judicial Watch’s
13
arguments against applying the deliberative process privilege,
see Appellant’s Br. 17–19, the court has no need to address it.
Accordingly, because the presidential communications
privilege applies to the totality of the five memoranda that
Judicial Watch requests, and the question of segregability of
non-exempt material is therefore not presented, we affirm the
grant of summary judgment and the denial of the motion to
alter or amend the judgment.