In Re: Guantanamo Bay Detainee Litigation ( 2011 )

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DATE
UNI'I`ED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IN RE:
GUANTANAMO BAY Misc. No. 08-00442 ('I'FH)
DETAINEE LITIGATION
MEMQ§A§!)QM OPINI§)I§
Pending before the Court is Respondents’ Motion to Amend and for Clarii‘ication of the
Court’s january 14, 2010 Order Regarding Public Retuins. Thc motion originally sought ( l) an
extension of time until July 14, 201 0, to complete the reprocessing of factual returns for public `
release as required by the Court’s January I4, 2010 Order, (2) a ruling that sensitive but
unclassified information in six proposed categories be designated as "protected" information
pursuant to the Protective Order and Pnocedures for Counsel Access to Detainees at the United
States Naval Base in Guantanazno Bay, Cuba (the "Protective Order") [08-mc-442, Docket No.
409], and (3) a determination that the government is not required to submit a legal memorandum
justifying designations of protected information in a proposed public factual return unless the
petitioner’s counsel or the respective Merits Judge takes issue with a specific designation
Resp’ts’ Mot. to Amend l. Because the parties agree that the first and third requests for relief
"have effectively been resolv " Joint Pre-Hearing Statement 3 [08~mc-442 Docl532 F.3d 834 (D.C. Cir. 2008), the Court will grant this request for
the reasons that follow.
BACKGROUND
The pending motion is the result of an ongoing eH`ort to ensure that public versions of the
factual returns are filed in these important cases of significant national and intemational public
interest. On November 6, 2008, the Court issued a Case Management Order mandating that the
govemment file unclassified versions of each factual return within 14 days of the date of the Case
Management Order or the date the factual return was liled, whichever is later. Case Mgmt. Order
11 l(C). On December 29, 2008, the government moved to designate all unclassified factual
retums as "protected" under the Protective Order until the government produced versions that
could be publicly released. On june 1, 2009, the Court issued an order denying the govemment’s
motion and maridating:
[T]hat on or before July 29, 2009, for each petitioner . . . the government is directed
to either (i) publicly file a declassitied or unclassified factual retum or (ii) file under
seal with the petitioner’s counsel and the appropriate Merits Judge an unclassified
factual retum highlighting with a colored marker the exact words or lines the
government seeks to be deemed protected, as well as a memorandum explaining why
each word or line should be protected. lf the government chooses to file a
highlighted factual return under seal, the parties must first meet and confer pursuant
to Local Rule of Civil Procedure 7(m); if an agreement cannot be reached, the
government must file with the appropriate Merits Judge a motion to designate as
protected each highlighted portionof the return. Until luly 29, 2009, the unclassified
factual returns are to remain protected, except that each petitioner shall have access
to the unclassified factual retum pertaining to himself`, and counsel may disclose the
unclassified factual return to the petitioner’s witnesses and experts who have signed
the Acknowledgment. lf the government does not file an unprotected or highlighted
factual retum for a petitioner by July 29, 2009, that petitioner’s unclassified factual
retum will be treated as unprotected, unless the appropriate Merits Judge niles to the
contrary. ln cases in which the govemment has not yet provided petitioner’s counsel
with an unclassified factual return, the govemment shall comply with this order
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within 60 days of the date on which the government provides the unclassified retum.
Order (June 1, 2009) [Docket No. 1781]. The Court further ordered that press organizations
could tile a motion before the presiding Merits Judge requesting a public factual retum in cases
involving petitioners who elected not to seek a public factual retum. Id.
F our months later, The Associated Press, The New York Times Company, and USA
Today ~ which were permitted to intervene iri this case for the limited purpose of challenging the
govemment’s designation of unclassified factual returns as protected and hereinafter will be
referred to as the "press intervenors" - moved to have the govemment held in contempt for
violating the June l, 2009 order by improperly filing redacted factual returns that withheld
unclassified infomiation without moving for permission to seal in accordance with paragraphs 34
and 35 of the Protective Order. Mot. By The Press intervenors For An Order To Show Cause
Why The Gov’t Should Not Be Held ln Contempt l-Z [Docket No. 1868]. On Januaiy l4, 2010,
the Court denied the press intervenors’ motion but ordered the govemment to comply with the
June l, 2009 order by April l4, 2010. On that date, however, the govemment filed the pending
Motion to Amend and for Clarification.
Relying on the D.C. Circuit’s decisions in Ameziane v. Obama, No. 09-5236, Slip. op.
(i).c. Cir. Jan. s, 2010) (under s¢ai), 620 F.3532 F.3d 834 (D.C. Cir. 2008), the govemment’s seeks a ruling that sensitive but
unclassified information falling within one of the following six categories may be designated as
"protected" information pursuant to the Protective Order governing these habeas cases:
l. Names and/or other information that would tend to identify certain U.S.
l govemment employees, FBI Joint Terrorism Task Force members, or
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contractors - speciftcally, law enforcement offtcers_, agents, translators,
intelligence analysts, or interr0gators, all below the Semor_Exectutve Serv1ce
or General OHicer level - of the family members of detainees
2. information that would reveal the existence, focus, or scope of law
enforcement or intelligence operations, including the sources, w1tnesses, or
methods used and the identity of persons of interest.
3. Inforrnation indicating the names or locations, including geo-coordinates, of
locations of interest as they pertain to counter-terrorism intelligence
gatliering, law enforcement, or military operations, where the Govemment
has not previously acknowledged publically its knowledge of those names or
locations.
4. Infonnation that would reveal the Govemment’s knowledge of telephone
numbers, websites, passwords, passcodes, and e-mail addresses used by
known or suspected terrorists, or discussions of the manner in which known
or suspected terrorists use these methods for communications with one
another.
5 . Information_ regarding the use, etfectiveness, or details regarding the
implementation of certain interrogation approaches and techniques approved
by Executive Order 13491 and described in the Army Field Manual No. 2-
22.3.
6. Certain administrative data, operational ‘nicknarnes,’ code words, dates of
acquisition, including dates of interrogations, and FBI case names and tile
numbers, contained in the intelligence documents included in the factual
retums,
Mem. of P&A ln Supp. of Resp’ts’ Mot. to Amend 22-23. The govemment contends that the
Court’s determination that these six categories constitute "protected" information pursuant to the
Protective Order "would eliminate the need for case~by-case litigation over the protectability of
each of the approved categories" and thereby would "promote judicial economy and eHiciency."
Id. at 17. According to the govemment, "[t]his Court’s approval of the six categories will help
eliminate many issues over the designation of protected information in the retums, and crysta.llize
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any issues that remain, so they may be dealt with efficiently and without requiring repetitive
briefing and consideration of these categorical issues." Id. at 19.
The petitioners oppose the govemment’s motion on the grounds that the govemment
seeks the protective designations without first meeting and conferring with petitioners’ counsel
as required in the Protective Order, the govemment’s motion seeks an advisory opinion from the
Court, the six categories are vague, overbroad, exceed the justiiications and vest the government
with exclusive discretion to designate information within those categories as protected, and the
govemment misinterprets the D.C. Circuit’s decision in Amezr°ane. J0int Resp. ln Opp’n to the
Resp’ts’ Mot. to Amend 3-5, 9-16 (hereinat’ter "Pet’rs’ Br.").
The press intervenors take issue with the fact that "[t]he Governrnent impermissibly filed
both its motion to amend and its supporting memorandum completely under seal, then
compounded the offense by purporting to rely upon a sealed opinion of the Court of Appeals."
Press Intervenors’ Mem. In Opp’n to Gov’t’s Mot. to Amend 7. Like the petitioners, the press
intervenors also challenge the government’s proposed categories as vague, overbroad and
contrary to precedent Id at ll. The press intervenors specifically oppose categories B and E.
The press intervenors state, however, that "[c]ategories A, C, D and F, with some revision, could
be made consistent with the constitutional standard, but no change in procedure should be
allowed if it will provide an excuse for any t`tr.rtlrer delay.” Id. at l6. The press intervenors also
seek to have the Court impose sanctions for the "continuing pattem of conduct by the
Govemment that has delayed disclosure of unclassified material in the court’s records for months
and years." Id. at l7. As a remedy, the press intervenors request that the Court (1) require the
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govemment to represent that it is not withholding unclassified information from its other court
filings without obtaining the petitioners’ consent or filing a motion to seal as required by the
Protective Order and (2) pay the press intervenors’ reasonable attomeys’ fees and costs incurred
to enforce the Court’s orders. Id. at l8.
LEGAL STANDARDS
The decisions in Bismullah, Parhat, and Amezia)re are controlling and establish the legal
standards that apply to the Court’s consideration of the govemment’s pending motion to have six
categories of information designated as protected and subject to sealing. Accordingly, a brief
review of these decisions is warranted to identify the criterion that govern this Court’s analysis
A. Gates v. Bismullah, 128 S. Ct. 2960 (2008)
In Bz`smullah, the first decision in which the D.C. Circuit addressed the designation of
protected material in habeas cases involving detainees at the United States Naval Base in
Guantanamo Bay, Cuba, the court considered several procedural motions the parties filed to
govern its review of the merits of eight detainees’ legal challenges to Combatant Status Review
'I`i"ibunal (“CSRT") determinations that they were enemy combatants. 501 F.3d at 180. Among
other issues, both parties requested that a protective order be issued to address access to
classified material. Id. The Bismullah court entered the protective order proposed by the
government, with modiiications, and noted that counsel for the petitioners were presumed to
have a "need to know" all information the Combatant Status Review Tribunal was authorized to
obtain and consider to make a determination about whether the detainees were enemy
combatants. Id at l88. The Bismullah court stated, however, that the presumption "is overcome
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to the extent the Govemment seeks to withhold from counsel highly sensitive information, or
information pertaining to a highly sensitive source or to anyone other than the detainee but
presents such evidence to the court ex parte and in camera." Id. The Bismullah court declined to
require disclosure of such information "because, consistent with our rule of deference, ‘[i]t is
within the role of the executive to acquire and exercise the expertise of protecting national
security."’ Id. The court went on to remark that "[i]t is not within the role of the courts to
second-guess executive judgments made in furtherance of that branch’s proper role." Id. at 188~
89.
The Bismullah court rejected, however, the govemment’s attempt to make unilateral
determinations about whether to designate information as "protected" and subject to sealing. Id
at 188. The court cited as examples the govemment’s designation of information "‘reasonably
expected to increase the threat of injury or harm to any person’ and iriforniation already
designated by the Govemment to be ‘For Oiiicial Use Only’ or ‘Law Enforcement Sensitive."’
Id. The court concluded its terse examination of this issue by emphasizing that only courts have
the discretion to seal judicial records and a party seeking to protect unclassified information must
proffer a valid basis for doing so. Id. The Bismullah court offered no framework to guide the
parties or the district court about what constitutes a sufficient basis to withhold unclassified
information
B. Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008)
Almost a year alter issuing the decision in Bismullah, the D.C. Circuit was confronted
again with the issue of whether information should be deemed "protected" and subject to sealing
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In Parhat, a case involving a detainee at Guantanamo Bay who a CSRT determined was an
enemy eombatant, the D.C. Circuit considered the govemment’s motion to designate as protected
"all nonclassifted record information that it has labeled ‘law enforcement sensitive,’ as well as
the names and identifying infonnation’ of all U.S. govemment personnel mentioned in the
record." 532 F.3d at 836. The Parhat court complained that, although it had no doubt that some
information in these categories "wa.rrants protection," the govemment’s "generic" explanation
‘j)rovid[ed] no rationale specific to the information actually at issue . . . ." Id. As the Parhat
court explained:
The govemment’s rationale for protection is brief. In support of protecting [names
and/or identifying infomtation of United States Govemment pers0nnel], the motion
states: "lt is appropriate to protect from public disclosure unclassified information
identifying Govemment personnel because . . . [t]he risks to the safety of those
personnel [, particularly those who often deploy to locations abroad,] would be
heightened iftheir involvement in the detention of enemy combatants at Guantanamo
were made public." In support of protecting [any sensitive law enforcement
information], the motion states: "It is . . . appropriate to protect Law Enforcement
Sensitive materi " because public disclosure "could harm the Govemment’s ongoing
law enforcement activities related to the global war against al Qaeda and its
supporters."
Id. at 852 (intemal citations omitted). The Parhat court also pointed out problems with the
govemment’s method of designating information as protected because the method was "less than
clear." Id. As examples, the court observed that some pages were marked as Law Enforcement
Sensitive without any indication whether the marking applied to the whole page, some pages
contained blackened text that was still legible, and some text was completely blackened so that
the court could not view it. Id.
Quoting Bz'smullah, the Parhat court further admonished the govemment that "[b]y
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resting its motion on generic claims, equally applicable to all of the more than one hundred other
detainee cases now pending in this court, the govemment effectively ‘proposes unilaterally to
determine whether information is protected."’ Id (quoting Bismullah, 501 F.3d at l88) (intemal
quotation marks omitted). The Parhaz court went on to state that "[w]ithout an explanation
geared to the information at issue in this case, we are left with no way to determine whether that
specific information warrants protection - other than to accept the govemment’s own
designation." Id. The court therefore denied the govemment’s motion and "direct[ed] it to file a
renewed motion, accompanied by a copy of the record identifying the specific information it
seeks to designate and pleadings explaining why protecting that specific information is required."
Id. at 83 7.
When the govemment later renewed its motion a marked copy of the petitioner’ s CSRT
record was provided to the court. Order, No. 06-1397 (Sept_ 2, 2008) [hereirialter referred to as
"Parhat II"]. The govemment "also supplie[d] two declarations explaining why protected status
is required for the information that has been marked." Order at 2. Granting the govemment’s
renewed motion to designate information as protected, the Parhat 11 court explained that
"[a]lthough the govemment makes no claim that Parhat himself poses any threat to the safety or
privacy of the individuals who participated in his CSRT proceedings, the declarations explain the
risks of releasing the designated names and case file number to the public at large, and the
govemment’s rationale is ‘specific to the information actually at issue in this case. "’ Id
Notably, Parhat’s counsel did not object to protection of the categories identified in the renewed
motion,
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C. Ameziane v. Obama, No. 09-5236, Slip. Op. (D.C. Cir. Jan. 8, 2010) (under seal), 620
F.3d 1 (D.C. Cir. Oct. 6, 2010) (redacted)
Frnauy, m Amezrane, the D.c. circuit considered “whar infer-inatten-
-an be protected from public disclosure when the detainee is anxious to reveal
it." No. 09-5236, slip op. at 2 (D.C. Cir. Jan. 8, 2010) (Brown, J.).
The district court denied the govemment’ s motion t
during a hearing at which the court found that_leclaration “had ‘nothing . . .
to do with this case in particular,’ and protested that allowing Ameziane to disclose-
ld. at 4.
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z'al., the district court issued an order and granted a one-week stay, which the govemment moved
to extend for an additional week. Id. 'lhe district court denied the request to extend the stay and
issued a written opinion that "stated ‘[t] he govemment’s rationale for prof¢¢fiflg [Am¢lian¢’$l
was] riddled with contradictions."’ Id. at 4-5. The district court "disregarded
eclaration because it ‘provide[d] no specifici
Ial. at 5. The district court further stated that it
"was not ‘convinced’ by the govemment’s ‘speculative and conclusory’ national security
concerns.” id The district court found "most important[]’
On appeal, the Ameziane court first observed that, while "[i]t is ‘our customary policy’ to
accord ‘deference to the President in matters of foreign aff`airs,"’ the detainee cases are unique
and "[b]ecause of the independent role carved out for the judiciary, and our concomitant
obligation to balance the needs of the govemment against the rights of the detainee, and also to
preserve to the extend feasible the traditional right of public access to judicial records grounded
in the First Amendment, we exercise greater caution in deciding to def`er." Id. at l0. The
Ameziane court summarized the state of the precedent and reiterated that Bismullah requires the
govemment to provide a basis for withholding unclassified information that is seeks to protect
and Farhat establishes that "a valid ‘basis for withholding’ would include, at a minimum, a
‘specific,’ ‘tailored’ rationale for protecting a general category of inforrnation, and a precise
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designation of each particular item of information that purportedly ‘falls within the categor[y] . . .
described."’ Id. at ll (quoting Parhat, 532 F.3d at 853). Referring to Parhat’s two-step
standard, the Ameziane court explained that "[i]n other words, the government first must
demonstrate what kind of information requires protection and why, and then must show exactly
what information in the case at hand it seeks to protect." Id. The Ameziane court cautioned,
however, that:
Parhaz did not require the govemment to provide a rationale for protection that was
so specific as to preclude any generalized categorization Rather, Parhat left room
for categorized requests in appropriate circumstances. Of course, the narrower the
category for which the government seeks protection, the ` more likely the
govemment’s rationale will be sufficiently tailored. But the district court erred by
construing Parhat to require a specific and distinct rationale addressed to each
detainee’s situation.
Id at 12-13.
Reversing the district court’s decision, the Ameziane court found that the govemment met
the first step of Parhat ’s two-step standard by requesting protection for a "single, limited
category,' d related or derivative documents, while
providing a "detailed rationale tailored specifically to the information in the narrow category" as
presented in _ieclaration, which “logically explained why failing to protect
as likely to harm the govemment’s foreign relations and national
security interests.” Id at 13. T'he Ameziane court concluded that “[b]ecausc this detailed
rationale was tailored specifically to the narrow category of information for which the
government requested protection, the govemment satisfied the first showing required by Parhat."
Id. at l4. ln addin'on, the Ameziane court found that the second step of the Parhat standard was
satisfied "because [the court] face[d] no difficulty ‘determin[ing] whether the information [the
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government] has designated properly falls within the categor[y] it has described.” Id. The
Ameziane court explained that:
The v ' ate for protection a precise item of information -
- that indisputably falls into the narrow category of
deed, this case fits squarely within the ~ overnment’s
rationale for rotecu`on. Althou the ovemment has determined
the govemment met its burden for protection under Parhat.
Id. at 14-15. 'l`he court then emphasized that "[b]ecause the govemment satisfied Parhat, the
district court was required to defer to the govemment’s assessment of the harm to foreign
relations and national security that would result from officially disclosing-
Id. at 15.
The Ameziane court warned that "Parhat did not free courts to substitute their own policy
judgments for those of the executive." Id. at 16. The Ameziane court further chided that "[t]he
district court’s inability to ‘understand’ how perrnittin
‘will interfere in anything,’ . . . did not license the court
to ‘perforrn[] its own calculus as to whether or not harm to the national security . . . would result
from [the] disclosure’ . . . ." Id. (quoting Fitzgibbon v. CIA, 911 1-`.2d 755, 766 (D.C. Cir. 1990)).
The Ameziane court concluded that the district court t`urther erred by “elevating Amezia.ne’s
interest
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D. App1ication of the Decisions in Bl`smulla, Parhat, and Ameziane - The Two-Step
Purhat Test
Upon reflection, the decisions in Bismulla, Parhat and Ameziane establish a fairly
mechanical process to assess whether unclassified information should be sealed. Pursuant to
Parhat 's first step, the govemment must identify the categories of information it seeks to protect
and provide a valid basis for withholding information in those categories. To satisfy this step,
the govemment must proffer a specific, tailored rationale for protecting a general category of
information To be clea.r, the rationale must be tailored to the category for which protection is
sought but need not necessarily be tailored to a particular case. Ameziane, No. 09-5236, slip op.
at l2. lt will not suffice for the govemment to identify broad categories for which the rationale
for protection is brief, spare and generic. Id. at ll. On the other hand, the govemment’s
rationale need not be so specific that it precludes any generalized categorization Id at 12.
Purthennore, "the narrower the category for which the govemment seeks protection, the more
likely the govemment’s rationale will be sufficiently tai1ored." Id. at 12-13.
With respect to Parhat 's second step, the Court must detennine whether the specific
information the govemment has designated for protection properly falls within the category
identified in the first step. Id. at l4. The D.C. Circuit’s analysis in Ameziane suggests that
determining whether the information falls within the protected category requires evaluating
whether the rationale for protection asserted in the first step is implicated by the specific
information the govemment has designated for protection in the second step. Id This is an
important point that appears to have eiuded both parties in Ameziane, the D.C. Circuit assessed
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whether the precise information designated for protection fell into the category for which
protection was sought by considering whether the infon'nation "fit[] squarely within the
govemment’s rationale for protectiou." Id. Thus, determining whether designated information
fails within a protected category requires the Court to evaluate whether the rationale for the
category applies to the designated information.
Ultimately, Ameziane makes clear that, if the govemment satisfies the two-step test
outlined in the Parhat decision, the district court is required to defer to the govemment’s
assessment of the harm to foreign relations and national security that would result from
disclosure of the information the govemment seeks to protect. Id at 15. "['l`]he failure to give
deference when it is due is error." Id. "Parhat did not free courts to substitute their own policy
judgments for those of the executive." Id. at l6.
ANALYSIS
A. Step one of Parhat- whether the respondents have demonstrated what kind of
information requires protection and why
With the foregoing legal standards in mind the Court turns to the merits of the
govemment’s motion, beginning with Parhat 's first step, which involves identifying the
categories of information the govemment seeks to protect and determining whether the
govemment has proffered a valid basis for withholding information in the identified categories
To be clear, the information the govemment seeks to protect from public disclosure consists of
unclassified information that the govemment deems to be sensitive because it “could cause harm
to significant national security and law enforcement interests." Mem. of P&A ln Supp. of
Resp’ts’ Mot. to Amend 22.
As a preliminary matter, the Court notes that the govemment relies principally on the
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Second Declaration oMem. of P&A In Supp. of Resp’ts’ Mot. to Amend Ex. 3
(herinafter cited as "SeconddDecl."), and the Declaration of James W. Mclunkin, Assistant
Director, Counterterrorism Division Federal Bureau of Investigation, id Ex. 4 (hereinafier cited
as "Mc]unlv¢nunenr also
correctly cites Schrecker v. U.S. Dept. of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003),° which
states that D.C. Circuit "decisions have consistently supported nondisclosure of names or other
information identifying individuals appearing in law enforcement records, including
investigators, suspects, witnesses, and informants.” Mem. of P&A ln Supp. of Resp’ts’ Mot. to
Amend 27.
The crux of the petitioners’ complaint about this proposed category is that it is overly
inclusive because it fails to exclude govemment personnel who are so publicly associated with
Guantanarno Bay that protected status would be unwarranted which was an issue in Parhat.
1,3
7 The Mc.lunkin Declaration explains that, "[t]or example, intelligence sources with
links to known or suspected terrorist groups may decide to disassociate themselves with the FBI
and discontinue providing intelligence if their FBI agent contact is revealed to the public."
Mc.lunkin Decl. 1{ 15 .
Schrecker was a case involving FOIA Exemption 7(C), which provides that an
agency may withhold records or information compiled for law enforcement purposes in certain
circumstances 349 F.3d at 661.
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Pet’r’s’ Br. l7-l9. The petitioners seem to misunderstand that, as discussed in Part II(D), supr‘d,
during step two of the Parhat analysis the determination of whether designated information falls
within a protected category requires evaluating whether the rationale for protection asserted in
step one is implicated by the inforrnation. fn other words, if the rationale for protecting the
identities of government personnel is based on the need to avoid putting their safety at risk and
jeopardizing ongoing or future missions, then it might be the case that government personnel
whose identities have aheady been wholly exposed will not qualify for protection because that
rationale no longer applies to them. Their identity and the scope of their involvement might have
been so publicly revealed that sealing their identities in particular documents will not ensure their
safety or otherwise avoid jeopardizing ongoing missions. Accordingly, the identities of such
personnel will not qualify for protection pursuant to Parhar’s step two. 'I`o be clear, though, that
is not to say that govemment personnel whose identities have been publicly revealed will never
qualify for protection under the asserted rationale. To the contrary, it might be the case that the
public disclosure of an individual’s identity occurred in a narrow context such that the need to
avoid further or more extensive disclosure is warranted to protect the individual’s safety or the
integrity of the mission. The govemment also raises a fair point that there is an important
distinction between public disclosure of information that has been officially acknowledged by the
govemment versus information that is merely publicly available Resp’ts’ Reply Br. 13 (citing
Fz'tzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990) (Sentelle, 1.) (stating that "in the arena of
intelligence and foreign relations there can be a critical difference between official and unofiicial
disclosure")). Regardless, in this case the Court finds the government’s rationale to be
sutiiciently tailored to ;void the over inclusivene§s that concems the petitioners.
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this category must satisfy Parhat's step-two analysis, which means that the designated
information must comport with the rationales supporting the category to warrant sealing
Category 2 Information revealing the existence, focus, or scope of law
enforcement or intelligence operations, including the sources,
witnesses, or methods used and the identity of persons of interest.
The second proposed category of information revealing the existence, focus, or scope of
law enforcement or intelligence operations, including the sources, witnesses, or methods used
and the identity of persons of interest The govemment’s rationale for this category is that this
information "could provide current or potential subjects of investigation, including international
terrorists and terrorist organizations, with signi§cant insight into the U.S. Government’s
counterterrorism and law enforcement e&`orts, enabling persons suspected of terrorism-related
activities to avoid detection and evade prosecution, dramatically reducing the effectiveness of
current and future . . . efforts, and thereby compromising national security” and law enforcement
missions. Second .Decl. 11 25; McJunkin Decl. 11 l7. The govemment argues that revealing
this information would result in the subjects of investigations and their associates "likel}f’
concealing their activities, changing their methods of operation, or otherwise taking steps to
avoid and interfere with the govemment’s ability to conduct investigations effectively Second
dow 11 26; M¢Juninn Decl. 11 is.
mrs
Se¢<»ldd»@¢\- izr~,~i=iu»rr»t>¢¢l.i 19- Asa»
exm,,t, rr¢go»».-mm¢n~»=plafns w
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ilsm»dd»»cnnt
tamm Dsl- t
1
S=°°"¢¢1.132»4¢1~»»¢»1>=¢1.124.
1
s¢¢ond->ai. 1 33;
M¢J“nkin bel-125-
second
Decl. 11 33; M¢Junkm o¢¢i. 11 zs.
Both the press intervenors and the petitioners object to the second proposed category.
The press intervenors characterize this category as seeking "sweeping permission for the
Govemment to withhold any unclassilied information relating to ‘law enforcement or
intelligence operations."’ Press intervenors’ Br. 13-14. According to the press interven0rs,
“[t]his category is so vague and open-ended that it would provide the Govemment with
justification to withhold almost any information likely to be found in a F actual Retum - certainly
every detainee must have been connected to a ‘law enforcement or intelligence operation."’ Id
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at l4. The press intervenors also contend that this category is like the "law enforcement
sensitive” category the D.C. Circuit rejected in Parhat. Id. Sirnilarly, the petitioners argue that
this proposed category is “vague, overbroad, and merely a re-working of the first category
rejected by the D.C. Circuit in Parhar and Ameziane." Pet’rs’ Br. 20. The petitioners are also of
the view that the govemment is improperly exercising discretion by inconsistently redacting
information in this category. Id at 20-21.
Permitting the govemment to withhold information that reveals intelligence or law
enforcement sources and methods that could undermine the effectiveness of operations is not
without precedent Historically, courts have recognized that certain executive-branch
information may be protected nom disclosure to ensure the viability of national-security and law-
enforcement operations:
Since the beginnings of our nation, executive officials have claimed a variety of
privileges to resist disclosure of information the confidentiality of which they felt was
crucial to fulfillment of the unique role and responsibilities of the executive branch
of our govemment. Courts ruled early that the executive had a right to withhold
documents that might reveal military or state secrets. The courts have also granted
the executive a right to withhold the identity of govemment informers in some
circumstances and a qualified right to withhold information related to pending
investigations
See In re Sealed Case, 121 F.3d 729, 736-37 (D.C. Cir. l997) (Wald, J.). Thus, for example, it 1
has long been established that "when the disclosure of investigative reports obtained in large part
through promises of confidentiality would hamper the efficient operation of an important
Govemment program and perhaps even . . . impair the national security by weakening a branch of
the milifao', the repairs should be considered prrvil¢g¢d." Ma¢hin v. zuckert 316 F.zd 336, 339
(D.C. Cir. l963) (Washington, J.). Similarly, under the Freedom of lnfonnation Act the
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government may withhold from disclosure, among other things, information compiled for law
enforcement purposes that:
[C]ould reasonably be expected to disclose the identity of a confidential source,
including a State, local, or foreign agency or authority or any private institution [that]
furnished information on a confidential basis, and, in the case of a record or
information compiled by criminal law enforcement authority in the course of a
criminal investigation or by an agency conducting a lawful national security
intelligence investigation, information furnished by a confidential source . . . or . . .
could reasonably be expected to endanger the life or physical safety of any individual
5 U.S.C. § 552(b)(7). lndeed, no less an authority than the United States Supreme Court has
acknowledged that maintaining the confidentiality of intelligence sources is ‘“essential to the
effective operation of our foreign intelligence services"’ and that "D]f potentially valuable
intelligence sources come to think that [the government] will be unable to maintain the
confidentiality of im relationship to them, many could well refuse to supply information to [the
govemment] in the first place." C.I.A. v. Sims, 471 U.S. 159, 175 (1989) (Burger, J.). "Even a
small chance that some court will order disclosure of a source’s identity could well impair
intelligence gathering and cause sources to ‘close up like a clarn."’ Id lt also is well recognized
that even disclosures of unclassified information might compromise classified information and
confidential sources. Snepp v. United States, 444 U.S. 507, 512 (1980) (per curiam). Looking
beyond disclosure of a human source’s identity, the supreme Court has cautioned that disclosures
of other non-human sources from which adversaries might infer the government’s intelligence
interests and methods also could be detrimental Sims, 471 U.S. at 177 (noting that adversaries
“Can learn a great deal" about our govemment’s intelligence operations simply by discovering the
public sources of information or research that interest United States intelligence agencies).
These are but some examples of the judicially- and statutorily-recognized privileges and
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exemptions from disclosure that illustrate the recognition that it is sometimes necessary to
withhold hom public disclosure information deemed sensitive because it patently, or by
inference, could compromise intelligence and law enforcement operations, or place sources in
danger, even though the infomiation is not classified. As a matter of fact, the D.C. Circuit’s
decision in Ameziane expressly states that the framework established by its decisions in
Bismullah and Parhat applies to "requests by the govemment to protect sensitive inforrnation."
No. 09-5236, slip op. lO.
N either the press intervenors nor the petitioners rebutted the govemment’s citations to
precedent establishing that "courts have traditionally recognized the importance of protecting law
enforcement techniques and procedures from disclosure, ‘to preserve the con§dentiality of
sources, to protect witness and law enforcement personnel, to safeguard the privacy of
individuals involved in an investigation, and otherwise to prevent interference with an
investigation."’ Ici (quoting In re Dep 't of Investigation of City of New York, 856 F.2d 481 , 484
(2d Cir. l988)). The govemment also cited cases that deal with the protection of intelligence
sources and methods, which neither the press intervenors nor the petitioners challenge. Id `a.t 3 l.
That being said, the petitioners’ and press intervenors’ complaints about the breadth and
vagueness of this category are not wholly unfair given that, at first blush, nearly anything relating
to Guantanaxno Bay detainees could be deemed to reveal the existence of law enforcement or
intelligence operations The govemment’s rationale, however, limits the information in this
category to information that provides current or potential investigative subjects "signiiicant
insight into the U.S. Govemment’s counterterrorism and law enforcement efforts" that would
“enabl[e] persons suspected of terrorism-related activities to avoid detection and evade
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prosecutions »'d~ at 28
id a
29-30. Although the category is not as narrowly defmed as_i!!
Ameziane, the Court nevertheless finds the rationale to be sufliciently tailored to enable the Court
to determine whether designated information properly falls within the category. No. 09-5236,
slip op. at 12. I~`rankly, the Court cannot foresee a more explicit way of describing the
information to be covered by this category, or the rationale, without revealing the very
information it seeks to protect, actually identifying specific operations, sources or methods at
issue in a particular case, or otherwise making the rationale so tailored that it applies only to a
specific case. Id. at 14 (stating that "Parhat did not require the govemment to provide a rationale
for protection that was so specific as to preclude any generalized categorization"). Because the
govemment’s category and rationale demonstrate what kind of information requires protection
and logically explains why failing to protect this information is likely to harm the govemment’s
foreign relations and national security interests, the Court finds that it satisfies Parhat’s step-one
requirement Id at l l, 13.
Names and locations
and other locations of interest as they pertain to counter
ten'orism intelligence gathering, law enforcement, or military
operations, where the govemment has not previously
acknowledged publicly its knowledge of those names or |oeations.
Category 3
The third category of information for which the government seeks protection is names
ed wanted eha leases °f*“f"=a a ma
pertain to counter-terrorism intelligence gathering, law enforccment, or military operations,
where the govemment has not previously acknowledged publicly its knowledge of those names
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or locations The rationale for protecting this category of information is that
1
Se°°“dT”°°’-l 3"" A°°°“““@‘°‘*‘“
gov¢mm¢»»til
Second .Decl. 1[1[ 35-40. The govemment also asserts that
withholding this information is authorized by statute, namely 10 U.S.C. § 455 (b). Second
Decl. 1{ 40. 10 U.S.C. § 455(b) provides that imagery, imagery intelligence, or geospatial
information in the Department of Defense’s possession may be withheld from public disclosure
tmder three enumerated circumstances
The press intervenors do not object to this category "so long as it is limited to information
not previously acknowledged." Press Intervenors’ Br. 16. The petitioners question why this
information is not classified if it needs protection and complain that this category is too vague
and gives the govemment too much discretion to deem anything a "location of interest." Pet’rs’
Br. 23. The petitioners contend there is "no workable defmition of what constitutes a ‘location of
interest,"’ the phrase is not limited to ongoing investigations, and this category would authorize
withholding that exceeds the proffered rationale. As an exaxnple, the petitioners claim the
9
The Mc.lunkin declaration indicates that the F.B.I. does not consider this category
of information to apply to it. Mc.lmikin Decl. 11 26 (stau'ng that "[t]his category pertains to
information of concem to other agencies within the Executive Branch" and "the rationale for its
protection is described in a declaration from the Departrnent of Defense").
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eevennn>enf ennld deeinneee
"’~
The govemment responds by first addressing the contention that infomiation should be
classified to be protected, which the govemment disputes in light of precedent recognizing, for
examp1e, a state secrets privilege to safeguard information that is not classified but nevertheless
poses a national security risk. Resp’ts’ Reply Br. 18. The govemment again relies on Ameziane
as authority for protecting categories of non~classified information that could harm national
security. Id. The govemment also refutes the notion that it would protect information that has
l been previously acknowledged by the govemment, such as deftmct guesthouses. Id at 19. The
govemment further notes that this category "is . . . limited to locations that ‘pertaiu to counter-
terrorism intelligence gathering, law enforcement or military operations."' Id. The government
finally argues that the petitioners "have endeavored to demonstrate the supposed overbreadth of a
category by reference to information that falls clearly outside its limiting temis." Id.
The Court finds that this category complies with Parhat. The govemment proffered a
speciftc, tailored rationale for protecting this category that explains with sufficient detail why
disclosure under this category would harm national security both apparently and by implicati0n.
The govemment’s rationale limits this category to "names and locations
or other locations of interest as they pertain to counter-terrorism intelligence
gathering, law enforcernent, or military operations, where the Govemment has not previously
acknowledged publically its knowledge of those names or locations." SecondIDecl. 11 34.
Categor_y 4 information revealing the govemment’s knowledge of
terrorist phone numbers, websites, and other means of
communication because disclosure of such information
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could lead terrorists to alter or improve their
communications technology to better avoid detectron.
The fourth category for which the govemment seeks protection is information revealing
the govemment’s knowledge of terrorist phone numbers, websites, and other means of
se¢onaI¢¢). 1111 42.47; M¢Junian D¢¢i. 111 2s-31. The
1
_S°°°“‘I>°°l- ll ‘*3»
1 SeeendDeel. t 49, Melwund¥l>=¢l- it 52~61; Mdv»kin D¢¢l~ n
35'3°-
Id-
The press intervenors take issue with this category mainly because they assert detainee
treatment and interrogation is a matter of public debate and concem. Press lntervenors’ Br. 15.
The press intervenors therefore challenge a category that results in the withholding of all
information concerning interrogation techniques. Id. The petitioners question again why this
information is not classified if it needs protection and also argue that this category is too broad.
Like the press intervenors, the petitioners also assert that information about the use of certain
interrogation techniques is a matter of public interest Pet’rs’ Br. 24. The petitioners are
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concerned that the govemment will be in a position to control the release of information in a way
that distorts the facts and precludes an independent, judicial balancing of the competing interests.
I¢i at 25. The incorporation of interrogation credibility assessments into this category raises
issues for the petitioners because this is "inforrrration that is vital to the public’s understanding of
that information." Id at 26. From the petitioners’ perspective, "[o]nce aga.in, the Govemment’s
Motion would vest the govemment with the discretion to designate information within these b
categories as protected, rather than the Court - with the net result being that the government will
be allowed to create a misleading public record by means of selective exercise of the categorical
protection power it seeks." let
The government responds to the petitioners’ and press intervenors’ concerns by
reiterating that this category is limited to techniques approved in Executive Order 1349l , which
"set new standards and practices for interrogations of persons in U.S. custody, and restricted
interrogation techniques, approaches, and any treatment related to internogation, to the techniques
authorized by and listed in Army Field Manual 2-22.3." Resp’ts’ Reply Br. 22. The govemment
notes that Executive Order 13491 denounces torture so "any other such outrages upon personal
dignity are not within the scope of the information that Respondents would seek to protect under
[this category]." Id. The govemment asserts that pursuant to Ameziane, the other interests cited
by the petitioners "may not be invoked as a reason to disregard the judgment of the Executive
Branch that revealing information about the execution or effectiveness of . . . approved t
[intcn~ogation] techniques could be harmful to national security. Id. at 23.
In this instance, like the others, the Court finds that the govemment’s proposed category
clearly describes what kind of information will be protected and the rationale is tailored to
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explain why protection is warranted Without a doubt, the interrogation methods the govemment
has used against detainees have been the subject of vigorous public debate, interest and concem.
But at no point has the D.C. Circuit carved out an exception to the Parhat two-step test for
information that is a matter of public interest. What the government is required to do to satisfy
Parhat is “demonstrate what kind of information requires protection and why, and then [it] must
show exactly what information in the case at hand it seeks to protect." Ameziane, No. 09-5236,
slip op. l l. If the govemment’s rationale logically explains why failing to Ptotect the
information in a category is likely to harm foreign relations and national security interests, and
the govemment otherwise has complied with Parhaz, then the Court is "required to defer to the
govemment’s assessment of the harm to foreign relations and national security that would result"
from disclosing the information Id at 15. The Court can find no authority to suggest that it may
disregard the govemment’s assessment of the harm to foreign relations and national security
simply because the matter involved is one of great public interest. To the contrary, the D.C.
Circuit has made clear that "the failure to give deference when it is due is error." ld Although
the Court has not yet reached the ultimate question of whether both Parhat steps have been
satisfied, it nevertheless merits emphasis at this stage that there is no authority for the Court to
hold that the public interest in certain information outweighs the harm to national security or
foreign relations. F or better or worse, that simply is not the applicable legal test.
Category 6 Administrative data that, though unclassified standing
alone, could in the aggregate reveal sources and methods
used to investigate persons suspected of terrorism-related
activity.
The final category of information for which the govemment seeks protection is
"adnliriistnative data typically found in the intelligence reports appended as exhibits to the
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retums, including operational nicknarnes, code words, dates of acquisition (including dates of
interrogations), and case tile names and numbers." Mem. of P&A In Supp. of Resp’ts’ Mot. to
Amend 39. The govemment’s general rationale for protecting this information is that "[t]hough
unclassified standing on their own, these data could, if aggregated, reveal the sources and
methods used to investigate persons suspected of terrorism-related activities, thereby enabling
such persons to avoid detection and evade prosecution, and reducing the effectiveness of the
sources and methods in the snow s¢¢onado¢cr. 1; 62; M¢Junkrn Decl. 1; 40. in adain'on,
the information could reveal "collection priorities, intelligence asset allocation, and intelligence
collectors’ focus and capabilities." Second!)ccl. 11 63.
The govemment’s rationale also offers detailed explanations with respect to specific
“"‘“i"“""“‘"° date
1
nolan D¢¢r.
1141~42. ln addition, operational "nicknames" and code words assigned to controlled access
programs can reveal the existence, focus or scope of intelligence operations when connected with
certain information or reports, or can enable adversaries to locate and associate documents in a
factual retum and potentially identify certain intelligence collection requirements or where the
govemment lacks information SecondDecl. 111 64-67.
'=°°ndfl’°°l' l 6°»
1 _
_S°°°”‘*TD°°’- t ’°-
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'
seed
era 1 11~
The press intervenors "do not object to the withholding of administrative data,
operational ‘niclmaxnes,’ code words, or FBI case names and file numbers . . . ." 'l`hey d0,
however, object to a "blanket authorization" to withhold dates of acquisition and dates of
interrogation.s. Press lntervenors’ Br. 17. The press intervenors argue that "[d]isclosure of such
information could well shed light on the actions [of] Govemment and therefore proposed
redactions require review, in context, on a case by case basis." id
The petitioners concede that "[i]n the vast majority of cases, there will not be a dispute
regarding the designation of inforrnation within this category as protected." Pet’rs’ Br. 26. Even
so, though, the petitioners object to the govemment being able to exercise any discretion about
what is or is not protected. Id. at 27. The petitioners argue that “[t]his is particularly problematic
because it could easily allow the government to create chronological confusion in the version of
the record presented to the public by picking and choosing which interrogation dates to ‘protect’
from public vicw." Id.
lt appears that this is the least contentious category proposed by the government given
that all parties seem to agree that it would be appropriate to protect at least some of the
information covered by the category. While the category is described in fairly general terrns, the
rationale is quite narrowly tailored and logically and rationally explains why the infomiation in
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this category should be subject to protection. The Court therefore finds that this category meets
the requirements of step one of the Parhat analysis
l B. Step Two - whether The Govemment Has Shown Exactly What Informatlon ln
l The Case At Hand lt Seeks T0 Protect
As indicated above, the Court finds that the govemment has satisfied the first step of
Parhar by demonstrating with respect to each proffered category, what kind of information
requires protection and why. Ameziane, No. 09~5236, slip op. ll. Considering the unique nature
of these cases, and the sheer volume of documents and information that is at issue, it is sensible
to conserve judicial resources and ensure consistency across all the cases by having a single
judicial determination about whether the govemment properly may seek protection for
infonnan'on that falls within the enumerated categories presented in the pending motion. The
next question is whether the govemment has satisfied Parhar 's second step.
Admittedly, it was not entirely clear to this Court whether the govemment was seeking a
judicial determination that Parhat ’s second step had been met as well. ln the govemment’s
motion, and during oral arguments, the government repeatedly asserted that it was not attempting
to bypass ajudicial determination about whether specific designations within a document
properly fall within the enumerated categories Instead, the govemment explained:
Respondents wish to underscore that by making this request they are not asking the
Court to cede to the Govemment unilateral "‘discretion to seal . . . judicial
record[s].’” See june l, 2009 Mem. Op. at 5 (quoting Br'smullah v. Gates, 501 F.3d
178, 188 (D.C. Cir. 2007)). Were the Court to approve Respondents’ categorical
approach, Respondents would still be required to highlight within individual returns
each line or word that they seek to deem protected, including those lines and words
falling into these six categories, and to submit highlighted factual returns first to
petitioners’ counsel and then to the individual merits judges for final approval of the
proposed public returns. See June l, 2009 Order at l. If either the petitioner of the
Merits Judge in an individual case took issue with the Respondents’ designation of
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particular pieces of information as protected, Respondents then would have to submit
a memorandum explaining why each piece of disputed information actually falls
within one or more of the six designated categories. And if in a particular retum
Respondents were to highlight information falling into another category outside of
these six, and that designation were questioned by petitioners’ counsel or the court,
Respondents would then have to show both why the new category is protectable and
that the information designated falls within the additional category. This Cour!’s
approval of the six categories, however, would eliminate the need for case-by-case
litigation over the protectabil'ily of each of the approved categories.
Mem. of P&A In Supp. of Resp’ts’ Mot. to Amend 17 (emphasis added). Based on this
explanation, the Court interprets the govemment’s motion as requesting, at this juncture, only a
judicial determination about whether the six proposed categories qualify for protection because
they comply with the first step of Parhat.
The fact of the matter is that the second step of Parhat requires the govemment to "show
exactly what information in the case at hand it seeks to protect." Ameziane, No. 09-5236, slip op.
ll (emphasis in original). By limiting the second step to a consideration of the "exact"
information "in the case at hand" that the govemment seeks to protect, the Court concludes that
step two requires a case-specific or document-specific determination about whether information
designated for protection properly falls in one of the six categories As this Court interprets
Bismullah, Parhat and Ameziane, step two cannot be satisfied by the govemment’s production of
"examplcs" of information it would designate in "sample" docurnents. 'l`hat would result in the
very situation the press intervenors and petitioners are concerned about, namely the govemment
unilaterally designating information as protected in violation of Bismullah With no viable way for
the press intervenors or petitioners to challenge the designations. Accordingly, although this
Court finds that the respondents’ proposed six categories satisfy step one of Parhat, the question
of whether information the respondents actually designate for protection satisfies step two of
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Parhat will have to be determined by the meritsjudges presiding over the cases in which the
govemment has or will file a proposed public factual return that contains such designated
information
This point should assuage the press intervenors’ and petitioners’ fear that they will have
no real opportunity to challenge a designation they assert is improper and should remedy the
contention that the govemment will be able to selectively redact information in a way that
distorts the facts. Because, as the Court has explained several times, determinations about
whether designations properly qualify for protection involve an assessment of whether the
designations fall within the scope of a protected category - taking into account whether the
rationale for the category applies to the designation or is implicated by it - many, if not m0st, of
the press intervenors’ and petitioners’ opposing arguments should be resolved by this process. If
the rationale the govemment proffered tojustify why a category of information should be
protected does not apply to a designation, then the designation will not qualify for protection.
CONCLUSION
For the aforementioned reasons, the Court will grant in part Respondents’ Motion to
Amend and for Clariiication of the Court’s january !4, 2010 Order Regarding Public Retums.
The respondents’ request for an extension of time to complete the processing of proposed public
factual returns will be denied as moot light of subsequent proceedings in this case. The Court
will grant the respondents request for a ruling that the six categories of information specified in
the motion qualify for protection to the extent the categories satisfy step one of Parhat. The
Court will deny as moot the respondents’ request for clarification about whether a legal
memorandum justifying designations must be submitted in the absence of a dispute about the
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designations Finally, the Court will deny the press intervenors’ motion for sanctions because the
govemment’s motion did not re-litigate issues that were already decided, the request for more
time to tile the proposed public factual returns was granted during earlier proceedings, and there
is no indication that the government filed its motion in bad faith or for the purpose of delaying
these pr0ceedings.
May¢&z§)n
Thomas F . Hogan
United Statcs District J
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