Muhammad Husayn v. Gates ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ZAYN AL ABIDIN MUHAMMAD
HUSAYN (ISN #10016),
Petitioner,
v. Civil Action No. 08-1360
(EGS)
LLOYD AUSTIN, et al.,
Respondents.
MEMORANDUM OPINION AND ORDER
Pending before the Court is journalist Raymond Bonner’s
(“Movant”) Motion to Intervene and Unseal. See ECF No. 317. Upon
careful consideration of the motion, opposition, reply thereto,
the notices of supplemental authority submitted by movant and
the Government, the applicable law, and for the reasons
explained below, the Motion is GRANTED IN PART, DENIED IN PART,
AND FOUND AS MOOT IN PART.
Following the classification review ordered by the Court
of, among other records in this case, those Movant seeks to
unseal, see Min. Order (Apr. 22, 2016); the Government filed on
the docket public versions of all the records Movant seeks to
unseal, see generally docket for Civil Action No. 08-1360.
Fourteen of the records contain no redactions; the remaining
twenty-two contain redactions. 1 Accordingly, the motion is MOOT
as to the fourteen records with no redactions.
I. Movant May Intervene In This Case
“[T]hird parties may be allowed to permissively intervene
under [Fed.] Rule [Civ. P.] 24(b) for the limited purpose of
seeking access to materials that have been shielded from public
view either by seal or by protective order.” E.E.O.C v. Nat’l
Children’s Ctr. Inc., 146 F.3d 1042, 1045 (D.C. Cir. 1998).
Here, Movant seeks to intervene to gain access to materials that
are sealed on the docket in this case, and also gain access to
materials that have been designated by Executive Branch
authorities as classified. See generally Mem. of Law in Supp. of
Mot. to Intervene (“Mot. to Intervene”), ECF No. 317-1. In view
of the liberal interpretation of Rule 24(b) by the Court of
Appeals for the District of Columbia Circuit (“D.C. Circuit”),
see Nat’l Children’s Ctr. Inc., 146 F.3d at 1045; and the lack
of opposition by the Government, see Opp’n, ECF No. 411 at 4
n.3, 2 the Court GRANTS IN PART the motion and permits Movant to
intervene for the limited purpose of seeking access to sealed
and classified records. See In re Guantanamo Bay Detainee
Litigation, 624 F. Supp. 2d. 27, 31 (D.D.C. 2009)(Hogan, J.)
1 ECF Nos. 333 and 350 are the same record.
2 When citing electronic filings throughout this opinion, the
Court cites to the ECF header page number, not the original page
number of the filed document.
2
(allowing members of the press to intervene in this action for
the limited purpose of opposing the government’s Motion to
Confirm Designation of Unclassified Returns as “Protected").
II. The Court Will Assume A Qualified First Amendment Right of
Access
Movant seeks to intervene to gain access to materials that
are sealed on the docket in this case, and also to gain access
to materials that have been designated by Executive Branch
authorities as classified. See generally Mot. to Intervene, ECF
No. 317-1. Following the completion of the briefing on the
instant motion, the D.C. Circuit issued an opinion reversing the
district court opinion upon which Movant relies to assert his
right of access to classified materials here. See id. at 15, 18
(citing Dhiab v. Obama, 70 F. Supp. 3d 486 (D.D.C. 2014)). In
Dhiab, the district court granted news media organizations’
motion to intervene and unseal classified videotapes that had
been filed on the docket in that case. See generally id. The
D.C. Circuit reversed. See Dhiab v. Trump, 852 F.3d 1087 (D.C.
Cir. 2017). The panel was unanimous in reversing the district
court, but divided on whether the First Amendment guarantees a
right of public access to classified documents filed in
Guantanamo Bay habeas corpus proceedings. See id. at 1096, 1098-
1107.
3
The panel agreed, however, that “[e]ven if intervenors had
a qualified First Amendment right of access” to the classified
materials in that case, national security considerations made
that access unavailable. See id. at 1096. First, the court noted
that “[t]he government identified multiple ways in which
unsealing these recordings would likely impair national
security,” citing “the government’s expert judgment” as
expressed in various declarations filed with the Court. Id. The
court dismissed the district court’s characterization of the
declaration of the Commander of the Joint Task-Force Guantanamo
as “speculative,” because while the district court “thought it
knew better,” it, unlike the Commander, who “made his
declaration on personal knowledge,” “had no day-to-day
experience with the people being detained at Guantanamo and had
no special insight into their mindset.” Id. at 1097. The court
stated that
[i]t bears repeating that the government “has
a compelling interest in protecting ... the
secrecy of information important to our
national security....” McGehee, 718 F.2d at
1143 (quoting Snepp v. United States, 444 U.S.
at 509 n.3, 100 S.Ct. 763 (per curiam)
(emphasis and alteration in original)). See
also C.I.A. v. Sims, 471 U.S. 159, 175, 105 S.
Ct. 1881, 85 L. Ed. 2d 173 (1985); United
States v. Yunis, 867 F.2d 617, 623 (D.C. Cir.
1989). The district court did not disagree
with the “SECRET” classification of these
recordings, and neither did the intervenors.
By definition, “the unauthorized disclosure of
[the recordings] reasonably could be expected
4
to cause serious damage to the national
security.” Executive Order No. 13,526 §
1.2(a)(2). The district court had no basis for
ruling that publicly releasing the recordings
could not be expected to cause such harm.
Id. at 1098.
Accordingly, the Court will assume a qualified First
Amendment right of access to the classified information for the
purpose of this motion and will evaluate whether the Government
has met its burden under the Press-Enterprise II 3 standard.
III. Analysis
A. The Information Is “Properly Classified”
Executive Order 13526 (“E.O.”), governs the classification
of national security information. The E.O. authorizes
classification “only if all of the following” four criteria are
met: (1) an original classification authority classifies the
information; (2) the U.S. Government owns, produces, or controls
the information; (3) the information is within one of eight
protected categories listed in Section 1.4 of the E.O.; and (4)
the original classification authority determines that the
unauthorized disclosure of the information reasonably could be
expected to result in damage to the national security, and
identifies or describes that damage. E.O., § 1.1(a).
3
Press-Enterprise Co. v. Superior Court of California for the
County of Riverside, 478 U.S. 1 (1986).
5
Here, the declarations first confirm that the information
was classified by an original classification authority. See DoD
Decl., ECF No. 411-1 at 3 n.3; FBI Decl., ECF No. 411-2 at 4
n.1. Second, they confirm that the U.S. Government owns,
produces, or controls the information. See DoD Decl., ECF No.
411-1 at 3 n.3; FBI Decl., ECF No. 411-2 at 4 n.1. Third, they
confirm that the information falls within one of the eight
protected categories. See DoD Decl., ECF No. 411-1 at 3 n.3; FBI
Decl., ECF No. 411-2 at 4 n.1. The Government explains that
here, the categories are military operations, E.O. 13526 §
1.4(a); foreign government information, E.O. 13526 § 1.4(b);
intelligence activities, E.O. 13526 § 1.4(c); foreign relations,
including confidential sources, E.O. 13526 § 1.4(d); or
capabilities relating to the national security, E.O. 13526 §
1.4(g). Fourth, the declarations confirm that unauthorized
disclosure reasonably could be expected to result in
identifiable or describable damage to the national security. See
DoD Decl., ECF No. 411-1 at 3 n.3; FBI Decl., ECF No. 411-2 at 4
n.1. 4
Movant fails to contest whether any of these requirements
have been met. See generally Reply, ECF No. 436. Rather, he
4 Although there is no unclassified version of the declaration
from the Central Intelligence Agency (“CIA”), the Government
addresses the fourth criteria as to CIA information in its
Opposition briefing. See Opp’n, ECF No. 411 at 12, 38-40.
6
makes a number of broad, and largely unsupported claims: that
“[m]uch of the redacted information withheld could not properly
be classified under Executive Order 13526,” id. at 21; that
“[t]he docket . . . reveals a history of reckless
overclassification, id. at 22; and raises the issue of “[t]he
CIA’s documented misuse of its classification authority
regarding [Petitioner],” id. at 23-24.
Based on the record here, the Court concludes that all four
requirements have been met here. With regard to the first three
requirements, the Court has explained supra how they were met.
With regard to the fourth, the Court appropriately defers to the
considered judgment of the Executive Branch, see e.g., Ctr. for
Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927
(D.C. Cir. 2003)(“[W]e have consistently deferred to executive
affidavits predicting harm to national security, and have found
it unwise to undertake searching judicial review.”); but at the
same time “must assure [itself] that the reasons for the
classification are rational and plausible ones.” McGehee v.
Casey, 718 F2d 1137, 1149 (D.C. Cir. 1983); see also Morley v.
CIA, 508 F.3d 1108, 1124 (D.C. Cir. 2007)(noting in the context
of the Freedom of Information Act (“FOIA”) that “a plausible
assertion that information is classified” is all that is
required to invoke Exemption 1 covering classified information).
In infra Section III.B.1., the Court concludes that it is both
7
rational and plausible that the official disclosure of the
information at issue in each category reasonably could be
expected to result in damage to the national security that is
identified or described. For these reasons, the Court concludes
that the information is properly classified.
B. Application of the Press-Enterprise II Standard
In Press-Enterprise II, the Supreme Court considered
whether the public has “a First Amendment right of access to the
transcript of a preliminary hearing growing out of a criminal
investigation.” Press-Enterprise Co. v. Superior Court of
California for the County of Riverside, 478 U.S. 1, 3 (1986). To
answer that question, the Supreme Court determined that the
government must demonstrate: (1) a compelling interest in non-
disclosure; (2) a substantial probability that disclosure will
harm these interests; and (3) there is no alternative to
nondisclosure that will protect the government’s compelling
interests and the restriction is narrowly-tailored. See id. at
13-14.
8
1. The Government Has Demonstrated A Compelling
Interest in Nondisclosure of Each Category of
Classified Information At Issue 5
The DoD affiant avers “on personal knowledge and
information made available to [him] in the course of [his]
official duties” that
This declaration is provided to explain the
bases for the redaction of DoD intelligence
information in the public versions of the
filing submitted in response to the Court’s
Minute Orders of April 22, 2016 and June 10,
2016 pertaining to the Motion by Non-Party
Raymond Bonner to Intervene and Unseal Court
Records (ECF No. 317-1). This information
meets the requirements for classified national
security information pursuant to E.O. 13526
and is properly classified. It is not
available for declassification and public
release, or release to individuals not having
both the appropriate security clearances, and
appropriate need to know, to access the
content of the information pursuant to E.O.
13526, section 4.1.
DoD Decl., ECF No. 411-1 ¶ 4.
a. The Government Has Demonstrated A Compelling
Interest in Non-Disclosure of Intelligence
Reports, Including Sources and Methods
In this category, “DoD and FBI have withheld from
disclosure information which reveals or could tend to reveal
intelligence sources, capabilities, or methods.” Opp’n, ECF No.
5 Movant does not object to nondisclosure with respect to two
categories: (1) the identities of intelligence personnel and (2)
the Guantanamo Detention facilities information, see Reply, ECF
No. 436 at 19-20; accordingly, the Court will not address those
categories.
9
411 at 7. The DoD Declaration, based on the “personal knowledge
and information made available to me in the course of my
official duties,” DoD Declaration, ECF No. 411-1 ¶ 1; explains
that
Disclosure of information which reveals
intelligence sources, capabilities or methods
could lead to the identification of DoD
intelligence priorities and allocation of
resources to support those priorities which
may indicate gaps in our intelligence. In
particular, information which reveals Human
Intelligence (HUMINT) and Counterintelligence
(CI) information and/or these requirements at
operational and strategic levels is
classified. It is classified, and closely
controlled, because it can reveal the
existence of past and present law enforcement
operations, past or current intelligence
operations (including the names of these
operations), and past and present source
information, planned operations, and past and
present intelligence gathering methodologies.
Public release of classified HUMINT and CI
gathering, which would likely diminish the
effectiveness of future operations using those
methods, if the specifics of this type of
information were publicly known. Revelation
could immediately and significantly hinder
current and future intelligence collection,
negatively impacting both national security
and force protection of military activities
and intelligence operations and putting our
core personnel and human sources at greater
risk.
Id. ¶ 9.
Movant responds that the Government “provides no evidence
that withholding information in this category is necessary to
protect against harm to national security,” asserting that
10
“[t]he defense of this category consists entirely of conclusory
and speculative assertions of harm that are constitutionally
insufficient.” Reply, ECF No. 436 at 16. However, Movant fails
to rebut the Government’s citation to Supreme Court precedent
recognizing a “compelling [government] interest in” “providing
intelligence sources with an assurance of confidentiality that
is as absolute as possible.” C.I.A. v. Sims, 471 U.S. 159(1985). And the Government has explained precisely how
disclosure of “intelligence sources, capabilities or methods”
could damage national security—it “could significantly hinder
current and future intelligence collection.” DoD Decl., ECF No.
411-1 ¶ 9. The damage is both identified and described.
In view of the deference the Court properly gives to the
considered judgment of the Executive Branch, see e.g., Ctr. for
Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927
(D.C. Cir. 2003)(“[W]e have consistently deferred to executive
affidavits predicting harm to national security, and have found
it unwise to undertake searching judicial review.”); the Court
concludes that it is both rational and plausible that the
disclosure of this information “reasonably could be expected to
result in damage to the national security,” E.O. 13526 §
1.1(a)(4). Accordingly, the Government has a compelling interest
in protecting this information from disclosure.
11
b. The Government Has Demonstrated A Compelling
Interest in Non-Disclosure of Factual or
Intelligence Gathering
The Government states that “the disclosure of factual
information uncovered by United States intelligence activities
would reasonably be expected to harm the same interests as the
direct disclosure of sources and methods.” Opp’n, ECF No. 411 at
32. The DoD Declaration explains that disclosure of this
information “could cause serious harm to national security by
providing our enemies and adversaries with information about
intelligence sources and methods, known gaps in intelligence and
the types of information of interest to the United States”
thereby adversely impacting the effectiveness of United States
military and intelligence activities. DoD Decl., ECF No. 411-1 ¶
16.
Movant responds that the Government’s public justification
for this category consists of a single sentence—“[c]ontinued
nondisclosure is therefore necessary to protect the United
States from hostile activities by these adversaries,” Reply, ECF
No. 436 at 16; but fails to rebut the Government’s citation to a
prior decision in this case. In Detainee Litigation II, Judge
Hogan found that factual intelligence data should be protected
from release, even where that information is unclassified,
holding that “names and locations . . . or other locations of
interest as they pertain to counter-terrorism intelligence
12
gathering, law enforcement, or military operations, where the
Government has not previously acknowledged publicly its
knowledge of those names or locations.” 787 F. Supp. 2d at 20.
The Government has explained how disclosure of this
information could damage national security—in addition to the
reasons explained supra Section III.B.1.a., disclosure would
“provid[e] our enemies and adversaries with information about
sources and methods, knowns gaps in intelligence, and the types
of information of interest to the United States” thereby
compromising the effectiveness of intelligence activities. DoD
Decl., ECF No. 411-1 ¶ 16. The damage is both identified and
described.
In view of the deference the Court properly gives to the
considered judgment of the Executive Branch, see e.g., Ctr. for
Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927
(D.C. Cir. 2003)(“[W]e have consistently deferred to executive
affidavits predicting harm to national security, and have found
it unwise to undertake searching judicial review.”); the Court
concludes that it is both rational and plausible that the
disclosure of this information “reasonably could be expected to
result in damage to the national security,” E.O. 13526 §
1.1(a)(4). Accordingly, the Government has a compelling interest
in protecting this information from disclosure.
13
c. The Government Has Demonstrated A Compelling
Interest in Non-Disclosure of Intelligence
Assessments and Conclusions
The Government argues that “[t]he likely harms to national
security that warrant nondisclosure of intelligence sources and
methods likewise demonstrate the propriety of the Government’s
nondisclosure of intelligence conclusions: the analytic products
of intelligence professionals.” Opp’n, ECF No. 411 at 33. The
DoD Declaration explains that “[p]ublic disclosure of our
intelligence assessments and their significance would lead to
scrutiny or surveillance by terrorist networks, their
supporters, and other current and potential adversaries.” DoD
Decl., ECF No. 411-1 ¶ 16.
Movant responds that the Government’s public defense of
this category is entirely redacted, Reply, ECF No. 436 at 16;
but fails to rebut the Government’s citation to caselaw it
argues establishes that the Government has a compelling interest
in protecting from disclosure “the analytic products of
intelligence professionals,” Opp’n, ECF No. 411 at 33-34.
The Government has explained how disclosure of this
information could damage national security—“[p]ublic disclosure
of our intelligence assessments and their significance would
lead to scrutiny or surveillance by terrorist networks, their
supporters, and other current and potential adversaries.” DoD
14
Decl., ECF No. 411-1 ¶ 16. The damage is both identified and
described.
In view of the deference the Court properly gives to the
considered judgment of the Executive Branch, see e.g., Ctr. for
Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927
(D.C. Cir. 2003)(“[W]e have consistently deferred to executive
affidavits predicting harm to national security, and have found
it unwise to undertake searching judicial review.”); the Court
concludes that it is both rational and plausible that the
disclosure of this information “reasonably could be expected to
result in damage to the national security,” E.O. 13526 §
1.1(a)(4). Accordingly, the Government has a compelling interest
in protecting this information from disclosure.
d. The Government Has Demonstrated A Compelling
Interest in Non-Disclosure of Interrogation
Details, Plans and Assessments of
Effectiveness
This category includes “[i]nformation about the use,
effectiveness, or specific details about the implementation of
many interrogation techniques, including recommendations for
future interrogation techniques.” Opp’n, ECF No. 411 at 10; see
also DoD Decl., ECF No. 411-1 ¶ 19 (describing the contents of
Summary Interrogation Reports (“SIRs” and Memoranda for the
Record “MFRs”). The DoD Declaration explains that “information
regarding the use, effectiveness, or specific details about the
15
implementation of certain interrogation techniques, including
recommendations for future interrogation techniques is
classified.” DoD Decl., ECF No. 411-1 ¶ 20. The DOD Declaration
clarifies that “the types of interrogation approaches used, as
they are approved by Executive Order 13491 and included in the
Army Field Manual” are not classified, but that what is
classified is
the manner and strategy in which they were
employed with a specific detainee or in a
specific interrogation. Public dissemination
of the particulars regarding the tactics,
methodologies and efficacy of certain
techniques and approaches would lead to
detainees becoming familiar with such tactics
an thereby developing their own methods of
evading such techniques. This could diminish
the future utility and value of these
methodologies and techniques as a means to
gain intelligence vital to protecting our
national interests. Release of this
information will therefore inhibit future
intelligence collection and could cost the
Government the ability to utilize these
methods in the future, as well as result in
the loss of intelligence while new methods are
being developed to replace those that became
non-viable due to detainees’ familiarity with
them.
Id. ¶ 20.
With regard to Interrogation Plans, the DoD Declaration
explains that such a plan
lists collection objectives, approach
techniques, preparation and liaison tasks, and
an interpreter usage plan. Planned
interrogation approaches and techniques are
classified when a given detainee is still in
16
detention to allow for continued use to gain
information to assist with continuing
intelligence gathering and law enforcement
investigations. If this information was
publicly revealed, it could identify the
existence and nature of a current intelligence
operation, the types of information that may
be undergoing exploitation and how the
information is being actively exploited. Past
information about interrogation plans is
classified to prevent disclosure of cumulative
information about the interrogation process,
including techniques which were utilized and
the detainee’s responsiveness to those
techniques. Such cumulative information could
be used to formulate counter-interrogation
techniques.
Id. ¶ 22. The DoD Declaration states that there are SIRs and
MFRs of detainees that corroborate aspects of Petitioner’s
activities. Id. ¶ 23
Movant argues that this category should be rejected as a
basis for any redaction because “[n]o harm can plausibly be
expected to result from disclosures about the effectiveness of a
CIA torture program that has already been publicly described in
detail and judged ineffective, and is now prohibited both by
executive order and statute.” Reply, ECF No. 436 at 23. However,
the Government notes that
[c]ertain categories of information about the
CIA’s detention and interrogation program are
not classified . . . including “the fact that
the detention and interrogation program was a
covert action program authorized by the
President by a September 17, 2001 Memorandum
of Notification, the names a descriptions of
authorized enhanced interrogation techniques
used in connection with the detention and
17
interrogation program and the specified
parameters within which the techniques could
be applied, the authorized enhanced
interrogation techniques applied to 119
individuals as described in Appendix 2 of the
Executive Summary of the Committee Study of
the CIA’s Detention and Interrogation Program
(“SSCI Report”) officially acknowledged to
have been in CIA custody, information
regarding the conditions of confinement,
treatment, as applied to those 119 individuals
and mentioned in Appendix 2 of the Executive
Summary of the SSCI report, and allegations of
torture, abuse, or mistreatment by those 119
individuals mentioned in Appendix 2 of the
Executive Summary of the SSCI report.
Opp’n, ECF No. 411 at 35 n.28.
Movant fails to address the authority cited by the
Government. In the FOIA context, D.C. Circuit concluded “that it
is both plausible and logical that the disclosure of information
regarding the interrogation of detainees would degrade the CIA’s
ability to carry out its mission” and would interfere with “the
CIA’s ability to effectively question terrorist detainees.” ACLU
v. Dep’t of Justice, 628 F.3d 612, 625 (D.C. Cir. 2011); see
also ACLU v. Dep’t of Justice, 681 F.3d 61 (2d Cir. 2012).
The Government has explained how disclosure of this
information could cause serious harm to national security—
“[d]isclosure of these details of the effectiveness of
particular interrogation techniques would ‘diminish the future
utility and value of these methodologies and techniques as a
means to gain intelligence’ as they ‘became non-viable due to .
18
. . familiarity with’ the techniques by those interrogated in
the future.” Opp’n, ECF No. 411 at 34 (quoting DoD Decl. ¶ 20).
The damage is both identified and described.
In view of the deference the Court properly gives to the
considered judgment of the Executive Branch, see e.g., Ctr. for
Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927
(D.C. Cir. 2003)(“[W]e have consistently deferred to executive
affidavits predicting harm to national security, and have found
it unwise to undertake searching judicial review.”); the Court
concludes that it is both rational and plausible that the
disclosure of this information “reasonably could be expected to
result in damage to the national security,” E.O. 13526 §
1.1(a)(4). Accordingly, the Government has a compelling interest
in protecting this information from disclosure.
e. The Government Has Demonstrated A Compelling
Interest in Non-Disclosure of CIA
Information Related to the RDI Program That
Remains Properly Classified
The Government states that “this information is properly
classified because disclosure to the public would reasonably be
expected to raise serious, and in some cases, exceptionally
grave, harm to national security.” Opp’n, ECF No. 411 at 12
(citing CIA Decl. and ex parte filing). Movant does not have the
ability to access classified information and so requests that
the Court review “the specific redactions predicated on [this]
19
category[y], applying the Press-Enterprise II standard and
demanding explanations from the government about its specific
redactions.” Reply, ECF No. 436 at 21.
The Court has reviewed the classified CIA Declaration and
ex parte filing. The Government has explained how disclosure of
this information “would reasonably be expected to raise serious,
and in some cases, exceptionally grave, harm to national
security.” Opp’n, ECF No. 411 at 12, 38. The harm is both
identified and described.
In view of the deference the Court properly gives to the
considered judgment of the Executive Branch, see e.g., Ctr. for
Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927
(D.C. Cir. 2003)(“[W]e have consistently deferred to executive
affidavits predicting harm to national security, and have found
it unwise to undertake searching judicial review.”); the Court
concludes that it is both rational and plausible that the
disclosure of this information “reasonably could be expected to
result in damage to the national security,” E.O. 13526 §
1.1(a)(4). Accordingly, the Government has a compelling interest
in protecting this information from disclosure.
20
f. The Government Has Demonstrated A Compelling
Interest in Non-Disclosure of Information
Related to the CIA’s Foreign Liaison
Relationships
The Government states that “this information is properly
classified because disclosure to the public would reasonably be
expected to cause serious harm to national security.” Opp’n, ECF
No. 12 (citing CIA Decl. and ex parte filing). Movant does not
have the ability to access classified information and so
requests that the Court review “the specific redactions
predicated on [this] category[y], applying the Press-Enterprise
II standard and demanding explanations from the government about
its specific redactions.” Reply, ECF No. 436 at 21.
The Court has reviewed the classified CIA Declaration and
ex parte filing. The Government has explained how disclosure of
this information “would reasonably be expected to cause serious
harm to national security.” Opp’n, ECF No. 12, 38. The harm is
both identified and described.
In view of the deference the Court properly gives to the
considered judgment of the Executive Branch, see e.g., Ctr. for
Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927
(D.C. Cir. 2003)(“[W]e have consistently deferred to executive
affidavits predicting harm to national security, and have found
it unwise to undertake searching judicial review.”); the Court
concludes that it is both rational and plausible that the
21
disclosure of this information “reasonably could be expected to
result in damage to the national security,” E.O. 13526 §
1.1(a)(4). Accordingly, the Government has a compelling interest
in protecting this information from disclosure.
g. The Government Has Demonstrated A Compelling
Interest in Non-Disclosure of Clandestinely
Collected Foreign Intelligence Information
Collected by the CIA
The Government states that the release of the foreign
intelligence information collected by the CIA must be prevented
to avoid harms to national security. Opp’n, ECF No. 411 at 12
(citing CIA Decl.). Movant does not have the ability to access
classified information and so requests that the Court review
“the specific redactions predicated on [this] category[y],
applying the Press-Enterprise II standard and demanding
explanations from the government about its specific redactions.”
Reply, ECF No. 436 at 21. However, Movant fails to address the
Government’s arguments set forth below.
The Government argues that disclosure of this information
would be likely to harm national security because “in the
intelligence field, disclosure of a discrete piece of
information be itself may be innocuous, but in conjunction with
other, seemingly harmless bits of information, may reveal
sensitive information that could harm national security.” Opp’n,
ECF No. 411 at 38.
22
The Court has reviewed the classified CIA Declaration. The
Government has explained how disclosure of this information
would be likely to harm national security. The harm is both
identified and described.
In view of the deference the Court properly gives to the
considered judgment of the Executive Branch, see e.g., Ctr. for
Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927
(D.C. Cir. 2003)(“[W]e have consistently deferred to executive
affidavits predicting harm to national security, and have found
it unwise to undertake searching judicial review.”); the Court
concludes that it is both rational and plausible that the
disclosure of this information “reasonably could be expected to
result in damage to the national security,” E.O. 13526 §
1.1(a)(4). Accordingly, the Government has a compelling interest
in protecting this information from disclosure.
h. The Government Has Demonstrated A Compelling
Interest in Non-Disclosure of CIA
Administrative Information
The Government states that some types of administrative
information—such as the markings used for documents and other
information—must be withheld from disclosure “where such
information is classified to avoid harms to national security.”
Opp’n, ECF No. 411 at 12, 39 (citing CIA Decl.). Movant does not
have the ability to access classified information and so
requests that the Court review “the specific redactions
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predicated on [this] category[y], applying the Press-Enterprise
II standard and demanding explanations from the government about
its specific redactions.” Reply, ECF No. 436 at 21.
The Court has reviewed the classified CIA Declaration. The
Government has explained how disclosure of this information
would be likely to harm national security. The harm is both
identified and described.
In view of the deference the Court properly gives to the
considered judgment of the Executive Branch, see e.g., Ctr. for
Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927
(D.C. Cir. 2003)(“[W]e have consistently deferred to executive
affidavits predicting harm to national security, and have found
it unwise to undertake searching judicial review.”); the Court
concludes that it is both rational and plausible that the
disclosure of this information “reasonably could be expected to
result in damage to the national security,” E.O. 13526 §
1.1(a)(4). Accordingly, the Government has a compelling interest
in protecting this information from disclosure.
2. The Government Has Demonstrated A Substantial
Probability That Disclosure Will Harm the
Government’s Interests
The Government states that its declarations establish that
there is a “substantial probability” that the harms articulated
for each category, see supra Section III.B.1, will occur if the
information is disclosed: “[t]he Government’s declarants explain
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the serious likely harms that would flow from disclosure of the
classified information here, and rationally and logically
articulate why these harms are likely to occur.” Opp’n, ECF No.
411 at 40 (citing DoD Decl.)
Movant fails to meaningfully respond—stating only that
“[t]he government fundamentally fails to make a logical and
plausible showing that release of the 22 records remaining at
issue would create a substantial probability of harm to national
security.” Reply, ECF No. 436 at 9. Movant further asserts that
the government has “[m]erely assert[ed] that national security
is implicated without meaningful explanation or clarification—as
the government repeatedly does—is woefully inadequate under the
First Amendment.” Id.
Movant is wrong; the Government has provided detailed
explanations of the damage to national security that could
reasonably be expected from disclosure. The Court carefully
considered them and determined that for each category of
information at issue, the Government demonstrated it is both
rational and plausible that the disclosure of each category of
information “reasonably could be expected to result in damage to
the national security,” E.O. 13526 § 1.1(a)(4). See supra
Section III.B.1. Movant is also wrong in claiming that
information that is already publicly available cannot result in
harm to national security. See Mot. to Intervene, ECF No. 317-1
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at 26. Rather, the weight of authority recognizes the
distinction between official and unofficial disclosure. See
e.g., United States v. Zubaydah, 142 S.Ct. 959, 970 (2022);
Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir.
1983)(“[E]ven if a fact . . . is the subject of widespread media
and public speculation, its official acknowledgment by an
authoritative source might well be new information that could
cause damage to the national security.”). For these reasons, the
Government has demonstrated a substantial probability that
disclosure will harm the Government’s interests.
3. The Government Has Demonstrated That There Is No
Alternative To Non-Disclosure That Will Protect
the Government’s Compelling Interests and the
Restriction Is Narrowly Tailored
The Government states that its declarants explain that “the
harms to national security flow directly from any disclosure of
the withheld information, and so there is no alternative short
of nondisclosure that can adequately protect against these
harms.” Opp’n, ECF No. 411 at 42. The Government points to the
public redacted versions of the documents at issue, arguing that
the “withholding of the classified information redacted from
these documents is narrowly tailored to the compelling interests
in national security served by nondisclosure.” Id. (cites a
case). Movant fails to respond to the Government’s argument. See
generally Reply, ECF No. 436.
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The Court has already concluded that it is both rational
and plausible that the disclosure of each category of
information “reasonably could be expected to result in damage to
the national security.” See supra Section III.B.1. Accordingly,
there is no alternative to nondisclosure that will protect the
government’s compelling interests. And because redacted versions
of the documents have been filed on the docket in this case, the
restriction is narrowly tailored. See In re Motions of Dow
Jones, 142 F.3d 496, 504 (D.C. Cir. 1998)(noting that the media
was able to receive “non-protected details about what transpired
before the court”).
C. Continued Nondisclosure Subject to A Pending Motion For
Protection Is Appropriate
The Government states that the “CIA has also withheld from
public release any information which is the subject of a pending
motion for protection pursuant to the governing protective
order.” Opp’n, ECF No. 411 at 13 (citing CIA Decl. and
describing the protective orders in the Guantanamo Bay habeas
litigation). Movant argues that this category should be rejected
as a basis for withholding information, but provides no
authority in support of his objection. Reply, ECF No. 436 at 24.
The Court agrees that continued non-disclosure of information
subject to a pending motion for protection is appropriate. The
TS/SCI Protective Order in this case provides as follows:
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Should government counsel in these
consolidated cases wish to have the Court deem
any document or information “protected,”
government counsel shall disclose the
information to qualified counsel for
petitioners—i.e., counsel who have satisfied
the necessary prerequisites of this TS/SCI
Protective Order for the viewing of protected
information—and attempt to reach an agreement
about the designation of the information prior
to filing a motion with the Court.
Petitioners’ counsel shall treat such
disclosed information as protected unless and
until the Court rules that the information
should not be designated as protected.
TS/SCI Protective Order, ECF No. 77 ¶ 35. Requiring disclosure
at this time “would effectively moot” this Court’s future
ruling. See Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 (2d
Cir. 2004)(once information is unsealed, questions of continued
nondisclosure are moot because courts “do not have the power . .
. to make what has thus become public private again”).
IV. Conclusion and Order
For the reasons explained above, it is hereby
ORDERED that Motion to Intervene and Unseal, ECF No. 317,
is GRANTED IN PART, DENIED IN PART, AND FOUND AS MOOT IN PART.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
June 27, 2023
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