Am. Civil Liberties Union v. U.S. Dep't of Defense

901 F.3d 125
CourtCourt of Appeals for the Second Circuit
DecidedAugust 21, 2018
DocketDocket 17-779; August Term 2017
StatusPublished
Cited by29 cases

This text of 901 F.3d 125 (Am. Civil Liberties Union v. U.S. Dep't of Defense) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Am. Civil Liberties Union v. U.S. Dep't of Defense, 901 F.3d 125 (2d Cir. 2018).

Opinions

Wesley, Circuit Judge:

*127This appeal is the latest installment in lengthy litigation relating to photographs of detainees taken by U.S. Army personnel at military detention facilities in Afghanistan and Iraq in the wake of September 11, 2001. The American Civil Liberties Union and a number of other organizations (together, "ACLU") initially sought records-most notably, photographs-related to the treatment of detainees in U.S. custody via a Freedom of Information Act ("FOIA") request submitted on October 7, 2003, to the United States Department of Defense and its components1 (together, the "DoD") and other agencies (together with the DoD, the "Government"), and filed suit on June 2, 2004, after receiving no response.

The district court ordered the Government to produce or identify all responsive documents by October 15, 2004, Am. Civil Liberties Union v. Dep't of Def. (ACLU I ), 339 F.Supp.2d 501, 505 (S.D.N.Y. 2004), and ordered release of the photographs with redactions on September 29, 2005, Am. Civil Liberties Union v. Dep't of Def. (ACLU II ), 389 F.Supp.2d 547, 570-74 (S.D.N.Y. 2005).2 In so doing, the court rejected arguments by the Government that the photographs could be withheld pursuant to three FOIA exemptions.3 See ACLU II , 389 F.Supp.2d at 570-79. The Government initially appealed but withdrew the appeal when a third party released the photographs without authorization.

During the pendency of the appeal, the Government identified additional photographs potentially responsive to the ACLU's FOIA request and attempted to withhold these newly identified photographs under the same three exemptions.

*128The district court again rejected these arguments, this time without written opinion, and ordered the release of the responsive photographs. Am. Civil LibertiesUnion v. Dep't of Def. (ACLU III ), 04-4151, 2006 WL 1638025, at *1 (S.D.N.Y. June 9, 2006) ; Am. Civil Liberties Union v. Dep't of Def. (ACLU IV ), 04-4151, 2006 WL 1722574, at *1 (S.D.N.Y. June 21, 2006), vacated sub nom by Dep't of Def. v. Am. Civil Liberties Union , 558 U.S. 1042, 130 S.Ct. 777, 175 L.Ed.2d 508 (2009) (mem.).

The Government appealed, and this Court affirmed, holding that the FOIA exemptions did not apply. Am. Civil Liberties Union v. Dep't of Def. (ACLU V ), 543 F.3d 59, 70-71, 83-84, 87, 91 (2d Cir. 2008), vacated sub nom by Dep't of Def. v. Am. Civil Liberties Union , 558 U.S. 1042, 130 S.Ct. 777, 175 L.Ed.2d 508. After this Court's decision, the Government initially informed the district court that it was processing the photographs for release, including additional photographs it also thought responsive to the initial FOIA request, and it "represented that all photographs would be released by May 28, 2009." Am. Civil Liberties Union v. Dep't of Def. (ACLU VII ), 229 F.Supp.3d 193, 199 (S.D.N.Y. 2017). However, the Government reversed its position at the direction of President Obama following a plea from the Prime Minister of Iraq that release of the photographs "would fuel insurrection and make it impossible to have a functioning government." Id. at 200. The Government filed a petition for a writ of certiorari. Id. at 199.

Before the Supreme Court took any action regarding the Government's petition, Congress passed the Protected National Security Documents Act of 2009 ("PNSDA"), Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, § 565, 123 Stat. 2142 (2009). The PNSDA permits the government to withhold disclosure of any photograph "taken during the period beginning on September 11, 2001, through January 22, 2009" (the "time period requirement") that "relates to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States" (the "subject matter requirement"). PNSDA § 565(c)(1)(B). To withhold a photograph from disclosure under the PNSDA, the Secretary of Defense must issue a certification "stating that disclosure of that record would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States." Id. § 565(c)(1)(A). The Secretary's certification expires after three years but may be renewed at any time and without limitation. Id. § 565(d)(2)-(3). The PNSDA also requires the Secretary to timely notify Congress of the issuance of any certification or renewal. Id. § 565(d)(4).

Following the PNSDA's passage, Secretary Gates issued a certification on November 13, 2009 (the "2009 Certification"), stating that "[u]pon the recommendations of the Chairman of the Joint Chiefs of Staff, the Commander of U.S.

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901 F.3d 125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/am-civil-liberties-union-v-us-dept-of-defense-ca2-2018.