Center for Constitutional Rights v. Department of Defense

968 F. Supp. 2d 623, 2013 WL 4864773, 2013 U.S. Dist. LEXIS 130843
CourtDistrict Court, S.D. New York
DecidedSeptember 12, 2013
DocketNo. 12 Civ. 135(NRB)
StatusPublished
Cited by3 cases

This text of 968 F. Supp. 2d 623 (Center for Constitutional Rights v. Department of Defense) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Center for Constitutional Rights v. Department of Defense, 968 F. Supp. 2d 623, 2013 WL 4864773, 2013 U.S. Dist. LEXIS 130843 (S.D.N.Y. 2013).

Opinion

MEMORANDUM AND ORDER

NAOMI REICE BUCHWALD, District Judge.

The Center for Constitutional Rights (“CCR”) commenced this action under the Freedom of Information Act (the “FOIA”), 5 U.S.C. § 552, against the United States Department of Defense (the “DOD”) and its components the Defense Intelligence Agency (the “DIA”) and the United States Southern Command (“SouthCom”); the United States Department of Justice (the “DOJ”) and its component the Federal Bureau of Investigation (the “FBI”); and the Central Intelligence Agency (the “CIA”) (collectively, the “defendant agencies” or the “Government”).1

In its FOIA requests, CCR seeks the public disclosure of images of Mohammed al-Qahtani (“al-Qahtani”), whom the United States has held at Guantánamo Bay, Cuba (“Guantánamo”) since February 18, 2002. The DOD and the FBI have admitted to possessing a number of responsive videotapes and photographs, which these agencies now seek to withhold. The CIA, on the other hand, has filed a Glomar response asserting that it will neither confirm nor deny the existence of responsive records. To justify these responses, the defendant agencies invoke a number of FOIA exemptions.

Presently before the Court are CCR’s motion for partial summary judgment with respect to the DOD and the FBI and the Government’s cross-motion for summary judgment on behalf of all defendant agencies, including the CIA.2 For the reasons set forth below, we find that the DOD and the FBI have properly classified the videotapes and photographs of al-Qahtani in the interest of national security, and that the CIA has appropriately declined to confirm or deny the existence of responsive records. Accordingly, we deny CCR’s motion and grant the Government’s cross-motion.

BACKGROUND3

I. Al-Qahtani

Al-Qahtani is a Saudi national who is widely believed to be the intended 20th [627]*627hijacker during the terrorist attacks of September 11, 2001. See First Lustberg Deck Ex. 6, at 1 (positing that al-Qahtani “would have been on United Airlines Flight 93, the only hijacked aircraft that had four hijackers instead of five”). A month before the attacks, immigration officials denied al-Qahtani entry to the United States at Orlando International Airport. Id,.; see also First Lustberg Deck Ex. 31 (hereinafter “FBI-OIG”), at 78 n. 46 (explaining that al-Qahtani sought to enter the United States with “no return ticket, no credit cards, and less than $3,000 cash”). On December 15, 2001, Pakistani forces captured al-Qahtani on the Pakistan-Afghanistan border and turned him over to the United States. FBI-OIG 77. Approximately two months later, on February 13, 2002, the United States transported al-Qahtani to Guantánamo, see id., where he remains to this day.

As CCR correctly notes, agency reports and Congressional hearings have revealed numerous facts concerning al-Qahtani’s detention and interrogation, most frequently in the context of official inquiries into the treatment of Guantánamo detainees. See, e.g., FBI-OIG; First Lustberg Deck Ex. 2 (hereinafter “SASC Report”); First Lust-berg Deck Ex. 3 (hereinafter “Church Report”); First Lustberg Deck Ex. 4 (hereinafter “Schmidt-Furlow Report”); First Lustberg Deck Ex. 7 (hereinafter “Fine Statement”). Specifically, information related to the following subjects has been disclosed:

(1) the dates, locations, and conditions of al-Qahtani’s confinement, see, e.g., FBI-OIG 27-29, 77, 80-81; SASC Report 58, 60-61, 108-09; Church Report 101;
(2) the involvement of the DOD and the FBI in al-Qahtani’s interrogation, see, e.g., FBI-OIG 78, 80-83, 102; SASC Report 57-58, 60; Fine Statement 6;
(3) the techniques the interrogators used, see e.g., FBIOIG 83-84, 87, 102-03, 197; Fine Statement 6-7; SASC Report 60, 109; Schmidt-Fur-[628]*628low Report 13-21; First Lustberg Decl. Ex. 5, at 1-2;
(4) al-Qahtani’s mental and physical state during his interrogations, see, e.g., First Lustberg Decl. Ex. 20, at 111-12; FBI-OIG 103; First Lust-berg Decl. Ex. 15 (hereinafter “Harrington Letter”), at 2; and
(5) al-Qahtani’s ultimate cooperation with interrogators, including the information he provided, see, e.g., FBI-OIG 118-19; First Lustberg Decl. Ex. 6, at 1-2.

Furthermore, the New York Times has published a photograph of al-Qahtani. See First Lustberg Decl. Ex. 28. However, the Government maintains that “the United States did not release” this image. Tr. 29:23.

The foregoing disclosures reveal that, between August 2002 and November 2002, FBI and military personnel subjected alQahtani to both “intense isolation,” see Harrington Letter 2, and “aggressive” interrogation techniques, see FBI-OIG 84 (internal quotation marks omitted); see also Fine Statement 6 (disclosing that “FBI agents saw military interrogators use increasingly harsh and demeaning techniques, such as menacing Al-Qahtani with a snarling dog during his interrogation”). During this time, al-Qahtani lost significant amounts of weight, see First Lustberg Decl. Ex. 20, at 112, and exhibited symptoms of “extreme psychological trauma,” including “talking to non-existent people, reporting hearing voices, [and] crouching in a corner of the cell covered with a sheet for hours on end,” see Harrington Letter 2.

On November 23, 2003, military interrogators implemented the first “Special Interrogation Plan” against al-Qahtani. SASC Report 74, 88. Over the next 54 days, interrogators subjected al-Qahtani to “stress positions” and “20-hour interrogations, tying a dog leash to his chain and leading him through a series of dog tricks, stripping him naked in the presence of a female, repeatedly pouring water on his head, and instructing him to pray to an idol shrine.” Fine Statement 6-7; see also SASC Report 82, 88. In December 2002, these practices resulted in al-Qahtani’s hospitalization for “low blood pressure” and “low body core temperature.” FBI-OIG 103; see also First Lustberg Decl. Ex. 22, at “07 December 2002.” On January 14, 2009, the Convening Authority for Military Commissions Susan J. Crawford reached the conclusion that the treatment of al-Qahtani “met the legal definition of torture.” First Lustberg Decl. Ex. 1, at 1.

CCR, its counsel in this matter, and others currently represent al-Qahtani in a habeas corpus action stayed in the United States District Court for the District of Columbia before the Honorable Rosemary M. Collyer (the “Habeas Action”). See alQahtani v. Obama, No. 05 Civ.1971 (D.D.C.). In connection with their representation of al-Qahtani in the Habeas Action, counsel have viewed certain materials of which CCR now seeks public disclosure. Mem. of Law in Supp. of Pl.’s Mot. for Partial Summ. J. (“Pl.’s Br.”) 10; see also Mem. & Op. Order 3-4, al-Qahtani v. Obama, No. 05 Civ.1971, Dkt. No. 192 (D.D.C. Oct. 5, 2009) (granting discovery with respect to audio/video recordings of al-Qahtani made between November 15, 2002 to November 22, 2002).

II. The FOIA Requests and Responses

A. CCR’s FOIA Requests and Litigation

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968 F. Supp. 2d 623, 2013 WL 4864773, 2013 U.S. Dist. LEXIS 130843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/center-for-constitutional-rights-v-department-of-defense-nysd-2013.