Court rules detainee docs protected from FOIA disclosure

The Department of Defense and the CIA do not have to disclose information pertaining to 14 "high value" detainees held at Guantanamo Bay Naval Base under federal Freedom of Information Act, the U.S. Court of Appeals in Washington, D.C., ruled Tuesday in ACLU v. Department of Defense.

In a 2006 speech, President George W. Bush said 14 suspected terrorist leaders and operatives were being held and questioned outside the U.S., but the program was shut down and the detainees were transferred to Guantanamo Bay. There, they were subject to hearings before the Combatant Status Review Tribunals. The ACLU submitted FOIA requests for the full transcripts of the hearings and records provided to the tribunals about the detainees. All information related to the capture, detention and interrogation of the detainees was withheld.

The government relied on FOIA Exemptions 1 and 3 to justify withholding the records. Exemption 1 allows federal agencies to withhold from disclosure records relating to national defense or foreign policy that are properly classified pursuant to executive order. Exemption 3 permits federal agencies to withhold records that are specifically exempted from disclosure by statute.

After initially granting the government's summary judgment motion in October 2008, the district court reconsidered a number of events. First, a number of executive orders were released that changed the classification of a number of documents and reconsidered the legality of what the government calls "enhanced interrogations." Also, a Red Cross report on the detainees was leaked and published by the New York Review of Books in April 2009.

In light of the developments, the CIA reconsidered the information requests and released an additional document. Back at the district court, the government again filed for summary judgment, claiming the remaining documents are properly withheld under either Exemption 1 or Exemption 3. Once again, the district court granted the motion and the ACLU appealed.

The ACLU contested the exempt status of the information on several fronts. First, the ACLU argued that the publication of the Red Cross report put the information sufficiently into the public sphere as to render the information officially acknowledged. However, the appellate court held it was not officially acknowledged because there were significant differences between the released information and the information contained in the requested documents.

The president's prohibition of the future use of certain interrogation techniques also does not diminish the government's ability to classify information about those techniques and withhold it from disclosure, the court held. The court said the potential illegality of the interrogation techniques does not negate proper classification, pointing to the 1980 D.C. Circuit case Lesar v. Department of Justice, where it ruled that illegal surveillance produced properly classified information that was not subject to disclosure.

The requested information was held to be exempted under Exemption 1 because the CIA satisfied the low obstacle of proving it was "plausible” and “logical” to "justify the invocation of a FOIA exemption in the national security context." The court established its refusal to penalize "a government agency for voluntarily re-evaluating and revising its FOIA withholdings." Summary judgment "was warranted on the basis of the CIA’s affidavit alone," and an in chambers review was not necessary because the affidavit was "sufficiently detailed."