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APPENDIX A

 

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

 

Docket No. 06-3140-cv

AMERICAN CIVIL LIBERTIES UNION, CENTER FOR CONSTITUTIONAL RIGHTS, PHYSICIANS FOR HUMAN RIGHTS, VETERANS FOR COMMON SENSE, VETERANS FOR PEACE, PLAINTIFFS-APPELLEES

v.

DEPARTMENT OF DEFENSE, AND ITS COMPONENTS DEPARTMENT OF ARMY, DEPARTMENT OF NAVY, DEPARTMENT OF AIR FORCE, DEFENSE INTELLIGENCE AGENCY, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, AND ITS COMPONENTS CIVIL RIGHTS DIVISION, CRIMINAL DIVISION, OFFICE OF INFORMATION AND PRIVACY, OFFICE OF INTELLIGENCE POLICY AND REVIEW, FEDERAL BUREAU OF INVESTIGATION, DEPARTMENT OF STATE, AND CENTRAL INTELLIGENCE AGENCY, DEFENDANTS-APPELLANTS

Argued: Nov. 20, 2006

Decided: Sept. 22, 2008

 

Before: MCLAUGHLIN, HALL, Circuit Judges, and GLEESON, District Judge.1

JOHN GLEESON, United States District Judge:

The United States Department of Defense and De partment of the Army (referred to here as "the defen dants") appeal from orders of the United States District Court for the Southern District of New York (Alvin K. Hellerstein, District Judge) directing them to release 21 photographs pursuant to the Freedom of Information Act ("FOIA" or "the Act"), 5 U.S.C. § 552 (2006). The photographs depict abusive treatment of detainees by United States soldiers in Iraq and Afghanistan.

On appeal, the defendants contend that the exemp tion in § 552(b)(7)(F) for law enforcement records that could reasonably be expected to endanger "any individ ual" applies here because the release of the disputed photographs will endanger United States troops, other Coalition forces, and civilians in Iraq and Afghanistan. They further claim that, notwithstanding the redactions ordered by the district court of 20 of the 21 photographs, disclosure will result in unwarranted invasions of the personal privacy of the detainees they depict, justifying nondisclosure under § 552(b)(6) and (7)(C).

We hold that FOIA exemption 7(F) does not apply to this case. We further hold that the redactions ordered by the district court render the privacy exemptions un available to the defendants. Accordingly, we affirm.

BACKGROUND

On October 7, 2003, the plaintiffs filed joint requests with the defendants and various other agencies pursuant to FOIA, 5 U.S.C. § 552 (2006), seeking records related to the treatment and death of prisoners held in United States custody abroad after September 11, 2001, and records related to the practice of "rendering" those pris oners to countries known to use torture. On June 2, 2004, having received no records in response to the re quests, the plaintiffs filed the complaint in this case, alleging that the agencies had failed to comply with the law.

On August 16, 2004, to facilitate the search for rele vant records, the plaintiffs provided a list of records they claimed were responsive to the FOIA requests. Among the records listed were 87 photographs and oth er images of detainees at detention facilities in Iraq and Afghanistan, including Abu Ghraib prison. The images from Abu Ghraib (the "Abu Ghraib photos") depicted United States soldiers engaging in abuse of many de tainees. The soldiers forced detainees, often unclothed, to pose in dehumanizing, sexually suggestive ways.

The defendants initially invoked only FOIA exemp tions 6 and 7(C) as their ground for withholding the Abu Ghraib photos. Those provisions authorize withholding where disclosure would constitute an "unwarranted in vasion of personal privacy." 5 U.S.C. § 552(b)(6), (7)(C). The defendants contended in their motion for summary judgment that these personal privacy exemptions war ranted the withholding of the Abu Ghraib photos in or der to protect the privacy interests of the detainees de picted in them. The plaintiffs argued in their cross-mo tion that redactions could eliminate any unwarranted invasions of privacy.

More than two months after oral argument of the cross-motions, the defendants added another justifica tion for withholding the Abu Ghraib photos: exemption 7(F). That exemption authorizes withholding of records "compiled for law enforcement purposes" where disclo sure "could reasonably be expected to endanger the life or physical safety of any individual." § 552(b)(7)(F). Ac cording to the defendants, release of the Abu Ghraib photos could reasonably be expected to endanger the life or physical safety of United States troops, other Coali tion forces, and civilians in Iraq and Afghanistan.

On September 29, 2005 the district court rejected the defendants' arguments and ordered the disclosure of the Abu Ghraib photos. See ACLU v. Dep't of Def., 389 F. Supp. 2d 547, 579 (S.D.N.Y. 2005) (the "Abu Ghraib or der"). It determined that redaction of "all identifying characteristics of the persons in the photographs" would prevent an invasion of privacy interests. Id. at 571. To the extent that an invasion of privacy might occur in spite of the redactions, the court found that such an in vasion would not be "unwarranted" since the public in terest involved "far outweighs any speculative invasion of personal privacy." Id. at 572-73.

The district court also rejected the defendants' eleventh-hour "supplemental" argument related to ex emption 7(F). Without deciding whether the exemp tion's protection of "any individual" extended as far as the defendants claimed, the court concluded that in any event, "the core values that Exemption 7(F) was de signed to protect are not implicated by the release of the [Abu Ghraib] photographs, but . . . the core values of FOIA are very much implicated." Id. at 578. The dis trict court stated, "Our nation does not surrender to blackmail, and fear of blackmail is not a legally sufficient argument to prevent us from performing a statutory command." Id. at 575. While acknowledging the "risk that the enemy will seize upon the publicity of the photo graphs and seek to use such publicity as a pretext for enlistments and violent acts," the court balanced that risk against the benefits of "education and debate that such publicity will foster," and ordered the photos re leased in redacted form. Id. at 578.

The defendants appealed the Abu Ghraib order, but in March 2006, while the appeal was pending, many of the Abu Ghraib photos were published on the internet by a third party. The appeal was thereafter withdrawn.

After the appeal was withdrawn, the plaintiffs sought clarification regarding other detainee abuse images, and the defendants confirmed that they were withholding an additional 29 images, again based on exemptions 6, 7(C) and 7(F). Whereas the Abu Ghraib photos were taken at that one location, the 29 photographs were taken in at least seven different locations in Afghanistan and Iraq, and involved a greater number of detainees and U.S. military personnel. And while many of the Abu Ghraib photos depicted unclothed detainees forced to pose in degrading and sexually explicit ways, the detainees in the 29 photographs were clothed and generally not forced to pose. The photographs were part of seven in vestigative files of the Army's Criminal Investigations Command ("Army CID"), and were provided to Army CID in connection with allegations of mistreatment of detainees. In three of the investigations, Army CID found probable cause to believe detainee abuse had oc curred related to the photographs at issue here. Sol diers under scrutiny in two of the investigations have been punished under the Uniform Code of Military Jus tice.

On April 10, 2006, the district court established an expedited procedure for determining whether the 29 images could properly be withheld.2 By orders dated June 9, 2006 and June 21, 2006, the district court or dered the release of 21 of the disputed photos, all but one in redacted form. The 21 photographs were from six of the seven Army CID investigative files; the district court found that the photographs from one of the files showed no suggestion of abuse and thus need not be pro duced. Since the defendants' basis for withholding the 29 photographs had been the same as their basis for withholding the Abu Ghraib photos, the district court adopted the reasoning of the Abu Ghraib order.

The defendants' appeal of the June 2006 orders is now before us. There is no cross-appeal, and thus nei ther the order permitting the withholding of eight pho tographs nor the order directing redactions of the pho tographs to be disclosed is before us. We refer here to the 21 photographs in dispute as the "Army photos."

DISCUSSION

A. Governing Legal Standards

The Freedom of Information Act requires that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . , shall make the records promptly available to any person," 5 U.S.C. § 552(a)(3)(A), unless the records fall within one of the Act's nine exemptions, § 552(b)(1)-(9). The Act is broad ly conceived to reflect "a general philosophy of full agen cy disclosure," and its exemptions are exclusive, FLRA v. U.S. Dep't of Veterans Affairs, 958 F.2d 503, 508 (2d Cir. 1992), and "must be narrowly construed," John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (quo ting Dep't of Air Force v. Rose, 425 U.S. 352, 360-61 (1976) (internal quotation omitted)); see also Nat'l Coun cil of La Raza v. Dep't of Justice, 411 F.3d 350, 355-56 (2d Cir. 2005) ("Consistent with FOIA's purposes, these statutory exemptions are narrowly construed." (citing cases)).

FOIA's purpose is to encourage public disclosure of information in the possession of federal agencies so that the people may "know what their government is up to." U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 772-73 (1988) (internal quota tion and emphasis omitted). "Official information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose." Id. at 773. The release of information of this sort vindicates FOIA's basic purpose: "to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978); see also Nat'l Ar chives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004) (describing FOIA as "a structural necessity in a real democracy").

A district court "has jurisdiction to enjoin the agency from withholding agency records and to order the pro duction of any agency records improperly withheld." § 552(a)(4)(B). As FOIA applies government-wide and no one agency administers it, no agency is entitled to deference in interpreting its provisions. Al-Fayed v. CIA, 254 F.3d 300, 307 (D.C. Cir. 2001) (citing cases). Further, FOIA expressly provides for de novo review of agency decisions to withhold records and places the bur den of persuasion on the agency. Reporters Comm., 489 U.S. at 755; see also § 552(a)(4)(B) ("[T]he court shall determine the matter de novo . . . and the burden is on the agency to sustain its action."). Doubts, therefore, are to be resolved in favor of disclosure. FLRA, 958 F.2d at 508; accord, e.g., Local 3. Int'l Bhd. of Elec. Workers v. NLRB, 845 F.2d 1177, 1180 (2d Cir. 1988).

As mentioned above, the district court's review of the defendants' invocation of FOIA's exemptions was de novo. Our review of the district court's decisions, which were made on cross-motions for summary judgment, is de novo as well. See, e.g., Wood v. FBI, 432 F.3d 78, 82 (2d Cir. 2005) ("This Court reviews de novo a district court's grant of summary judgment in a FOIA case.").

FOIA Exemption 7(F)

The argument defendants raised as an afterthought below is their lead argument on this appeal. They con tend that FOIA exemption 7(F), 5 U.S.C. § 552(b)(7)(F) (2006), justifies withholding the Army photos and that the district court erred in concluding otherwise. Ex emption 7(F) allows an agency to withhold "records or information compiled for law enforcement purposes, but only to the extent that the production of such law en forcement records or information . . . could reasonably be expected to endanger the life or physical safety of any individual." Id. In relying on this exemption, the defendants contend that (a) the Army photos, which were gathered during Army CID investigations, are documents "compiled for law enforcement purposes" within the meaning of the statute; (b) disclosure of the photos could reasonably be expected to incite violence against United States troops, other Coalition forces, and civilians in Iraq and Afghanistan; and (c) since there is no limit to who is protected by exemption 7(F), withhold ing is warranted.

The first contention is undisputed. The second and third are disputed, but neither was actually decided by the district court. Without deciding whether the defen dants had satisfied their burden of showing that the Army photos "could reasonably be expected to" result in acts of violence by insurgents, the district court ac knowledged "a risk" of such violence. 389 F. Supp. 2d at 578. It then balanced that risk against the "core values" of FOIA and the benefits of disclosure, concluding that disclosure was warranted. The district court explicitly declined to resolve the parties' dispute regarding the proper construction of the phase "any individual" in ex emption 7(F). Id.

We resolve the latter dispute here, and our resolu- tion disposes of the exemption 7(F) issue.3 The defen dants argue that the plain meaning of the term "any in dividual" is unlimited, and thus includes individuals identified solely as military and civilian personnel in Iraq and Afghanistan. Exemption 7(F), the defendants assert, "does not limit its protection to some individuals at the exclusion of others." (Appellants' Br. 29-30.) Ra ther, the argument continues, "'any' means 'any,'" and there is neither need nor authority to look beyond the plain language of the exemption to determine its breadth.

We disagree. The phrase "any individual" in exemp tion 7(F) may be flexible, but is not vacuous. Consider ing, as we must, the words in the statute, the structure of FOIA and its exemption provisions, the chronology of amendments to those provisions, and the requirement that FOIA exemptions be narrowly construed, we cannot read the phrase to include individuals identified solely as members of a group so large that risks which are clearly speculative for any particular individuals become rea sonably foreseeable for the group.

1. The Phrase "Any Individual"

Exemption 7(F) justifies withholding any law en forcement records that "could reasonably be expected to endanger the life or physical safety of any individual." 5 U.S.C. § 552(b)(7)(F). Do the defendants satisfy their burden of establishing the exemption's applicability if they do not point to any one individual and establish that he or she could reasonably be expected to be endan gered, but instead point to a group composed of millions of people and establish that it could reasonably be ex pected that someone in that group will be endangered?

The plain language of the phrase "endanger the life or physical safety of any individual" connotes a degree of specificity above and beyond that conveyed by alter native phrases such as "endanger life or physical safe ty." It is true that the statute does not read "any named individual," and we thus understand it to include individ uals identified in some way other than by name-such as, for example, being identified as family members or coworkers of a named individual, or some similarly small and specific group. This does not, however, mean that the "individual" contemplated by exemption 7(F) need not be identified at all, or may be identified only as a member of a vast population. To the contrary, the legis lature's choice to condition the exemption's availability on danger to an individual, rather than danger in gen eral, indicates a requirement that the subject of the dan ger be identified with at least reasonable specificity.

The defendants emphasize that Congress used the word "any" to modify "individual," and contend that the broad scope of the word "any" relieves them of the bur den of identifying, even roughly, an individual. We are mindful that the Supreme Court has "stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there." Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992). But at least one thing is clear from the Court's decisions interpreting the meaning of the word "any" in federal statutes: "Any" does not always deserve the expansive application the defendants urge here. Rather, a court must construe the term carefully, in light of the statute as a whole as interpreted by ac cepted principles of construction, and, where applicable, the statutory framework that preceded its enactment.

In Small v. United States, for example, the Court examined 18 U.S.C. 922(g)(1), which makes it illegal for a person who has been convicted of a felony "in any court" to possess a firearm. 544 U.S. 385, 387 (2005). In considering whether a felony conviction in a foreign court brings a gun-toting defendant within the ambit of the law, the Court did not begin (and thereby end) its analysis with a simplistic "'any' means 'any.'" To the contrary, it began by observing that "[t]he word 'any' considered alone cannot answer this question." Id. at 388. Although it "demands a broad interpretation, we must look beyond that word itself." Id. (citation omit ted). "In ordinary life, a speaker who says, 'I'll see any film,' may or may not mean to include films shown in another city. In law, a legislature that uses the statu tory phrase 'any person' may or may not mean to include 'persons' outside the jurisdiction of the state." Id. (in ternal quotation omitted). Since the other language in the statute did not suggest an intent to reach foreign convictions, there was no legislative history suggesting such an intent, and the presumption against extraterri torial application of statutes instructed courts to decline to find such intent in analogous cases, id. at 388-89, the Supreme Court held that "any court" did not mean "any court," but rather "any domestic court," and foreign convictions could therefore not serve as a predicate to liability under the statute. Id. at 391-93.

The Supreme Court has rejected a broad interpreta tion of the word "any" in other contexts as well where such interpretation is inconsistent with the statutory context and legislative purpose. The Age Discrimination in Employment Act ("ADEA") forbids an employer's discrimination against "any individual" over 40 years of age "because of such individual's age." 29 U.S.C. § 623 (2006). In Gen. Dynamics Land Sys., Inc. v. Cline, the question was whether a health benefit policy favoring only workers at least 50 years of age violated the ADEA rights of the employees who were over 40 but not yet 50. 540 U.S. 581, 584-85 (2004). In other words, did the ADEA's protection of "any individual" over 40 from age discrimination protect the younger group of over-40 workers from discrimination that favored the older group? Espousing the "'any' means 'any'" argument ad vanced by the defendants here, the Sixth Circuit held that it did. See Cline v. Gen. Dynamics Land Sys., Inc., 296 F.3d 466, 470 (6th Cir. 2002) ("[T]he ADEA re quires us to hold . . . that employment age discrimina tion against any worker at least 40 years of age is pro hibited. . . . " (emphasis in original)). But the Su preme Court reversed, determining that the Sixth Cir cuit's construction did not "square with the natural reading of the whole provision preventing discrimina tion." 540 U.S. at 586. The Court held that only individ uals subjected to discrimination that prefers the young to the old have a cause of action under the ADEA. Id. at 600; see also Nixon v. Mo. Mun. League, 541 U.S. 125, 128-32 (2004) (construing statute's reference to "any entity" providing telecommunications services not to include a state's own subdivisions; "'[A]ny' can and does mean different things depending upon the setting."); United States v. Palmer, 16 U.S. (3 Wheat.) 610, 631 (1818) (Marshall, C.J.) (observing that "[t]he words 'any person or persons,' are broad enough to comprehend every human being," but holding that "general words" must be limited "to those objects to which the legisla ture intended to apply them.").

To be sure, sometimes the word "any" in a statute deserves an expansive application. However, consistent with the cases discussed above, the Supreme Court has made it clear that such a result must never be the result of a wooden, uncritical capitulation to the word itself. Rather, it occurs where the surrounding statutory lan guage and other relevant legislative context support it. In United States v. Gonzales, 520 U.S. 1, 11 (1997), for example, the Court held that the requirement in 18 U.S.C. § 924(c)(l) that sentences imposed under the stat ute be consecutive to "any other term of imprisonment" could not properly be limited to federal terms of impris onment. But it did so only after determining that "other language in [the statute] reinforces our conclusion." Gonzales, 520 U.S. at 10. Finding "no intimation" in the statute as a whole that Congress meant otherwise, and taking into account the fact that the statute was amen ded in 1984 to repudiate judicial constructions that nar rowed its scope, the Court adopted an expansive inter pretation of "any other term of imprisonment." Id. at 9- 10.

Thus, the defendants' argument that "any individual" in exemption 7(F) must, due solely to the brute force of the word "any," be interpreted to extend its protection to all persons, whether or not they can be identified, no matter how remote they are from the law enforcement investigation in which the disputed records were com piled, and no matter how small the risk to any particular individual, is incorrect. We must examine not only the word "any" but also the language of the remainder of the provision, the structure of FOIA's exemptions, and the context and history leading to its adoption.

We begin with the specific context in which the dis puted language is used. It bears emphasis that we con strue the Freedom of Information Act. "The title of an act cannot control its words, but may furnish some aid in showing what was in the mind of the legislature." Palm er, 16 U.S. (3 Wheat.) at 631. The law was enacted to make agency records available to the public "except as specifically stated" in one of the enumerated exemp tions. § 552(d) (emphasis added). As mentioned above, though important interests are served by those exemp tions, the Supreme Court has repeatedly cautioned that they "are to be narrowly construed." FBI v. Abramson, 456 U.S. 615, 630 (1982); accord U.S. Dep't of Justice v. Julian, 486 U.S. 1, 8 (1988); Rose, 425 U.S. at 361.

This rule of construction is of central importance here. The defendants' construction of "any individual" as not requiring the government to name or even rough ly identify any individual, besides gesturing to the popu lations of two nations and two international expedition ary forces and showing that it could reasonably be ex pected that at least one person within them will be en dangered, is not a narrow one. The reading of "any indi vidual" as requiring a FOIA defendant to identify an in dividual with reasonable specificity is a narrower con struction, and to be preferred on that ground alone. In Small, an analogy to the presumption against extraterri torial application of statutes led the Court to construe "any court" not to include foreign courts. 544 U.S. at 388-89. In General Dynamics, the ADEA's statement of purpose and findings counseled against a broad con struction of the statute's anti-discrimination provision. 540 U.S. at 590-91. Similarly, here the principle that FOIA exemptions are to be construed narrowly cabins the permissible construction of the phrase "any individ ual." A construction that requires the agency to identify with reasonable specificity the person or persons who could reasonably be expected to be endangered accords with that principle. The defendants' unbounded inter pretation does not.

That interpretation is also inconsistent with the re mainder of the text of the statute. To construe the word "any" to relieve the government of the burden of identi fying an individual who could reasonably be expected to be endangered would be to read "individual" out of the exemption. In effect, it would convert the phrase "en danger the life or physical safety of any individual" into "endanger life or physical safety." Indeed, it is telling that one of the cases the defendants cite misquotes ex emption 7(F) in just this way, leading it to conclude that diffuse harms to unknown and unspecified individuals are covered by the exemption. See Brady-Lunny v. Massey, 185 F. Supp. 2d 928, 932 (C.D. Ill. 2002) ("Un der 5 U.S.C. § 552(b)(7)(F), the Government is exempt from disclosing information about any individual that 'could reasonably be expected to endanger life or physi cal safety.'"). As we construe statutes to avoid sur plusage, see Xiao Ji Chen v. U.S. Dep't of Justice, 434 F.3d 144, 152 (2d Cir. 2006) ("[A] statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant[.]" (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001))), we cannot ignore the role that the word "individual" plays in exemption 7(F).

While all harms in the end are suffered by individu als, there is a crucial difference between a showing that disclosure "could reasonably be expected to endanger life or physical safety" and exemption 7(F)'s require ment that disclosure "could reasonably be expected to endanger the life or physical safety of any individual." With large enough populations, remote and speculative risks become radically more likely to manifest in at least one person. No one person can reasonably be expected to die in a car accident, but it is certain that someone somewhere in the world will die in a car accident every day. See World Health Org., World Report on Road Traffic Injury Prevention 4 (2004), available at http:// www.who.org/violence_injury_prevention/publications /road_traffic/world_report/en/index.html (estimating annual global death toll due to motor vehicle accidents as between 750,000 and 1,183,492). Reading the word "individual" out of exemption 7(F) allows consideration of such diffuse and speculative risks. If exemption 7(F) covered information whose disclosure "could reasonably [be] expected to endanger life or physical safety," it might be proper to aggregate individually speculative risks and find that it is reasonably likely that life or physical safety will be endangered somewhere in the world. But exemption 7(F), by conditioning its applica tion on a reasonable expectation of danger to an indi vidual, excludes from consideration risks that are spec ulative with respect to any individual.4

This case shows the significance of Congress's deci sion to require a showing of danger to an individual. With good reason, the defendants do not identify a sin gle person and say that the release of the Army photos could reasonably be expected to endanger that person's life or physical safety; the threat to any one person is far too speculative. What the defendants argue, and what we assume for the purposes of this opinion, is the far different proposition that it could reasonably be expec ted that out of a population the size of two nations and two international expeditionary forces combined, some one somewhere will be endangered as a result of the release of the Army photos. Thus, we do not consider a case where the defendants have shown exemption 7(F)'s required reasonable expectation of endangerment with respect to one or more individuals, but one where the defendants attempt to cobble together that required reasonable expectation of endangerment by aggregating miniscule and speculative individual risks over a vast group of individuals.

We hold that in order to justify withholding docu ments under exemption 7(F), an agency must identify at least one individual with reasonable specificity and es tablish that disclosure of the documents could reason ably be expected to endanger that individual. We need not shape the precise contours of the exemption today, as it is not a close question whether the government has identified any relevant individual with reasonable speci ficity. It is plainly insufficient to claim that releasing documents could reasonably be expected to endanger some unspecified member of a group so vast as to en compass all United States troops, coalition forces, and civilians in Iraq and Afghanistan. The structure of FOIA and the applicable legislative history, both of which contemplate a far narrower role for exemption 7(F) than that envisioned by the defendants, amply con firm our holding.

2. The Structure of FOIA and its Exemptions

Our conclusion as to the breadth of exemption 7(F) is supported by the structure of FOIA's exemptions. The context of the exemption severely undercuts the defen dants' claim that Congress tucked such a far-reaching and nebulous authority for withholding into one of the several discrete law enforcement exemptions. "Statu tory construction . . . is a holistic endeavor. A provi sion that may seem ambiguous in isolation is often clari fied by the remainder of the statutory scheme." United Sav. Ass'n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988). Such clarification occurs when "only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law." Id. Here the defendants' reading of exemption 7(F) is inconsistent with FOIA's treatment of national security information.

To say that exemption 7(F) does not contemplate withholding records on the basis of diffuse threats of death or physical injury, threats which are individually speculative but which can reasonably be expected with respect to large populations, is not to denigrate such threats, which of course are characteristic of the na tional security sphere. Indeed, the defendants acknowl edge the disclosure issue currently before us as a matter of national security. (See, e.g., Appellants' Br. 25 (seek ing substantial deference by the Court to the "predictive judgments on issues of national security" of Brigadier General Carter F. Ham and General Richard B. My ers).) FOIA, however, provides a separate exemption specifically tailored to the national security context, which is a powerful reason not to construe exemption 7(F) as broadly as the defendants urge.

FOIA's exemption 1, 5 U.S.C. § 552(b)(1), exempts from disclosure records that are "(A) specifically autho rized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pur suant to such Executive order."5 Executive Order 13,292 "prescribes a uniform system for classifying, safeguarding, and declassifying national security infor mation." Exec. Order No. 13,292, 68 Fed. Reg. 15,315 (Mar. 25, 2003). It also sets forth limits on what may be classified, by what authority, and for how long. First among the limits are prohibitions against classifying information in order to "conceal violations of law, ineffi ciency, or administrative error" or "prevent embarrass ment to a person, organization, or agency." Id. § 1.7(a).

Although Executive Order 13,292 is not a law, FOIA incorporates its safeguards into exemption 1. § 552(b)(1)(B). Indeed, earlier versions of these prohibi tions were included in Executive Order 11,652 (a precur sor to Executive Order 13,292) when Congress initially incorporated such safeguards into exemption 1 in 1974, Pub. L. No. 93-502, 88 Stat. 1561 (1974). See Exec. Or der No. 11,652, § 4, 37 Fed. Reg. 5209 (Mar. 8, 1972) ("In no case shall information be classified in order to conceal inefficiency or administrative error, [or] to prevent em barrassment to a person or Department . . . .").6 Not only were similar such safeguards thus contemplated by Congress's 1974 amendment of exemption 1, but the current safeguards were also in force at the time of the 1986 amendments to FOIA. See Exec. Order No. 12,356, § 1.6(a), 47 Fed. Reg. 14,874 (1982) ("In no case shall information be classified in order to conceal violations of law, inefficiency, or administrative error; [or] to pre vent embarrassment to a person, organization, or agen cy . . . ."). While the President could theoretically modify the executive branch's classification standards to abrogate these safeguards, substantially the same safe guards have been in force, and incorporated into FOIA through exemption 1, from 1974 to the present. They are therefore properly considered part of the statutory backdrop against which Congress legislated in 1986 when it changed exemption 7(F) to protect information that "could reasonably be expected to endanger the life or physical safety of any individual." Pub. L. No. 99-570, § 1802(a), 100 Stat. 3207 (1986); see also John Doe Agen cy, 493 U.S. at 162 (Scalia, J., dissenting) ("Congress has greatly reduced the possibility of abuse [of exemption 1] by providing that the classification must be proper under criteria established by Executive order." (emphasis in original)).

The existence of separate standards for information threatening harm to national security severely under cuts the defendants' asserted construction of exemption 7(F). It would be anomalous if an agency that could not meet the requirements for classification of national secu rity material could, by characterizing the material as having been compiled for law enforcement purposes, evade the strictures and safeguards of classification and find shelter in exemption 7(F) simply by asserting that disclosure could reasonably be expected to endanger someone unidentified somewhere in the world.7 The de fendants' standard is far more favorable to secrecy than even the lowest tier of the current classification system. See Exec. Order No. 13,292, § 1.2(a)(3) (defining lowest level of classified information as "Confidential," and au thorizing that designation for "information, the unautho rized disclosure of which reasonably could be expected to cause damage to the national security that the origi nal classification authority is able to identify and de scribe." (emphasis added)). The defendants invite us to convert exemption 7(F) into, in effect, an alternative classification mechanism entirely lacking the executive's safeguards and standards. The threats that would jus tify keeping such information secret are no less diffuse and speculative than those involved in the sphere of na tional security, but are significantly less grave. Such an alternative classification system is inconsistent with the structure of FOIA's exemptions.

The limitation of exemption 7(F) to law enforcement records does not diminish that inconsistency. First, the ease with which the government can find refuge for its records on the ground that they were compiled for "law enforcement purposes" can hardly be overstated. See John Doe Agency, 493 U.S. at 162-64 (Scalia, J., dis senting) (describing the ability to transfer records to an investigation file as "a hole one can drive a truck through"). Second, assuming the utmost good faith of the government, the disparate treatment that would be accorded law enforcement national security information and non-law-enforcement national security information confirms that exemption 7(F) will not bear the weight the defendants place upon it. Information generated from national security operations unconnected to law enforcement would be inexplicably subject to higher judicial scrutiny, through exemption 1, than information generated from national security operations performed by means of law enforcement. It is inconsistent with other provisions of the United States Code to construe law enforcement national security operations to be sub ject to less judicial oversight-regarding the secrecy of their records or anything else-than non-law-enforce ment national security operations. Compare, e.g., 18 U.S.C. § 2518(5) (2006) (authorizing law enforcement electronic surveillance only for 30 days before seeking a judicial extension of time, and permitting only one 30- day extension) with 50 U.S.C. § 1805(e) (2006) (authoriz ing various types of national security electronic surveil lance for 90-day, 120-day, and 1-year periods and per mitting multiple extensions of time).

Thus, the structure of FOIA's exemption provision, with its separate exemptions and different standards for national security matters and for law enforcement mat ters, counsels in favor of the narrower construction of 7(F) that we adopt here.

3. The Legislative History of Exemption 7(F)

An examination of the legislative history and back ground surrounding the adoption of the current form of exemption 7(F) confirms that the exemption simply does not function as a far broader alternative to the national security classification system. Congress has always en visioned exemption 7(F) as a shield against specific threats to particular individuals arising out of law en forcement investigations, never as a means of suppress ing worldwide political violence.

FOIA was enacted as an antidote to the perceived "loopholes" in Section 3 of the Administrative Procedure Act ("APA"), which allowed agencies "to deny legitimate information to the public." S. Rep. No. 89-813 (1965), reprinted in Subcomm. on Admin. Practice & Proce dure, S. Comm. on the Judiciary, 93rd Cong., Freedom of Information Act Source Book 36, 38 (Comm. Print 1974) [hereinafter FOIA Source Book]. Section 3, the APA's disclosure statute, allowed agencies to withhold information "requiring secrecy in the public interest" or "for good cause." APA § 3, Pub. L. No. 79-404, 60 Stat. 237, 238 (1946), reprinted in FOIA Source Book, supra, at 39-40. Congress feared that this open-ended lan guage may have allowed agencies to withhold informa tion "only to cover up embarrassing mistakes or irregu larities." S. Rep. No. 89-813, reprinted in FOIA Source Book, supra, at 38; see also H.R. Rep. No. 89-1497 (1966), reprinted in FOIA Source Book, supra, at 22, 33 ("[T]he law which was designed to provide public infor mation about Government activities has become the Gov ernment's major shield of secrecy.").

In stating the purpose of FOIA, which was passed as an amendment to Section 3 of the APA, the Senate Judi ciary Committee stated:

It is the purpose of the present bill to . . . establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language and to provide a court procedure by which citizens and the press may obtain informa tion wrongly withheld. It is important and necessary that the present void be filled. It is essential that agency personnel, and the courts as well, be given definitive guidelines in setting information policies. Standards such as "for good cause" are certainly not sufficient.

S. Rep. No. 89-813, reprinted in FOIA Source Book, supra, at 38; see also H.R. Rep. No. 89-1497, reprinted in FOIA Source Book, supra, at 33 ("A democratic soci ety requires an informed, intelligent electorate, and the intelligence of the electorate varies as the quantity and quality of its information varies. A danger signal to our democratic society in the United States is the fact that such a political truism needs repeating.").

Congress recognized, however, that certain informa tion should not be disclosed to the public, so it set forth nine exemptions to FOIA.8 Originally, exemption 7 al lowed the withholding of "investigatory files compiled for law enforcement purposes except to the extent avail able by law to a party other than an agency." 5 U.S.C. § 552(b)(7) (1967). The exemption precluded private parties engaged in litigation with the government from obtaining more via FOIA than they were entitled to re ceive under the relevant disclosure rules. See H.R. Rep. No. 89-1497, reprinted in FOIA Source Book, supra, at 32 (explaining that exemption 7 was necessary because FOIA "is not intended to give a private party indirectly any earlier or greater access to investigatory files than he would have directly in such litigation or proceed ings."); see also Robbins, 437 U.S. at 224 ("Foremost among the purposes of [exemption 7] was to prevent harm to the Government's case in court." (internal quo tation omitted)).

FOIA got off to a slow start. A series of oversight hearings conducted in 1971 and 1972 by a subcommittee of the House Committee on Government Operations identified several major problem areas in the adminis tration of the statute. They included bureaucratic de lays in response time, fee schedule abuses, over-involve ment of political appointees in the decision-making pro cess and a poor attitude among top administration offi cials toward the "open access" spirit of FOIA. H.R. Rep. No. 92-1419, at 8 (1972), reprinted in Subcomm. on Gov. Info. & Individual Rights, H. Comm. on Gov. Oper ations, 94th Cong. & Subcomm. on Admin. Practice & Procedure, S. Comm. on the Judiciary, 94th Cong., Free dom of Information Act and Amendments of 1974 (P.L. 93-502) Source Book 8, 15 (Comm. Print 1975) [hereinaf ter 1974 Amendment Source Book]. As a result, the committee concluded that "[i]n too many cases, informa tion is withheld, overclassified, or otherwise hidden from the public to avoid administrative mistakes, waste of funds, or political embarrassment." Id., reprinted in 1974 Amendment Source Book, supra, at 15.

Additional oversight hearings in 1973 before subcom mittees of the Senate Committee on the Judiciary pro duced similar findings, and the committee concluded that "the primary obstacles to the Act's faithful imple mentation by the executive branch have been procedural rather than substantive." See S. Rep. No. 93-854 (1974), reprinted in 1974 Amendment Source Book, supra, at 153. The resulting amendments, enacted over the veto of President Ford, tightened and clarified some of FOIA's key procedural requirements. Among the changes were required indices reflecting agency action, standardized search and copy fees for FOIA plaintiffs, time frames for agency action, allowance for recovery of reasonable attorney fees and costs by FOIA plaintiffs, required annual reporting on the administration of FOIA, and an expanded definition of what constitutes an "agency." See id. at 160-87.

The 1974 amendments also altered the exemptions in several significant respects.9 First, as noted above, they incorporated the executive branch's classification stan dards by providing that any information withheld pursu ant to exemption 1 in the interest of national defense had to be "in fact properly classified pursuant to" execu tive order. § 552(b)(1)(B). That amendment reversed the effect of the Supreme Court's holding in EPA v. Mink, 410 U.S. 73, 84 (1973), that FOIA's grant of judi cial review did not empower courts to review executive classification decisions by conducting in camera review of the documents at issue. The amended exemption 1 authorized courts to initiate, where appropriate, such in camera examinations of contested records to determine whether they had been properly classified. 5 U.S.C. § 552(a)(4)(B) (1974); see also H.R. Rep. No. 93-1380 (1974) (Conf. Rep.), reprinted in 1974 Amendment Source Book, supra, at 219, 229 (describing intent to override Mink and allow in camera examination).

Second, the 1974 amendments responded to concerns that the opportunity to exempt law enforcement "files" created an incentive among agencies "to commingle vari ous information into one enormous investigatory file and then claim it is too difficult to sift through" to determine whether any of its contents are responsive to a valid FOIA request. 120 Cong. Rec. S19,806-23 (daily ed. Nov. 21, 1974) (Statement of Sen. Hart), reprinted in 1974 Amendment Source Book, supra, at 451 ("This 'contami nation technique' has been widely used by agencies to thwart access to publicly valuable information in their files."). So Congress replaced the word "files" in exemp tion 7 with the word "records," and ordered agencies to examine individual records containing exempt informa tion and to disclose "any reasonably segregable portion" of those records upon request. § 552(b) (1974); see Rob bins, 437 U.S. at 229-30 (noting that substituting the word "records" for "files" helped avoid "impermissible 'commingling' by an agency's placing in an investigatory file material that did not legitimately have to be kept confidential").

Finally, the 1974 amendments replaced the broad language of exemption 7, which had covered all investi gatory files except to the extent they were already made available by law, with six specific subprovisions. The amended exemption required agencies to demonstrate that each withheld investigatory record fit into one of the six subprovisions. Most significantly for the pur poses of this case, the subprovisions authorized the with holding of records that would (1) disclose the identity of a confidential source (or, with respect to criminal law en forcement or national security records, disclose confi dential information provided solely by such a source), § 552(b)(7)(D) (1974); or (2) endanger the life or physical safety of "law enforcement personnel," § 552(b)(7)(F) (1974).

The 1974 amendments were intended to reinvigorate FOIA. By eliminating the ability of an agency to place entire law enforcement files out of the public's reach, and then narrowing the withholding authority to the six specified categories of records, they accomplished that goal. But in doing so, the amendments created some problems. Records identifying a confidential source could be withheld, as could records that would endanger law enforcement personnel. But what about records that could endanger the families of such persons, or per sons assisting law enforcement who are neither confi dential sources nor government employees? Attorney General Edward H. Levi identified these problems in a 1975 memorandum regarding the amendments to the executive branch departments and agencies. The memo randum set forth guidelines for the implementation of the amended FOIA, and stated as follows with respect to exemption 7(F):

Clause (F), which was added by the Conference Committee, exempts material whose disclosure would "endanger the life or physical safety of law en forcement personnel."

. . .

Clause (F) might apply, for example, to informa tion which would reveal the identity of undercover agents, State or Federal, working on such matters as narcotics, organized crime, terrorism, or espionage. It is unclear whether the phrase "law enforcement personnel" means that the endangered individual must be technically an "employee" of a law enforce ment organization; arguably it does not. It is clear, however, that the language of clause (F) cannot be stretched to protect the safety of the families of law enforcement personnel or the safety of other persons.

Edward H. Levi, Attorney General's Memorandum on the 1974 Amendments to the Freedom of Information Act pt. I-B (1975), available at http://www.usdoj.gov/ oip/74agmemo.htm.

Those words proved to be prophetic. As the war on drugs and organized crime escalated in the early 1980s, those areas of law enforcement activity "constitute[d] a special problem under FOIA." 132 Cong. Rec. S14,040 (daily ed. Sept. 27, 1986) (statement of Sen. Hatch), and the fact that exemption 7(F)'s protections were limited to "law enforcement personnel" was central to this spe cial problem. As the Deputy Attorney General stated in support of proposed amendments:

The current language in Exemption 7(F) exempts records only if their disclosure would endanger the life of a law enforcement officer. However, the ex emption does not give similar protection to the life of any other person. S. 774 expands Exemption 7(F) to include such persons as witnesses, potential witness es, and family members whose personal safety is of central importance to the law enforcement process.

131 Cong. Rec. S253 (daily ed. Jan. 3, 1985) (statement of Carol E. Dinkins, Deputy Attorney General).10 In response, Congress again amended FOIA in connection with passage of the Anti-Drug Abuse Act of 1986. Sena tor Hatch, who authored the changes with Senator Lea hy, noted during Congressional debate that "no fewer than five different reports studying the impact of FOIA have concluded that the act has harmed the ability of law enforcement officers to enlist informants and carry out confidential investigations." 132 Cong. Rec. S14,038 (daily ed. Sept. 27, 1986) (statement of Sen. Hatch). In stead of being used by members of the public to learn of official conduct, FOIA was being "used by lawbreakers to evade criminal investigation or retaliate against infor mants." Id. (internal quotation omitted). Indeed, a 1982 Drug Enforcement Agency study that found 60% of FOIA and Privacy Act requests "originated within the criminal element." Id. Thus, the bill's proponents ar gued that "the language in 7(F) has an obvious and ab surd limitation. Under this language, records are only exempt if they endanger the life of a police officer, with out giving similar protection to the life of any natural person." Id. at S14,039.

Consistent with this legislative history, the 1986 amendments to exemption 7 reflect the lawmakers' de sire to limit the ability of drug traffickers and other law breakers to use FOIA to enhance their organized crimi nal activity. Among the enacted changes was the substi tution of the words "could reasonably be expected to" for "would" in exemptions 7(A), 7(C), 7(D), and 7(F), which made it easier for the government to demon strate facts necessary to satisfy those exemptions. See 5 U.S.C. § 552(b)(7) (1986).11 Exemption 7(D) was amen- ded to clarify and expand what agencies should under stand the term "confidential source" to include, and what information may be withheld pursuant to that sub section. See id.; 132 Cong. Rec. S14,039 (statement of Sen. Hatch) (noting that protections for information sub mitted "only by" the confidential source in question might result in an absence of necessary protection in the event that multiple informants submit the same informa tion). Exemption 7(E) was expanded to allow agencies to withhold information that would disclose law enforce ment guidelines-in addition to the already protected techniques and procedures-if disclosure of the guide lines "could reasonably be expected to risk circumven tion of the law." § 552(b)(7)(E).

Finally, exemption 7(F)'s authorization to withhold records to protect "law enforcement personnel" was ex panded to allow withholding where release of the re cords in question "could reasonably be expected to en danger the life or physical safety of any individual." § 552(b)(7)(F). The amendment fixed the "special prob lem" FOIA had created for law enforcement by remov ing the "absurd" limitation on the exemption.

The defendants contend on this appeal that the 1986 amendment to exemption 7(F) altered it fundamentally, transforming it from a shield against specific risks inci dent to law enforcement investigations into a diffuse and nebulous authority for keeping inflammatory informa tion secret (though, curiously, only inflammatory infor mation in law enforcement files). As an initial matter, we note that the government had a different view at the time. Deputy Attorney General Dinkins's statement in support of the 1986 amendments described them as modifying the exemption only "slightly," in order to address the specific law enforcement concerns dis cussed above. 131 Cong. Rec. S248. The same view is expressed in the legislative history. See, e.g., 132 Cong. Rec. H9462 (daily ed. Oct. 8, 1986) (statement of Rep. English) (the 1986 amendments make "only modest changes to the FOIA" and only "slight[ly]" expand ex emption 7(F)).

More importantly, the defendants' argument for an expansive interpretation of the phrase "any individual" misapprehends the special problem the 1986 amendment was enacted to correct. Congress was concerned that criminals might deter or hinder law enforcement investi gations by identifying those involved in such investiga tions and targeting the involved parties or associates or relatives to those parties. Accordingly, it relaxed the category of covered persons, extending its protection to individuals who were not themselves law enforcement personnel but who faced similarly specific threats of violence. What it did not do, and what the legislative history makes clear it never contemplated doing, was to reinvent exemption 7(F) as an all-purpose damper on global controversy. By requiring a showing of danger to an individual, Congress provided a constraint limiting exemption 7(F) to its intended scope-the protection of individuals subject to a non-speculative risk of harm in cident to a law enforcement investigation. The defen dants' attempt to sweep far-reaching and speculative national security concerns into exemption 7(F) reaches far beyond the intent of Congress in enacting or amend ing the provision.

4. Subsequent Application of Exemption 7(F)

Most courts that have upheld the government's reli ance on exemption 7(F) have done so where the chal lenged nondisclosure sought to protect government agents, witnesses, informants, and others who have par ticipated in law enforcement investigations or proceed ings. See Maydak v. U.S. Dep't of Justice, 362 F. Supp. 2d 316, 321 n.4 (D.D.C. 2005) ("In general, [exemption 7(F)] has been interpreted to apply to names and identi fying information of law enforcement officers, witnesses, confidential informants and other third persons who may be unknown to the requester." (citing cases)).12 The defendants cite a handful of district court decisions in support of their expansive construction of the phrase "any individual" in the exemption. (See Appellants' Br. 30-34 (citing L.A. Times Commc'ns, LLC v. Dep't of the Army, 442 F. Supp. 2d 880, 900 (C.D. Cal. 2006); Living Rivers, Inc. v. U.S. Bureau of Reclamation, 272 F. Supp. 2d 1313, 1321 (D. Utah 2003); Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice, 215 F. Supp. 2d 94, 108 (D.D.C. 2002), aff'd in part and rev'd in part, 331 F.3d 918 (D.C. Cir. 2003); Brady-Lunny v. Massey, 185 F. Supp. 2d 928, 932 (C.D. Ill. 2002)).) These cases are nei ther controlling nor persuasive.

The defendants rely most heavily on Living Rivers, in which the government sought to withhold inundation maps of the area below the Hoover and Glen Canyon Dams. 272 F. Supp. 2d at 1314. The Bureau of Rec lamation had created the maps to help the government evaluate the effects of a possible dam failure, and to pro tect the people living downstream from the consequenc es of such a failure. Id. at 1315-16. Since the maps re vealed information about specific populated areas, criti cal infrastructures, and power plant sites that would be affected by dam failure, the government argued that dis closure of the maps could allow terrorists to endanger people who live downstream from the dams. Id. The court allowed the government to withhold the maps pur suant to exemption 7(F). Id. at 1322.

Like the other opinions cited by the defendants, Liv ing Rivers fails to give serious consideration to the scope of exemption 7(F); to what the government must do to meet its burden of establishing danger to "any indi vidual"; and to the lack of fit between an expansive read ing of exemption 7(F) and FOIA's treatment of national security information.13 In holding that persons living downstream of the dams fell within exemption 7(F), the court stated that the exemption "is neither limited to protect the lives of 'law enforcement personnel,' nor to known, named individuals only." Id. at 1321. The defen dants here make much of that statement-with which we agree-on this appeal. But it does not bear the weight Living Rivers or the defendants place on it. Exemption 7(F) is not limited to "known, named individuals." If disclosure of law enforcement records concerning the Cali cartel could reasonably be expected to endanger the lives of an informant's (or a witness's) extended family in Colombia, exemption 7(F) applies. Similarly, the dis closure of the identity of a person providing information about Sicilian drug trafficking might reasonably be ex pected to endanger that person's relatives and associ ates in Palermo. In those circumstances, the govern ment need not even know, let alone name, all of those persons before it may properly invoke exemption 7(F) to protect them. Indeed, as discussed above, that was the purpose of enlarging the exemption's protection in 1986 from "law enforcement personnel" to "any individual." But saying that the government does not need to iden tify an individual by name does not imply that the gov ernment does not need to identify an individual at all, or that the government may identify an individual only as being a member of a vast population. Living Rivers does not attempt to justify that leap of logic, citing no authority regarding how specifically the individuals con templated by exemption 7(F) must be identified.14

Living Rivers' construction of exemption 7(F) may have been influenced by the absence of any allegation of governmental misconduct in that case. We agree with the defendants that once exemption 7(F) is deemed ap plicable and the requisite risk of harm is demonstrated, the exemption does not call for or even permit a balanc ing of that risk against the public's interest. But the interest of the public in "greater access to information" must be considered in determining the scope of exemp tion 7(F) in the first place. See John Doe Agency, 493 U.S. at 157 ("[The Court] has endeavored to apply a workable balance between the interests of the public in greater access to information and the needs of the Gov ernment to protect certain kinds of information from disclosure."). Unlike in Living Rivers, the facts of this case place governmental accountability at the center of the dispute. In a respect that court had no reason to consider, we must be especially mindful that exemptions to FOIA are to be "narrowly construed," Abramson, 456 U.S. at 630.

In any event, while Living Rivers applied a relaxed standard to the government's identification of an indi vidual who could reasonably be expected to be endan gered, even that court did not go as far as the defen dants wish to here. The court in Living Rivers applied exemption 7(F) to protect a specific, identifiable set of individuals. Though the persons at risk in the event of dam failures were not individually named, they hardly represented "the public at large," as the defendants have argued. (See Appellants' Reply Br. 8.) To the con trary, they resided within the specific areas identified in the maps at issue. They may have been numerous, but unlike the population at issue here there is no sugges tion in that case that they could not all have been specifi cally identified.

It is worth remarking that the defendants' interpre tation of 7(F) is currently idiosyncratic. The robust pub lic debate on the choice between law enforcement and other methods in formulating our national security pol icy has been devoid, to our knowledge, of any mention of law enforcement's broader shroud of secrecy under FOIA than non-law-enforcement national security op erations-mention one would expect to find if the govern ment's view of exemption 7(F) were the law. Cf. Michael Sherman, FOIA in the Aftermath of 9/11, 19 St. Thomas L. Rev. 281, 293 (2006) ("To date, Exemption 7F has not played a major role in post-9/11 FOIA case law.").

Instead, virtually every court having occasion to in terpret exemption 7(F) has been called upon to deter mine whether the disclosure of law enforcement records could reasonably be expected to endanger the life or physical safety of any individuals who participated in some way in the investigation, be they law enforcement employees, informants, or witnesses, or others associ ated in some way with those persons. Significantly, the defendants themselves first invoked exemption 7(F) in precisely this way. Their initial resort to the exemption in the district court sought to protect only "the identities of citizens of Iraq or Afghanistan who may have cooper ated with [Army] CID or other U.S. forces." (Third Declaration of Phillip J. McGuire, July 20, 2005, ¶ 13.) It was only two months after oral argument of the cross- motions for summary judgment that they dramatically expanded their application, converting a law enforce ment matter into a national security issue.

Although this is one of the first cases to examine whether exemption 7(F) can be conscripted into service as an ersatz classification system, it is unlikely to be the last. The defendants' reassurances that their rule would be "[l]imited to the [f]acts [p]resented by [t]his [c]ase," (Appellants' Reply Br. 17), ring hollow. While it is true, as the defendants contend, that expert affidavits deem these particular documents to pose such a danger, we have no doubt that similar affidavits could be produced with respect to many other documents in a wide range of cases, particularly controversial documents that the gov ernment might have the greatest motivation to withhold. (See Appellees' Br. 20 ("[The government's argument] leads to the perverse conclusion that the more egregious the misconduct revealed by government records, the more compelling would be the government's basis for shielding these documents from disclosure under FOIA.").) This is not due to any question regarding the good faith or the expertise of the affiants, but rather to the fact that even remote possibilities can become rea sonable to expect to befall at least one member of a large enough group. An expert could in good faith claim that it is reasonable to expect that disclosure of any number of documents could endanger the life or physical safety of at least one person in the world.15 The govern ment's contention that "any individual" encompasses a person identified only as belonging to of a population of national size would, if accepted, circumvent the limita tion imposed by the phrase "could reasonably be ex pected to endanger." It would radically transform ex emption 7(F) from a flexible but tailored protection for a fluid but limited class of persons into an alternative secrecy mechanism far broader than the government's classification system. As such a result would read "indi vidual" out of the provision and would create anomalous disparities between the treatment of law enforcement and non-law enforcement national security information, we decline to so transfigure exemption 7(F).

C. FOIA Exemptions 6 and 7(C)

FOIA exemptions 6 and 7(C) protect against disclo sure that implicates personal privacy interests. The government may withhold records in "personnel and medical files and similar files" only when their release "would constitute a clearly unwarranted invasion of per sonal privacy." 5 U.S.C. § 552(b)(6) (2006). However, when law enforcement records are involved, the govern ment may withhold records that "could reasonably be expected to constitute an unwarranted invasion of per sonal privacy." § 552(b)(7)(C). Since the Army photos are considered law enforcement records for the pur poses of exemption 7, and are also part of personnel files of the soldiers depicted in the photographs, they are eligible for withholding if the defendants satisfy the standards of either exemption.

Exemption 7(C) is more protective of privacy than exemption 6 because it does not require an invasion of privacy to be clearly unwarranted before withholding is allowed, and it may take effect not only when an invasion of privacy "would" occur, but when it could reasonably be expected to occur. See Favish, 541 U.S. at 165-66. Because exemption 7(C) offers broader protection than exemption 6-and a lower evidentiary standard for the defendants-a decision that exemption 7(C) does not allow withholding also forecloses the defendants' reli ance on exemption 6. We turn, then, to an examination of exemption 7(C).16

1. The Detainees' Privacy Interest

In the FOIA context, the Supreme Court has recog nized an individual privacy interest in "avoiding disclo sure of personal matters." Reporters Committee, 489 U.S. at 762 (internal quotation omitted). "[O]nce a more than de minimis privacy interest is implicated the com peting interests at stake must be balanced in order to decide whether disclosure is permitted under FOIA." FLRA, 958 F.2d at 510. Disclosure of personal informa tion "constitutes only a de minimis invasion of privacy" when identities are unknown. U.S. Dep't of State v. Ray, 502 U.S. 164, 176 (1991).

Applying these principles to the privacy interests of the detainees depicted in the Abu Ghraib photos in rea soning it later applied to the Army photos, the district court determined that publication of the photos in a form in which "all identifying characteristics of the persons in the photographs have been redacted" would not cause a cognizable invasion of personal privacy. ACLU, 389 F. Supp. 2d at 571. Where "individual recognition could not be prevented without redaction so extensive as to render the images meaningless," the court ordered those photo graphs to be withheld. Id. at 572. The court dismissed as speculative the risk that persons depicted in the pho tographs might recognize themselves or be recognized by members of the public in spite of the redactions. Id.

The district court also rejected arguments that re lease of the photographs would conflict with the Geneva Conventions' requirement that detaining powers protect any prisoner of war against insults and "public curios ity." Id. at 574. Instead, the court found that redaction is adequate to protect the detainees' identities and to preserve their honor. Id.

The defendants now argue that the redactions ap proved by the district court are inadequate to protect the privacy interests of the detainees. According to the defendants, when combined with information contained in the investigative reports associated with the detainee images, release of the photographs could make it possi ble to identify the detainees. The defendants also assert that there is a chance that the pictured detainees could identify themselves in any redacted photos released. The defendants emphasize that (a) "Congress and the courts have recognized that victims of crimes or mis treatment, such as the detainees in this case, should not be forced to relive their suffering and humiliation as a result of Government disclosures," (Appellants' Br. at 48); (b) the Supreme Court has recognized a strong pri vacy interest in "sensitive personal information," (id.); and (c) the Geneva Conventions obligate a detaining power to respect the dignity of detainees and avoid ex posing them to "public curiosity," (id. at 51-52). For these reasons, the defendants assert that the release of images that could lead to the identification of the detain ees by themselves or others presents an invasion of the detainees' privacy.17

FOIA provides that "[t]o the extent required to pre vent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, staff manual, instruction, or copies of records [produced in response to other FOIA requests and made publicly available due to the likelihood of fu ture requests]." § 552(a)(2). FOIA further states that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after de letion of the portions which are exempt under this sub section." § 552(b).

Accordingly, courts have found redaction of identify ing information adequate to prevent infringement of the significant interests that FOIA's privacy exemptions were designed to protect. See Ray, 502 U.S. at 175-78 (finding that redaction was appropriate to safeguard personal privacy of Haitian nationals interviewed by State Department in connection with their involuntary repatriation); Rose, 425 U.S. at 354-58, 381 (affirming redaction of personal references and other identifying information in Air Force Academy disciplinary re cords).18 A court may also order information released without proposed redactions where the government fails to demonstrate a risk of identification in the absence of the redactions. See Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 485-86 (2d Cir. 1999) (ordering unredacted release of broader set of information where "it is not at all clear" from the government's submissions "that dis closure would, in fact, lead to the identification of the persons who provided the documents").

In this case, the district court held in camera pro ceedings to ensure the adequacy of proposed redactions to the Army photos. During those proceedings the court learned of the context of each photograph, including matters related to how the government came to possess the images, the location of events depicted, and the units that military personnel were assigned to. After examin ing each of the 29 photographs, the court determined which were to be released and the extent of redaction necessary to shield the identities of individuals depicted. At no point while viewing the Army photos did the dis trict court note the possibility that a detainee could be identified in spite of the redactions. Having inspected the photographs and the redactions ourselves, we have no doubt that the district court examined the Army pho tos with an aim to redact "all identifying characteristics of the persons in the photographs," ACLU, 389 F. Supp. 2d at 571, and that it did so adequately.

The defendants have cited no FOIA case in which a court has found a privacy right to be at risk where iden tifying information has been adequately redacted. Even accepting their argument that it may be "possible" to identify the detainees in spite of the district court's re dactions, or that there remains a "chance" that the de tainees could identify themselves, (Appellants' Br. 47), such speculation does not establish a privacy interest that surpasses a de minimis level for the purposes of a FOIA inquiry. Cf. Halpern v. FBI, 181 F.3d 279, 297-98 (2d Cir. 1999) (holding that government must describe withheld material with "'reasonable' level of specificity" for courts to be able to determine whether exemption 7(C) applies); Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994) (calling for "reasonably detailed explanations why any withheld documents fall within an exemption"). Indeed, because the district court has re dacted the Army photos to remove all identifying fea tures, there is no cognizable privacy interest at issue in the release of the Army photos.

The defendants' attention to the privacy rights of crime victims and to the concerns associated with per sonal information does not alter the above analysis. Factors that may give rise to a heightened privacy inter est include the presence of sensitive personal informa tion, dignity of crime victims, and the risk of harm to reputation. See Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 894 (D.C. Cir. 1995) (recognizing that the magnitude of a privacy interest turns on whether disclosure may result in unwarranted association with criminal activity or reputational harm). However, such a privacy right attaches when informa tion that is sensitive may be linked to certain individu als, not when the individuals involved are unknown.

For example, in Favish, the Supreme Court applied exemption 7(C) to allow the withholding of photographs of the death-scene of Vincent Foster, former Deputy Counsel to the President, after reports that his death was the result of suicide. 541 U.S. at 169-71, 175. Im plicit in the Court's discussion of the privacy rights of members of Foster's family with respect to images of scenes of his death was that the images depict an indi vidual whose identity was widely known to the public. The privacy right attached to Foster's family members "to secure their own refuge from a sensation-seeking culture for their own peace of mind and tranquility." Id . at 166. If Foster's identity were unknown, such a pri vacy interest would not arise.

In Ray, the Supreme Court recognized that disclo sure of identities of Haitians who were repatriated after attempts to enter the United States could subject them or their families to "embarrassment in their social and community relationships," 502 U.S. at 176 (internal quo tation omitted), but that redaction of names resulted in a diminished privacy interest, see id. ("Although disclo sure of such personal information constitutes only a de minimis invasion of privacy when the identities of the interviewees are unknown, the invasion of privacy be comes significant when the personal information is linked to particular interviewees.").19

Notwithstanding the defendants' assertions that re dactions of the Army photos do not eliminate the possi bility that the detainees in the photographs might be identified (even if only by themselves), we find the dis trict court's redactions of identifying features sufficient to warrant the conclusion that the photographs do not implicate the detainees' privacy interests pursuant to FOIA exemption 7(C). Cf. Rose, 425 U.S. at 381-82 (up holding disclosure of redacted records under exemption 6 while acknowledging that "redaction cannot eliminate all risks of identifiability").

Even though we are not compelled to balance inter ests where there is no more than a de minimis privacy interest at stake, we note that contrary to the defen dants' suggestion there is a significant public interest in the disclosure of these photographs. The defendants concede that these photographs yield evidence of gov ernmental wrongdoing, but nonetheless argue that they add little additional value to the written summaries of the depicted events, which have already been made pub lic. This contention disregards FOIA's central purpose of furthering governmental accountability, and the spe cial importance the law accords to information revealing official misconduct. Robbins, 437 U.S. at 242 ("The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors ac countable to the governed." (internal citation omitted)). The defendants cite several cases in which public infor mation rendered the incremental value of additional dis closure too slight to outweigh privacy interests,20 but the court in each of those cases expressly found that there was no reason to believe the information would docu ment government misconduct.21 Governmental miscon duct is conceded here, (Appellants' Br. 15 (noting that several personnel were disciplined in connection with the Army CID investigations)), and we accordingly note that the public interest in disclosure of these photo graphs is strong. In any event, there is no more than a de minimis privacy interest in withholding the redacted photographs.

2. The Geneva Conventions

The defendants argue that the Geneva Conventions, which protect prisoners of war and detained civilians "against insults and public curiosity," serve as further basis for a finding that FOIA's privacy provisions apply to prevent release of the Army photos. The Third Geneva Convention, covering lawful belligerents, pro vides that "prisoners of war must at all times be pro tected, particularly against acts of violence or intimida tion and against insults and public curiosity." Geneva Convention Relative to the Treatment of Prisoners of War art. 13, Aug. 12, 1949, 6 U.S.T. 3316 [hereinafter Third Geneva Convention]. The Fourth Geneva Conven tion, covering civilians, states:

Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their fam ily rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.

Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 27, Aug. 12, 1949, 6 U.S.T. 3516 [hereinafter Fourth Geneva Convention]. Both of these treaties were designed to prevent the abuse of prisoners. Neither treaty is intended to curb those who seek information about prisoner abuse in an effort to help deter it.

However, government officials have concluded that release of photographs like the ones in this case would clash with the Geneva Conventions by subjecting the detainees depicted in the photos to public curiosity. (See Declaration of Geoffrey S. Corn, March 25, 2005, ¶ 5 ("[R]elease of [the Abu Ghraib] photographs, even with obscured faces and genitals, would be inconsistent with the obligation of the United States to treat the individu als depicted humanely and would pose a great risk of subjecting these individuals to public insult and curios ity."); Declaration of Richard B. Jackson, April 25, 2006, ¶ 9 (release of the Army photos will subject detainees to public curiosity because "[e]ven if the identities of the subjects of the photographs are never established . . . each individual beneficiary of these treaty protections will undoubtedly suffer the personal humiliation and indignity accordant with the knowledge that these pho tographs have been placed in the public domain").)

The defendants do not claim that the Geneva Con ventions constitute specific statutory authorization to withhold these photographs under FOIA's exemption 3, § 552(b)(3), but rather that FOIA should be read to be consistent with the Geneva Conventions, see Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) ("[A]n act of Congress ought never to be con strued to violate the law of nations if any other possible construction remains. . . . "). We note that "[r]espect is ordinarily due the reasonable views of the Executive Branch concerning the meaning of an international treaty," El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 168-69 (1999), so long as it has been "con sistently adhered to by the Executive Department of the Government," Sullivan v. Kidd, 254 U.S. 433, 442 (1921). The defendants' current litigation position, however, is not at all consistent with the executive branch's prior interpretations of the Geneva Conventions.

As an initial matter, the government does not cur rently interpret the Geneva Conventions to prohibit dis semination of photographs or videos of detainees when those detainees are not identifiable. (See, e.g., Jennifer K. Elsea, Congressional Research Service Report for Congress: Lawfulness of Interrogation Techniques un der the Geneva Conventions, at CRS-19 (2004) ("[T]he Department of Defense interprets the [Third Geneva Convention] to protect POWs from being filmed or pho tographed in such a manner that viewers would be able to recognize the prisoner. Photos and videos depicting POWs with their faces covered or their identities other wise disguised [do] not, in the view of the Department of Defense, violate GPW art. 13."). However, the defen dants note that the government's current practice does not allow dissemination of photographs of detainees be ing abused, even if they are not identifiable. (Appel lants' Br. 52-53; Appellants' Reply Br. 23-25.) The de fendants argue that a photograph of abuse is so humili ating that its dissemination always opens the detainee to "public curiosity," even if the detainee cannot be identi fied. But this was not always the government's interpre tation of the Geneva Conventions.

Prior to this litigation, the United States has not con sistently considered dissemination of photographic docu mentation of detainee mistreatment to violate the public curiosity provisions of the Geneva Conventions, at least not when the detainee is unidentifiable and the dissemi nation is not itself intended to humiliate. The 1929 Ge neva Conventions, in force during World War II, pro vided prisoners of war the same protection from "public curiosity" that the Third and Fourth Geneva Conven tions offer to prisoners of war and civilians. Compare Convention Relative to the Treatment of Prisoners of War art. 2, July 27, 1929, 47 Stat. 2021 ("[Prisoners of war] must at all times be humanely treated, and pro tected, particularly against acts of violence, insults and public curiosity.") with Third Geneva Convention, supra, art. 13 ("Prisoners of war must at all times be humanely treated. . . . Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curios ity."). At the end of the war, the United States govern ment widely disseminated photographs of prisoners in Japanese and German prison and concentration camps. (Declaration of Scott F. Horton, Apr. 27, 2005, ¶ 17.). These photographs of emaciated prisoners, corpses, and remains of prisoners depicted detainees in states of pow erlessness and subjugation similar to those endured by the detainees depicted in the photographs at issue here. Yet the United States championed the use and dissemi nation of such photographs to hold perpetrators ac countable.

The government responds that the individuals in the World War II photographs were not in the military cus tody of the United States, and thus the United States was under no duty to protect them from public curiosity. Therefore, the argument continues, there is no inconsis tency between the United States' actions in publicizing photographs documenting German and Japanese de tainee abuse and its current position that publicizing photographs documenting its own abuse of detainees would violate the Geneva Conventions. On this clever interpretation, the United States at the end of World War II was properly facilitating "public curiosity," but Nazi Germany and Imperial Japan were obligated by the 1929 Geneva Conventions to defeat those efforts to document their violation of the 1929 Geneva Conven tions. We are not persuaded. The far more sensible in terpretation of the United States' position is that the United States did not at that time consider documenta tion of Geneva Convention violations in order to hold the perpetrators accountable to constitute "public curios ity," even when the documentation included photographs of detainees subject to mistreatment.

Further, the defendants' contention that documenta tion of detainee abuse constitutes public curiosity is im possible to square with the United States' role as the lead prosecuting party of Imperial Japanese General Sadao Araki and others before the International Mili tary Tribunal for the Far East ("IMTFE"). In that case, the IMTFE found the Japanese government's cen sorship of photographs depicting mistreatment of pris oners of war to be evidence of the government's complic ity in war crimes, including violations of the 1929 Geneva Conventions. See United States v. Sadao Araki (Int'l Mil. Trib. for the Far East Nov. 4-12, 1948), reprinted in 60 International Law Studies 437, 460-67, 472-76 (How ard S. Levie ed. 1979). The United States' leading role in that prosecution would have been odd, to say the least, if the United States at the time took the position that the dissemination of photographs showing prisoners of war subject to mistreatment was itself a war crime.

In light of this contrary past practice, we do not de fer to the government's current litigation position con cerning the meaning of the "public curiosity" provisions of the Third and Fourth Geneva Conventions. See, e.g., Perkins v. Elg, 307 U.S. 325, 339-49 (1939) (declining to defer to executive's interpretation of treaty in light of past practice of contrary interpretation of similar trea ties). We hold that Article 13 of the Third Geneva Con vention and Article 27 of the Fourth Geneva Convention do not prohibit dissemination of images of detainees be ing abused when the images are redacted so as to pro tect the identities of the detainees, at least in situations where, as here, the purpose of the dissemination is not itself to humiliate the detainees. (Cf. Appellants' Br. 53 (considering possibility of detainees being "subjected to mistreatment through the streets" while hooded).) This construction is consistent with the past practice of the United States. It is also the construction publicly adop ted by the International Committee for the Red Cross ("ICRC"), which has "had a significant influence on the interpretation of Article 13," (Cummings Decl. 17). See Pics "Not Breaching Convention," News24.com (May 21, 2004), http://www.news24.com/News24/World/Iraq/ 0,,2-10-1460_1530825,00.html (noting that ICRC spokes person stated that photographs of detainee abuse could be released if faces and identifying features are ob scured).

More importantly, this construction is consistent with the purpose of furthering humane treatment of cap tives, which animates Article 13 of the Third Geneva Convention and Article 27 of the Fourth Geneva Con vention. See Senator Linie Gmbh & Co. Kg v. Sunway Line, Inc., 291 F.3d 145, 153 n.7 (2d Cir. 2002) ("A trea ty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and pur pose." (quoting Vienna Convention on the Law of Trea ties art. 31.1, May 23, 1969, 1155 U.N.T.S. 331)); see also Int'l Comm. for the Red Cross, Commentary: Conven tion (III) Relative to the Treatment of Prisoners of War 140 (Jean S. Pictet ed. 1960), available at http://www. icrc.org/ihl.nsf/COM/375-590017 ("The requirement that protected persons must at all times be humanely treated is the basic theme of the Geneva Conventions.") [herein after ICRC Commentary]; cf. United States v. Noriega, 808 F. Supp. 791, 795 n.6 (S.D. Fla. 1992) ("While the Red Cross Commentary is not part of the treaty and is not binding law, it is widely recognized as a respected authority on interpretation of the Geneva Conven tions."). Release of the photographs is likely to further the purposes of the Geneva Conventions by deterring future abuse of prisoners. To the extent the public may be "curious" about the Army photos, it is not in a way that the text of the Conventions prohibits; curiosity about "enemy prisoners being subjected to mistreat ment through the streets," (Appellants' Br. 53), is differ ent in kind from the type of concern the plaintiffs seek to inspire. See ICRC Commentary, supra, at 141 (char acterizing "public curiosity" provision as concerned with protecting "honour" of prisoners). Heightened public awareness of events depicted in the Army photos-some of which appear to violate the Geneva Conventions- would serve to vindicate the purposes of the Geneva Conventions without endangering the lives or honor of detainees whose identities are protected.

As the Third and Fourth Geneva Conventions do not prohibit disclosure of photographs of detainee abuse when, as here, the photographs are redacted and the disclosure is not itself intended as an act of humiliation, no need arises to alter the standard analysis under FOIA's exemption 6 and 7(C) in order to construe that statute to be consistent with those conventions. There fore, the defendants' expressed desire to comply with the Geneva Conventions does not elevate the privacy in terests in withholding the redacted Army photos above a de minimis level.22

CONCLUSION

As stated above, the defendants have failed to iden tify an individual who could reasonably be expected to be endangered within the meaning of exemption 7(F). The district court's redactions are sufficient to render inapplicable exemptions 6 and 7(C), even in light of the Third and Fourth Geneva Conventions. Accordingly, we affirm.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

11. APPENDIX B

 

12. UNITED STATES DISTRICT COURT

13. FOR THE SOUTHERN DISTRICT OF NEW YORK

 

 

 

 

No. 04 Civ. 4151 (AKH)

AMERICAN CIVIL LIBERTIES UNION, ET AL., PLAINTIFFS

v.

DEPARTMENT OF DEFENSE, ET AL., DEFENDANTS

 

 

 

 

[Filed: June 21, 2006]

 

 

 

 

SUPPLEMENTAL ORDER

RELEASING PHOTOGRAPHS

 

 

 

 

ALVIN K. HELLERSTEIN, U.S.D.J.:

In connection with the parties' pending cross motions for summary judgment, the Court on June 8, 2006, re viewed ex parte and in camera twenty nine photographs taken by individuals serving in Iraq and Afghanistan, submitted to me by the government as responsive to Plaintiff's request for videotapes, photographs and oth er records depicting abuse in Iraq. Based upon my re view of the color photographs, by Order dated June 9, 2006, I ordered the Government to release twenty of the twenty nine photographs, with redacting of identifying facial features in certain of the photos. I reserved deci sion on the photographs marked exhibits GXB F-1 and F-2. The parties having entered into a stipulation re garding the two remaining photographs, it is hereby

ORDERED that the Government shall release, pur suant to my holdings set out in my Opinion and Order Granting in Part and Denying in Part Motions for Par tial Summary Judgment dated September 29, 2005, 389 F. Supp. 2d 547, 568-79, the photograph marked exhibit GXB F-1; and it is further

ORDERED that the Government shall redact identi fying facial features from the photograph marked as exhibit GXB F-1, and release it as redacted; and it is further

ORDERED that the Government is not required to release the photographs marked as exhibits GXA and GXB F-2, as the parties have stipulated that plaintiffs do not object to the Government withholding photo F-2 in its entirety because it is not responsive.

Dated: New York, New York

June 21, 2006

 

/s/ ALVIN K. HELLERSTEIN

ALVIN K. HELLERSTEIN

United States District Judge

 

 

 

 

 

 

14. APPENDIX C

 

15. UNITED STATES DISTRICT COURT

16. FOR THE SOUTHERN DISTRICT OF NEW YORK

 

 

 

 

No. 04 Civ. 4151 (AKH)

AMERICAN CIVIL LIBERTIES UNION, ET AL., PLAINTIFFS

v.

DEPARTMENT OF DEFENSE, ET AL., DEFENDANTS

 

 

 

 

[Filed: June 9, 2006]

 

 

 

 

ORDER

 

 

 

 

ALVIN K. HELLERSTEIN, U.S.D.J.:

In connection with the parties' pending cross motions for summary judgment, the Court on June 8, 2006, re viewed ex parte and in camera twenty nine photographs taken by individuals serving in Iraq and Afghanistan, submitted to me by the government as responsive to Plaintiff's request for videotapes, photographs and oth er records depicting abuse in Iraq. Based upon my re view of the color photographs, in Government Exhibit A ("GXA") and the black and white photographs in Gov ernment Exhibit B ("GXB") (both color and black and white being the same), it is hereby

 

ORDERED that the Government shall release, pur suant to my holdings set out in my Opinion and Order Granting in Part and Denying in Part Motions for Par tial Summary Judgment dated September 29, 2005, 389 F. Supp. 2d 547, 568-79, the photographs marked exhib its GXB A-6, A-7, A-8, B-1, B-2, C-1, D-1, E-1, E-2, E-3, E-4, E-5, E-6, E-7, E-8, E-9, E-10, E-11, E-12, and E-13; and it is further

ORDERED that the Government shall redact identi fying facial features from the photographs marked as exhibits GXB A-6, A-7, A-8, B-1, B-2, C-1, E-1, E-2, E-3, E-4, E-5, E-6, E-7, E-8, E-9, E-10, E-11, E-12, and E-13, and release them as redacted; and it is further

ORDERED that the Government is not required to release the photographs marked as exhibits GXA and GXB A-1, A-2, A-3, A-4, A-5, G-1, and G-2, as the Court has determined that these photographs are not respon sive; and

Judgment is reserved regarding F-1 and F-2.

SO ORDERED.

 

Dated: New York, New York

June 9, 2006

 

/s/ ALVIN K. HELLERSTEIN ALVIN K. HELLERSTEIN

United States District Judge

 

 

 

 

17. APPENDIX D

18.

19. UNITED STATES DISTRICT COURT

20. FOR THE SOUTHERN DISTRICT OF NEW YORK

 

 

 

 

No. 04 Civ. 4151 (AKH)

AMERICAN CIVIL LIBERTIES UNION, CENTER FOR CONSTITUTIONAL RIGHTS, PHYSICIANS FOR HUMAN RIGHTS, VETERANS FOR COMMON SENSE AND

VETERANS FOR PEACE, PLAINTIFFS

v.

DEPARTMENT OF DEFENSE, AND ITS COMPONENTS DEPARTMENT OF ARMY, DEPARTMENT OF NAVY,

DEPARTMENT OF AIR FORCE, DEFENSE

INTELLIGENCE AGENCY; DEPARTMENT OF

HOMELAND SECURITY; DEPARTMENT OF JUSTICE, AND ITS COMPONENTS CIVIL RIGHTS DIVISION,

CRIMINAL DIVISION, OFFICE OF INFORMATION AND PRIVACY, OFFICE OF INTELLIGENCE POLICY AND

REVIEW, FEDERAL BUREAU OF INVESTIGATION;

DEPARTMENT OF STATE; AND CENTRAL

INTELLIGENCE AGENCY, DEFENDANTS

 

 

 

 

[Filed: Apr. 10, 2006]

 

 

 

 

ORDER

 

 

 

 

 

WHEREAS, Plaintiffs-Appellees submitted requests under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), seeking, inter alia, the release of photo graphs and videos that were contained on a CD provided by Joseph Darby to the Department of Army Criminal Investigations Command and that depicted the treat ment of detainees at Abu Ghraib prison (collectively, the "Darby Photos");

WHEREAS, the Department of Defense ("DOD") and Department of the Army ("DOA") asserted that the Darby Photos were properly withheld from release pur suant to FOIA Exemptions 6, 7(C) and 7(F);

WHEREAS, this Court reviewed the Darby Photos ex parte and in camera on two occasions and narrowed the number of images that were potentially appropriate for release to 74 photos and 3 videos;

WHEREAS, in an opinion dated September 29, 2005, this Court ordered that DOD and DOA release the rele vant 74 photos and 3 videos after appropriate redaction;

WHEREAS, DOD and DOA appealed this Court's order requiring release of the Darby Photos to the Uni ted States Court of Appeals for the Second Circuit;

WHEREAS, after the filing of the appeal by DOD and DOA in the Second Circuit, images were published on the website www.salon.com purporting to depict the treatment of detainees at Abu Ghraib prison;

WHEREAS, DOD and DOA subsequently entered into a stipulation and proposed order with plaintiffs pro viding for the dismissal of the appeal relating to the Darby Photos without further litigation and before re ceiving a ruling from the Second Circuit regarding the legal issues raised by that appeal;

WHEREAS, on April 3, 2006, the Second Circuit en tered a Stipulation and Order dismissing the appeal on the Darby Photos;

WHEREAS, DOA represents that: (a) there are 29 other photos and 2 videos that are responsive to Plain tiffs' FOIA requests in this action and that are being withheld from release by DOD and DOA based solely upon FOIA Exemptions 6, 7(C) and/or 7(F) (the "Other Responsive Images"); and (b) the Other Responsive Im ages are the only other images in the possession of DOA that are responsive to Plaintiffs' FOIA requests and are being withheld solely on the basis of FOIA Exemptions 6, 7(C) and/or 7(F);

WHEREAS, the parties have reached an agreement regarding how to most efficiently and expeditiously liti gate whether the Other Responsive Images can be with held under FOIA Exemptions 6, 7(C) and/or 7(F); and

WHEREAS, the parties agree that the most efficient and expeditious way to resolve whether the Other Re sponsive Images should be released under FOIA is to create a record consisting of declarations that will sup plement the record previously made before this Court on the Darby Photos and FOIA Exemptions 6, 7(C) and 7(F);

NOW, THEREFORE, it is hereby agreed between the parties and ORDERED as follows:

1. On or before April 25, 2006, the Government shall file with the Court any declarations in support of its in vocation of Exemptions 6, 7(C) and/or 7(F) as to the Oth er Responsive Images.

2. On or before May 23, 2006, Plaintiffs will submit any declarations in response to the Government's sub mission as to the Other Responsive Images, and the Government will submit any additional declarations in reply within ten calendar days of plaintiffs' submission; if plaintiffs do not submit any additional declarations but rather rely upon declarations previously submitted to the Court relating to the Darby Photos, the Government will not submit any further declarations as to the Other Responsive Images without seeking leave of this Court for good cause shown.

3. To the extent that the withholding of the Other Responsive Images involves the same legal issues raised by the Darby Photos, the parties will not submit addi tional legal memoranda on Exemptions 6, 7(C) and 7(F), and the Court may instead rely upon the legal briefing previously submitted by the parties on these issues. To the extent that the parties need to address any new legal issues raised by the Other Responsive Images, the par ties shall do so in letter briefs to the Court not to exceed three pages and these letter briefs shall be submitted simultaneously with the filing of the parties' declara tions.

4. The Court will consider the parties' submissions, set forth in paragraphs 1-3 above, as cross-motions for summary judgment regarding whether the Other Re sponsive Images must be released under FOIA.

5. After the Court issues its decision as to the Other Responsive Images, the parties will determine whether to appeal that decision on an expedited basis and will file any notice of appeal no later than 14 days of the Court's decision; during those 14 days, any order of release that the Court might issue as to the Other Responsive Im ages will be stayed.

6. To the extent that DOD has any responsive im ages in its possession that have been or will be withheld based in this case solely based on FOIA Exemptions 6, 7(C), and/or 7(F), the question of whether these other DOD responsive images should be released under FOIA Exemptions 6, 7(C) and/or 7(F) will be governed by the final ruling on appeal as to the Other Responsive Im ages.

Dated: New York, New York

April 10, 2006

 

FOR PLAINTIFFS

 

/s/ AMRIT SINGH

AMRIT SINGH

Jameel Jaffer

Judy Rabinovitz

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad St., 18th Floor

New York, New York 10004

phone: (212) 549-2500

facsimile: (212) 549-2654

 

 

 

 

 

 

Lawrence S. Lustberg (LL-1644)

Megan Lewis (ML-3429)

GIBBONS, DEL DEO, DOLAN

GRIFFINGER & VECCHIONE, P.C.

One Riverfront Plaza

Newark, New Jersey 07102

phone: (973) 596-4700

facsimile: (973) 596-0545

 

Dated: New York, New York

April 10, 2006

 

FOR DEFENDANTS:

 

MICHAEL J. GARCIA

United States Attorney for the

Southern District of New York

 

By: /s/ SEAN H. LANE

SEAN H. LANE (SL-4898)

PETER M. SKINNER (PS-9745)

HEATHER K. MCSHAIN (HM-5883)

Assistant United States Attorneys

86 Chambers Street, 5th floor

New York, N.Y. 10007

(212) 637-2737

 

So ordered this 10 day of April, 2006

 

/s/ ALVIN K. HELLERSTEIN

HON. ALVIN K. HELLERSTEIN

UNITED STATES DISTRICT JUDGE

 

 

21. APPENDIX E

 

22. UNITED STATES DISTRICT COURT

23. FOR THE SOUTHERN DISTRICT OF NEW YORK

 

 

 

 

No. 04 Civ. 4151 (AKH)

AMERICAN CIVIL LIBERTIES UNION, ET AL., PLAINTIFFS

v.

DEPARTMENT OF DEFENSE, ET AL., DEFENDANTS

 

 

 

 

[Filed: Sept. 29, 2005]

 

 

 

 

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR PARTIAL

SUMMARY JUDGMENT

 

 

 

 

ALVIN K. HELLERSTEIN, U.S.D.J.:

The American Civil Liberties Union and other plain tiffs have demanded that the government produce rele vant documents concerning the "treatment of Detainees in United States custody," the "death of Detainees in United States custody," and the "rendition of Detainees and other individuals" to countries known to employ tor ture. Plaintiffs' demands under the Freedom of Infor mation Act ("FOIA"), 5 U.S.C. § 552, were first made on October 7, 2003. The government, after being inatten tive for many months to the obligations imposed on it by FOIA, see Am. Civil Liberties Union v. Dep't of Def., 339 F. Supp. 2d 501 (S.D.N.Y. 2004) ("Opinion and Order of September 15, 2004"), has made large, but not com plete, production, reviewing and turning over thousands of documents from various of its agencies. The present motions relate to documents claimed to be possessed by, or of concern to, two government agencies, the Depart ment of Defense ("DOD") and the Central Intelligence Agency ("CIA").

More than one year ago, on August 16, 2004, in order to facilitate the government's processing of documents, plaintiffs created a priority list of enumerated docu ments (the "August 16, 2004 List"). The priority list was a subset of previous demands that plaintiffs most wished to be produced and which, based on public references to such documents, plaintiffs believed the government could readily process. The priority list focused on spe cifically identified records, such as records "provided by defendant agencies to Congress, members of Congress, or congressional committees," or "discussed or identi fied in the media." My Opinion and Order of September 15, 2004 set out an expedited procedure with respect to the August 16, 2004 List.23 Specifically, the government was required to produce the documents responsive to the List, or provide a declaration showing that an ex emption against production applied, see Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), following which there would be motions for partial summary judgment to resolve disputes regarding documents claimed to be exempt.

Initially, defendant CIA took the position that it did not have to search its operational files and identify re sponsive documents, claiming an exemption by statute. See CIA Information Act, 50 U.S.C. § 431. However, the CIA Information Act itself provides exceptions to the exemptions from FOIA that it affords the CIA, and I held that since the agency had already conducted a search pursuant to an investigation of its Inspector Gen eral into allegations of improprieties of CIA operatives in Iraq, the statute by its explicit terms no longer ex empted the CIA from its obligations under FOIA to search. I ordered the CIA to search its investigative files for responsive documents, and either to produce them or show them to be exempt. See Am. Civil Liber ties Union v. Dep't of Def., 351 F. Supp. 2d 265 (S.D.N.Y. 2005) (Opinion and Order of February 2, 2005, modified, April 18, 2005).24

Against this backdrop, plaintiffs and defendants both moved for summary judgment on issues arising from plaintiffs' priority list of August 16, 2004. "Summary judgment is the procedural vehicle by which most FOIA actions are resolved." Jones-Edwards v. Appeal Bd. of the Nat'l Sec. Agency Cent. Sec. Agency, 352 F. Supp. 2d 420, 423 (S.D.N.Y. 2005) (citing Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993) ("Generally, FOIA cases should be handled on motions for summary judgment, once the documents in issue are properly identified.")).

This Opinion addresses five categories of issues that are disputed: (1) the DOD's withholding of reports and documents relating to the International Committee of the Red Cross; (2) documents relating to the DOD's in terrogation activities; (3) the CIA's refusal to confirm or deny the existence or possession of certain documents; (4) the CIA's representation, with regard to documents relating to a request by former CIA Director Tenet to Secretary of Defense Rumsfeld that a certain Iraqi sus pect be held at a high-level detention center and not be identified, that there are no meaningful, reasonably segregable portions of the documents that are not ex empt from production; and (5) the DOD's withholding of photographs taken by Joseph Darby at Abu Ghraib prison and provided to the Army's Criminal Investiga tive Division. This written decision expands on, and su persedes, the rulings and observations that I made at the public and in camera oral arguments held on May 26, May 31, August 15, and August 30, 2005.

24. The Applicable Legal Principles

As the Second Circuit recently observed, "FOIA was enacted in order to 'promote honest and open govern ment and to assure the existence of an informed citi zenry [in order] to hold the governors accountable to the governed."' Nat'l Council of La Raza v. DOJ, 411 F.3d 350, 355 (2d Cir. 2005) (alteration in original) (quoting Grand Cent. P'ship. Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999)). Clearly, however, the policy of open disclo sure is not the only policy to consider. FOIA itself rec ognizes this, and provides nine exemptions against dis closure. It is the burden of the relevant agency to show that an adequate search was made, and that a "specific, enumerated exemption[] set forth in" FOIA authorizes it to withhold a document from production. Id.; Carney v. DOJ, 19 F.3d 807, 812 (2d Cir. 1994); see also Tax An alysts v. IRS, 410 F.3d 715, 719-20 (D.C. Cir. 2005) (reit erating that the requirement for granting summary judgment to an agency is that the "agency must show, viewing the facts in the light most favorable to the re quester, that there is no genuine issue of material fact"). The showing must meet an exacting standard, since, "[c]onsistent with FOIA's purposes, these statutory ex emptions are narrowly construed." Nat'l Council of La Raza, 411 F.3d at 355-56 (citing Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001)).

My inquiry with respect to the documents in issue is particularly acute. Our nation has been at war with ter rorists since their September 11, 2001 suicide crashes into the World Trade Center, the Pentagon, and a field in Shanksville, Pennsylvania, killing thousands and wounding our nation in ways that we still cannot fully recount-indeed, we were at war with terrorists since well before that event. American soldiers are fighting and dying daily in Afghanistan and Iraq. The morale of our nation is a vital concern and directly affects the wel fare of our soldiers. How then to deal with the com mands of FOIA and the strong policy it reflects "to pro mote honest and open government," "to assure the exis tence of an informed citizenry," and "to hold the gover nors accountable to the governed"? Of course, national security and the safety and integrity of our soldiers, military and intelligence operations are not to be com promised, but is our nation better preserved by trying to squelch relevant documents that otherwise would be produced for fear of retaliation by an enemy that needs no pretext to attack?

FOIA places a heavy responsibility on the judge to determine "de novo" if documents withheld by an agency are properly withheld under an exemption and, if neces sary, to examine the withheld documents "in camera":

On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Co lumbia, has jurisdiction to enjoin the agency from withholding agency records and to order the produc tion of any agency records improperly withheld from the complainant. In such a case the court shall de termine the matter de novo, and may examine the contents of such agency records in camera to deter mine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action. In addition to any other matters to which a court accords substantial weight, a court shall accord substantial weight to an affidavit of an agency concerning the agency's deter mination as to technical feasibility under paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B).

5 U.S.C. § 552(a)(4)(B); see also Al-Fayed v. CIA, 254 F.3d 300, 307 (D.C. Cir. 2001) ("[I]t is precisely because FOIA's terms apply government-wide that we generally decline to accord deference to agency interpretations of the statute, as we would otherwise do under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984).").

An agency's burden, although high, is not impracti cal. It suffices if the agency shows, by "[a]ffidavits or declarations supplying facts," that the agency has con ducted a "thorough search" for responsive documents, and has given "reasonably detailed explanations why any withheld documents fall within an exemption." Car ney, 19 F.3d at 812; see also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973) (requiring as justification for claims of exemption "a relatively detailed analysis in manageable segments" and outlining guidelines for in dexing). A district judge is required to give "substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record." Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984). Once the agency has made a reasonable response, the burden on a FOIA plaintiff is high:

In order to justify discovery once the agency has satisfied its burden, the plaintiff must make a show ing of bad faith on the part of the agency sufficient to impugn the agency's affidavits or declarations, or provide some tangible evidence that an exemption claimed by the agency should not apply or summary judgment is otherwise inappropriate.

Carney, 19 F.3d at 812 (citations omitted). The declara tions submitted by the agency in support of its determi nation are "accorded a presumption of good faith." Id.

My duty as a judge is to apply the legal principles of the statute and cases discussed above.

I. International Committee of the Red Cross Docu ments

Plaintiffs demand production of all reports of the International Committee of the Red Cross ("ICRC") concerning the treatment of detainees in Iraq (Item 8 of the prioritized August 16, 2004 List); the government's responses to the ICRC's concerns (Item 13); a letter from military lawyers over the signature of Brig. Gen. Janis Karpinski to the ICRC responding to its concerns about conditions at Abu Ghraib (Item 49); and a com plete set of documents reflecting discussions between the ICRC and military officers at Guantánamo Bay (Item 58).25 Defendant DOD objected to production, ar guing that responsive documents are exempted under FOIA Exemption 3, which provides that FOIA disclo sure requirements do not apply to matters that are

specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be with held from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.

5 U.S.C. § 552(b)(3). The relevant statute, 10 U.S.C. § 130c, authorizes the withholding of "sensitive informa tion" to the extent such withholding is requested by a foreign government or international organization. See 10 U.S.C. § 130c(a). Section 130c provides that if the in formation was "provided by, otherwise made available by, or produced in cooperation with" the foreign govern ment or international organization, and certain other criteria are satisfied, the information may be exempted from release by the United States government. In par ticular, the national security official concerned must determine each of the following:

(1) That the information was provided by, otherwise made available by, or produced in cooperation with, a foreign government or international organization.

(2) That the foreign government or international organization is withholding the information from public disclosure (relying for that determination on the written representation of the foreign government or international organization to that effect).

(3) That any of the following conditions are met:

(A) The foreign government or international or ganization requests, in writing, that the informa tion be withheld.

(B) The information was provided or made available to the United States Government on the condition that it not be released to the pub lic.

(C) The information is an item of information, or is in a category of information, that the na tional security official concerned has specified in regulations prescribed under subsection [(g)] as being information the release of which would have an adverse effect on the ability of the United States Government to obtain the same or similar information in the future.

Id. § 130c(b).

Under FOIA, "[t]he two threshold criteria needed to obtain exemption 3 exclusion from public disclosure are that (1) the statute invoked qualifies as an exemption 3 withholding statute, and (2) the materials withheld fall within that statute's scope." A. Michael's Piano, Inc. v. Fed. Trade Comm'n, 18 F.3d 138, 143 (2d Cir. 1994) (cit ing CIA v. Sims, 471 U.S. 159, 167 (1985)). Exemption 3, as the Second Circuit explained, "incorporates the policies of other statutes"; a statute that meets the re quirements of Exemption 3 "may effectively exclude cer tain matters from disclosure, namely, as stated in ex emption 3, those matters 'specifically exempted from disclosure by [the subject] statute.'" Id. (alteration in original) (quoting 5 U.S.C. § 552(b)(3)).

There is no dispute, except for one argument dis cussed below in this paragraph, that 10 U.S.C. § 130c qualifies as a withholding statute and that the ICRC qualifies as an appropriate international organization; the only question is whether the disputed materials fall within the statute's scope. See id. at 144 ("[W]e follow the approach taken by the Supreme Court in construing withholding statutes, looking to the plain language of the statute and its legislative history, in order to deter mine legislative purpose." (citing Sims, 471 U.S. at 168- 73)). Plaintiffs' only argument that the statute does not apply is that no regulations have been promulgated to support the determination of the relevant national secu rity official, the Secretary of Defense, that the release of the information would have "an adverse effect on the ability of the United States Government to obtain the same or similar information in the future." See 10 U.S.C. § 130c(b)(3)(C), (g), (h)(l)(A). However, the text of the relevant portion of the statute is in the disjunc tive; the statute does not provide that the promulgation of regulations is a necessary precondition to the stat ute's effectiveness. Furthermore, a directive of Secre tary Donald Rumsfeld requires confidential treatment of all ICRC communications. See Decl. of Charles A. Allen, Deputy Gen. Counsel (Internat'l Affairs), Office of Gen. Counsel, DOD, dated Mar. 25, 2005, ¶ 13 & Ex. B (describing and attaching Memo, Sec'y of Def., July 14, 2004). Accordingly, plaintiffs' argument is without merit. I hold that 10 U.S.C. § 130c constitutes a with holding statute for the purposes of FOIA Exemption 3. I therefore turn to examine if the documents responsive to Items 8, 13, 49, and 58 fall within the scope of 10 U.S.C. § 130c.

Item 8 requests the reports delivered by the ICRC to DOD. Such reports clearly fall within the scope of 10 U.S.C. § 130c and accordingly, they are covered by FOIA Exemption 3. At oral argument, plaintiffs con ceded that the ICRC reports were properly exempted under the statute, and I so ruled. Tr. of May 31, 2005, at 12.

The government argues that Items 13, 49, and 58 reflect a dialogue between DOD and the ICRC, and thus were produced "in cooperation with" the ICRC, and are properly exempted under 10 U.S.C. § 130c(b)(l). Plain tiffs disagree with this characterization and argue, in addition, that with respect to at least some documents, extensive discussions in the press constitute a waiver of confidentiality.

The ICRC represented that it maintained, and re quested that the United States government likewise maintain, confidentiality with respect to the disputed information, see Letter from Finn Ruda, Deputy Head of ICRC's Delegation for United States and Canada to Stewart F. Aly, Assoc. Deputy Gen. Counsel, DOD, con firming "that all records of communications from the ICRC or its representatives regarding detainees in Guantánamo and Iraq have been provided by the ICRC to the DOD on condition that the documents not be re leased to the public." Second Decl. of Stewart F. Aly, dated Mar. 23, 2005, Ex. D (attaching letter) [hereinaf ter Second Aly Decl.]. The Finn letter also states that "the ICRC itself is withholding such documents from public disclosure." Id. The requirements of § 130c(b)(2) and (b)(3) are thus satisfied.

As to the government's first argument, that the con tested information was "provided by, otherwise made available by, or produced in cooperation with" the ICRC, see 10 U.S.C. § 130c(b)(l), I examined a sample of the documents ex parte and in camera. The government provided a binder of samples-tabs A, B, C, and D, per taining, respectively, to Items 8, 13, 49, and 58. Tab B26 provided a sample of four out of twenty-two responsive documents; Tab C contained the one responsive docu ment identified by DOD; and Tab D provided a sample of three of thirty-eight documents.

The documents sampled essentially contained re sponses by DOD to the observations reported by the ICRC, thereby exposing the information "provided by" the ICRC. Just as an attorney's responses to a client's requests for advice are privileged-see, e.g., Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (noting that "[w]hile its purpose is to protect a client's disclosures to an attorney, the federal courts extend the privilege also to an attorney's written communications to a client"); In the Matter of Fischel, 557 F.2d 209, 211 (9th Cir. 1977) ("Ordinarily the com pelled disclosure of an attorney's communications or advice to the client will effectively reveal the substance of the client's confidential communication to the attor ney. To prevent this result, the privilege normally ex tends both to the substance of the client's communica tion as well as the attorney's advice in response there to."); see also 8 J. Wigmore, Evidence § 2320 at 628-29 (McNaughton rev. 1961) (describing that one reason for privileging an attorney's communications to a client is that disclosure could "lead[] to inferences of the tenor of the client's communications"); 1 McCormick on Evidence § 89 at 326 (John W. Strong ed., 4th ed. 1992) ("[I]t is generally held that the privilege will protect at least those attorney to client communications which would have a tendency to reveal the confidences of the cli ent.")-so the DOD's responses to the ICRC are ex empt, for otherwise the ICRC's request for confidential ity would be compromised.

Specifically, I ruled as follows, after in camera in spection of the sample of documents provided by the government: with respect to Tab B documents, respons es to concerns raised by the ICRC regarding the treat ment of detainees (Item 13), I ruled that the documents, if produced, would disclose information reported by the ICRC to DOD, and were therefore exempt and that no segregable portion could meaningfully be produced fol lowing redaction. See 5 U.S.C. § 552(b). With respect to Item 49, a letter from military lawyers over the signa ture of Brig. Gen. Janis Karpinski to the ICRC respond ing to its concerns about conditions at Abu Ghraib, I ruled that the single document could be redacted, and thus the portions not covered by 10 U.S.C. § 130c must be disclosed. With respect to Item 58, a complete set of documents reflecting discussions between the ICRC and military officers at Guantánamo Bay, the documents had already been produced in redacted form. I ruled that the redactions had been made appropriately, and thus that the government had satisfied its burden.

I accepted over plaintiffs' challenge the govern ment's representation that the samples it provided were fairly representative, and I ruled that the principles re flected in my rulings be applied by the government to all other documents in these categories that were respon sive to plaintiffs' requests.

25. II. DOD Interrogation Activities

Plaintiffs seek summary judgment to obtain DOD's responses to requests for: an interim policy put into ef fect by Lt. Gen. Ricardo Sanchez based on the Guantán amo Bay policy set forth in Gen. Miller's report (Item 4); documents showing that Lt. Gen. Sanchez approved the use of high-pressure interrogation techniques by senior officials at Abu Ghraib without requiring them to obtain prior approval from outside the prison (Item 37); a mem orandum from the Combined Joint Task Force (CJTF-7) regarding the applicability of Army Field Manual 34-52 and sensory deprivation (Item 39); a document regard ing "Interrogation and Counter-Resistance Policy" list ing interrogation tactics approved by CJTF-7 (Item 40); a directive of Lt. Gen. Sanchez entitled "Interrogation and Counter-Resistance Policy" (Item 41); and a memo randum from CJTF-7 on interrogations (Item 42).

Defendant DOD represented that it possessed only two responsive documents, both of which had been de classified, and that the two had already been turned over to plaintiffs. Defs.' Br., at 8 (citing Second Aly Decl., ¶¶ 23-26 & Exs. E, F). In response to plaintiffs' challenge, DOD identified drafts of the two disclosed memoranda, Third Decl. of Stewart F. Aly, dated May 19, 2005, ¶¶ 3-9, and, although offering to pro cess the drafts, advised that they probably would be withheld under FOIA Exemption 5, since they consti tuted the agency's deliberative processes. See 5 U.S.C. § 552(b)(5) (providing exemption for "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency"). I ruled that the govern ment's representation as to the completeness of its pro duction had to be accepted, and that the government should complete its processing of the drafts by June 21, 2005, with leave to plaintiffs to raise objections to ex emptions claimed by the government.27

 

26. III. CIA's Glomar Responses

The third dispute concerns a response by the CIA, neither confirming nor denying that it possesses docu ments responsive to three of plaintiffs' requests. Plain tiffs' first request is for a memorandum from the De partment of Justice ("DOJ") to the CIA interpreting the Convention Against Torture (Item 1). Plaintiffs, referring to leaks about the document in the press, com ment that the documents may have expressed opinions on certain interrogation techniques, such as "sleep de privation," the "use of phobias," and the "deployment of 'stress factors,'" distinguishing such techniques from those "causing severe physical or mental pain." Plain tiffs' second request is for a DOJ memorandum specify ing interrogation methods that the CIA may use against top Al-Qaeda members (Item 29), which, according to plaintiffs, may permit a technique known as "water boarding" whereby a detainee believes he is drowning. Plaintiffs' third request is for a directive signed by Pres ident Bush granting the CIA the authority to set up de tention facilities outside the United States and/or outlin ing interrogation methods that may be used against de tainees (Item 61).

The CIA, responding to these three categories of requests, gave a "Glomar response," neither admitting nor denying the existence of these documents in its pos session, and claiming that the very fact of the existence or non-existence of the documents must be withheld.28 The CIA represents that it cannot admit or deny that it possesses documents relating to these categories with out revealing "intelligence activities" or "methods," and that it must therefore give a Glomar response.

27. (a) The Dorn Declarations

The CIA Information Review Officer, Marilyn A. Dorn, states in her declaration:

CIA confirmation of the existence of the records re quested in item nos. 1, 29, and 61 would confirm a CIA interest in or use of specific intelligence meth ods and activities. Similarly, a CIA response that it had no records responsive to those items would sug gest that the CIA was not authorized to use or was not interested in using these intelligence methods and activities. Either response would provide foreign intelligence agencies and other groups hostile to the United States with information about CIA's intelli gence activities and methods.

See Fourth Decl. of Marilyn A. Dorn, dated Mar. 30, 2005, ¶ 13 [hereinafter Fourth Dorn Decl.].

Ms. Dorn claims that records responsive to the three items requested cannot be identified as either existing, or not existing, without compromising national security. If the CIA were to state that the documents existed, the CIA would be admitting that it "had engaged in clandes tine intelligence activities or had an interest in pursuing clandestine intelligence activities upon which DOJ alleg edly advised or which were allegedly included in the 'Presidential Directive,"' and would also "acknowledge a CIA capability to pursue such intelligence activities and employ such methods," because the "CIA would not request legal memoranda from DOJ or authorizations from the President for intelligence activities in which it had no interest." Id. ¶¶ 10-11. If, on the other hand, it were to deny the existence of the documents, its denial "would acknowledge a lack of CIA interest or capabil ity." Id. ¶ 11. Hence, it can neither admit nor deny.

Ms. Dorn states that the "mere confirmation or de nial of the existence or non-existence of [such] docu ments . . . reasonably could be expected to cause seri ous damage to the national security," id. ¶ 16, because it would "interfere with the United States Government's collection of intelligence in the war on terrorism," id. ¶ 12, and be of "material assistance" to those who would disrupt our intelligence operations, id. ¶ 14. Ms. Dorn states also that confirmation or denial of the existence of the requested documents could bear on the foreign rela tions of the United States, since countries that cooperate with us "may be less willing to cooperate if the U.S. Gov ernment were to officially acknowledge CIA current or past clandestine intelligence activities and methods, or intelligence interests." Id. ¶ 15.

Following oral argument in May, the CIA submitted a Fifth Declaration of Marilyn A. Dorn, dated July 15, 2005 [hereinafter Fifth Dorn Decl.], a classified docu ment, which supplements the agency's justifications for its Glomar responses. I have reviewed the Fifth Dorn Declaration in camera and ex parte. This Opinion dis closes no fact or argument that is not part of the public record.

The CIA justifies its Glomar response, neither admit ting nor denying the existence of three categories of documents responsive to plaintiffs' demands, on the ba sis of Exemptions 1 and 3 to FOIA. I discuss each of these exemptions in turn.

28. (b) Exemption 1

Exemption 1 exempts matters that are "(A) specifi cally authorized under criteria established by an Execu tive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). Executive Order 12958, effective as amen ded March 25, 2003, provides for classification of na tional security information. Exec. Order No. 12958, re printed as amended by E.O. 13292 in 50 U.S.C. § 435 [hereinafter E.O. 12958]; see also Exec. Order No. 13292, 68 Fed. Reg. 15315 (Mar. 28, 2003). Pursuant to E.O. 12958, an agency may classify information within specified categories if the appropriate classification au thority 29 "determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security":

Sec. 1.1. Classification Standards. (a) Information may be originally classified under the terms of this order only if all of the following conditions are met:

(1) an original classification authority is classi fying the information;

(2) the information is owned by, produced by or for, or is under the control of the United States Government;

(3) the information falls within one or more of the categories of information listed in section 1.4 of this order; and

(4) the original classification authority deter mines that the unauthorized disclosure of the information reasonably could be expected to re sult in damage to the national security, which includes defense against transnational terror ism, and the original classification authority is able to identify or describe the damage.

E.O. 12958 § 1.1(a). Permissible categories of informa tion that may be classified include information concern ing: (a) military plans, weapons systems, or operations; (b) foreign government information; (c) intelligence ac tivities (including special activities), intelligence sources or methods, or cryptology; and (d) foreign relations or foreign activities of the United States, including confi dential sources. Id. § 1.4. Information may not be clas sified to "conceal violations of law," to "prevent embar rassment," or to prevent or delay release of information "that does not require protection":

Sec. 1.7. Classification Prohibitions and Limitations.

(a) In no case shall information be classified in or der to:

(1) conceal violations of law, inefficiency, or ad ministrative error;

(2) prevent embarrassment to a person, organi zation, or agency;

(3) restrain competition; or

(4) prevent or delay the release of information that does not require embar rassment," or to prevent or delay release of information "that does not require protection": Sec. 1.7. Classification Prohibitions and Limitations. (a) In no case shall information be classified in or der to: (1) conceal violations of law, inefficiency, or ad ministrative error; (2) prevent embarrassment to a person, organi zation, or agency; (3) restrain competition; or (4) prevent or delay the release of information that does not require protection in the interest of the national security. Id. § 1.7(a). The Executive Order also provides for a Glomar response; in response to a FOIA request, "[a]n agency may refuse to confirm or deny the existence or nonexistence of requested records whenever the fact of their existence or nonexistence is itself classified under this order or its predecessors." Id. § 3.6(a). 29. (c) Exemption 3 The CIA also justifies its Glomar responses under Exemption 3, which exempts matters "specifically ex empted from disclosure by statute . . . (A) requir[ing] that the matters be withheld from the public in such a manner as to leave no discretion . . . , or (B) estab lish[ing] particular criteria for withholding or refer[ring] to particular types of matters to be with held." 5 U.S.C. § 552(b)(3). The framework for analyz ing agency withholdings under Exemption 3 was out lined earlier in connection with the ICRC documents. See A. Michael's Piano, Inc. v. Fed. Trade Comm'n, 18 F.3d 138, 143 (2d Cir. 1994) (requiring the government to show that "(1) the statute invoked qualifies as an ex emption 3 withholding statute, and (2) the materials withheld fall within that statute's scope"). The qualifying statute here is Section 103(c)(7) of the National Security Act of 1947, as amended, 50 U.S.C.A. § 403-3(c)(7) (West 2003), which commands the Director of Central Intelligence ("DCI") to "protect intelligence sources and methods from unauthorized disclosure."30 See CIA v. Sims, 471 U.S. 159, 167-68 (1985); Assassina tion Archives and Research Ctr. v. CIA, 334 F.3d 55, 58 (D.C. Cir. 2003). The CIA contends that a substantive answer to plaintiffs' requests can "reasonably be ex pected to lead to unauthorized disclosure of intelligence sources and methods." Wolf v. CIA, 357 F. Supp. 2d 112, 117 (D.D.C. 2004) (quoting Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982)). The Supreme Court in Sims, analyzing the "intelli gence sources and methods" language of the statute, held that its "broad sweep" "comport[ed] with the na ture of the Agency's unique responsibilities." 471 U.S. at 169 (construing an earlier version of the statute au thorizing the DCI to protect "intelligence sources and methods"). The Supreme Court ruled that "the plain meaning of the statutory language, as well as the legisla tive history of the National Security Act . . . indicates that Congress vested in the Director of Central Intelli gence very broad authority to protect all sources of in telligence information from disclosure," and that the DCI, not the judiciary, has the responsibility to weigh the factors and decide if disclosure "may lead to an unacceptable risk of compromising the Agency's intelligence-gathering process." Id. at 168-69, 180; see also Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990) ("The assessment of harm to intelligence sources, methods and operations is entrusted to the Director of Central Intelligence, not to the courts." (citing Sims)). 30. (d) Analysis The Glomar response, by which the agency neither admits nor denies that it possesses a requested docu ment, traces its roots to Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976) [hereinafter Phillippi I]. That case in volved the Glomar Explorer, a large ship ostensibly de signed for oceanic research. The ship was recorded as owned by the Summa Corporation, a corporation owned or controlled by Howard Hughes. However, according to accounts appearing in the media, the real owner and operator was the CIA. A controversy arose concerning whether the CIA-before the news stories appeared- had attempted to persuade the media not to publish these accounts. The plaintiff, Phillippi, a journalist, filed suit under FOIA to uncover such contacts between the CIA and the news media, demanding production of: all records relating to the Director's or any other agency personnel's attempts to persuade any media personnel not to broadcast, write, publish, or in any other way make public the events relating to the ac tivities of the Glomar Explorer, including, but not limited to, files, documents, letters, [etc.]. Id. at 1011 n.1. The CIA, asserting that the "existence or nonexistence of the requested records was itself a classified fact exempt from disclosure under Sections (b)(l) and (3) of FOIA," id. at 1012, determined that "in the interest of national security, involvement by the U.S. Government in the activities which are the subject mat ter of [Phillippi's] request can neither be confirmed nor denied." Id. The CIA was concerned that admission or denial of contacts with the press would amount to admis sion or denial of its involvement with the Glomar Ex plorer project and would thereby compromise "intelli gence sources and methods" in violation of section 102(d)(3) of the National Security Act of 1947, 50 U.S.C. § 403(d)(3) (1970), and "severely damage the foreign relations and the national defense of the United States." Id. at 1011, 1013-14 (Aff. of Brent Scowcroft, Ass't to Pres. for Nat'l Sec. Affairs). As the Court of Appeals described the Issue: In effect, the situation is as if appellant had reques ted and been refused permission to see a document which says either "Yes, we have records related to contacts with the media concerning the Glomar Ex plorer" or "No, we do not have any such records." Id. at 1012. The Court of Appeals remanded to require the CIA to "submit a public justification, which is as de tailed as is possible, for refusing to confirm or deny the existence of the requested records." Id. at 1015 n.12. The Court of Appeals held that the district court should discharge its de novo review obligation by first creating "as complete a public record as is possible," and only then, if necessary, by "examin[ing] classified affidavits in camera and without participation by plaintiff's coun sel." Id. at 1013. Later cases, relying on Phillippi I, have approved Glomar responses where substantive responses, either admitting or denying that particular documents existed, "would remove any 'lingering doubts' that a foreign in telligence service might have on the subject, and [where] the perpetuation of such doubts may be an important means of protecting national security." Frugone v. CIA, 169 F.3d 772, 774-75 (D.C. Cir. 1999) (citing Military Audit Project v. Casey, 656 F.2d 724, 745 (D.C. Cir. 1981)); see also Hunt v. CIA, 981 F.2d 1116, 1118 (9th Cir. 1992). The danger of Glomar responses is that they encour age an unfortunate tendency of government officials to over-classify information, frequently keeping secret that which the public already knows, or that which is more embarrassing than revelatory of intelligence sources or methods. That over-classification was evident in Phil lippi, after administrations changed and "the govern ment acknowledged both that the CIA was responsible for the [Glomar Explorer] project" and that "CIA offi cials had tried to dissuade members of the press from publishing stories about it." Phillippi v. CIA, 655 F.2d 1325, 1328 (D.C. Cir. 1981) [hereinafter Phillippi II]. Yet, even then, the CIA was allowed to redact records to withhold descriptions of conversations between the CIA and the press. The district court rejected plaintiff's ar guments that since the world already knew, possibly from the CIA's own disclosures, that the real purpose of the Glomar Explorer apparently extended beyond oce anic research to raising a lost Russian submarine from the ocean floor, there could be no remaining statutory purpose to withhold descriptions of contacts with the press. The Court of Appeals upheld the district court's deference to the CIA, holding that courts lacked compe tence to decide such delicate questions affecting national security and should defer to "well-documented and spe cific affidavits of the CIA." Id. at 1330. In sum, the line between what may be revealed and what must be concealed is itself capable of conveying information to foreign intelligence agencies. For this reason, this court cannot simply assume, over the well-documented and specific affidavits of the CIA to the contrary, that revelation of seemingly innocent information which might nonetheless jeopardize a fallback cover story is required under the FOIA, ei ther because the information in question has already been made public, or even, as in the present case, because it was disseminated for confidential pur poses by the CIA itself. Without the ability to engi neer controlled leaks of disinformation, the CIA would be deprived of the ability to disseminate a fall back cover while simultaneously protecting it. Id. The Court of Appeals also accepted that there was a national interest in keeping foreign analysts in the dark, and leaving them unsure if that which was publicly disclosed was all that was secretly known. As the Court of Appeals put it: FOIA does not require the CIA to lighten the task of our adversaries around the world by providing them with documentary assistance from which to piece together the truth. Id. at 1332. And, further, even if the only question was whether to recognize officially that which was informally or unofficially believed to exist, the niceties of interna tional diplomacy sometimes make it important not to embarrass a foreign country or its leaders, and exemp tions from FOIA protect that concern as well. Id. at 1332-33. Historians will evaluate, and legislators debate, how wise it is for a society to give such regard to secrecy. The practice of secrecy, to compartmentalize knowledge to those having a clear need to know, makes it difficult to hold executives accountable and compromises the basics of a free and open democratic society. It also cre ates a dangerous tendency to withhold information from those outside the insular group, for fear of compromis ing the sources and integrity of intelligence. The conse quences can be dire for, as noted in the 9/11 Commission Report, the strict need-to-know, proprietary approach to intelligence that has been employed by government agencies prevents the effective use of our vast store house of information. 9/11 Comm'n Rep. (2004), § 13.3, at 416-17 ("The biggest impediment to all-source anal ysis-to a greater likelihood of connecting the dots-is the human or systemic resistance to sharing informa tion."). Identities of terrorists may be locked in the files of one agency and not given to another, or reported, if at all, only at the very top of chains of command, denying real-time need to know by those at operating points. The insularity of information tends to cause a multiplic ity of intelligence-gathering agencies, each zealously protecting its own private sources in competition with other agencies. See, e.g., Judith Miller, A New York Cop in Israel, Stepping a Bit on F.B.I. Toes, N.Y. Times, May 15, 2005, § 1, at 37 (discussing tensions between the New York Police Department and the FBI arising from their separate intelligence-gathering endeavors abroad, in turn resulting from the NYPD's desire to have quick access, on an equal footing with federal agencies, to key counter-terrorism information). There was no more cogent critic of the penchant by government officials to over-classify information than the late Senator Daniel Patrick Moynihan, and few with his competence and experience. Senator Moynihan, re flecting on his experiences as Chairman of the Commis sion on Protecting and Reducing Government Secrecy, among many other relevant positions, commented at the conclusion of his book, Secrecy: [A] huge proportion of the government's effort at classifying is futile anyway. Let [George F.] Kennan have the last word. In a letter of March 1997 he writes: "It is my conviction, based on some 70 years of experience, first as a government official and then in the past 45 years as an historian, that the need by our government for secret intelligence about af fairs elsewhere in the world has been vastly over- rated." . . . A case can be made . . . that secrecy is for los ers. For people who don't know how important infor mation really is. The Soviet Union realized this too late. Openness is now a singular, and singularly American, advantage. We put it in peril by poking along in the mode of an age now past. It is time to dismantle government secrecy, this most pervasive of Cold War-era regulations. It is time to begin building the supports for the era of openness that is already upon us. Daniel Patrick Moynihan, Secrecy, 226-27 (Yale Univ. Press 1998); see generally Rep. of the Comm'n on Pro tecting and Reducing Gov't Secrecy (1997). This is not to say that there is no room for secrets, or that the courts have the competence or the expertise of national security experts. Indeed, the courts generally respect the CIA's right to make a Glomar response. See Bassiouni v. CIA, 392 F.3d 244, 246 (7th Cir. 2004) ("Every appellate court to address the issue has held that the FOIA permits the CIA to make a 'Glomar re sponse' when it fears that inferences from Vaughn in dexes or selective disclosure could reveal classified sources or methods of obtaining foreign intelligence."). Most such cases involve requests by persons who claim to have had employment or other personal connections to the agency, or who seek such information about oth ers who may have had such relationships. By giving a Glomar response, the CIA is able to avoid identifying its employees, or targets, and their activities. See, e.g., id. at 245 (Glomar response necessary to avoid "reveal[ing] details about intelligence-gathering methods"); Frugone v. CIA, 169 F.3d 772, 774 (D.C. Cir. 1999) (Glomar re sponse necessary to avoid acknowledgment of employ ment); Minier v. CIA, 88 F.3d 796, 801-02 (9th Cir. 1996) (Glomar response necessary to avoid revealing if person was a CIA agent); Hunt v. CIA, 981 F.2d 1116, 1119 (9th Cir. 1992) ("[D]isclosure of the existence or non-exis tence of records pertaining to Eslaminia," an Iranian na tional allegedly murdered by Hunt, "is tantamount to a disclosure whether or not he was a CIA source or intelli gence target."). Other cases defer to the CIA's unwillingness to de scribe its intelligence-gathering activities. See, e.g., Miller v. Casey, 730 F.2d 773, 774 (D.C. Cir. 1984) (up holding Glomar response to request for "information concerning alleged efforts by the United States and oth er countries to infiltrate intelligence agents and poten tial guerrillas into Albania during the period 1945-53"); Gardels v. CIA, 689 F.2d 1100, 1102-03 (D.C. Cir. 1982) (upholding Glomar response to request by a student at the University of California for "documents revealing covert CIA connections with or interest in the Univer sity"); Wolf v. CIA, 357 F. Supp. 2d 112, 114 (D.D.C. 2004) (upholding Glomar response to request by a re searcher for records concerning Jorge Elicier Gaitan, a former Colombian presidential candidate who was assas sinated in 1948); Earth Pledge Found. v. CIA, 988 F. Supp. 623, 625 (S.D.N.Y. 1996) (upholding Glomar re sponse to request for communications between the CIA station in the Dominican Republic and CIA headquar ters "pertaining to contacts with dissident elements, hostile to the regime of Rafael Trujillo"). In the present case, the CIA justifies its Glomar re sponses, in its publicly filed documents, by referencing the same types of concerns as those found in the cases. Ms. Dorn states that the "CIA would not request legal memoranda from DOJ or authorizations from the Presi dent for intelligence activities in which it had no inter est"; that "[m]erely acknowledging that the CIA sought legal opinions or authorizations addressing specific in terrogation and detention activities is itself classified because the answer provides information about the types of intelligence methods and activities that are available to the CIA or may be of interest to the CIA"; and that "[r]evealing that information reasonably could be expected to interfere with the United States Govern ment's collection of intelligence in the war on terror ism." Fourth Dorn Decl. ¶¶ 11-12. Further, Ms. Dorn states that our foreign relations could be compromised because hitherto cooperating countries "may be less willing to cooperate if the U.S. Government were to offi cially acknowledge CIA current or past clandestine in telligence activities and methods, or intelligence inter ests." Id. ¶ 15. In the Fifth Dorn Declaration, a classi fied document submitted to me in camera, Ms. Dorn provides further elaboration and describes particular ized harms to justify the agency's Glomar responses. In Miller v. Casey, 730 F.2d 773 (D.C. Cir. 1984), the Court of Appeals upheld a Glomar response under Ex emptions 1 and 3 upon descriptions of specific probable harms that might flow from substantive admissions or denials. The request in Miller was for: All information on attempts by the U.S., U.K., and other western countries to infiltrate intelligence ag ents and potential guerrillas into Albania during the period between the end of World War II and the death of Stalin in 1953, including but not limited to those operations apparently betrayed to the Rus sians by Kim Philby. Id. at 774. In response, the Information Review Officer for the Directorate of Operations of the CIA (the same position held by Ms. Dorn), described why national secu rity and the United States' foreign relations would be compromised by a substantive disclosure: 1) disclosure now might prevent foreign countries from participating in future covert missions, 2) dis closure might hamper future relations with Albania, 3) a pattern of denials or affirmances would permit hostile nations to piece together a "catalog" of U.S. covert missions, 4) denial or affirmance would en able the Soviet Union to ascertain the reliability of its double agent, Kim Philby, 5) acknowledgement could jeopardize sources and sympathizers still with in Albania, 6) acknowledgement could hamper future recruitment of sources, and 7) acknowledgement would reveal the particular intelligence method- infiltration of agents-allegedly used in the mission. Id. at 775-76. The Information Review Officer showed also how acknowledging the existence of the Albanian program would reveal "intelligence sources or methods" in three possible ways, thereby compromising them: "by provid ing the critical confirmation which would allow Albanian leaders to identify participants in the covert action; by damaging future CIA efforts to recruit sources; and by revealing how, where and when the CIA has deployed its resources." Id. at 777-78. Upon these particularized justifications, the Court of Appeals upheld the CIA's Glomar response under Exemptions 1 and 3 to FOIA. Courts interpret FOIA to afford agency affidavits "a presumption of good faith" and award agencies "sum mary judgment on the basis of affidavits" that are "ade quate on their face." Carney v. DOJ, 19 F.3d 807, 812 (2d Cir. 1994); see also Miller, 730 F.2d at 776 ("[T]he district court must accord substantial weight to an agency's affidavit concerning the details of the classi fied status of the disputed record." (quotations omit ted)). Clearly, the need for such deference is particu larly acute in the area of national security. The statu tory text of FOIA, however, requires the court to "de termine the matter de novo," 5 U.S.C. § 552(a)(4)(B), for "[i]n no case" is classification to conceal "violations of law" or "inefficiency, or administrative error," or to mask "embarrassment." See E.O. 12958 § 1.7; see also Phillippi I, 546 F.2d at 1013-15 & n.12. Largely, the courts fail to grapple with this tension, ruling instead that the administrative assertions of secrecy should be accepted without much, if any, de novo review. In the case before me, Item 29, a DOJ memorandum specifying interrogation methods that the CIA may use against top Al-Qaeda members, and Item 61, a directive signed by President Bush granting the CIA the author ity to set up detention facilities outside the United States and/or outlining interrogation methods that may be used against detainees, specifically refer to "interro gation methods" alleged to be considered, and perhaps used, by the CIA in connection with detainees in United States' custody. The discussions of these documents in the public press, undoubtedly arising from numerous leaks of the documents, raise concern, however, that the purpose of the CIA's Glomar responses is less to protect intelligence activities, sources or methods than to con ceal possible "violations of law" in the treatment of pris oners, or "inefficiency" or "embarrassment" of the CIA. Compare 50 U.S.C.A. § 403-3(c)(7) (West 2003) (protect ing intelligence sources and methods), and E.O. 12958 § 1.4 (same; permissible subjects of classification), with E.O. 12958 § 1.7 (criteria that forbid classification). The Dorn Declarations amply discuss the need to protect "intelligence sources and methods." But they do not de scribe the intelligence sources or methods themselves, or reflect any discussion within the administration whe ther the particular methods might constitute a "viola tion[] of law," or an "embarrassment," or administrative "inefficiency" or "error," when debate on these points within the administration probably occurred, as sug gested by the discussions in the press. See E.O. 12958 § 1.7. And since the existence of the documents that plaintiffs request, which give rise to all this controversy, is neither admitted nor denied, there is nothing to show the court that might allow me to arrive at my own con clusions. In short, I am not given enough relevant infor mation to make the de novo determinations that FOIA would seem to require. See 5 U.S.C. § 552(a)(4)(B). Nevertheless, under the cases and notwithstanding FOIA's clear statutory command, there is small scope for judicial evaluation in this area. See, e.g., Phillippi II, 655 F.2d 1325. The Fifth Dorn Declaration sets out that which the cases require. See Miller, 730 F.2d 773. The agency's arguments that it should not be required officially to acknowledge the precise "intelligence activi ties" or "methods" it employs or considers-for exam ple, whether it has any role whatsoever in the interroga tion of detainees-are given deference by the courts, for the CIA, not the courts, is deemed to have the compe tence to "weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the Agen cy's intelligence-gathering process." Sims, 471 U.S. at 180; see also Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990) (disapproving the district court's performance of "its own calculus as to whether or not harm to the national security or to intelligence sources and methods would result from disclosure"). On the basis of the Fourth and, in particular, the Fifth Dorn Declarations, I accept the CIA's Glomar response with respect to Items 29 and 61 of the August 16, 2004 List. Item 1, however, a "[m]emorandum from DOJ to CIA interpreting the Convention Against Torture," does not, by its terms, implicate "intelligence sources or meth ods." The CIA's Glomar response to that item focuses, not on plaintiffs' demand, but on plaintiffs' effort to ex plain to the government why, because of frequent refer ences in the public press, it should not be difficult for the government to process its response. Thus, plaintiffs re ferred to news reports of interrogation techniques that may have been justified in the memorandum, such as "sleep deprivation," the "use of phobias," and the "de ployment of 'stress factors,'" distinguishing such prac tices from those that cause "severe physical or mental pain" characteristic of torture. The CIA justifies its Glomar response not on the text of the demand, but on all those references, as if they were part of the demand itself. See Fourth Dorn Decl., at 5 n.4. In effect, the agency seeks to use plaintiffs' attempt to provide assis tance to the government in identifying the memorandum as a basis for withholding information about the item requested. But plaintiffs' speculation as to the possible contents of the memorandum is not controlling; rather, it is the unembellished request set forth in the August 16, 2004 List (set out in the "Description of Record" col umn) that controls. The List was created for the benefit of defendant agencies, and they must be bound by it. See Miller, 730 F.2d at 777 (The "agency [i]s bound to read [the request] as drafted, not as either agency offi cials or [the requester] might wish it was drafted."). I rule, therefore, that acknowledging whether or not the memorandum requested by plaintiffs exists reveals nothing about the agency's practices or concerns or its "intelligence sources or methods." Available exemptions can be proved if necessary to avoid compromise, if any, to the interest of national defense or foreign policy. Since the government has failed in its burden to justify its Glomar response, see 5 U.S.C. § 552(a)(4)(B); Hal pern v. FBI, 181 F.3d 279, 287 (2d Cir. 1999); Carney v. DOJ, 19 F.3d 807, 812 (2d Cir. 1994), the government shall produce the documents relating to Item 1, or prove that the same are exempt from production. 31. IV. CIA Request to DOD to Detain an Iraqi Suspect Without Identifying the Suspect The fourth set of issues involves seventy-one docu ments responsive to Item 43 of the August 16, 2004 List, a request by former CIA Director Tenet to Defense Sec retary Rumsfeld that the DOD hold an Iraqi suspect at a high-level detention center, but that he not be listed on the prison rolls, and an order by Secretary Rumsfeld implementing the request. The CIA, responding on be half of the government,31 withheld the documents under Exemptions 1, 2,32 3, 5 and 7(A).33 In particular, with respect to Exemption 1, the CIA relied upon Executive Order 12958, which governs the classification of national security information. With respect to Exemption 3, the CIA relied upon the National Security Act, 50 U.S.C.A. § 403-3(c)(7) (West 2003), and Section 6 of the Central Intelligence Agency Act of 1949, as amended, 50 U.S.C.A. § 403g (West Supp. 2003), as the statutes furnishing the requisite authority to withhold.34 The CIA supported its position by providing a Vaughn index of 126 pages, describing each document by its length and general subject matter, but not as to its specific content. See Fourth Dorn Decl., Ex. A. At the end of each description, Ms. Dorn represented that "There is no meaningful, reasonably segregable portion of the document that can be released." Plaintiffs challenge whether, indeed, there are no "meaningful, reasonably segregable" portions of the documents. If there are, those portions must be pro duced. See 5 U.S.C. § 552(b) ("Any reasonably segre gable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection."). Plaintiffs asked the court to review in camera each of the seventy- one responsive documents. Plaintiffs do not press their challenge to Ms. Dorn's showing that the documents overall are exempt from production. An agency seeking to withhold material may satisfy its burden under FOIA by affidavits evincing a thorough search and providing reasonably detailed explanations for the withholding. Carney v. DOJ, 19 F.3d 807, 812 (2d Cir. 1994). Cases generally disfavor in camera in spections by district court judges as the primary method for resolving FOIA disputes. See, e.g., NLRB v. Rob bins Tire and Rubber Co., 437 U.S. 214, 224 (1978) ("The in camera review provision is discretionary by its terms, and is designed to be invoked when the issue before the District Court could not be otherwise resolved; it thus does not mandate that the documents be individually examined in every case."); Halpern v. FBI, 181 F.3d 279, 287 (2d Cir. 1999) ("When a government agent can attest in a sworn affidavit that the redactions are necessary, and elaborate on the reasons for the redactions with sufficient specificity, the district court should be able to rule on the appropriateness of the redactions without conducting an in camera review of the redacted materi als."); PHE, Inc. v. DOJ, 983 F.2d 248, 253 (D.C. Cir. 1993) (noting that in FOIA cases "in camera review is generally disfavored"). However, when a court is not able to resolve to its own satisfaction an agency's determination to withhold documents, it may require a further showing by the agency and, if necessary, it may conduct an in camera review. See Halpern, 181 F.3d at 295 (ruling that, on remand, "the district court may, in its discretion, order in camera review of the unredacted documents them selves," and remarking that [i]n camera review is con sidered the exception, not the rule, and the propriety of such review is a matter entrusted to the district court's discretion" (quoting Local 3, Int'l Bhd. of Elec. Workers, AFL-CIO v. NLRB, 845 F.2d 1177, 1180 (2d Cir. 1988))). Ms. Dorn's Fourth Declaration describes the na ture of each of the seventy-one documents, and the pro cedures by which she determined non-segregability with respect to each document. Fourth Dorn Decl. ¶ 22, Ms. Dorn's statement that a "line-by-line review was conducted for all the documents, individually and as [a] whole" is undocumented, and her statement that "there are no meaningful, reasonably segregable, non- exempt portions" of the seventy-one documents is con clusory, for she does not describe the individual docu ments paragraph by paragraph and line by line. Id. FOIA provides that the district judge has the responsi bility, ultimately, to make the determination, 5 U.S.C. § 552(a)(4)(B), and I determined that there was no feasi ble way for me to evaluate the conclusory determination of lack of segregability at the end of each of Ms. Dorn's document descriptions without viewing at least a sample of the documents in camera. I ordered the plaintiffs to select a sample size of fif teen documents, that is, about 20% of the total set of seventy-one responsive documents, and the government to re-review those fifteen to confirm that there are no segregable portions that may be released, subject to my review. Plaintiffs identified the fifteen documents to be reviewed, numbered according to the numbering scheme provided in Ms. Dorn's Fourth Declaration-13, 39, 263, 269, 273, 279, 291, 304, 335, 337, 346, 402, 428, 429, and 431-and the government re-reviewed them, and con firmed its position as to non-segregability. Following this confirmation by the government, the CIA, in further support of its position, provided two classified declarations, Decl. of Porter J. Goss, Dir., CIA, dated Aug. 3, 2005; Sixth Decl. of Marilyn A. Dorn, dated Aug. 5, 2005, which I reviewed in camera. The Sixth Dorn Declaration furnishes a further explanation of the agency's determination of non-segregability, and attaches an eighty-eight page Vaughn index addressing solely the fifteen documents identified by plaintiffs. The agency argues that the Sixth Dorn Declaration and Vaughn index should avert the need for an in camera review of the fifteen documents themselves, but, to the extent I determine otherwise, the agency is prepared to provide minimally redacted versions of the documents. The Declaration of CIA Director Goss describes the in formation that is redacted. I have reviewed the Goss Declaration and the Sixth Dorn Declaration. The explanations provided therein more substantially support the agency's position. In particular, the Vaughn index attached to the Sixth Dorn Declaration conveys a better sense of the nature and contents of the sample fifteen documents identified by plaintiffs. Accordingly, I am now satisfied that there is no meaningful, reasonably segregable, non-exempt por tion of the seventy-one documents that can be produced. See Halpern, 181 F.3d at 294 ("What a district court needs from the government, in a Vaughn affidavit, is information that is . . . specific enough to obviate the need for an in camera review. . . ."). Since plaintiffs' objection was restricted to the issue of segregability, and since plaintiffs have not objected to my tentative ruling that the Goss Declaration and Sixth Dorn Decla ration sufficed, I now consider the fourth dispute to be closed and grant summary judgment to the government. 32. V. The Darby and Related Photographs of Abuse of Detainees Plaintiffs and defendants seek summary judgment with respect to DOD's withholding of certain photo graphs and videotapes depicting abuse of detainees (Items 10,35 11,36 and 69) in Guantánamo Bay and Iraq. Oral argument focused on Item 69,37 which requested a "report of Detainee mistreatment and a CD with photo graphs that Joseph Darby, a military policeman as signed to Abu Ghraib, provided to the Army's Criminal Investigations Division." The government initially rep resented that 144 original photographs and four movies were responsive, 38 and that the images "were taken for personal, rather than official, purposes." Defs.' Reply Br., at 27 n.12. I first reviewed, ex parte and in camera, a sample of eight photographs offered by defendant DOD. My Or der dated June 1, 2005 reflected my rulings on the re sponsiveness of each photograph in the sample, as well as on the appropriateness and extent of redactions in connection therewith, and I required the government to apply those rulings to all photographs responsive to plaintiffs' requests. The government processed the re maining photographs taken by Darby, and determined that eighty-seven photographs and four movies, re dacted as appropriate, were responsive. See Third Decl. of Phillip J. McGuire, Dir. of U.S. Army Crime Records Ctr., CID, dated July 20, 2005, ¶ 6. In a session held in camera and ex parte on August 9, 2005, I viewed all eighty-seven photographs and four videos (collectively, the "Darby photographs"), in both their unredacted and redacted forms. 33. (a) Exemptions 6 and 7(C) The government, contending that FOIA Exemp tions 6, 7(C), and 7(F), 5 U.S.C. § 552(b)(6), (b)(7)(C), (b)(7)(F), apply, opposes the release of the Darby photo graphs. Exemption 6 exempts: personnel and medical files and similar files the dis closure of which would constitute a clearly unwar ranted invasion of personal privacy. Exemption 7 exempts: records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with en forcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or for eign agency or authority or any private institution which 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 conduct ing a lawful national security intelligence investiga tion, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investiga tions or prosecutions if such disclosure could reason ably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual. I first address Exemptions 6 and 7(C); Exemption 7(F) will be addressed separately in a later section. The government argues that release of the Darby photographs, even if redacted, would constitute an "un warranted invasion of personal privacy." The govern ment contends that even though the public, in Iraq and elsewhere, has seen photographs from Abu Ghraib when first they appeared in the press, presumably similar to the Darby photographs, the individuals depicted in the photographs would be recognized, even from redacted photographs. Exemptions 6 and 7(C) contain the identical phrase "unwarranted invasion of personal privacy." Exemption 6, however, has been interpreted to present a higher standard, since the agency must establish that disclo sure "would" constitute a "clearly unwarranted" inva sion, whereas Exemption 7(C) allows for the withholding of records or information that "could reasonably be ex pected" to constitute an "unwarranted" invasion. DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 756 (1989). Nonetheless, both exemptions require similar considerations by the reviewing district court. See, e.g., FLRA v. Dep't of Veterans Affairs, 958 F.2d 503, 510 (2d Cir. 1992) ("And though Reporters Commit tee involved Exemption 7(C) its discussion governs Ex emption 6, for the noted differences bear only on the type of information sought and the degree of invasion to a privacy interest that will be tolerated."). Exemption 6 is to be interpreted broadly as encom passing "information which applies to a particular indi vidual," Dep't of State v. Washington Post Co., 456 U.S. 595, 602 (1982); in general, this exemption protects "in dividuals from the injury and embarrassment that can result from the unnecessary disclosure of personal infor mation." Id. at 599. When such information is sought, courts are to "determine whether release of the informa tion would constitute a clearly unwarranted invasion of that person's privacy." Id. at 602. Under Exemption 7, "the government must demon strate that (1) the document was compiled for law en forcement purposes, and (2) release of the material would result in one of the harms enumerated in the stat ute," Ortiz v. Dep't of Health and Human Servs., 70 F.3d 729, 732 (2d Cir. 1995)-in the case of 7(C), an "un warranted invasion of personal privacy." If there is a "personal privacy interest recognized by the statute," courts consider whether the "privacy claim is out weighed by the public interest in disclosure." Nat'l Ar chives and Records Admin. v. Favish, 541 U.S. 157, 160 (2004); see also Dep't of Veterans Affairs, 958 F.2d at 510 ("[O]nce a more than de minimis privacy interest is implicated the competing interests at stake must be bal anced in order to decide whether disclosure is permitted under FOIA."). 34. (b) Analysis A question may be raised as a threshold matter with respect to Exemption 7(C)'s application to the Darby photographs, whether the photographs were indeed "compiled for law enforcement purposes." The govern ment represents that the Army Criminal Investigation Command ("CID") "opened a report of investigation immediately after receiving these photographs" and that the information therein contained has "been used exten sively by CID agents to conduct the investigations into incidents of abuse of detainees at Abu Ghraib." Defs.' Br., at 67-68 (citing Second McGuire Decl., ¶ 6). The government claims, accordingly, that the Darby photo graphs were "compiled for law enforcement purposes."39 Plaintiffs appear to agree with this analysis. See Pls.' Reply Br., at 16-17 n.4. Accordingly, even though the Darby photographs were, in the government's own words, "taken for per sonal, rather than official, purposes," Defs.' Reply Br., at 27 n.12, I will assume for the purposes of Exemption 7 that the Darby photographs were "compiled for law enforcement purposes." This assumption is consistent with case law under FOIA. See Ortiz, 70 F.3d at 732-33 (an unsigned, unsolicited letter used by the Department of Health and Human Services' Office of Inspector Gen eral to launch a criminal investigation, and kept in its investigative files, was "compiled for law enforcement purposes"); Dep't of Veterans Affairs, 958 F.2d at 508 ("To qualify as agency records, the requested informa tion must either be created or obtained by the agency and within its control at the time the FOIA request is made."); see also Ctr. for Nat'l Sec. Studies v. DOJ, 331 F.3d 918, 926 (D.C. Cir. 2003) (requiring "(1) a rational nexus between the investigation and one of the agency's law enforcement duties; and (2) a connection between an individual or incident and a possible security risk or vio lation of federal law"); Quiñon v. FBI, 86 F.3d 1222, 1228 (D.C. Cir. 1996) (examining if the record was "cre ated or acquired in the course of an investigation"). I am satisfied from my review that publication of redacted photographs will not constitute an "unwar ranted invasion of personal privacy," since all identify ing characteristics of the persons in the photographs have been redacted, and therefore, as a preliminary matter, I do not find a cognizable "invasion of personal privacy." If, as the government argues, the protagonists might recognize themselves in re-publications of the photographs, or be recognized by members of the public, see, e.g., Massey v. FBI, 3 F.3d 620, 624 (2d Cir. 1993) ("Persons can retain strong privacy interests in govern ment documents containing information about them even where the information may have been public at one time." (citing Reporters Committee, 489 U.S. at 762- 63)), even without identifying characteristics being re vealed, that possibility is no more than speculative, a speculation which could apply equally to textual descrip tions without pictures. The Supreme Court addressed similar concerns in Dep't of the Air Force v. Rose, 425 U.S. 352 (1976), as further explained in Reporters Committee, 489 U.S. at 768-69 (1989) (remarking that "much of our discussion" in Rose, which dealt with Exemption 6, was applicable to Reporters Committee, which dealt with Exemption 7(C)). Rose involved a request submitted to the Air Force for case summaries of honor and ethics hearings, with personal references and other identifying informa tion removed from the summaries. The summaries were kept in the United States Air Force Academy's Honor and Ethics Code reading files, and were regularly posted on forty squadron bulletin boards and circulated to various faculty members and administration officials. 425 U.S. at 355. Without examining the summaries to form its own view, the district court held that Exemp tion 6 was unavailable to the Air Force because "disclo sure of the summaries without names or other identify ing information would not subject any former cadet to public identification and stigma, and the possibility of identification by another former cadet could not, in the context of the Academy's practice of distribution and official posting of the summaries, constitute an invasion of personal privacy proscribed by § 552(b)(6)," but it granted summary judgment to the Air Force on other grounds. Id. at 357. The Second Circuit reversed, concluding that the district court's decision "'ignores certain practical reali ties' which militated against the conclusion 'that the Agency's internal dissemination of the summaries less ens the concerned cadets' right to privacy, as embodied in Exemption Six.'" Id. at 358 (quoting 495 F.2d 261, 267-68 (2d Cir. 1974)). The Court of Appeals remanded for further proceedings in which the Air Force was to "'produce the summaries themselves in court' for an in camera inspection 'and cooperate with the judge in re dacting the records so as to delete personal references and all other identifying information. . . . [The Court of Appeals thought] it highly likely that the combined skills of court and Agency, applied to the summaries, will yield edited documents sufficient for the purpose sought and sufficient as well to safeguard affected per sons in their legitimate claims of privacy.'" Id. The Supreme Court affirmed, id. at 380-82, and, as it later explained in Reporters Committee, approved the proce dure by which the district court was to remove identify ing information and thereby protect the claimed privacy interest: [W]e doubly stressed the importance of the privacy interest implicated by disclosure of the case summa ries. First: We praised the Academy's tradition of protecting personal privacy through redaction of names from the case summaries. But even with names redacted, subjects of such summaries can of ten be identified through other, disclosed informa tion. So, second: Even though the summaries, with only names redacted, had once been public, we rec ognized the potential invasion of privacy through later recognition of identifying details, and approved the Court of Appeals' rule permitting the District Court to delete "other identifying information" in order to safeguard this privacy interest. 489 U.S. at 769; see also id., 489 U.S. at 762, 771 (exam ining the personal privacy interest "in avoiding disclo sure of personal matters" and finding substantial pri vacy interest in criminal rap sheets, even though "events summarized in a rap sheet have been previously dis closed to the public"). The Court has reaffirmed that the "redaction procedure is . . . expressly authorized by FOIA." Dep't of State v. Ray, 502 U.S. 164, 174 (1991) (applying Exemption 6). The procedures I adopted and the rulings I made in the in camera sessions embody the principles set out in Rose and Reporters Committee. I examined each of the Darby photographs, in both its original and redacted forms. Where I determined that the government could better mask identifying features, I ordered it to do so. Furthermore, in the case of a certain small number of photographs, mainly of female detainees, and one of the videos, where the context compelled the conclusion that individual recognition could not be prevented without redaction so extensive as to render the images meaning less, I ordered those images not to be produced. Having viewed the remaining Darby photographs, as thus re dacted, I hold that there is no "invasion of personal pri vacy" under Exemptions 6 and 7(C). See, e.g., Ray, 502 U.S. at 175-76 (noting that "disclosure of such personal information [regarding marital and employment status, children, living conditions and attempts to enter the United States] constitutes only a de minimis invasion of privacy when the identities of the interviewees are un known"). If, because someone sees the redacted pic tures and remembers from earlier versions leaked to, or otherwise obtained by, the media that his image, or someone else's, may have been redacted from the pic ture, the intrusion into personal privacy is marginal and speculative, arising from the event itself and not the redacted image. Moreover, even were I to find an "invasion of per sonal privacy," any further intrusion into the personal privacy of the detainees by redacted publications would be, with the exception of the small number described above, minimal and, under a balancing analysis, not "un warranted" in light of the public interest policy of FOIA. The Supreme Court has set forth its most recent itera tion of the balancing analysis under Exemption 7(C) in Nat'l Archives and Records Admin. v. Favish, 541 U.S. 157 (2004); see also Reporters Committee, 489 U.S. at 772 ("[W]hether disclosure of a private document under Exemption 7(C) is warranted must turn on the nature of the requested document and its relationship to the basic purpose of the Freedom of Information Act to open agency action to the light of public scrutiny, rather than on the particular purpose for which the document is be ing requested.") (quotations omitted). As discussed above, since Exemption 7(C) contains the easier burden for the government, I address that Exemption. See Re porters Committee, 489 U.S. at 762 n.12 ("Because Ex emption 7(C) covers this case, there is no occasion to address the application of Exemption 6."). In Favish, the Supreme Court held that the public interest in photographs of the death scene of Vincent Foster, Jr., deputy counsel to President Clinton, was insufficiently supported in light of the substantial inter est in privacy of Vincent Foster's family. The Court arrived at this holding after asking whether the informa tion requested would advance a significant public inter est: Where the privacy concerns addressed by Ex emption 7(C) are present, the exemption requires the person requesting the information to establish a suf ficient reason for the disclosure. First, the citizen must show that the public interest sought to be ad vanced is a significant one, an interest more specific than having the information for its own sake. Sec ond, the citizen must show the information is likely to advance that interest. Otherwise, the invasion of privacy is unwarranted. Favish at 172. With the exception of the small number of Darby photographs that I ordered to be withheld, where the risk of exposure is too great and the informational value is minimal, the balancing analysis weighs in favor of dis closure in the present case. There is a substantial public interest in these pictures, evidenced by the active public debate engendered by the versions previously leaked to the press, or otherwise obtained by the media. See dis cussion in section (c) of this Opinion, infra. Moreover, the government concedes that wrongful conduct has oc curred. Defs.' Br., at 70-72. Plaintiffs assert that they seek release of the Darby photographs to inform and educate the public, and to spark debate about the causes and forces that led to the breakdown of command disci pline at Abu Ghraib prison and, possibly, by extension, to other prisons in Iraq, Afghanistan, Guantánamo, and perhaps elsewhere. These are the very purposes that FOIA is intended to advance. The photographs are sought to "shed[] light on an agency's performance of its statutory duties" and to "contribut[e] significantly to public understanding of the operations or activities of the government." Pls.' Reply Br., at 24 (quoting Report ers Committee, 489 U.S. at 773 & 775). As I remarked at oral argument: photographs present a different level of detail and a different medium, and are the best evidence that the public could have as to what occurred at a particular time, better than testimony, which can be self-serv ing, better than summaries, which can be misleading, and better even than a full description no matter how complete that description might be. Tr. of May 26, 2005, at 14. There is no alternative, less intrusive means by which the information may be elic ited. See, e.g., Dep't of Def. Dep't of Military Affairs v. FLRA, 964 F.2d 26, 29-30 (D.C. Cir. 1992). The redac ted originals, rather than piece-meal leaks and possibly partial depictions of several of the pictures, are more probative of what Darby and his fellow military person nel actually did. Under the requirements of Favish, the claimed public interest in production of the redacted photographs is substantiated and far outweighs any speculative invasion of personal privacy. The government also opposes production because, it argues, doing so would conflict with the United States' obligations under the Geneva Conventions. The Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, 6 U.S.T. 3316, 74 U.N.T.S. 135 (the "Third Geneva Convention") provides that a detain ing power must protect a prisoner of war "particularly against acts of violence or intimidation and against in sults and public curiosity." Art. 13. The Geneva Con vention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 (the "Fourth Geneva Convention") provides that civilians under detention are entitled to "respect for their persons, their honor. . . . shall at all times be treated humanely, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity." Art. 27. Defendants present evidence that the United States historically has interpreted these two conventions to forbid the taking and publishing of photographs of de tainees, see Decl. of Edward R. Cummings, Ass't Legal Adviser for Arms Control and Verification, Dep't of State, dated Mar. 24, 2005, ¶¶ 12-17 [hereinafter Cum mings Decl.], and argue that publication of the photo graphs in this case would conflict with the United States' treaty obligations thereunder. See id. ¶ 19; Decl. of Geoffrey S. Corn, Special Ass't to Judge Advocate Gen. for Law of War Matters, Dep't of Army, dated Mar. 25, 2005, ¶¶ 10-11 [hereinafter Corn Decl.]. The govern ment's treaty interpretations are entitled to respect. See Kolovrat v. Oregon, 366 U.S. 187, 194 (1961) ("While courts interpret treaties for themselves, the meaning given to them by the departments of government partic ularly charged with their negotiation and enforcement is given great weight."). The government argues that "[e]ven if the identities of the subjects of the photographs are never estab lished," those subjects could suffer humiliation and in dignity against which the Geneva Conventions were in tended to protect. Corn Decl. ¶ 11. It also states, with out supporting documentation, that the ICRC has taken the position that the Third Geneva Convention forbids publishing images that "show prisoners of war in de grading or humiliating positions or allow the identifica tion of individual POWs." Cummings Decl. ¶ 17. The re dactions and withholding that I ordered should protect civilians and detainees against "insults and public curios ity" and preserve their "honor." Production of these images coheres with the central purpose of FOIA, to "promote honest and open government and to assure the existence of an informed citizenry [in order] to hold the governors accountable to the governed," Nat'l Council of La Raza v. DOJ, 411 F.3d 350, 355 (2d Cir. 2005). Ac cordingly, I hold that the government may not withhold the Darby photographs, redacted to eliminate all identi fying characteristics of the persons shown in the photo graphs, under Exemptions 6 and 7(C). 35. (c) The Government's Supplemental Argument: Ex emption 7(F) On July 28, 2005, more than two months after the motion was initially argued, the government add ed another ground of claimed exemption, Exemption 7(F), to supplement its opposition to production of the Darby photographs. Exemption 7(F), 5 U.S.C. § 552(b)(7)(F), exempts records or information compiled for law enforcement purposes, but only to the extent that the produc tion of such law enforcement records or information . . . (F) could reasonably be expected to endanger the life or physical safety of any individual. Plaintiffs and amici curiae, The Reporters Commit tee for Freedom of the Press and other prominent news organizations, object to my consideration of the govern ment's eleventh-hour argument in reliance on Exemp tion 7(F). See Proposed Br. Amici Curiae, filed Aug. 3, 2005. Amici argue that the exemption now pressed by the government could have been presented much earlier, certainly by the date of oral argument in May, and that its invocation at this late date delays the ultimate resolu tion of the issues. Amici contend that the government's supplemental argument is not made in "good faith" and should not be considered by the court. See Piper v. DOJ, 374 F. Supp. 2d 73, 78-79 (D.D.C. 2005). While I appreciate the concern of amici, I rule that the govern ment's opposition, although filed late, should be consid ered. See, e.g., Nat'l Council of La Raza v. DOJ, No. 03 Civ. 2559, 2004 WL 2314455, at * 1 (S.D.N.Y. Oct. 14, 2004); see also August v. FBI, 328 F.3d 697 (D.C. Cir. 2003). The issue of the physical safety of our troops in Iraq and Afghanistan, and of the citizens of those coun tries, has been of paramount concern throughout this case, and it is sensible to address the issue squarely un der the framework advanced by the government. The parties agreed to an expedited briefing schedule in or der to minimize delays.40 The government contends that publication of the Darby photographs pursuant to court order is likely to incite violence against our troops and Iraqi and Afghan personnel and civilians, and that redactions will not avert the danger. The government argues that the ter rorists will use the re-publication of the photographs as a pretext for further acts of terrorism. See Second Amended Decl. of Richard B. Myers, Chairman, Joint Chiefs of Staff, dated Aug. 25, 2005, ¶¶ 8, 31 (stating that the "insurgents will use any means necessary to incite violence and, specifically, will focus on perceived U.S. or Coalition mistreatment of Iraqi civilians and detainees as a propaganda and recruiting tool to aid their cause," and that "redaction of the photographs and videos will not alleviate or lessen this risk"). Plaintiffs, on the other hand, provide the declaration of a scholar on the Middle East who states that, in his opinion, "there is nothing peculiar about Muslim culture in Iraq or elsewhere that would make people react to these pictures in a way dif ferent from other people's reactions elsewhere in the world." Decl. of Khaled Fahmy, Prof., New York Univ., dated Aug. 4, 2005, ¶ 8. In addition, Professor Fahmy suggests that there is a large group of Iraqis, and of Muslims generally, who respond favorably when we show the openness of our society and the accountability of our government officials, and that we would suppress those values and that favorable response by preventing publication of the Darby photographs. See id. ¶ 11. Our nation does not surrender to blackmail, and fear of blackmail is not a legally sufficient argument to pre vent us from performing a statutory command. Indeed, the freedoms that we champion are as important to our success in Iraq and Afghanistan as the guns and missiles with which our troops are armed. As President Bush stated in his 2005 State of the Union address, [t]he attack on freedom in our world has reaffirmed our confidence in freedom's power to change the world. We are all part of a great venture: to extend the promise of freedom in our country, to renew the values that sustain our liberty, and to spread the peace that freedom brings. Available at http://www.whitehouse.gov/news/releases/ 2005/02/20050202-11.html. Justice Anthony Kennedy, in a recent interview, expanded on the same point: Why should world opinion care that the American Administration wants to bring freedom to oppressed peoples? Is that not because there's some underly ing common mutual interest, some underlying com mon shared idea, some underlying common shared aspiration, underlying unified concept of what human dignity means? I think that's what we're trying to tell the rest of the world, anyway. Jeffrey Toobin, Swing Shift, The New Yorker, Sept. 12, 2005, at 50. The terrorists in Iraq and Afghanistan do not need pretexts for their barbarism; they have proven to be aggressive and pernicious in their choice of targets and tactics. They have driven exploding trucks into groups of children at play and men seeking work; they have attacked doctors, lawyers, teachers, judges and legisla tors as easily as soldiers. Their pretexts for carrying out violence are patent hypocrisies, clearly recognized as such except by those who would blur the clarity of their own vision. With great respect to the concerns ex pressed by General Myers, my task is not to defer to our worst fears, but to interpret and apply the law, in this case, the Freedom of Information Act, which advances values important to our society, transparency and ac countability in government. Exemption 7(F) was enacted to protect the safety of individuals involved in law enforcement investigations. Originally, the exemption protected only "law enforce ment personnel." See Pub. L. No. 93-502, 88 Stat. 1561, 1563 (1974) (exempting "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would . . . endan ger the life or physical safety of law enforcement person nel"). In 1986, Exemption 7(F) was amended to protect all those put at risk through their participation in law enforcement proceedings, whether as sources of infor mation or as witnesses. See Freedom of Information Reform Act of 1986, Pub. L. No. 99-570, §§ 1801-1804, 100 Stat. 3207; see also Garcia v. DOJ, Office of Info. and Privacy, 181 F. Supp. 2d 356, 378 (S.D.N.Y. 2002) (withholding names and identifying information of gov ernment agents and private citizen informers where subject of investigation had history of retaliation and violence); Blanton v. DOJ, 182 F. Supp. 2d 81, 87 (D.D.C. 2002) (same, in connection with racial hate crime, the bombing of a church, and charges of first de gree murder), aff'd, 64 Fed. Appx. 787 (2003); Shores v. FBI, 185 F. Supp. 2d 77, 85 (D.D.C. 2002) (same, identi ties of cooperating witnesses where plaintiff had already attempted retaliation). Exemption 7(F) has thus been construed to protect individuals involved in law enforcement investigations and trials, as officials and as private citizens providing information and giving testimony. At least twice, how ever, the statute has been applied to give protection to broader groups of individuals who were not involved in particular criminal investigations and prosecutions. See Living Rivers, Inc. v. U.S. Bureau of Reclamation, 272 F. Supp. 2d 1313, 1321 (D. Utah 2003) (withholding inun dation maps for fear terrorists could use the information to place at risk the life or physical safety of downstream residents who would be flooded by a breach of the Hoo ver Dam or Glen Canyon Dam); Larouche v. Webster, 75 Civ. 6010, 1984 WL 1061, at *8 (S.D.N.Y. Oct. 23, 1984) (withholding FBI laboratory report describing manufac ture of home-made machine gun to protect law enforce ment personnel from encounters with criminals armed with home-made weapons). Moreover, at least one court has ruled that "[u]nlike Exemption 7(C), which involves a balancing of societal and individual privacy interests, 7(F) is an absolute ban against certain information and, arguably, an even broader protection than 7(C)." Raul erson v. Ashcroft, 271 F. Supp. 2d 17, 29 (D.D.C. 2002). Accordingly, the government argues that once it has established that the Darby photographs are "records or information compiled for law enforcement purposes," any non-trivial concern that it advances about the life or physical safety of any individual entitles it to withhold the photographs under Exemption 7(F). Plaintiffs, on the other hand, argue that Living Riv ers and Larouche are aberrational, see Maydak v. DOJ, 362 F. Supp. 2d 316, 321 n.4 (D.D.C. 2005) ("In general, this exemption [7(F)] has been interpreted to apply to names and identifying information of law enforcement officers, witnesses, confidential informants and other third persons who may be unknown to the requester."). Plaintiffs also argue that since Congress lodged its con cern about endangerment to life and safety under Ex emption 7, and did not address the concern in an inde pendent and generally applicable exemption, Exemption 7(F) should be applied in its narrow context, to the con cern expressed by Congress, and not as a catch-all ex emption. See Tr. of Aug. 30, 2005, at 22-23. In essence, plaintiffs contend that Exemption 7(F) should not be a substitute for the government's power to classify infor mation requiring protection. Larouche was decided before the statutory amend ment and without much analysis of Exemption 7(F). Its focus was on law enforcement-on the dangers of home- made machine guns to law enforcement personnel-a nexus to Exemption 7(F)'s central purpose. With regard to Living Rivers, the inundation maps were compiled by the Bureau of Reclamation to "maintain law and order and protect persons and property within Reclamation projects and on Reclamation lands" by protecting and alerting threatened communities, 272 F. Supp. 2d at 1319 (citing 43 U.S.C. § 373b(a)), again a nexus to law enforcement in that context. However, there is no such nexus with respect to the Darby photographs.41 The Darby photographs are being withheld, not to protect anyone involved in the courts martial investigations and prosecutions, but for another purpose. The persons who took the photographs, or handed them over to command ing officers, do not ask for protection. Law enforcement officials charged with investigating the circumstances that surrounded the taking of the Darby photographs do not ask for protection, and there is no allegation that release of the photographs will endanger their lives. And since the identifying characteristics of the detainees are to be redacted, they too are not endangered. The sole justification for suppressing the photographs is the DOD's concern about speech-generally, how some might exploit the Darby photographs, in propaganda and in terrorist activities, by arguing, through false ex tension, that the pictures represent the attitudes of all American soldiers, or indeed of all Americans, toward the Iraqi people. It is not necessary for me to rule if Larouche and Living Rivers are, or are not, appropriate extensions of Exemption 7(F). I reject, however, the government's argument that reasoning must stop once a threat to life or safety is discerned. Balancing and evaluation are es sential aspects of the judicial function, no less in consid ering the exemptions of FOIA than in other areas of the law. It is clear to me that the core values that Exemp tion 7(F) was designed to protect are not implicated by the release of the Darby photographs, but that the core values of FOIA are very much implicated. The interest at stake arises from pictures of flagrant ly improper conduct by American soldiers-forcing pris oners under their charge to pose in a manner that com promised their humanity and dignity. As I stated at the time of the original argument, and as I reiterated previ ously in this decision, the pictures are the best evidence of what happened, better than words, which might fail to describe, or summaries, which might err in their at tempt to generalize and abbreviate. Publication of the photographs is central to the purposes of FOIA because they initiate debate, not only about the improper and unlawful conduct of American soldiers, "rogue" soldiers, as they have been characterized, but also about other important questions as well-for example, the command structure that failed to exercise discipline over the troops, and the persons in that command structure whose failures in exercising supervision may make them culpable along with the soldiers who were court-mar tialed for perpetrating the wrongs; the poor training that did not create patterns of proper behavior and that failed to teach or distinguish between conduct that was proper and improper; the regulations and orders that governed the conduct of military forces engaged in guarding prisoners; the treatment of prisoners in other areas and places of detention; and other related ques tions. Suppression of information is the surest way to cause its significance to grow and persist. Clarity and open ness are the best antidotes, either to dispel criticism if not merited or, if merited, to correct such errors as may be found. The fight to extend freedom has never been easy, and we are once again challenged, in Iraq and Af ghanistan, by terrorists who engage in violence to intim idate our will and to force us to retreat. Our struggle to prevail must be without sacrificing the transparency and accountability of government and military officials. These are the values FOIA was intended to advance, and they are at the very heart of the values for which we fight in Afghanistan and Iraq. There is a risk that the enemy will seize upon the publicity of the photographs and seek to use such publicity as a pretext for enlist ments and violent acts. But the education and debate that such publicity will foster will strengthen our pur pose and, by enabling such deficiencies as may be per ceived to be debated and corrected, show our strength as a vibrant and functioning democracy to be emulated. In its most recent discussion of FOIA, the Supreme Court commented that "FOIA is often explained as a means for citizens to know what 'their Government is up to.' The sentiment is far from a convenient formalism. It defines a structural necessity in a real democracy." Favish, 541 U.S. at 171-72. As President Bush said, we fight to spread freedom so the freedoms of Americans will be made more secure. It is in compliance with these principles, enunciated by both the President and the highest court in the land, that I order the government to produce the Darby photographs that I have determined are responsive and appropriately redacted. 36. Conclusion. For the reasons stated, the motions for partial sum mary judgment, by plaintiffs and by defendants, are granted and denied as discussed herein. This Opinion and Order is stayed twenty days in order to allow for appeal by either side, should it wish to do so. SO ORDERED. Dated: New York, New York September 29, 2005 /s/ ALVIN K. HELLERSTEIN ALVIN K. HELLERSTEIN United States District Judge 37. APPENDIX F 38. 39. UNITED STATES COURT OF APPEALS 40. FOR THE SECOND CIRCUIT Docket Number: 06-3140-cv AMERICAN CIVIL LIBERTIES UNION, CENTER FOR CONSTITUTIONAL RIGHTS, PHYSICIANS FOR HUMAN RIGHTS, VETERANS FOR COMMON SENSE, VETERANS FOR PEACE, PLAINTIFF-APPELLEES v. DEPARTMENT OF DEFENSE, AND ITS COMPONENTS DEPARTMENT OF ARMY, DEPARTMENT OF NAVY, DEPARTMENT OF AIR FORCE, DEFENSE INTELLIGENCE AGENCY, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, AND ITS COMPONENTS CIVIL RIGHTS DIVISION, CRIMINAL DIVISION, OFFICE OF INFORMATION AND PRIVACY, OFFICE OF INTELLIGENCE POLICY AND REVIEW, FEDERAL BUREAU OF INVESTIGATION, DEPARTMENT OF STATE, CENTRAL INTELLIGENCE AGENCY, DEFENDANT-APPELLANTS [Filed: Mar. 11, 2009] ORDER Defendant-Appellants Department of Defense having filed a petition for panel rehearing, or, in the alternative, for rehearing en banc, and the panel that determined the appeal having considered the request for panel re hearing, and the active members of the Court having considered the request for rehearing en banc. IT IS HEREBY ORDERED that the petition is de nied. For the Court: Catherine O'Hagan Wolfe, Clerk By: /s/ FRANK PEREZ FRANK PEREZ, Deputy Clerk 41. APPENDIX G 42. UNITED STATES DISTRICT COURT 43. FOR THE SOUTHERN DISTRICT OF NEW YORK No. 04 Civ. 4151 (AKH) AMERICAN CIVIL LIBERTIES UNION, CENTER FOR CONSTITUTIONAL RIGHTS, PHYSICIANS FOR HUMAN RIGHTS, VETERANS FOR COMMON SENSE AND VETERANS FOR PEACE, PLAINTIFFS v. DEPARTMENT OF DEFENSE, AND ITS COMPONENTS DEPARTMENT OF ARMY, DEPARTMENT OF NAVY, DEPARTMENT OF AIR FORCE, DEFENSE INTELLIGENCE AGENCY; DEPARTMENT OF HOMELAND SECURITY; DEPARTMENT OF JUSTICE, AND ITS COMPONENTS CIVIL RIGHTS DIVISION, CRIMINAL DIVISION, OFFICE OF INFORMATION AND PRIVACY, OFFICE OF INTELLIGENCE POLICY AND REVIEW, FEDERAL BUREAU OF INVESTIGATION; DEPARTMENT OF STATE; AND CENTRAL INTELLIGENCE AGENCY, DEFENDANTS [Filed: Aug. 29, 2005] SECOND AMENDED DECLARATION OF RICHARD B. MYERS Richard B. Myers, pursuant to 28 U.S.C. sec. 1746, de clares as follows: 1. I am the Chairman of the Joint Chiefs of Staff. I serve as the senior military advisor to the President of the United States, the Secretary of Defense, and the National Security Council. I am the highest ranking uniformed officer in the United States Armed Forces. In performing my duties, I routinely confer with and obtain advice from combatant commanders regarding the operational requirements of their commands; I eval uate and synthesize this information; I advise and make recommendations to the Secretary of Defense with re spect to these requirements; and, as appropriate, I com municate the combatant commands' requirements to other elements of the Department of Defense. 2. Through the exercise of my official duties and as a result of my personal knowledge, I am familiar with this civil action and with Plaintiffs' requests for infor mation under the Freedom of Information Act. Further, I have reviewed the 87 photographic and video images that are identified in paragraph 6 of the Third Declara tion of Philip J. McGuire (collectively referred to as the "responsive Darby Photos"). For the reasons set forth in this declaration, I have concluded that the official re lease of the images further identified below, even if re dacted to obscure identifying information and, where applicable, the genitalia of those depicted, could reason ably be expected to: a. Endanger the lives and physical safety of the Sol diers, Sailors, Airmen, and Aarines [sic] in the Uni ted States Armed Forces presently serving in Iraq and Afghanistan, as well as other U.S. officials, Co alition Forces allied with the United States, and con tractors serving with these forces; b. Endanger the lives and physical safety of Iraqi civilians at large, and police and military personnel of the democratic Iraqi Transitional Government working in coordination with the United States and Coalition Forces in support of Operation IRAQI FREEDOM; c. Endanger the lives and physical safety of Afghan civilians at large, and police and military personnel of the Government of Afghanistan working in coordi nation with the United States and Coalition Forces operating in support of Operation ENDURING FREEDOM, NATO-led operations, and contractors serving with these forces; d. Aid the recruitment efforts and other activities of insurgent elements, weaken the new democratic gov ernments of Iraq and Afghanistan, and add radical pressures on several of our regional allies and friends; and e. Increase the likelihood of violence against United States interests, personnel, and citizens worldwide. 44. THE BASES FOR MY CONCLUSIONS 3. My conclusions are based upon my years of ser vice and experience in the United States military; the assessments and evaluations of the U.S. Central Com mander, General John P. Abizaid, and his immediate subordinate commander of the Multi-National Forces- Iraq, General George Casey; and intelligence reports and the assessments of Department of Defense subject- matter experts on the Middle-Eastern region, Arab cul ture, and the tenets of the Islamic religion. In formulat ing the advice I provide to the President, the Secretary of Defense, and the National Security Council in the ordinary course of my duties, I routinely rely on the views of our combat commanders, intelligence synthesis and reports, and the assessments of subject matter ex perts. In formulating my conclusions concerning the Darby Photos, I have used the same approach, types of resources, information, and experts. In particular: a. I have served in the United States Armed Forces for 40 years at various levels of command and staff. I have served as the Chairman of the Joint Chiefs of Staff since October 1, 2001. I served as the Vice Chairman from March 2000 through September 2001. I have been the President's principal military advisor since shortly after the attacks on the World Trade Center and the Pentagon, including through out the inception, planning, and execution of Opera tion ENDURING FREEDOM and Operation IRAQI FREEDOM. I have intimate, extensive knowledge of our military forces and their capabilities, as well as of the conventional and unconventional forces and capabilities of the enemies arrayed against us. I daily receive and review intelligence analyses of cur rent regional conditions, acute situations, and trends in operations and conditions relating to Operation ENDURING FREEDOM and Operation IRAQI FREEDOM from the Joint Staff, the Department of Defense, as well as from other intelligence sources within the Executive Branch. I routinely travel to the countries within the U.S. Central Command criti cal to these ongoing missions. I meet, receive infor mation from, and provide information to, the senior political, civilian, and military leaders of Iraq, Af ghanistan, and our other regional allies. Our senior field commanders brief me, and I routinely inspect the environment, conditions, and equipment of our Soldiers, Sailors, Airmen, and Marines in the combat theaters of operation. c. With respect to this matter, I solicited the assess ments and recommendations of the U.S. Central Commander, General John P. Abizaid, and the Multi- National Forces-Iraq Commander, General George Casey, concerning their views of the military implica tions of release of the responsive Darby Photos. Both of them, by dint of their positions and responsi bilities, have highly informed opinions that I have considered in this matter. General Abizaid is con stantly engaged with senior political and civic lead ers in the region. Moreover, General Abizaid has specialized knowledge of the Middle East: he is flu ent in the Arabic language; he holds a Masters De gree in Middle Eastern Studies from Harvard Uni versity; he was a Hoover Institution, Stanford Uni versity Fellow studying Middle Eastern affairs; and he was an Olmsted Scholar at the University of Jor dan at Amman. Before his service as the Com mander, U.S. Central Command, General Abizaid served under General Tommy Franks as his Deputy Commander (Forward) during Operation IRAQI FREEDOM. After the first Gulf War, he served in the Kurdish region of northern Iraq in Operation NORTHERN WATCH. During the course of his military career, he has served in other positions in the Middle East as well as in positions involving eth nic Muslim minorities in the Balkans. His staff as signments have included tours with the United Na tions as operations officer for the Observer Group Lebanon, and he has also served on the Joint Staff as the Director of Strategic Plans and Policy. d. As the Commander of Multi-National Forces- Iraq, General George Casey is constantly engaged with the senior political and civic leaders in Iraq. He travels extensively throughout the country, and reg ularly confers with commanders and service person nel at all levels of command and operations. In addi tion to his numerous Army command assignments, General Casey most recently served as the Vice Chief of Staff of the Army; immediately before that he served under me, first as the Director of Strategic Plans and Policy, and then as the Director of the Joint Staff. His graduate and post-graduate degrees are in International Relations. General Casey has also served as a Senior Fellow on The Atlantic Coun cil. e. Both General Abizaid and General Casey agree with and support my conclusions. f. As I indicated above, I have also considered and relied upon the analysis and assessments of DOD resident subject-matter experts on the Middle- Eastern region, the Arab culture, and the tenets of the Islamic religion. 45. THE STATUS OF OPERATION ENDURING FREEDOM AND OPERATION IRAQI FREEDOM 4. Following the attacks on the United States of Sep tember 11, 2001, the United States military, with the support of a worldwide coalition, launched Operation ENDURING FREEDOM to drive the oppressive Tali ban regime-which provided comfort and support to al- Qaeda terrorists-from Afghanistan. As a result of that successful effort, the Taliban was removed from power, and on October 9, 2004, the Afghan people for the first time ever selected their head of state, the president of Afghanistan, by democratic vote. Similarly, Operation IRAQI FREEDOM was launched, again with the sup port of a worldwide coalition, to remove the dictatorial and murderous regime of Saddam Hussein from power, and succeeded in toppling that dictator and bringing freedom to Iraq. Following a brief period when Iraq was led by a Coalition Provisional Authority, sovereign ty of Iraq was transferred to an interim government, and democratically elected representatives of the Iraqi people are in the process of completing work on a na tional constitution. There is, however, more work to do. Insurgent elements in both Afghanistan and Iraq con tinue to attack the process of democratic transition in those countries by mounting violent and deadly assaults against the multinational forces that remain posted in the region in order to protect and defend those countries as they take their steps toward freedom. As part of the multinational commitment to strengthening and defend ing these emerging democracies, more than 19,000 U.S. troops remain on the ground in Afghanistan and over 140,000 U.S. troops are part of the ongoing mission in Iraq. 5. The situation on the ground in Iraq is dynamic and dangerous, in Baghdad and several other parts of the country. It changes from day to day, and it varies from region to region. With that in mind (and the caveat that numbers alone do not tell the complete story). [sic] I offer the following observations to provide the Court with some in-country context for the conclusion that official disclosure of the responsive Darby Photos de scribed further below reasonably can be expected to endanger, in wartime, the lives and physical safety of U.S. military and other personnel, as well as the general public in Iraq and Afghanistan and elsewhere. 6. As General Abizaid testified to the Senate Armed Services Committee on June 23, 2005, the overall strength of the insurgency is about the same as it was six months ago, although he noted his belief that "there are more foreign fighters coming into Iraq than there were six months ago." Current estimates of the number of insurgents are in the range of 16,000 with perhaps 1,000 of that number being foreign fighters. 7. The number of insurgent attacks per day is ap proximately 70. As I have publicly stated, our assess ments indicate that the lethality of the attacks is on av erage increasing. 8. Among the goals of the insurgency are to use vio lence against innocent civilians to undercut the mission of the U.S. and Coalition forces, as well as the Iraqi Transitional Government, and to stop the transition to democracy in that country. The insurgents will use any means necessary to incite violence and, specifically, will focus on perceived U.S. or Coalition mistreatment of Iraqi civilians and detainees as a propaganda and re cruiting tool to aid their cause. a. Thus, for example, we have documented situa tions in which insurgents have falsely claimed that U.S. actions in Iraq, rather than their own terrorist attacks, have caused death and suffering. One orga nization, the Global Islamic Media Front, specializes in producing flash videos which typically feature doz ens of images of women and children whose suffering is attributed to U.S. actions in Iraq as opposed to the acts of sabotage and violence perpetrated by the in surgents. b. Similarly, the insurgents rely on doctored photos and images to support their calls to violence. Last year DOD experts noted doctored images and vide os that purported to document the rape of Iraqi women by U.S. soldiers-but which actually origi nated on a Hungarian pornography site-and that were distributed and presented on pro-Islamic and Arabic news web sites as actual examples of U.S. "barbarism." In conducting Internet discussions re garding these images/videos on her websites, Iraq Patrol and Iraq Tunnel, Iraqi novelist and Middle East expert, Buthaina Al-Nasiri, noted, "You cannot imagine the kind of angry messages I receive every day from young Arab men vowing to avenge the Iraqi girls. . . ." c. Specific references to the so-called rape photos surfaced in subsequent Muslim sermons throughout the Middle East along with calls for retaliatory vio lence. For example, in response to similarly doc tored rape images, purporting to depict the alleged rape of three Iraqi women at British-run prisons in Iraq, Sheik Abdul-Sattar al-Bahadli of Basra called for Jihad and offered $350 for anyone capturing a British soldier, $150 for killing one, and stated that "Any Iraqi who takes a female soldier (foreign) can keep her as a slave or gift to himself." d. We have noted other instances of insurgent at tacks after the disclosure of images depicting alleged abuse of detainees. On January 21, 2005, three days after 22 photos of detainees in British custody were made public, an Iraqi insurgent suicide car bomber drove his vehicle toward the gate of a British base in southern Iraq. His vehicle detonated just as it was intercepted before reaching the gate, but the explo sion still resulted in numerous, very serious British injuries. Al Qaeda leader Abu Musab al-Zarqawi described the attack as a "response to the harm in flicted by British occupation forces on our brothers in prison." 9. There have been near-term increases in the as sassination of Iraqi government officials (52 in the three-month period ending June 27, 2005), as well as a recent uptick in insurgent attacks on senior diplomatic officials from regional neighbors of Iraq: the Egyptian envoy was abducted on July 4, 2005, and murdered; and, in separate incidents, the Bahrainian and Pakistani am bassadors' vehicle convoys were attacked on July 6, 2005 (the Bahrainian ambassador was wounded in the hand by automatic weapons fire; the Pakistani ambassador was uninjured, but has been ordered by his government out of the country as a temporary security measure). 10. While I believe that the overall trends in Iraq in dicate improvement, attacks on the economic infrastruc ture in Iraq remain a constant problem, are significantly difficult to defend against (because of generally decrepit conditions and the nature of defending large facilities in diverse geographical locations), and present acute hard ships, particularly to Baghdad residents during the sum mer season. Water, electrical, and oil infrastructure are the main insurgent targets. 11. The situation on the ground in Afghanistan also remains volatile, particularly as the Taliban-led insur gency attempts to derail the political process by increas ing attacks in the run-up to the September 18th Na tional Assembly elections. Violence has steadily risen since May, and levels of Taliban, al-Qaida, and Hezb-e Islami Gulbuddin (HIG) attacks against our military forces in June were the second highest in a single month since the Taliban fell in late 2001. 12. In addition to increasing the quantity of attacks, insurgents are shifting their tactics. Bomb attacks in June were the highest on record, including a rise in sui cide bombings: there have been eight suicide attacks thus far this year compared to four for all of 2004. The Taliban is now targeting candidates and electoral work ers for the National Assembly elections (there have been at least 16 attacks recently), as well as pro-central gov ernment clerics (four have been assassinated since June 1, 2005). The incidents of the Taliban intimidating reform-minded Muslim clerics have also increased. There are, on average, approximately 40-45 insurgent- initiated attacks per week. 13. Insurgents in Afghanistan have a relatively so phisticated and aggressive information operations cam paign. Taliban spokesmen respond quickly to claim credit when insurgents conduct successful attacks against Coalition or Afghan forces, and even claim tacti cal successes for incidents not related to the insurgency. The Taliban are also quick to spread disinformation about culturally sensitive issues such as the Coalition treatment of Afghan women as a means of turning public opinion against the United States and other Western countries. 14. While the Taliban is struggling to maintain popu lar support among Afghans, there are indications that their aggressive information operations campaign, com bined with growing discontent with the Afghan govern ment, could be fueling localized dissatisfaction with the continuing presence of Coalition and NATO forces. For example, the Taliban were quick to capitalize on the May 11-14 protests against the alleged desecration of the Koran at Guantanamo Bay (discussed in more detail be low) and described the protests as "a firm reaction of the people of Afghanistan against the presence of U.S. forc es . . . and inhumane treatment with prisoners at de tention centers . . . showing disrespect to the Muslims' faith" in a 13 May press statement. Protests, some of which turned violent and deadly, occurred in 14 of the 34 provinces. 46. RIOTING AND VIOLENCE FOLLOWING THE NEWSWEEK REPORT OF ALLEGED U.S. DESECRATION OF THE KORAN AT GUANTANAMO BAY 15. On April 30, 2005, Newsweek reported that an unnamed U.S. official had seen a government report documenting desecration of the Koran at the U.S. facil ity at Guantanamo Bay, Cuba. On May 16, 2005, News week retracted the statement in an article that the abuse had been uncovered in an "internal military investiga tion" after its source was unable to confirm where he had seen the purported information. Newsweek also offered further qualifications on the story in its May 23, 2005, issue. 16. The Koran's alleged desecration, as reported by Newsweek, was perceived as such an affront to the Is lamic faith that massive anti-U.S. demonstrations quick ly erupted in the Palestinian territories, Egypt, Sudan, Bangladesh, Pakistan, and Indonesia. Our intelligence assessments indicate that the volatile public sentiments in these Muslim countries were exploited by organized, anti-American extremists who succeeded in fomenting violent and deadly demonstrations. 17. In Afghanistan, in particular, where over 19,000 U.S. troops are currently serving in Operation ENDUR ING FREEDOM, violence erupted as a result of the Newsweek report. Demonstrations began in the eastern provinces and spread to the capital, Kabul. The United Nations, as a precautionary measure, withdrew its en tire foreign staff from Jalalabad, where two of its guest houses were attacked, government buildings and shops were targeted, and the offices of two international aid groups were destroyed. At least 17 deaths in Afghani stan were attributed to the reaction to the Koran story. 18. Despite Newsweek's published retraction, many Muslims still believe that U.S. personnel continue to desecrate the Koran in an effort to humiliate Muslims. For example, one Sunni website asserts that desecration of the Koran is a daily occurrence in Iraq under U.S. occupation and posted numerous photos of another such alleged incident. According to the website: "To humili ate the Koran in Iraq is a well-known tactic of the occu pation and allied forces. The Koran has been desecrated by the Crusaders and the Jews. The latest incident of this happened when American soldiers raided the Al- Quds Mosque in . . . Al-Ramadi . . . The soldiers searched the entire mosque, tore the Koran, and beat the worshippers during the morning prayers." 19. The riots and violence that followed the News week story had a significant impact on U.S. Central Command operations and intelligence assessments of conditions throughout both combat theaters, as well as regionally and beyond. Our intelligence and operations analysts evaluated the Koran incident in order to pro vide assessments and "lessons-learned" both to the com batant commanders and the Department of Defense. While I received and reviewed these assessments, my attention was first brought fully to bear in the context of this case on June 17, 2005. On that day I was informed that disclosure of the Darby Photos could occur as early as June 30, 2005. In light of the nature of the photos, and the riots and violence that occurred after the Newsweek article, I contacted General Abizaid (who in turn contacted General Casey), apprised him of the situ ation, and asked for General Abizaid's military assess ment of the implications of the release of the Darby Pho tos. General Abizaid and General Casey provided their assessments to me on June 20, 2005. They agreed with my determination that disclosure of the Darby Photos created the significant risks discussed in this declara tion. 47. THE REDACTED RESPONSIVE DARBY PHOTOS GRAPHICALLY DEPICT DETAINEE ABUSE AND MISTREATMENT 20. I have personally reviewed the 87 responsive photographic and 4 video images that are identified in paragraph 6 of the Third Declaration of Philip J. Mc Guire. 21. [SEALED] 22. [SEALED] 23. [SEALED] CONCLUSIONS AFTER REVIEWING THE RESPONSIVE DARBY PHOTOS 24. While I have said this previously in countless forums, I condemn in the strongest terms the miscon duct and abuse depicted in these images. It was illegal, immoral, and contrary to American values and charac ter. The Department of Defense has spared no effort and will continue to press the investigation of, and full accountability for, these criminal acts. Based on my re view, I believe that official release of the responsive Darby Photos described in paragraphs 21-23 will pose a clear and grave risk of inciting violence and riots against American troops and coalition forces. I also believe that release of the responsive Darby Photos will expose inno cent Iraqi, Afghan, and American civilians to harm as a result of the insurgency's reaction, which will likely in volve violence and rioting. It is probable that Al-Qaeda and other groups will seize upon these images and vid eos as grist for their propaganda mill, which will result in, besides violent attacks, increased terrorist recruit ment, continued financial support, and exacerbation of tensions between the Iraqi and Afghan populaces and U.S. and Coalition Forces. 25. The recent vitriolic and violent reaction to News week's Koran report described above-even following its retraction-made it clear that U.S. and allied troops and personnel and civilians in the Middle East will be sub ject to a likely, serious, and grave risk if the responsive Darby Photos described in paragraphs 21-23 are pub licly released. Release of these images will be portrayed as part and parcel of the alleged, continuing effort of the United States to humiliate Muslims and, given the pat terns of violence observed there, will be used by the in surgents as propaganda to increase calls for violence against U.S. and Coalition personnel. I believe that if the responsive Darby Photos are released, riots, vio lence, and attacks by insurgents will result. 26. I am also concerned that, while the photos and videos taken together are illustrative only of isolated activity by one military unit, the members of which have been the subject of criminal investigations, prosecutions, and convictions,42 their graphic and offensive nature makes it easy to falsely generalize from those images and characterize the abuse as more widespread than it was, and to impugn the United States Armed Forces as a whole, thereby generating a more vehement-and violent-reaction. The offensiveness of these images will make it more difficult to counteract calls for vio lence against U.S. and Coalition Forces despite the United States Government's immediate and forceful denunciation of the conduct portrayed in these photos, the numerous investigations into the activities and per sonnel they depict, and the criminal and military prose cution of those confirmed to be involved. 48. The Effect of the Responsive Darby Photos on the Predominantly Muslim Populations of Iraq and Afghanistan 27. Specifically, with respect to the video images de scribed in paragraph 23, as common experience has shown and as viewing of the video clips has confirmed, video images are more powerful than still photographs. Video captures a continuum of action, shows cause-and- effect, and portrays the range of emotions of those de picted in a manner that a still photo-which is devoid of those dynamic qualities-fails to convey. The video im ages, thus, evoke a visceral and empathetic connection between the viewer and the person being victimized, and are much more likely to generate a violent reaction or be exploited by insurgents for violent ends. 28. Iraqi and foreign detainees have indicated that an important motivation for their fighting against the Coalition and U.S. forces is their perceived mistreat ment of Iraqis at Abu Ghraib prison. Thus, for example, al Qaeda leader Abu Musab al-Zarqawi demanded the release of all female detainees as the sole condition for the release of American hostages Jack Hensley, Eugene Armstrong, and British hostage Kenneth Bigley, all of whom were subsequently beheaded. British hostage Margaret Hassan (who was also killed by her abductors) also pleaded in a video released by her captors for the release of female detainees. 29. Similarly, on February 28, 2005, a statement by the Media Wing of Abu-Mus'ab al Zarqawi-al-Qa'ida of Jihad Organization in the Land of the Two Rivers [Tan zim Qa'idat al-Jihad fi Bilad al-Rafidayn] was posted on various pro-Al-Qaeda Internet sites in which the group warned and reminded Muslims of the tactics of the ene mies of Islam: "2. They have incarcerated our women in concentration camps, where they raped them and vio lated their honor . . . 3. They gave the rejectionists (Shi'a) access to our women, and the Ministry of Interior jails can testify to the fact. They gave them access to our Mosques, and their impudence reached the point of writing on the Mosques' walls, 'Today [we take] your land, tomorrow [we will take] your honor, [rape your women].'" 49. Redaction of the Responsive Darby Photos Does Not Alter These Conclusions 30. Redaction of the responsive Darby Photos to ob scure individuals' faces and identifying information and, where necessary, genitalia, does not change my opinion. Release of the photographs and videos, even in redacted form, will very likely lead to riots and violence across the Middle East, posing grave risk to both military forc es and civilians. 31. This is because the privacy concerns of the de tainees are separate and distinct from the inflammatory nature and offensiveness of the conduct depicted in the responsive Darby Photos-and thus the risk of harm to our personnel-which remains apparent despite redac tion. Even with the images redacted, the abuses will be apparent. The official release of these graphic photos and videos depicting this type of behavior and abuse by U.S. military personnel will very likely incite violence and result in casualties, and redaction of the photo graphs and videos will not alleviate or lessen this risk. 50. Not Only the Responsive Darby Photos Themselves, But the Official Act of Releasing Them Could Lead to Harm to American Troops and Civilians 32. In my opinion, not only the images themselves, but also the official act of releasing the responsive Darby Photos could significantly harm U.S. interests and endanger U.S. personnel, as well as Iraqi and Af ghan civilians, police, and military personnel working in coordination with Coalition and NATO forces. Our dem ocratic idea of public accountability-the airing of mis deeds by government officials and employees in order to hold government to the highest standards of conduct-is an idea that is misunderstood in other parts of the world. The insurgents likely will perceive and portray an official United States Government release of the Dar by Photos as a deliberate tactic in the war and a con scious degradation to the dignity of Iraqis. While the acts of abuse were originally inflicted by rogue individu als acting illegally and contrary to U.S. policy, this offi cial release will be perceived as the re-infliction of that degradation in full public view and under the full author ity of the U.S. Government. Demagogues will be free to characterize the public disclosure of these images as further evidence of U.S. immorality and hypocrisy. Such a characterization by violent extremists will-in my opinion-put the lives of American troops and civil ians in extreme danger. It also will fuel the efforts of extremists to generate or stimulate opposition to U.S. policies throughout the broader Middle East. It is likely to increase pressures on friendly governments in the re gion to distance themselves from the U.S. All this would be a serious setback to the U.S. Government's efforts to fight the War on Terrorism alongside mainstream Mus lim allies and friends in the Middle East. 51. Release of Photographs That Were Previously Leaked to the Press Poses a Threat to the Safety of Troops and Civilians 33. As an initial matter, the photographs that were previously leaked were not officially released. An offi cial release by the United States Government lends an imprimatur-an official patina-that has never been at tached to these photos.43 As described above, many indi viduals in the Middle East will not understand that this official release is not an intentional effort to further ridi cule and humiliate the individuals depicted, their cul ture, or their religion. 34. Before the Newsweek report of alleged Koran desecration, similar reports had been published by mainstream media publications. In particular, several media outlets previously reported that a Koran had al legedly been flushed down a toilet. Yet it was not until the Newsweek report cited a Government source, who appeared to confirm the reports, that the allegations touched off riots and death abroad. Similarly, official re lease of the responsive Darby Photos by the United States Government (even if some of the images had been leaked before to the press by unofficial sources) is bound to have a much different and more serious effect, differ ent in kind from the prior unofficial release. 35. In addition, some of the previously released pho tographs have not been widely circulated. An official re lease of these photos significantly increases the chances that they will receive much greater circulation through publicly available channels and thereby inflame public sentiments and exacerbate tensions in sensitive geogra phic areas. 52. Sealing Portions of This Declaration 36. In some of the paragraphs of this Declaration, I provide descriptions of the records that are the subject of this litigation. The disclosure of the descriptions could reasonably be expected to endanger the lives and physical safety of persons described in paragraph 2, above. For that reason, I respectfully request the Court seal the following paragraphs: (the captions above para graphs and) 21-23. 53. CONCLUSION In light of the knowledge and information described herein, and given the provocative and offensive nature of the Darby Photos, I believe that the Darby Photos that I have identified in this declaration must be with held in order to protect the lives of: members of the United States Armed Forces, forces operating in coop eration with the United States, and contractors operat ing with those forces; U.S. officials; Iraqi and Afghan police and military personnel working in coordination with our government and military forces; as well as to protect against the increased likelihood of violence against U.S. interests, personnel, and citizens world- wide. I declare under penalty of perjury that the foregoing is true and correct. /s/ RICHARD B. MYERS RICHARD B. MYERS Date: Washington, D.C. August 25, 2005 54. APPENDIX H 55. 56. UNITED STATES DISTRICT COURT 57. FOR THE SOUTHERN DISTRICT OF NEW YORK Civ. Action No. 04-CV-4151 (AKH) AMERICAN CIVIL LIBERTIES UNION, ET AL., PLAINTIFFS v. DEPARTMENT OF DEFENSE, ET AL., DEFENDANTS [Filed: Apr. 26, 2006] FOURTH DECLARATION OF PHILLIP J. MCGUIRE I, Phillip J. McGuire, declare as follows: (1) I am the Director of the United States Army Crime Records Center ("USACRC"), U.S. Army Crimi nal Investigation Command ("CID") Fort Belvoir, Vir ginia. I have filed three previous declarations with the court in this matter (hereinafter "First McGuire Decla ration", "Second McGuire Declaration" and "Third McGuire Declaration" respectively). This fourth decla ration incorporates and supplements the information provided in my previous declarations. 58. PURPOSE OF THIS DECLARATION (2) This declaration identifies and briefly describes photos withheld from CID documents provided to Plain tiffs, and provides justification for the withholding of 29 photos pursuant to FOIA exemptions (b)(6), (b)(7)(C) and (b)(7)(F). IDENTIFICATION OF RESPONSIVE DOCUMENTS (3) As stated in the First McGuire Declaration in paragraph 9, USACRC identified 198 CID Reports of Investigation (ROI) that were responsive to the requests of Plaintiffs in this matter. As of March 15, 2006, USACRC had processed and released all ROIs that were closed as of January 3, 2006 pursuant to the Dis trict Court's Order of January 10, 2006. Consistent with that Order, investigations in an open status as of Janu ary 3, 2006 were withheld (FOIA Exemption 7(a)). Dur ing the processing and release of the closed investiga tions, all pictures that contained images of individuals, regardless of status, were removed at DOD instruction for further processing. When photographs were re moved from an investigation, Plaintiffs were provided with an insert page indicating that a photo maintained within the file at that location was not provided as it con tained an image of an individual. A total of 358 photos were removed in this manner from the document re leases provided by USACRC to Plaintiffs. (4) In late 2005, USACRC applied the guidelines and criteria articulated by Judge Alvin K. Hellerstein at in camera proceedings on May 26, 2005 and August 9, 2005 to the 358 photos. Using this guidance, 329 photos were determined to be non-responsive and 29 photos were identified to Plaintiffs as responsive and withheld pursuant to FOIA exemptions (b)(6), (b)(7)(C) and (b)(7)(F). Exhibit A is a copy of the notification provided to Plaintiffs which identifies the photos by ROI number. This notification inadvertently identified 28 responsive photos. The correct number is 29. These 29 photos are the subject of this Fourth McGuire Declaration and are collectively referred to in this declaration as "CID ROI Photos". (5) The 29 photos at issue are maintained in seven CID ROI's. Each of the identified ROI's was processed and released to Plaintiffs. Exhibit B, attached, is an index which: identifies each photo by ROI number and date of release; describes the outcome of each ROI; identifies the location of the photo(s) within the ROI; and briefly describes each photo. I respectfully request that the photo descriptions within this exhibit be main tained under seal. Exhibit C, attached, describes in greater detail the nature of each ROI and the outcome of disciplinary or criminal actions taken, if any. 59. JUSTIFICATION OF FOIA EXEMPTIONS ASSERTED (6) USACRC is asserting FOIA exemptions (b)(6), (b)(7)(C) and (b)(7)(F) to support the withholding of the 29 CID ROI Photos. All of these exemptions were as serted and defended in my previous three declarations, with respect to other photos and information. The justi fications provided in the previous three McGuire decla rations are asserted for the 29 CIO ROI Photos involved herein. Additional justification, specific to the photos at issue, is provided below. EXEMPTIONS (b)(6) and (b)(7)(C) (7) Unlike the content of many of the Darby photos (identified in my second and third declarations), the con tent of the 29 CID ROI Photos does not necessarily de pict criminal behavior. Many photos depict the normal processing and treatment of individuals captured during the course of the U.S. military operations in Iraq and Afghanistan. Some photos depict behavior that was de termined to be inappropriate, but not criminal. All de tainees pictured are clothed, mostly in their personal, civilian attire. Numerous military and U.S. government employees appear in the photos, both in uniform and in civilian-style clothing. None of the individuals who ap pear in the photos were prosecuted by courts-martial. Some received nonjudicial or administrative discipline. (8) It is my determination that the individuals in the photos have an important expectation of privacy. As stated above, none of the United States military mem bers, or other government employees, was convicted of a criminal offense with respect to the behavior repre sented by the photos. While some individuals most cer tainly engaged in misconduct, official misconduct alone does not obviate all expectations of privacy. United States military members, and other government officials operating in the theatre of war are targets for enemy aggressors. In this case, the images of these individuals, if released, will be published on the World Wide Web for viewing around the world. Government employees whose pictures are disseminated world-wide become easily identifiable, which puts the individuals, and their families back home, at much greater risk of attack, or harassment. (9) It is also my determination that the privacy of the individual detainees justifies the withholding of the photos. The detainees depicted in these photos are wearing personal civilian clothing which, even with re dactions of facial features, could be used to identify indi viduals. As explained in the declaration of Mr. Richard B. Jackson, the United States has an obligation to pro tect detainees from harassment and public curiosity. Incorporating Mr. Jackson's declaration herein, it is my opinion that the release and eventual world-wide dis semination of the photos identified by Mr. Jackson de picting certain individuals in detention would violate the privacy expectations of the detainees, as well as poten tially compromise United States obligations for proper treatment of those detainees. (10) Additionally, the public interest in the release of these photos does not outweigh the important privacy concerns of the individuals depicted. As initially stated in the First McGuire Declaration at paragraph 25, the determination of the public's interest in the disclosure of information is made by analysis of whether the informa tion in question would inform the plaintiff or the general public about the agency's performance of its mission. In this case, the agency which holds the photos is CID Command. CID's stated mission is to conduct felony investigations into crimes that affect the persons and property of the U.S. Army. The release of these photos will in no way shed light on whether CID has adequately performed its mission to conduct investigations into the abuse of detainees. The CID ROI's which detail the en tire investigations into the conduct depicted in each of the photos were released to Plaintiffs through this litiga tion (See release dates at Exhibit B). The pictures do not shed additional light into the agency's performance of its mission or the conduct described in the ROIs pre viously released to plaintiffs. Therefore, it is my analy sis that the privacy interests of the individuals por trayed in the 29 CID ROI Photos outweigh any public interest in the release of the images. 60. EXEMPTION b(7)(F) INFORMATION WHICH COULD ENDANGER THE LIFE OF [sic] SAFETY OF THIRD PARTIES (11) The First McGuire Declaration (para. 37) and the Second McGuire Declaration (paras. 8-14) have ex plained my basis for analysis and assertion of FOIA Ex emption (b)(7)(F) to CID records withheld in this litiga tion. With respect to the assertion of this Exemption to the 29 CID ROI Photos, I incorporate herein the decla ration of Brigadier General Carter F. Ham. (12) Based upon the declaration and expertise of Brigadier General Ham and the previous declarations of General Myers and Ronald Schlicher, it is my determi nation that there is a great risk to civilians within the countries of Iraq and Afghanistan, as well as to U.S. forces located within those countries, if the 22 photos identified by Brigadier General Ham are released. 61. CONCLUSION (13) For the foregoing reasons, I submit this decla ration in support of the decision to withhold the set of 29 photos removed from CID ROI's previously provided to Plaintiffs, pursuant to FOIA exemptions (b)(6), (b)(7)(C) and (b)(7)(F). Pursuant to 28 U.S.C. § 1746, I declare the foregoing to be true and correct. Executed this 25th day of April 2006. /s/ PHILLIP J. MCGUIRE PHILLIP J. MCGUIRE Director U.S. Army Crime Records Center EXHIBIT A PHOTO PROCESSING ACLU et al. v. DoD et al. Applying the guidelines and criteria articulated by the Court in camera, photographic exhibits withheld from previously released Criminal Investigation Com mand (CID) Reports of Investigation (ROI) were pro cessed. 329 photographs in the below listed ROIs were deter mined to be non responsive. 0136-03-CID259-61187 0147-04-CID259-80210 0153-04-CID146-71446 0137-04-CID899-81702 0473-04-CID023-67329 0234-04-CID259-80271 0041-03-CID899-63500 0149-03-CID469-60209 0035-03-CID259-61144 0055-03-CID349-59657 0025-04-CID469-79635 0133-04-CID452-63629 0140-03-CID389-61697 0260-03-CID259-61229 0013-04-CID789-83982 0537-04-CID034-72601 0264-03-CID259-61231 0374-04-CID093-65446 0014-03-CID919-63732 0190-04-CID259-80234 0085-03-CID939-64011 0184-04CID259-80230 0046-03-CID899-63502 0011-04-CID469-79630 0114-02-CID369-23525 0232-04-CID259-80267 0011-04-CID679-83487 0573-04-CID023-67403 0100-04-CID452-63608 0139-03-CID469-60206 0040-04-CID469-79638 0139-04-CID789-83995 0140-04-CID259-80204 0262-04-CID259-80294 28 photographs in the below listed ROIs were deter mined to be responsive and are withheld, consistent with the Darby photographs currently on appeal, under FOIA Exemptions 6, 7c, and 7f. 0153-04-CID146-71446 0353-03-CID093-45256 0100-04-CID452-63608 0384-04-CID023-67275 0133-04-CID452-63629 0374-04-CID093-65446 0190-04-CID-259-80234 [FOLD OUT] [FOLD OUT] 62. EXHIBIT C Background Information on 29 Responsive Photos All investigations triggered by allegations of detainee abuse/mistreatment. Tab A (8 images). Images in unknown locations within Afghanistan, between 7 Nov 2002 and 30 Jun 2003. In vestigation did not establish probable cause to believe that any detainee abuse occurred; images did not reveal detainee abuse or mistreatment. TAB B (2 images). Images at Camp Red, Iraq, between 25 Apr 2003 and 15 Aug 2003. Investigation resulted in insufficient evidence to prove or disprove detainee abuse or mistreatment. Investigation further revealed that Camp Reds Standard operating procedure for detainees who became violent were to separate them from other detainees, tie hands behind them, and cover their heads with empty sandbags as a security measure to ensure that they did not harm themselves or others. TAB C (one image). U.S. Forces safe house, Al-Quaim, Iraq, between 1 Aug 03 and 31 Mar 04. Investigation established probable cause that soldier committed ag gravated assault when he pointed pistol at EPW he was guarding in Iraq. The soldier was found not guilty in non-judicial punishment proceedings under Article 15, Uniform Code of Military Justice (U.C.M.J.). TAB D (one image). Division Central Collection point, Iraq, 21 Dec 03. Probable cause to believe that four sol diers committed offenses of conspiracy, fail to obey a lawful general order, and cruelty and maltreatment when they staged and posed for an inappropriate photo graph with detainees. No evidence that an assault oc curred using the broom. Three soldiers received punish ment under Article 15, U.C.M.J. proceedings. One sol dier received a reprimand. TAB E (13 images). Fire Base Tycze, Dae Rah Wod, Af ghanistan, between 5 Dec 03 and 29 Feb 04. Investiga tion revealed that guards detailed to secure and protect detainees, jokingly pointed weapons at the bound de tainees and took photos of the activity. Probable cause to believe that 8 soldiers committed the offense of dere liction of duty, but aggravated assault unfounded be cause of insufficient evident [sic] that the detainees were in fear for their lives, or of grievous bodily harm, or were even aware weapons were being pointed at them. There was probable cause to believe that one soldier committed assault when he struck a bound detainee in the back of the head. The soldiers involved received punishment under Article 15, U.C.M.J. proceedings. TAB F (2 images). Iraq, various places, between 13 Jun 03 and 13 Jun 04. The so-called "Ramadi Madness" im ages produced by members of B Co., 1/124th Infantry Reg., FLARNG. Investigation revealed that while inap propriate, none of the images depicted criminal conduct. The investigation indicates that the two still photos were staged. TAB G (2 images). Baghdad International Airport (BIAP), Iraq, between 4 Mar 2004 and 11 Mar 2004. Detainee depicted in images claimed he was abused while detained by U.S. Forces at Al Baghdadi and BIAP. Insufficient evidence to prove or disprove the detainee's abuse allegations. 63. APPENDIX I 64. UNITED STATES DISTRICT COURT 65. FOR THE SOUTHERN DISTRICT OF NEW YORK No. 04 Civ. 4151 (AKH) AMERICAN CIVIL LIBERTIES UNION, CENTER FOR CONSTITUTIONAL RIGHTS, PHYSICIANS FOR HUMAN RIGHTS, VETERANS FOR COMMON SENSE AND VETERANS FOR PEACE, PLAINTIFFS v. DEPARTMENT OF DEFENSE, AND ITS COMPONENTS DEPARTMENT OF ARMY, DEPARTMENT OF NAVY, DEPARTMENT OF AIR FORCE, DEFENSE INTELLIGENCE AGENCY; DEPARTMENT OF HOMELAND SECURITY; DEPARTMENT OF JUSTICE, AND ITS COMPONENTS CIVIL RIGHTS DIVISION, CRIMINAL DIVISION, OFFICE OF INFORMATION AND PRIVACY, OFFICE OF INTELLIGENCE POLICY AND REVIEW, FEDERAL BUREAU OF INVESTIGATION; DEPARTMENT OF STATE; AND CENTRAL INTELLIGENCE AGENCY, DEFENDANTS [Filed: Apr. 26, 2006] DECLARATION OF CARTER F. HAM Carter F. Ham, pursuant to 28 U.S.C. sec. 1746, declares as follows: 1. I am a Brigadier General in the United States Army. I am currently the Deputy Director for Regional Operations (DDRO) of the Operations Directorate on the Joint Staff at the Pentagon. The DDRO is the prin cipal advisor to the Director for Operations, J-3, of the Joint Staff for operational matters outside of the conti nental United States. As such, the DDRO coordinates and communicates frequently with the staffs of US Cen tral Command, US European Command, US Pacific Command and US Southern Command to ensure com batant command concerns are addressed by the Joint Staff. The DDRO develops and coordinates operational orders and, once the Secretary of Defense approves such orders, communicates operational orders to the combat ant commands. Additionally, the DDRO manages the Global Force Management system, which, in close coor dination with US Joint Forces Command, US Transpor tation Command and US Strategic Command, ensures the highest priority combatant command requirements are met most effectively and efficiently. The DDRO maintains oversight of the National Military Command Center. In performing my duties as DDRO, I routinely confer with and obtain advice from combatant command ers' staffs regarding the operational requirements of their commands; I evaluate and synthesize this informa tion; and I advise and make recommendations to the Chairman of the Joint Chiefs of Staff through the Direc tor of Operations and other members of the Joint Staff. 2. Through the exercise of my official duties and as a result of my personal knowledge, I am familiar with this civil action and with Plaintiffs' requests for informa tion under the Freedom of Information Act. Further, I have reviewed the 29 photographic images that are iden tified in Exhibit B of the Fourth Declaration of Philip J. McGuire (collectively referred to as the "Responsive Ar my Photos"). For the reasons set forth in this declara tion, I have concluded that the official release of the im ages further identified below, even if redacted to ob scure identifying information, could reasonably be ex pected to: a. Endanger the lives and physical safety of the Sol diers, Sailors, Airmen, and Marines in the United States Armed Forces presently serving in Iraq and Afghanistan, as well as other U.S. officials, Coalition Forces allied with the United States, and contractors serving with these forces; b. Endanger the lives and physical safety of Iraqi civilians at large, and police and military personnel of the democratic Iraqi Transitional Government working in coordination with the United States and Coalition Forces in support of Operation IRAQI FREEDOM; c. Endanger the lives and physical safety of Afghan civilians at large, and police and military personnel of the Government of Afghanistan working in coordi nation with the United States and Coalition Forces operating in support of Operation ENDURING FREEDOM, NATO-led operations, and contractors serving with these forces; d. Aid the recruitment efforts and other activities of insurgent elements, weaken the new democratic gov ernments of Iraq and Afghanistan, and add radical pressures on several of our regional allies and friends; and e. Increase the likelihood of violence against United States interests, personnel, and citizens worldwide. 66. THE BASES FOR MY CONCLUSIONS 3. My conclusions are based upon my years of ser vice and experience in the United States military, the assessments and evaluations of the battlefield command ers responsible for Iraq and Afghanistan, and intelli gence reports and assessments of Department of De fense subject-matter experts on the Middle-Eastern region. In performing my duties, I routinely rely on the views of our combat command operations staffs, intelli gence synthesis and reports, and the assessments of subject matter experts. In formulating my conclusions concerning the Responsive Army Photos, I have used the same approach, types of resources, information, and experts. In particular: a. I have served in the United States Armed Forces for more than 30 years at various levels of command and staff. I have served in my current position as Deputy Director of Regional Operations on the Joint Staff at the Pentagon since April 2005. From August 2003 through February 2005, I was Deputy Com manding General for Training and Readiness for the US Army's I Corps, which included duty as Com mander, Multi-National Brigade Northwest, Opera tion IRAQI FREEDOM. In the period of January 2004 to February 2005, I also was the senior U.S. commander in Mosul, Iraq, responsible for all U.S. and Coalition operations in the northern provinces of Iraq. From August 2001 to July 2003, I served in Central Command, including deployment to Qatar with the Central Command Headquarters, for the initial phases of Operation IRAQI FREEDOM. As a result of my experiences, I have intimate, extensive knowledge of our military forces and their capabili ties, as well as of the conventional and unconven tional forces and capabilities of the enemies arrayed against us. b. As Deputy Director for Regional Operations, I receive and review daily operations briefings, re ports and intelligence analyses from Central Com mand, the Joint Staff, the Defense Intelligence Agency, the Central Intelligence Agency and the Na tional Security Agency. I oversee the Current Oper ations cell in the National Military Command Center, which is responsible for reporting real-time, world wide events affecting national security and US inter ests. Given my familiarity with current Operation IRAQI FREEDOM / Operation ENDURING FREEDOM events, I frequently provide briefings to the Senate and House Armed Services Committees and Congressional Delegations traveling to Iraq and Afghanistan. In short, my job requires me to be an expert in worldwide current operations. c. In reaching my conclusions, I have reviewed and relied upon the Second Amended Declaration of for mer Chairman of the Joint Chiefs of Staff, General Richard B. Myers, dated August 25, 2005, that was submitted to this Court regarding the so-called Dar by photos. See Second Amended Declaration of Richard B. Myers, dated August 25, 2005, ¶¶ 2, 24-26. d. With respect to this matter, I also have solicited and relied upon the assessments and recommenda tions of the following three individuals regarding their views of the military implications of release of the Responsive Army Photos: l) General John P. Abizaid, Commander, U.S. Central Command, who is the ultimate military Commander responsible for the geographical area that includes both Iraq and Af ghanistan; 2) General George Casey, the commander of the Multi-National Forces-Iraq (the ultimate mili tary commander in Iraq of the coalition armed forc es); and 3) Lieutenant General Karl W. Eikenberry, Combined Forces Command Afghanistan (the ulti mate military commander in Afghanistan of the coali tion armed forces). Each of these three command ers, by virtue of their positions and responsibilities and their immediate visibility of the battlefield envi ronment, have highly informed opinions that I have considered in this matter. Each of these three com manders agree with and support my conclusions about release of the Responsive Army Photos. e. As I indicated above, I have also considered and relied upon the analysis and assessments of DOD resident subject-matter experts on the Middle- Eastern region. OPERATION ENDURING FREEDOM AND OPERATION IRAQI FREEDOM 4. Following the attacks on the United States of September 11, 2001, the United States military, with the support of a worldwide coalition, launched Operation ENDURING FREEDOM to drive the oppressive Tali ban regime-which provided comfort and support to al- Qaeda terrorists-from Afghanistan. As a result of that successful effort, the Taliban was removed from power, and on October 9, 2004, the Afghan people for the first time ever selected their head of state, the president of Afghanistan, by democratic vote. Operation IRAQI FREEDOM was launched, again with the support of a worldwide coalition, to remove the dictatorial regime of Saddam Hussein from power, with the aim of ending an active threat to the safety of the U.S. and fostering the establishment of a democratic form of government in Iraq. Following a brief period when Iraq was led by a Coalition Provisional Authority, sovereignty of Iraq was transferred to an interim government, and democrati cally elected representatives of the Iraqi people are in the process of completing work on a national constitu tion. There is, however, more work to do. Insurgent elements in both Afghanistan and Iraq continue to at tack the process of democratic transition in those coun tries by mounting violent and deadly assaults against the multinational forces that remain posted in the region in order to protect and defend those countries as they take their steps toward freedom. As part of the multina tional commitment to strengthening and defending these emerging democracies, more than 23,000 U.S. troops remain on the ground in Afghanistan and over 132,000 U.S. troops are part of the ongoing mission in Iraq. 5. As General Myers' declaration sets forth in more detail, perceived mistreatment or humiliation of detain ees in the custody of the United States Armed Forces has been exploited or misrepresented for violent ends in Iraq, Afghanistan and elsewhere in the Middle East. See General Myers' Decl. ¶¶ 8, 14-19, 24-29. A prime ex ample of such violence was the rioting that occurred as a result of a Newsweek report-later retracted-of al leged abuse of the Koran by United States' personnel. Id. ¶¶ 14-19. 67. A. Current Situation in Iraq 6. The situation on the ground in Iraq remains dy namic and dangerous in Baghdad and several other parts of the country. It changes from day to day, and it varies from region to region. Insurgent attacks against Coalition Forces in Iraq average about 1,700 attacks per month. However, significant events can cause those lev els to spike to approximately 2,500 insurgent attacks per month. 7. As General Myers' declaration makes clear, one of the goals of the insurgency is to use violence against innocent civilians to undercut the mission of the U.S. and Coalition forces, as well as the Iraqi Transitional Government, and to stop the transition to democracy in that country. Thus, the insurgents will use any means necessary to incite violence and, specifically, have and will focus on perceived U.S. or Coalition mistreatment of Iraqi civilians and detainees as a propaganda and re cruiting tool to aid their cause. 8. For example, two British soldiers were killed and another was injured in Amarah, Iraq, by way of an Improvised Explosive Device in February 2006. Open sources linked these killings to recent use of a 2004 vi deo of British soldiers beating Iraqi youths in the Amarah area. Amarah, which is located north of Basra in the British-controlled Maysan province, is dubbed the "Wild West" by British troops and has been the focus of heavy attacks by insurgents. There had been warnings in the Arab media that there could be reprisals against British forces in the area as a result of the video. The warnings proved true. More than 1,000 protestors, many of them supporters of Shia cleric Muqtada al-Sadr, gather and shouted slogans against the alleged abuse of the youths in Amarah. The release of the tape inflamed tensions and led to the ruling council of Maysan province making a public declaration that they would suspend cooperation with all British forces and officials. Mem bers of Shiite political groups opposed to the U.S.-led coalition appeared to have engineered that move, appar ently seeking to exploit public sensitivities after at tempts by the British to be more aggressive with Shiite militias. 68. B. Current Situation in Afghanistan 9. The situation on the ground in Afghanistan also remains volatile. In addition to the details set forth in General Myers' declaration, the most recent estimates indicate that there are about 250 insurgent attacks per month against the Coalition Forces, which forces oper ate in support of the Government of Afghanistan. The insurgency in Afghanistan relies heavily on aggressive information operations to turn perceived insult or depre cation towards Islam into causes for violent uprisings. 10. As noted in General Myers' declaration, when Newsweek incorrectly reported that U.S. military per sonnel at Guantanamo Bay, Cuba had desecrated the Koran, at least eleven people died and many were hurt during several anti-U.S. protests in Afghanistan. Open sources reported that two United Nations guest-houses were attacked, as were shops and government buildings. Two offices of international aid groups were destroyed. And uprising of Muslims was not limited to Afghanistan. Open sources reported that about 12,000 people gath ered in Egypt, many of them supporters of the outlawed Muslim Brotherhood. About 30 people were injured during that protest. A similar number gathered in Bei rut, Lebanon, where the crowd carried black banners and burned American and Israeli flags. In Bangladesh's capital of Dhaka, about 5,000 people rallied after Friday prayers, spitting on U.S. flags and burning them. While doing so, they shouted "Death to America!" and "De stroy America!" 11. The recent reaction to re-publication of the Dan ish cartoon of the Prophet Muhammad is another exam ple of images being used in information operations to stir violent reactions in Afghanistan. In January 2006, a Norwegian publication reprinted a Danish cartoon depiction of the Prophet Muhammad. As a direct result, open sources reported that at least eleven people were killed in Afghanistan, including two people who died when protesters turned on the U.S. airbase at Bagram. As a result of the cartoon, violence erupted elsewhere as well. Again, open sources reported that the cartoon sparked violence between Nigeria's Muslim and Chris tian communities, leaving nearly 150 people dead and thousands displaced after five days of violence. Five protestors were killed in Pakistan during demonstra tions. One teenage boy died in Somalia after protestors attacked police. In Turkey-where U.S. forces are also stationed-a Catholic priest was killed, allegedly by a teenage shooter who was influenced by the cartoon. Protestors also attacked the Danish embassies in Iran, Syria and Lebanon. In addition to these violent reac tions, open sources reported protests at many locations in reaction to the Muhammad cartoon. THE RESPONSIVE ARMY PHOTOS 12. I have personally reviewed the 29 responsive photographic images that are identified in Exhibit B of the Fourth Declaration of Philip J. McGuire. 13. [SEALED] 14. [SEALED] 15. [SEALED] 16. [SEALED] 17. [SEALED] CONCLUSIONS AFTER REVIEWING THE RESPONSIVE ARMY PHOTOS 18. Based on my review, I believe that official re lease of the 22 Responsive Army Photographs described in paragraphs 13-16 above will pose a clear and grave risk of inciting violence and riots against American troops and coalition forces. I also believe that release of the Responsive Army Photos will expose innocent Iraqi, Afghan, and American civilians to harm as a result of the insurgency's reaction, which will likely involve violence and rioting. It is probable that the insurgents and other groups will seize upon these images as grist for their propaganda mill, which will result in, besides violent at tacks, increased terrorist recruitment, continued finan cial support, and exacerbation of tensions between the Iraqi and Afghan populaces and U.S. and Coalition Forces. 19. My opinion is based upon the information set forth in General Myers' declaration, including but not limited to the vitriolic and violent reaction to News week's Koran report, as well as the updated assessment of the conditions in Iraq and Afghanistan, which is in formed by the violence arising out [sic] the publication of cartoons depicting the Prophet Muhammed and re lease of a British video depicting the mistreatment of Iraqi nationals. Release of these Responsive Army Pho tos will be portrayed as part of an alleged, continuing effort of the United States to humiliate Muslims and, given the patterns of violence observed there, will be used by the insurgents as propaganda to increase calls for violence against U.S. and Coalition personnel. I be lieve that if the Responsive Army Photos are released, riots, violence, and attacks by insurgents will result. 20. I am also concerned that, while the photographs are illustrative of isolated activity, their graphic and offensive nature will make it easy to falsely generalize from those images and impugn the United States Armed Forces as a whole, thereby generating a more vehement -and violent-reaction. The offensiveness of these im ages will make it more difficult to counteract calls for violence against U.S. and Coalition Forces. Redaction of the Responsive Army Photos Does Not Alter These Conclusions 21. Redaction of the Responsive Army Photos to ob scure individuals' faces and identifying information does not change my opinion. Release of the photographs, even in redacted form, will very likely lead to riots and violence in Iraq, Afghanistan and elsewhere in the Mid dle East, posing grave risk to both military forces and civilians. This is because the privacy concerns of the detainees are separate and distinct from the inflamma tory nature of the images depicted in the Responsive Army Photos-and thus the risk of harm to our per sonnel-which remains apparent despite redaction. Sealing Portions of This Declaration 22. In some of the paragraphs of this Declaration, I provide descriptions of the records that are the subject of this litigation, and I respectfully request that the Court seal the paragraphs 13-17. CONCLUSION In light of the knowledge and information described herein, and given the inflammatory nature of the Re sponsive Army Photos, I believe that the Responsive Ar my Photos that I have identified in this declaration must be withheld in order to protect the lives of: members of the United States Armed Forces, forces operating in co operation with the United States, and contractors oper ating with those forces; U.S. officials; Iraqi and Afghan police and military personnel working in coordination with our government and military forces; as well as to protect against the increased likelihood of violence against U.S. interests, personnel, and citizens world- wide. I declare under penalty of perjury that the foregoing is true and correct. /s/ CARTER F. HAM CARTER F. HAM Date: Washington, D.C. April 26, 2006 69. APPENDIX J 70. 71. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 06-3140-cv AMERICAN CIVIL LIBERTIES UNION, ET AL., PLAINTIFFS-APPELLEES v. DEPARTMENT OF DEFENSE, ET AL., DEFENDANTS-APPELLANTS [Filed: May 28, 2009] DECLARATION OF GENERAL DAVID H. PETRAEUS I, General David H. Petraeus, pursuant to 28 U.S.C. 1746, hereby declare as follows: (U) 1. I currently serve as the Commander of United States Central Command (USCENTCOM). This Combatant Command was established by the Presi dent pursuant to Title 10, U.S. Code, Section 161. USCENTCOM seeks to promote cooperation, to re spond to crises, to deter aggression, and when neces sary, to defeat our adversaries in order to promote secu rity, stability, and prosperity within the USCENTCOM Area of Responsibility (AOR). The USCENTCOM AOR stretches across more than 4.6 million square miles and 20 countries located through the Middle East and Cen tral Asia, including Iraq, Afghanistan, and Pakistan. The statements in this declaration are based upon my personal knowledge and upon information made avail able to me in the performance of my official duties. (U) 2. Through the exercise of my official duties and as a result of my personal knowledge, I am familiar with this civil action and have reviewed the 21 photographic images that the district court ordered released on 21 June 2006, and that are the subject of the appeal in ACLU v. Department of Defense, 543 F.3d 59 (2d Cir. 2008). I am also aware that in addition to the 21 images specifically addressed in the appeal before the Second Circuit, there is a substantial number of additional im ages that are responsive to the Freedom of Information Act request in this case. For the reasons set forth in this declaration, I have concluded that the official re lease of those images, even if redacted to obscure identi fying information, could be reasonably expected to ad versely impact current military, political, and civil ef forts in the USCENTCOM AOR. In addition to fueling civil unrest, causing increased targeting of U.S. and Co alition forces, and providing an additional recruiting tool to insurgents and violent extremist groups, the destab ilizing effect on our partner nations cannot be underesti mated. Many of our partner nations in the region strug gle with their populations' perceptions that they are merely instruments of the U.S. government and do not have their citizens' best interests at heart. These per ceptions are directly fueled by extremist groups' expert public affairs campaigns to win "hearts and minds" across the USCENTCOM AOR and to recruit new mem bers. Nowhere are USCENTCOM's efforts to win this struggle, by strengthening the legitimacy and efficacy of host nation governments, more critical than in Pakistan, Afghanistan, and Iraq. The release of images depicting U.S. servicemen mistreating detainees in Iraq and Af ghanistan, or that could be construed as depicting mis treatment, would likely deal a particularly hard blow to USCENTCOM and U.S. interagency counterinsurgency efforts in these three key nations, as well as further en danger the lives of U.S. Soldiers, Marines, Airmen, Sail ors, civilians, and contractors presently serving there. (U) 3. My conclusions are based on my years of ser vice and experience in the United States military; intelli gence and operations reports, as well as assessments of the situation in the USCENTCOM AOR, and Pakistan, Afghanistan and Iraq specifically; assessments and eval uations of my subordinate commanders; the declarations made previously in this case; and regular interaction with both military and civilian leadership of the nations in the USCENTCOM AOR. In particular: a. (U) I have served in the United States Army for 35 years at various levels of command and staff. I have commanded at the battalion, brigade, division, Multi-National Force-Iraq (MNF-I) and theater levels, including at the two-, three-, and four-star levels in Iraq. My staff experience includes serving as the Executive Assistant to the Chairman of the Joint Chiefs of Staff; Aide to the Chief of Staff of the Army; Military Assis tant to Supreme Allied Commander-Europe; Chief of Operations of the United Nations Force in Haiti; and Assistant Chief of Staff for Operations of the NATO Sta bilization Force in Bosnia. b. (U) I have extensive experience in Iraq, inc luding command at the division and theater levels. In addition to commanding Multi-National Force-Iraq (MNF-I) for over 19 months prior to taking command of USCENTCOM, I commanded the 101st Airborne Divi sion (Air Assault), during the first year of Operation Iraqi Freedom. I was also the first commander of Multi- National Security Transition Command-Iraq from June 2004 to September 2005, and the commander of the NATO Training Mission-Iraq from October 2004 to Sep tember 2005. Prior to my tour as MNF-I commander, I commanded the U.S. Army Combined Arms Center and Fort Leavenworth, during the development and publica tion of both the U.S. Army Field Manual 3-24, Counter insurgency, and U.S. Army Field Manual 2-22.3, Hu man Intelligence Collector Operations. c. (U) As a result of this experience, I have inti mate and extensive knowledge of our military forces and interagency partners and their capabilities, as well as those of the enemies who threaten U.S., Coalition, Iraqi, Afghan, and Pakistani forces and interests. d. (U) As the Commander of USCENTCOM, I receive daily intelligence and operations briefings re garding the political, economic, diplomatic, and security environment in the countries in the USCENTCOM AOR, with particular emphasis on Pakistan, Afghani stan, and Iraq. These briefings are produced by sub ject-matter experts, and I rely on and trust their exper tise and insights. e. (U) I frequently travel throughout the USCENTCOM AOR to personally view the situation across the region. During these missions, I receive re ports from subordinate operational and tactical com manders who provide insights from the local and re- gional levels. I also meet regularly with national politi cal and military leaders. f. (U) I reviewed and relied upon the Declara tion of Brigadier General Carter F. Ham, dated April 26, 2006, and the Second Amended Declaration of the for mer Chairman of the Joint Chiefs of Staff, General Rich ard B. Myers, dated August 25, 2005, which were sub mitted to the district court regarding photos purporting to show detainee abuse. g. (U) I strongly condemn any misconduct and abuse depicted in these images that were the responsi bility of U.S. military personnel. I am committed to en suring all detainees in the USCENTCOM AOR are treated humanely, and that any allegation of detainee mistreatment is immediately investigated and appropri ate disciplinary action taken. In fact, as Commander of both MNF-I and USCENTCOM, I have repeatedly stressed that we must "live our values," and not only ensure U.S. servicemen treat detainees humanely, but that the nations we are assisting also do the same. Ear ly on in our operations in Iraq in the late spring of 2003, I directed the 101st Airborne Division commanders to ensure observance of the Geneva Conventions regarding treatment of those we detained. As the Commander of MNF-I, I directed MNF-I forces to intervene to stop abuse if it occurs, and to prevent abuse through educa tion, training, and mentoring. PAKISTAN (U) 4. The need to establish a trusting, mutually ben eficial U.S.-Pakistan partnership is pressing, yet the ability to do so is severely challenged by current events. The Government of Pakistan (GOP) faces a burgeoning threat from the Taliban, indigenous Pakistani militant groups, and foreign extremists in Pakistan's Federally Administered Tribal Areas (FATA) and Northwest Frontier Province (NWFP). (U) 5. To counter this threat, Pakistan's Frontier Corps (FC) commenced security operations in the area in late-August 2008. Despite these efforts, which were undermined by a wavering commitment from the GOP, the security situation in Pakistan deteriorated further. The Taliban quickly came to control the entire Swat Val ley in the NWFP. Pakistan's leaders became anxious to develop a means of restoring stability and order to the region. The GOP entered into peace talks with NWFP militants who proffered a diplomatic solution, including the implementation of Shari'a law within the Swat Val ley and the Malakand Division. In exchange, the GOP agreed that the Pakistan Military would cease opera tions and the militants would lay down their arms. (U) 6. This arrangement was short-lived, however, and disagreements quickly arose over the militants' im mediate and brutal implementation of Shari'a law in Swat Valley. The militants resumed offensive opera tions and by late-April 2009, they had pushed to within 60 miles of Islamabad, Pakistan's capital. As militant influence grew toward the urban heart of the country, the international community and civil society groups became increasingly alarmed, forcing the government to recognize the growing threat and deploy the Pakistan Military. While the current offensive by the Pakistan Military seems their most serious effort to date, endur ing success against the militants has yet to be seen, and several hundred-thousand Pakistani civilians have been displaced in the latest fighting. (U) 7. The stabilization of Pakistan via a strong part nership with the United States is critical. Violent Ex tremist Organizations (VEO), Al Qaeda (AQ) and the Taliban not only destabilize Pakistan, they undermine the regional stability necessary for fulfillment of U.S. goals in the region. Al Qaeda and Associated Move ments (AQAM) use the ungoverned space of the FATA to plan for and train terrorists intent on attacking the U.S. and U.S. interests abroad, including sending fight ers across the border into Afghanistan.44 Even with new supplemental distribution networks, sustainment opera tions of U.S. forces in Afghanistan are highly dependent on air and ground routes through Pakistan. Separately, the security of the Pakistani nuclear arsenal is of con cern, and it is not entirely inconceivable that a country like Pakistan, facing many complex problems, could de teriorate at a pace that would challenge their and our best capabilities to restore order. (U) 8. Newly released photos depicting abuse of de tainees in U.S. military custody in Afghanistan and Iraq would negatively affect the on-going efforts by Pakistan to counter its internal extremist threat. Anti-U.S. senti ment has already been increasing in Pakistan. Most poll ing data reflects this trend, especially in regard to cross-border operations and reported drone strikes, which Pakistanis perceive to cause unacceptable civilian casualties. In June 2008, 45% of Pakistanis said that U.S. presence in the region was a threat to Pakistan, and that jumped to 54% in October 2008. It may be higher today, and will certainly increase if new detainee abuse photos are released. Most Pakistanis also feel that U.S.-Pakistan cooperation does not "mostly benefit" Pakistan (2% in October 2008, down from 7% in June 2008). While other polling data show minor improve ments in US-Pakistan relations, 63% of Pakistanis still oppose cooperating with the U.S. on counter-terror op erations, and 35% say they do not support U.S. strikes into Pakistan, even if they are coordinated with the GOP and the Pakistan Military ahead of time. Preventing Pakistan-based militants from exacerbating strained U.S.-Pakistan tensions has been very difficult for the GOP in recent months and years. Release of images depicting, or that could be construed as depicting, U.S. forces abusing detainees who would likely be depicted as "fellow Muslims" would undermine this effort. (U) 9. Based on historical precedents, such as the publication of Danish cartoons depicting the Prophet Mohammed in late 2005 and a Newsweek article errone ously highlighting desecration of the Koran by U.S. mili tary members in 2006, civil unrest via spontaneous dem onstrations in Pakistan's largest cities would be a likely result of publication of images depicting U.S. abuse of detainees in its custody in Iraq and Afghanistan. Mili tant and extremist groups would use these images to foment anti-U.S. sentiment and to incite demonstrators to conduct deliberate attacks against U.S. targets,45 as well as western Non-Government Organization (NGO) facilities and personnel.46 (S) 10. [REDACTED] AFGHANISTAN47 (U) 11. Afghanistan's nationwide violence is present ly 95% higher than it was during this same period last year. The increase in violence is expected to continue throughout the summer following the conclusion of the spring poppy harvest. Fighters will refocus on conduct ing insurgent operations and additional U.S. forces will begin operations. Despite recent U.S. and International Security Assistance Force (ISAF) operations to disrupt insurgents in southern Afghanistan, insurgents continue planning for organized attacks against the provincial capitals of Helmand and Kandahar Provinces. The end of the poppy harvest in southern Afghanistan will likely lead to a significant increase in violence there, once again surpassing that of violence in all other regions. (U) 12. Newly released photos depicting, or that could be construed as depicting, abuse of detainees in U.S. military custody in Iraq and Afghanistan would place U.S. servicemen in Afghanistan at heightened risk and corrosively affect U.S. relations with President Kar zai's government, as well as further erode control of the Afghan government in general. Spontaneous demon strations might occur in Kabul, Kandahar City, Mazar e Sharif and other population centers in Afghanistan. Public condemnations by Afghan leaders and insurgency leaders would be certain. An influx of foreign fighters from outside Afghanistan and new recruits from within Afghan [sic] could materialize, as the new photos serve as potent recruiting material to attract new members to join the insurgency. New photos would also serve to en hance fund-raising efforts for insurgent sympathizers across the Muslim world. Attacks against newly-arriv ing U.S. Marines and soon-to-arrive U.S. Army units in the south, and transitioning U.S. Amy units in the east, could increase, thus further endangering the life and physical safety of military personnel in these regions. (U) 13. Attacks against Afghan offices and govern ment leaders in Kabul and provincial capitals could also occur, as could attacks against the primary ground line of communication or disruption of the Northern Distri bution Network. The Afghan presidential election cycle might also be disrupted. Indeed, Taliban and insurgent forces have stated that disrupting the 2009 presidential elections is one of their objectives. Release of the pho tos would make attacks and disruptions even more like ly. Coordinated attacks focused on polling stations or destruction of votes could raise concerns over the valid ity of the elections, and any hint of improper elections would exacerbate perceptions that the Afghan govern ment lacks legitimacy. Managing preparations for Af ghanistan elections, while simultaneously enduring pro tests and public condemnations from Afghanistan lead ers regarding detainee images and civilian casualties caused by U.S. air strikes, would make the situation very challenging for U.S. and ISAF forces. Perhaps most importantly, release of the photos could undermine U.S. goals in the region, particularly if Muslim sensitivi ties become inflamed and Muslim willingness to work with the U.S. is degraded, which would be likely with publication of photos depicting, or that could be con strued as depicting, U.S. detainee abuse of detainees in its custody in Iraq and Afghanistan. (S// REL [REDACTED]) 14. [REDACTED] (S// REL [REDACTED]) 15. [REDACTED] IRAQ (U) 16. Iraq continues to sustain progress in security and stability, but the progress remains fragile and re versible. Despite security gains, Sunni and Shi'a ex tremists continue to pose threats to Iraq's security. While overall violence decreased significantly48 in 2008, a string of high profile attacks aimed at Iraqi Shi'a in Baghdad, from late-March to early-May of this year, demonstrated the tenuous nature of Iraq's present secu rity environment. These attacks highlight the lethality of small terrorist cells despite their reduced capacity. Shi'a extremist-related violence appears to be largely focused against U.S. forces. The focus of the Sunni in surgency has been pushed into parts of Northen Iraq as Coalition forces, Iraqi Security Forces (ISF), and Sons of Iraq (SOI) have worked to limit Sunni insurgent free dom of movement. Meanwhile, Iraq's security responsi bilities are in a period of transition as responsibilities shift from Coalition Forces to Iraqi Security Forces, per the terms of the Iraqi-US Security Agreement that went into effect on 1 January 2009. (U) 17. Newly released photos depicting abuse, or that could be construed as depicting abuse, of Iraqis in U.S. military custody would inflame emotions across Iraq and trigger the same motivations that prompted many young men to respond to calls for jihad following the Abu Ghraib photo release. After the Abu Ghraib photos were publicized in 2004, there was a significant response to the call for jihad, with new extremists com mitting themselves to violence against U.S. forces. Al-Qaeda in Iraq (AQI) and Sunni insurgents groups in Iraq will likely use any release of detainee abuse images for propaganda purposes, and possibly as an opportunity to widen the call for jihad against U.S. forces, which could result in a near-term increase in recruiting and attacks. Anti-American and anti-Iraqi government pro tests can also be expected, with most of the anger likely directed towards the U.S. presence.49 With national elec tions approaching later in the year, Iraqi politicians can be expected to use the detainee images as fodder for their campaigns, especially in response to anti-U.S. sen timent that may increase as elections draw near and final U.S. withdrawal becomes more imminent. Addi tionally, pressure will mount on the Prime Minister to allow for a national referendum on the Security Agree ment and the Strategic Framework Agreement. (U) I declare under the penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on 27th May 2009. /s/ DAVID H. PETRAEUS DAVID H. PETRAEUS General, U.S. Army Commander, USCENTCOM4 72. APPENDIX K UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 06-3140-cv AMERICAN CIVIL LIBERTIES UNION, ET AL., PLAINTIFFS-APPELLEES v. DEPARTMENT OF DEFENSE, ET AL., DEFENDANTS-APPELLANTS [Filed: May 28, 2009] DECLARATION OF GENERAL RAYMOND T. ODIERNO I, General Raymond T. Odierno, pursuant to 28 U.S.C. § 1746, hereby declare as follows: 1. (U) I am the Commander of Multi-National Force-Iraq (MNF-I). MNF-I is the strategic headquar ters responsible for coalition operations in Iraq. I have served in the Iraq Theater of Operations (ITO) for 36 months in the past six years. The statements in this declaration are based upon my personal knowledge and upon information made available to me in the perfor mance of my official duties. In relevant areas I will re late the views and opinions of senior Iraqi leaders. 2. (U) Through the exercise of my official duties and as a result of my personal knowledge, I am familiar with this civil action and have reviewed the 21 photo graphic images ("the photos") that the district court ordered released on June 21, 2006, that are the subject of the appeal in ACLU v. Department of Defense, 543 F.3d 59 (2d Cir. 2008). For the reasons set forth in this declaration, I have concluded that the official release of these images, even if redacted to obscure identifying information, could reasonably be expected to: a. (U) Endanger the lives of U.S. and coalition Soldiers, Airmen, Marines, Sailors, civilians, and con tractors presently serving in Iraq; b. (U) Endanger the lives of Iraqi civilians, po lice, military personnel and government officials; c. (U) Aid in the recruitment and financing of extremists and insurgent groups; and d. (U) Undermine the improving security condi tions in Iraq. 3. (U) My conclusions are based on my years of service and experience in the United States military in general and Iraq in particular, intelligence and opera tions reports and assessments of the situation in Iraq, the assessments and evaluations of my subordinate com manders, the declarations made previously in this case, and regular interaction with Iraqi leaders. In particu lar: a. (U) I have served in the United States Army for over 32 years at various levels of command and staff. I have commanded units at every echelon, from platoon to theater. My staff experience includes serving as the Assistant to the Chairman of the Joint Chiefs of Staff, where I was the primary military advisor to Secretaries of State Colin Powell and Condoleezza Rice. I have ex tensive experience in Iraq, including command at the division, corps, and theater levels. I commanded the 4th Infantry Division, which was headquartered in the Sunni Triangle, when it was deployed to Iraq from April 2003 to March 2004. I commanded the Multi-National Corps- Iraq, which is the operational command responsible for coalition forces throughout Iraq, from December 2006 to February 2008, during the surge of U.S. forces. I as sumed my current command at Multi-National Force- Iraq, which is the strategic command responsible for coalition operations in Iraq, in September 2008. As a re sult of this experience, I have intimate and extensive knowledge of our forces and their capabilities, as well as those of the enemies who threaten U.S., Coalition, and Iraqi forces and interests. b. (U) I receive daily intelligence and operations briefings regarding the political, economic, diplomatic, and security environment in Iraq. These briefings are produced by subject-matter experts, and I rely on and trust their expertise and insights. c. (U) I frequently travel throughout Iraq to see firsthand the situation across the country. During these missions, I receive reports from subordinate operational and tactical commanders who provide insights from the local and regional levels. d. (U) I reviewed and relied upon the Declara tion of Brigadier General Carter F. Ham, dated April 26, 2006, and the Second Amended Declaration of the for mer Chairman of the Joint Chiefs of Staff, General Rich ard B. Myers, dated August 25, 2005, which were sub mitted to the district court regarding photos purporting to show detainee abuse. e. (U) I am constantly engaged with the senior political leaders in Iraq, who share with me their unique insights into the conditions within their country. As the conflict on Iraq will impact their nation for decades to come, I find their perspective to be persuasive. 4. (U) I strongly believe the release of these pho tos will endanger the lives of U.S. Soldiers, Airmen, Ma rines, Sailors and civilians as well as the lives of our Iraqi partners. Certain operating units are at particu lar risk of harm from the release of the photos. One ex ample is our training teams throughout Iraq. These are small elements of between 15 and 30 individuals who live on Iraqi-controlled installations and thus do not have the same protections afforded to many of our service mem bers. In addition, as they assist our Iraqi partners, members of such teams are regularly engaged in small- unit patrols, making them more vulnerable to insurgent attacks or other violence directed at U.S. forces. Ac cordingly, there is good reason to conclude that the sol diers in those teams and in similarly situated units would face a particularly serious risk to their lives and physical safety. 5. (U) The publication of these photos will be likely to significantly and adversely impact the MNF-I mission to develop a strategic partnership with a stable, secure, prosperous, and democratic Iraq that reflects its society and culture, stands as an ally in the war on ter ror, and contributes to peace and stability in the region. The photos will likely cause a very public and emotional response in Iraq and in the larger Arab world because the images may touch on a number of deep-rooted Arab cultural values that will resonate with the Iraqi public. The Iraqi public, if inflamed with emotion, may be easily manipulated by competitors seeking to exploit this op portunity to their full advantage. Many Arabs harbor long-standing perceived grievances against the west in general and the U.S. in particular. The release of these photographs likely will only fuel this resentment. 6. (U) In April 2004, news organizations published reports of U.S. abuses of Iraqi detainees that publicly disseminated an initial set of photographs taken at the Abu Ghraib prison. Extremist organizations including al Qaeda in Iraq (AQI) and Islamic State of Iraq (ISI) used the revelations of detainee abuse and copies of as sociated photographs to recruit and motivate organiza tion members. The graphic revelations of detainee abuse motivated some terrorists including foreign fight ers from Syria, Yemen and Saudi Arabia to join the ji had. Reporting also indicates that some organizations may have staged and disseminated photographs of Arab women being abused by men in U.S. uniforms. Extrem ist groups initially misrepresented the depicted abuse as evidence of the widespread rape of female Iraqi detain ees by U.S. soldiers as a further motivation for recruit ment and to support the exhortation for attacks against Coalition Forces (CF). 7. (U) The public dissemination of detainee abuse photos in 2004 likely contributed to a spike in violence in Iraq during the third quarter of 2004 as foreign fighters and domestic insurgents were drawn to Iraq to train and fight. Attacks on CF increased from around 700 in March 2004 to around 1800 in May (after the photo graphs were broadcast and published) and 2800 in Au gust 2004. Attacks on CF did not subside to March 2004 levels until June 2008. These increased attacks resulted in the death of CF, Iraqi forces, and civilians. 8. (U) The 2004 publication of detainee photos re sulted in a number of postings on internet websites. In May 2004, one posting called for the dissemination of photographs depicting Iraqi women being raped in U.S. prisons, "because now the timing is better than ever." Another posting referenced "torture and rape" of Mus lims in Iraqi prisons, while calling for Saudi security forces to refrain from assisting CF. In June 2004, sev eral Islamist, Jihadist, and Salafist websites provided links to an audio message, purportedly made by al- Qaeda leader Abu Musab al-Zarqawi. The message in cluded a threat to kill the Prime Minister of Iraq, Ayad Allawi, and referred to alleged degrading treatment suffered by female detainees. 9. (U) Perhaps the most gruesome of internet re actions to the photo publication was a video posted in May of 2004 showing the decapitation murder of U.S. contractor Nicholas Berg. A man believed to be Zar qawi specifically made the linkage between the abuses at Abu Ghraib and Berg's murder, saying, "And how does a free Muslim sleep comfortably watching Islam being slaughtered, and [its] dignity being drained. The shameful photos are evil humiliation for Muslim men and women in the Abu Ghraib prison. . . . We tell you that the dignity of the Muslims at the Abu Ghraib prison is worth the sacrifice of blood and souls. We will send you coffin after coffin and box after box slaughtered in this way." The June 2004 kidnapping and murder of U.S. contractor Paul Johnson, Jr. and other anti-West ern incidents in Saudi Arabia were possibly influenced by the coverage of Berg's kidnapping and murder. 10. (U) While conditions in Iraq have improved since the declaration of BG Ham and Gen Myers, I concur with their overall assessment of the potential impact of releasing images purporting to show detainee abuse. Extremist groups will likely use any means necessary to incite violence and, specifically, have and will likely fo cus on perceived U.S. or Coalition mistreatment of Iraqi civilians and detainees as a propaganda and recruiting tool to aid their cause. See BG Ham's Decl. ¶ 7 and Gen Myers' Decl. ¶ 8. The next six to eight months are a time of particular fragility in Iraq. Withdrawal of U.S. combat forces from Iraqi cities, villages, and localities, elections for the Kurdistan Regional Government, a na tional referendum on the Security Agreement, a national census, and national elections are tipping points in the near future that extremist groups reinvigorated by re lease of the photos may seek to manipulate through vio lence. 11. (U) MNF-I will likely experience an increase in security incidents particularly aimed at U.S. personnel and facilities following the release of the photos. Inci dents of spontaneous violence against U.S. Forces, pos sibly including attacks from outraged Iraqi police or army members are likely. This could weaken our part nership with the Iraqi Security Forces, decrease secu rity, and lead to more violence. Attacks against soft targets which represent visible symbols of U.S. presence or culture are also likely. Such increased attacks will put U.S. Forces, civilians, and Iraqi partners at risk of being killed, injured, or kidnapped. The photos will like ly be used as a justification for adversaries conducting retribution attacks against the U.S. for bringing shame on Iraq. 12. (U) Sunni ethno-sectarian nationalist and Is lamist resistance groups, Salafist-jihadist extremist groups and Shia armed militia groups all oppose the U.S. presence and will likely attempt to exploit the re lease in their propaganda campaigns. Anti-U.S. groups will likely attempt to misrepresent the photos as evi dence of continuing U.S. misconduct and noncompliance with international law and the standards of a humane and civilized society. The U.S. will also likely be por trayed as the continuing oppressor of Iraqis, Arabs and Muslims. In addition, opponents of a U.S. presence, such as the Sadrists and Iran, may use the photographs as propaganda supporting calls for a referendum on the U.S.-Iraq bilateral security agreement. The release of the photographs is likely to harden existing anti-US opinion in the Council of Representatives (COR), and in local and regional media. 13. (U) These propaganda measures will likely in crease popular and financial support for anti-U.S. groups and may have a positive influence on recruitment for some groups. In particular, Sadrist political figures and their associated groups may respond to the release of photos by calling for mass demonstrations against the continuing presence of U.S. forces in Iraq. 14. (U) The Security Agreement Referendum is scheduled for this summer. The release of the photos may incite the Iraqi public and cause the referendum to be defeated. If the referendum is defeated, U.S. Forces will be required to leave Iraq earlier than scheduled, further destabilizing the region and leaving Iraq vulner able to outside influences, especially from Iran. 15. (U) MNF-I detainee release and reconciliation initiatives may be impacted as adversaries exploit these images to increase recruiting and motivate members to conduct attacks against the U.S. Iraqi community and political leaders will likely seek to avoid any potential liability associated with ties to U.S. detainee operations. Detainees released from our facilities may provide a fo cused target for extremist recruiting by characterizing all former detainees as having an obligation to restore the honor taken from the specific victims in the photos. This characterization may gain momentum among those detainees who were already vulnerable due to unemploy ment or community hostility by making them believe that the taint of their detention in a U.S. facility leaves them with no options. 16. (U) I believe these images will be used to in flame outrage against the U.S. and be used by terrorist organizations to recruit new members. The release of the photos will likely incite Muslim idealists to join the cause to seek retribution for the dishonor they may per ceive to have been brought against all Muslims by the U.S. inside Iraq, the publicity over the images could in cite additional attacks on U.S. personnel by members of the Iraq Security Forces ("green-on-blue" attacks); whether individually motivated, or instigated by an ex tremist affiliation. Groups most likely to use this as an opportunity to recruit and engage in attacks against US Forces are Sunni foreign fighters and Sunni extremists. Groups more likely to use this as an opportunity to draw attention to Iraqi jurisdiction and the relationship be tween Iraq and the United States are Shia extremists. 17. (U) MNF-I will likely experience an increase in attacks against U.S. Forces and bases as the photos in cite retaliation by the Iraqi public. Iraqi Security Forces and the Government of Iraq (GoI) may experi ence a similar increase in attacks as a protest against the U.S./GoI partnerships. Less violent, but still posing a challenge for the U.S., may be an increase in the num ber of unspecified allegations of recent mistreatment in order to contradict our statements that the photos do not represent our policies, practices, or values. These claims could be exacerbated by calls for criminal prose cutions in Iraqi courts over U.S. servicemembers alleged to have engaged in mistreatment. 18. (U) The Iraqis, from their point of view, may feel largely excluded from the public discourse these im ages may generate in the U.S. and world stage. As was the case following Abu Ghraib, Iraqis may feel that the dignity of any Arab is of little consequence to the Ameri cans when compared to their own interests. The official positions and talking points of the various stakeholders may do little to refute their certainty. The Iraqis likely will express this sentiment in a very public way utilizing media, political, and cultural mechanisms. 19. (U) During my conversations with senior Iraqi officials, they have expressed extreme concern about the impact of the potential release of photos depicting actual or perceived abuse of detainees ("abuse photos"). Among their concerns were that release of such photos would increase the pressure to release individuals that U.S. forces are currently holding as security detainees. These individuals currently are being released in a safe and orderly fashion, and accelerating the process could disrupt the delicate security balance in Iraq. They also stated that those in violent opposition to the political process would likely use abuse photos to maximize sup port, increase funding, and stiffen the resistance. They believe that releasing such photos will result in an out break of violence directed at U.S. forces and facilities. Furthermore, they are concerned that releasing abuse photos will severely impact reconciliation as former op position elements meet resistance to reconciling with a Government that has aligned itself with the country that committed this abuse. 20. (S) [REDACTED] 21. (S) [REDACTED] 22. (S) [REDACTED] 23. (U) A senior member of a prominent Sunni poli tical group and a member of the Council of Representa tives (the COR is the parliament) told a senior MNF-I leader that insurgents and terrorist groups will exploit the release of abuse photos to steadily increase attacks against U.S. Forces and Iraqis working with U.S. Forc es. This COR member was consulted for a Sunni per spective, and he wished to emphasize that release of abuse photos would cause disturbances in Iraq: "With all due respect to freedom of information in the United States," for Iraq's sake he urged that they not be re leased at this time. "A release would disturb plans for [democratic] progress in the country because the Iraqi people would react poorly. In light of upcoming national elections, Iraqi politicians would exploit the situation to attract votes, further stirring things up." 24 (S) [REDACTED] 25. (U) A senior Shi'a member of the COR in a re cent discussion with a senior MNF-I leader also raised concerns that the release of abuse photos would disrupt Iraq's democratic process, its security environment, and U.S.-Iraq relations. He stated that this is the worst pos sible time to release abuse photos as it is just prior to the beginning of the second Iraqi national election sea son. The release, he explained, would only serve to em barrass the Maliki government. The release would also expose the Maliki government to criticism from political opponents like militant Sunni nationalists or the Sadrists who would want to use any tool available to em barrass the current government. Furthermore, the "op positionists" could tie the abuse scandal to their support for the U.S./Iraq Security Agreement (SA). He added that the lack of support could impact the ability of the GoI to defend the implementation of provisions in the SA, including any requests for U.S. military support in security operations in cities, villages, and localities, and implementing legal provisions concerning U.S. troops accused of crimes while conducting operations. More over, he explained that release of abuse photos would only serve to increase calls for a referendum on the Se curity Agreement and would prejudice the Iraqi public against any agreement that would serve Iraq and U.S. long term security interests. Release of abuse photos would serve insurgent or terrorist interests by providing them with a propaganda windfall that would help recruit and find support from the population since it would be inevitable that many in the Iraqi public would feel a de sire to take revenge on those whom they see as occupi ers who humiliated them. Finally, he stated release of abuse photos would, in his opinion, directly endanger U.S. troops and civilians attempting to support the GoI efforts to improve security and services to the popula tion as well as put Iraqi civilians at risk. 26. (U) Reconciliation among the various groups in Iraq is one of the prime efforts with which we support and assist the GoI. Recently, a senior official within the Government of Iraq who addresses reconciliation issues stated that timing now is poor for Iraq. He observed that those who support the reconciliation process might treat the photo release with equanimity, while those who oppose the political process would seek to use it as an instrument to create difficulties in advancing the strate gic relationship. Further, those who oppose the process through violent means would likely seek to use abuse photos to maximize their support, seek additional fund ing from regional paymasters, and use the anger gener ated as a "recruiting sergeant" to stiffen the resistance. He agreed this is a problematic issue that needs resolu tion, but now would not be a good time, and it would not assist the reconciliation process. 27. (U) Political competitors are likely to exploit abuse photos as a means to gain leverage or improve ne gotiating positions-this political maneuvering may be focused on MNF-I and our allies in the Government of Iraq. Indeed, this could be a destabilizing event for the Prime Minister and his government. Moreover, any key leaders associated with our detention programs, such as judges or tribal leaders who participate in recon ciliation efforts for released detainees, may distance themselves from the U.S. If publicly challenged, they could support a contrarian position against the U.S. Even if conditions do not rise to the level of green-on- blue attacks, units could experience increased tension from their Iraqi partner units, resulting in a reduction in the level of combined operations and training. This lack of partner unit cooperation would severely impact our ability to continue to operate under the Security Agreement, which requires agreement and coordination with the GoI. 28. (U) Iraq today is safer, but it is not without risk. The near future has several critical events that ex tremist groups may attempt to influence through vio lence. There are still attacks against coalition and Iraqi forces, and release of the photos would likely boost the recruiting and fund raising that enables those attacks. While not every attacker is as honest about his motiva tion as the murderers of Nicholas Berg, it is my belief, based on my years of experience and judgment, that release of the photos would reasonably be expected to destabilize the country and endanger American, Coali tion, and Iraqi lives. (U) I declare under the penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on 27 May 2009. /s/ RAYMOND T. ODIERNO RAYMOND T. ODIERNO General, U.S. Army Commanding General, MNF-I 73. APPENDIX L 1. The Freedom of Information Act, 5 U.S.C. 552, pro vides in pertinent part: Public information; agency rules, opinions, orders, re cords, and proceedings * * * * * (b) This section does not apply to matters that are- (1)(A) specifically authorized under criteria estab lished by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order; (2) related solely to the internal personnel rules and practices of an agency; (3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for with holding or refers to particular types of matters to be withheld; (4) trade secrets and commercial or financial infor mation obtained from a person and privileged or confi dential; (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency; (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwar ranted invasion of personal privacy; (7) records or information compiled for law enforce ment purposes, but only to the extent that the produc tion of such law enforcement records or information (A) could reasonably be expected to interfere with en forcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwar ranted invasion of personal privacy, (D) could reason ably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or au thority or any private institution which furnished infor mation on a confidential basis, and, in the case of a re cord or information compiled by criminal law enforce ment 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, (E) would disclose techniques and procedures for law enforcement investigations or prose cutions, or would disclose guidelines for law enforce ment investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual; (8) contained in or related to examination, operat ing, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or (9) geological and geophysical information and data, including maps, concerning wells. * * * * * 2. The Freedom of Information Act, 5 U.S.C. 552 (1982), provided in pertinent part: Public information; agency rules, opinions, orders, re cords, and proceedings * * * * * (b) This section does not apply to matters that are- * * * * * (7) investigatory records compiled for law enforce ment purposes, but only to the extent that the produc tion of such records would (A) interfere with enforce ment proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence inves tigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel; * * * * * 1 The Honorable John Gleeson of the United States District Court for the Eastern District of New York, sitting by designation. 2 In a letter dated June 29, 2006, the defendants informed the plain tiffs that they were withholding an additional 23 images of detainees based upon FOIA exemptions 6, 7(C), and 7(F), and that they would consider the release of those photographs to be governed by the final ruling in this case. 3 We therefore assume for the purposes of this appeal, but need not decide, that the photographs could reasonably be expected to incite vio lence against United States troops, other Coalition forces, and civilians in Iraq and Afghanistan. 4 We draw support from the fact that Congress elsewhere in the Code distinguishes between assessing a threat to a reasonably iden tifiable person and assessing a generalized threat to a broader group. The Bail Reform Act asks courts to determine whether a person's re lease from pretrial detention "will endanger the safety of any other person or the community." 18 U.S.C. § 3142(b) (2006) (emphasis add ed). The reference to the safety of "the community" would be superflu ous if such generalized risks could be captured by assessing threats to the safety of "any" person other than the releasee. This authorization to consider risks to the broader "community," considered necessary by Congress in the Bail Reform Act, is conspicuously absent from exemp tion 7(F). 5 FOIA's exemption 3, justifying withholding pursuant to other specific statutory authorization, § 552(b)(3), has also been applied to protect certain classes of national security information, see CIA v. Sims, 471 U.S. 159, 167-68 (1985) (holding CIA's organic statute quali fies as statutory authorization for withholding records of "intelligence sources and methods" under exemption 3). If anything, this demon strates that Congress has given due attention to the unique issues re lating to national security and further undermines the defendants' sug gestion that exemption 7(F) must be read to overlap the statutory scheme protecting national security information. 6 For more discussion of Congress's 1974 amendments to exemption 1, see Section B.3, infra. 7 The defendants have not explained whether the Army photos may be properly classified, and thereby rendered exempt from disclosure, or why that has not occurred. Their failure to invoke exemption 1 would not foreclose their resort to exemption 7(F) if it applied, but the exis tence of the separate national security exemption undercuts their argu ment that exemption 7(F) encompasses information solely because of the national security harm it threatens. 8 When FOIA was first enacted and modified by a minor stylistic amendment, the nine exemptions were articulated as follows: The provisions of this section shall not be applicable to matters that are (1) specifically required by Executive order to be kept secret in the interest of national defense or foreign policy; (2) related solely to the internal personnel rules and practices of an agency; (3) specifically exempted from disclosure by statute; (4) trade secrets and commercial or financial information obtained from any person and privileged or confidential; (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency; (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (7) investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency; (8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of any agency re sponsible for the regulation or supervision of financial institutions; and (9) geological and geophysical information and data (including maps) concerning wells. 5 U.S.C. § 552(b) (1967). 9 As amended in 1974, Section 552(b) provided as follows: This section does not apply to matters that are- (1)(A) specifically authorized under criteria established by an Ex ecutive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order; (2) related solely to the internal personnel rules and practices of an agency; (3) specifically exempted from disclosure by statute; (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in liti gation with the agency; (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) inter fere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforce ment authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investiga tion, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel; (8) contained in or related to examination, operating, or condition re ports prepared by, on behalf of, or for the use of an agency responsi ble for the regulation or supervision of financial institutions; or (9) geological and geophysical information and data, including maps, concerning wells. Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. 5 U.S.C. § 552(b) (1974); see also Pub. L. No. 93-502, § 2, 88 Stat. 1561, 1563-64 (1974) (amending FOIA exemptions). 10 S. 774 was passed by the Senate, but it was not acted on by the House during the 98th Congress. However, § 10 of the bill supplied the language for the 1986 amendments to exemption 7, and the Senate Judiciary Committee's report on § 10 of S. 774 was explicitly adopted by both the Senate and the House sponsors of those amendments. 132 Cong. Rec. S14,296 (daily ed. Sept. 30, 1986) (statement of Sen. Leahy) (adopting S. Rep. No. 221 as "set[ting] out the legislative history which should be consulted to determine the scope of the section we are adop ting in this bill"); 132 Cong. Rec. H9465-66 (daily ed. Oct. 8, 1986) (joint statement of Reps. English and Kindness) (similar). 11 As amended in 1986, exemption 7 allows government withholding of: records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement rec ords or information (A) could reasonably be expected to interfere with enforcement pro ceedings, (B) would deprive a person of a right to a fair trial or an impartial ad judication, (C) could reasonably be expected to constitute an unwarranted in vasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confi dential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confiden tial basis, and in the case of a record or information compiled by crim inal law enforcement authority in the course of a criminal investiga tion or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement in vestigations or prosecutions, or would disclose guidelines for law en forcement investigations or prosecutions if such disclosure could rea sonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual. 5 U.S.C. § 552(b)(7) (1986) 12 See also, e.g., Rugiero v. U.S. Dep't of Justice, 257 F.3d 534, 552 (6th Cir. 2001) (information about DEA agents who investigated FOIA plaintiff); Shores v. FBI, 185 F. Supp. 2d 77, 85 (D.D.C. 2002) (informa tion identifying three cooperating witnesses and others interviewed during investigation of FOIA plaintiff); Garcia v. U.S. Dep't of Justice, 181 F. Supp. 2d 356, 378 (S.D.N.Y. 2002) (information identifying gov ernment agents, private citizens and third parties who participated in investigation of FOIA plaintiff), cf. Ruston v. Dep't of Justice, No. 06-0224, 2007 WL 809698, at *6 (D.D.C. Mar. 15, 2007) (finding 7(F) in applicable where government failed to establish "palpable risk" to BOP psychologist's life or physical safety if former inmate's FOIA request were to be granted). 13 The other cases the defendants cite give even less consideration than does Living Rivers to the question of how far exemption 7(F) can be extended. In L.A. Times the government sought to withhold the names of private security contractors ("PSC's") working in Iraq be cause of the risk that insurgents could use that information to organize attacks on vulnerable PSC's and their projects. 442 F. Supp. 2d at 898. The court upheld the government's reliance on exemption 7(F), but did so without any discussion of the exemption's scope. Id. at 900. Simi larly, the brief discussion of exemption 7(F) in Center for National Se curity Studies examined only the causation component of the exemp tion, not the exemption's scope. See 215 F. Supp. 2d at 108 (accepting the government's representations that disclosure of locations of deten tion facilities in the United States holding people for investigation in the wake of September 11, 2001 would place life or physical safety at risk and noting an "absence of any contrary evidence, or any reason to dis credit the government's representations"). Moreover, in affirming that decision, the D.C. Circuit relied solely on exemption 7(A), and made no mention of the district court's reliance on exemption 7(F). See Ctr. for Nat't Sec. Studies v. U.S. Dep't of Justice. 331 F.3d 918, 933-34 (D.C. Cir. 2003). Finally, as noted in Section B.1, Brady-Lunny v. Massey misquotes the exemption, compare 185 F. Supp. 2d at 932 ("'Under 5 U.S.C. § 552(b)(7)(F), the Government is exempt from disclosing infor mation about any individual that 'could reasonably be expected to en danger life or physical safety.'"), with 5 U.S.C. § 552(b)(7)(F) (exempt ing law enforcement records from disclosure only if production of the records "could reasonably be expected to endanger the life or physical safety of any individual"), before, like the foregoing cases, simply as suming the issue currently before us. 14 It does cite Garcia, 181 F. Supp. 2d at 378, which supports the pro position that the individuals at risk need not be law enforcement per sonnel. Living Rivers, 272 F. Supp. 2d at 1321. But Garcia, which ap plied exemption 7(F) to justify withholding the names and identifying information for several private citizens who provided information to the FBI, 181 F. Supp. 2d at 378, provides no support for the proposition that the government need not identify the individuals in question, or that it may do so in the most general terms. 15 While the defendants here claim endangerment only to persons drawn from the populations of two nations and not the entire world, the defendants' reading of exemption 7(F) does not provide any limiting principle. 16 Still, because these two exemptions involve related standards, prec edent applying exemption 6 is relevant to our analysis of exemption 7(C). See Reporters Committee, 489 U.S. at 768 (applying exemption 6 caselaw to analysis of exemption 7(C)); see also FLRA, 958 F.2d at 509 (holding the same degree of privacy interest is required to trigger bal ancing pursuant to exemptions 6 and 7(C), though once a privacy inter est is implicated the two exemptions provide differing levels of protec tion). 17 The defendants have not relied on any privacy interest of the sol diers depicted in the Army photos, and we do not address that issue here. The district court considered the privacy rights of the soldiers during the redaction hearing, and found that where they appeared to pose for photographs, their consent removed any privacy interest that might otherwise have warranted redaction of their identifying features. 18 Outside the FOIA context, we have found that where the public right of access to judicial documents competes with privacy rights, "it is proper for a district court, after weighing competing interests, to edit and redact a judicial document in order to allow access to appropriate portions of the document." United States v. Amodeo, 44 F.3d 141, 147 (2d Cir. 1995). 19 One non-FOIA case cited by the defendants, Northwestern Memor ial Hospital v. Ashcroft, 362 F.3d 923 (7th Cir. 2004), supports the no tion that a privacy interest may be at risk even where identities are unknown. In Northwestern, the government subpoenaed medical rec ords of certain patients who received late-term abortions. Id. at 924. The records would be used in aid of the government's constitutional challenge to the Partial Birth Abortion Act of 2003, 18 U.S.C. § 1531, and would include details related to the patients' medical and sexual his tory. Id. at 929. In rejecting the government's efforts to gain access to such information for the purposes of litigation, the court noted the fol lowing: Even if there were no possibility that a patient's identity might be learned from a redacted medical record, there would be an invasion of privacy. Imagine if nude pictures of a woman, uploaded to the In ternet without her consent though without identifying her by name, were downloaded in a foreign country by people who will never meet her. She would still feel that her privacy had been invaded. The rev elation of the intimate details contained in the record of a late-term abortion may inflict a similar wound. Northwestern, 362 F.3d at 929. Northwestern, however, based its hold ing not on this hypothetical privacy analysis but on the patients' fear of recognition and retaliation in light of the highly charged political con troversy regarding abortion; the possibility that many pregnant women would not understand the redactions to protect their privacy; and the high likelihood of actual recognition despite the redactions. Id. at 928- 29. Northwestern is thus inapplicable here. 20 See, e.g., Miller v. Bell, 661 F.2d 623, 630-31 (7th Cir. 1981) (per curiam) (holding identifying information about FBI agents to be cov ered by exemption 7(C) and noting that public documents already pro vided substantial information about FBI's investigation), abrogated in part on other grounds by U.S. Dep't of Justice v. Landana, 50S U.S. 165, 181 (1993); N.Y. Times Co. v. NASA, 782 F. Supp. 628, 632-33 (D.D.C. 1991) (withholding audio recording of final words of astronauts in space shuttle disaster under exemption 6 in part because transcript was already public); In re KSTP Television, 504 F. Supp. 360, 362-64 (D. Minn. 1980) (concluding common law right of access to public rec ords did not justify disclosure of videotapes of blindfolded and bound kidnap victim when information had been made public at trial). 21 See Miller, 661 F.2d at 630 ("There is no allegation of wrongdoing by high-ranking government officials or indeed by any FBI personnel to support any public interest in any further probe into the thorough ness of the instant investigation."); N.Y. Times, 782 F. Supp. at 633 (finding information on tapes "sheds absolutely no light on the conduct of any Governmental agency or official"); KSTP Television, 504 F. Supp. at 363 ("In [the Abscam] case there was a definite public interest in release of the tapes because the tapes involved the alleged wrongdo ing of elected public officials. There is, however, no public interest to be served by release of the tapes here. . . ."). 22 We note in passing that the defendants did not produce any evi dence that any detainees pictured wished the redacted photographs to be withheld in order to protect their privacy. 23 With respect to the remainder of plaintiffs' outstanding requests, the Opinion and Order of September 15, 2004 required the government to produce responsive documents or identify them in a log to be publicly filed or examined ex parte and in camera. 24 The CIA informed plaintiffs on April 15, 2005 that all Office of In spector General ("OIG") documents pertaining to ongoing investiga tions or law enforcement activities were exempt under FOIA. The CIA subsequently informed plaintiffs, in a letter dated July 15, 2005, that all responsive documents in the files of the OIG that no longer relate to pending investigations or law enforcement proceedings were also ex empt under FOIA. 25 Plaintiffs also originally moved for summary judgment on Items 50 and 51. Defendant DOD claimed that there were no documents respon sive to requests 50 (Memorandum for MP and MI personnel at Abu Ghraib from Col. Marc Warren, regarding a new plan to restrict Red Cross access to Abu Ghraib) and 51 (Memorandum from a top legal ad viser to Lt. Gen. Ricardo S. Sanchez, to military intelligence and police personnel at Abu Ghraib, regarding a new plan to restrict Red Cross access to Abu Ghraib), except, potentially, a four-page memorandum, dated January 8, 2004, memorializing communications from the ICRC regarding a visit to Abu Ghraib, which DOD is withholding. Plaintiffs accordingly withdrew those two requests without prejudice to reassert ing them at a later date. 26 Tab A pertained to Item 8, which was no longer contested; I exam ined the documents provided under Tabs B, C, and D. 27 Since the parties have not advised me of any continuing issues, I consider this phase of the proceedings closed. 28 In response to my question at oral argument about whether a DOJ memorandum could instead be requested, and even possibly be ob tained, from the Department of Justice, the government represented that "agencies with the equities in the existence or nonexistence of documents tend to be the ones responding. So . . . it is appropriate that the CIA is litigating this issue." See Tr. of May 31, 2005, at 63. 29 Ms. Dorn has the requisite classification authority. See E.O. 12958 §§ 1.1(a), 1.3. 30 The recently enacted Intelligence Reform and Terrorism Preven tion Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (Dec. 17, 2004) (ex cept as otherwise expressly stated, effective not later than six months after enactment, as provided by section 1097 of such Act), amends the National Security Act. For example, section 1011(a) of the 2004 Act, 50 U.S.C.A. § 403-1(i)(1), provides that the "Director of National Intelli gence shall protect intelligence sources and methods from unauthorized disclosure." The government argues, however, that the withholding statute in effect at the time of plaintiffs' requests governs the requests. Plaintiffs have not challenged this position. I agree with the govern ment, see Pub. Citizen Health Research Group v. FDA, 704 F.2d 1280, 1284 (D.C. Cir. 1983) ("To invoke Exemption 3, an agency must demon strate that . . . a statute exists and was in effect at the time of the re quest. . . ."), and apply the withholding statute in effect at the time of plaintiffs' requests. 31 Perhaps as the agency with the greatest "equity" in the documents. See note 6, supra. 32 Exemption 2 exempts from FOIA matters that are "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). 33 Exemption 7(A) exempts "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). 34 Exemptions 1 and 3, and their implementing regulations and sta tutes, were discussed in the previous section of this Opinion, in connec tion with the CIA's Glomar response. 35 Item 10 requested videotapes, photographs and other records of abuse, including videotapes, photographs and other records of abuse ca talogued and stored in Guantánamo Bay facilities 36 Item 11 requested videotapes, photographs and other records de picting abuse at Iraqi facilities. 37 The government indicated at oral argument and in its reply papers that DOD had not yet finished processing all of the photographs and other media in its possession that might be responsive to requests 10 and 11, but that to the extent any such items already had been pro cessed and withheld under Exemptions 6 and 7(C), DOD would apply my rulings on the Darby photographs to any such images. I held at oral argument that that procedure was satisfactory. See Tr. of May 26, 2005, at 14; see also id., at 28 (suggesting that the parties, at the end of oral argument, create a schedule of items that need to be processed). 38 These figures reflected the number of images initially determined to be responsive. Other images on the two CDs provided by Darby to the Army's Criminal Investigation Command ("CID"), including dupli cates and photographs wholly unrelated to plaintiffs' concerns, are not part of this litigation. See Second Decl. of Phillip J. McGuire, Dir. of U.S. Army Crime Records Ctr., CID, dated Mar. 30, 2005, ¶¶ 3, 4 [hereinafter Second McGuire Decl.]. 39 Amicus curiae The American Legion, in a brief filed August 11, 2005, at 8-9, argues that the Darby photographs are not properly the subject of plaintiffs' FOIA requests since the photographs were actual ly under the control of courts martial or of military authority exercised in the field in time of war when plaintiffs made their second FOIA re quest on May 25, 2004. Since, however, the government is the party in interest and since the government has not raised this objection, I do not consider it. 40 As requested by the government, certain portions of the govern ment's submission-its Supplemental Memorandum of Law and supple mental declarations-were filed under seal in accordance with my Seal ing Order of July 28, 2005 to withhold (1) specific descriptions of the im ages whose release is in issue, and (2) sensitive information relating to national security and the United States' foreign relations. Plaintiffs ob jected to the sealing of the submission except with respect to the first item, the specific descriptions of the Darby photographs. However, I was able to establish consensus in enlarging the public record so that all the government's arguments could be made publicly. Oral argument on the expanded public record was held on August 15, 2005. This Opin ion discloses no fact or argument that is not part of the public record. 41 In its brief, at 4, amicus The American Legion suggests that be cause the Darby photographs "apparently concern, at least in part, ac tivities inside a reserve brigade of military police," the photos should be withheld because "[t]heir lives would be endangered by disclosure of the Darby photos, and they deserve no less protection than civilian po lice receive under the FOIA." The government makes no such argu ment, and indeed, it is clear from General Myers' declaration that he is concerned broadly about potential danger to all members of the United States' armed forces and public, as well as to Iraqi and Afghan person nel and civilians. 42 A separate addendum is attached that delineates the current status of disciplinary actions taken against those personnel who were involved in the abuse and mistreatment of detainees at Abu Grhaib [sic] some of which is depicted in the Darby photos. 43 The United States Government has not previously released the re sponsive photos to the general public, but, as required by law, has pro vided relevant photos to civilian and military defense counsel in military courts-martial proceedings. Those disclosures have been subject to the requirements and proscriptions of the Military Rules of Evidence, the Rules for Courts-Martial, the Military Rules of Professional Conduct, and applicable military precedent. 44 (S) [REDACTED] 45 (S) [REDACTED] 46 (C) [REDACTED] 47 (U) Release of detainee abuse images depicting, or that could be construed as depicting, U.S. forces abusing detainees in its custody in Iraq and Afghanistan could reasonably be expected to endanger the life or physical safety of diplomatic personnel via invigorated kidnapping and assassination attempts. 48 (S) [REDACTED] 49 (C) [REDACTED] SECRET protection in the interest of the national security.

Id. § 1.7(a). The Executive Order also provides for a Glomar response; in response to a FOIA request, "[a]n agency may refuse to confirm or deny the existence or nonexistence of requested records whenever the fact of their existence or nonexistence is itself classified under this order or its predecessors." Id. § 3.6(a).

29. (c) Exemption 3

The CIA also justifies its Glomar responses under Exemption 3, which exempts matters "specifically ex empted from disclosure by statute . . . (A) requir[ing] that the matters be withheld from the public in such a manner as to leave no discretion . . . , or (B) estab lish[ing] particular criteria for withholding or refer[ring] to particular types of matters to be with held." 5 U.S.C. § 552(b)(3). The framework for analyz ing agency withholdings under Exemption 3 was out lined earlier in connection with the ICRC documents. See A. Michael's Piano, Inc. v. Fed. Trade Comm'n, 18 F.3d 138, 143 (2d Cir. 1994) (requiring the government to show that "(1) the statute invoked qualifies as an ex emption 3 withholding statute, and (2) the materials withheld fall within that statute's scope").

The qualifying statute here is Section 103(c)(7) of the National Security Act of 1947, as amended, 50 U.S.C.A. § 403-3(c)(7) (West 2003), which commands the Director of Central Intelligence ("DCI") to "protect intelligence sources and methods from unauthorized disclosure."30 See CIA v. Sims, 471 U.S. 159, 167-68 (1985); Assassina tion Archives and Research Ctr. v. CIA, 334 F.3d 55, 58 (D.C. Cir. 2003). The CIA contends that a substantive answer to plaintiffs' requests can "reasonably be ex pected to lead to unauthorized disclosure of intelligence sources and methods." Wolf v. CIA, 357 F. Supp. 2d 112, 117 (D.D.C. 2004) (quoting Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982)).

The Supreme Court in Sims, analyzing the "intelli gence sources and methods" language of the statute, held that its "broad sweep" "comport[ed] with the na ture of the Agency's unique responsibilities." 471 U.S. at 169 (construing an earlier version of the statute au thorizing the DCI to protect "intelligence sources and methods"). The Supreme Court ruled that "the plain meaning of the statutory language, as well as the legisla tive history of the National Security Act . . . indicates that Congress vested in the Director of Central Intelli gence very broad authority to protect all sources of in telligence information from disclosure," and that the DCI, not the judiciary, has the responsibility to weigh the factors and decide if disclosure "may lead to an unacceptable risk of compromising the Agency's intelligence-gathering process." Id. at 168-69, 180; see also Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990) ("The assessment of harm to intelligence sources, methods and operations is entrusted to the Director of Central Intelligence, not to the courts." (citing Sims)).

30. (d) Analysis

The Glomar response, by which the agency neither admits nor denies that it possesses a requested docu ment, traces its roots to Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976) [hereinafter Phillippi I]. That case in volved the Glomar Explorer, a large ship ostensibly de signed for oceanic research. The ship was recorded as owned by the Summa Corporation, a corporation owned or controlled by Howard Hughes. However, according to accounts appearing in the media, the real owner and operator was the CIA. A controversy arose concerning whether the CIA-before the news stories appeared- had attempted to persuade the media not to publish these accounts. The plaintiff, Phillippi, a journalist, filed suit under FOIA to uncover such contacts between the CIA and the news media, demanding production of:

all records relating to the Director's or any other agency personnel's attempts to persuade any media personnel not to broadcast, write, publish, or in any other way make public the events relating to the ac tivities of the Glomar Explorer, including, but not limited to, files, documents, letters, [etc.].

Id. at 1011 n.1. The CIA, asserting that the "existence or nonexistence of the requested records was itself a classified fact exempt from disclosure under Sections (b)(l) and (3) of FOIA," id. at 1012, determined that "in the interest of national security, involvement by the U.S. Government in the activities which are the subject mat ter of [Phillippi's] request can neither be confirmed nor denied." Id. The CIA was concerned that admission or denial of contacts with the press would amount to admis sion or denial of its involvement with the Glomar Ex plorer project and would thereby compromise "intelli gence sources and methods" in violation of section 102(d)(3) of the National Security Act of 1947, 50 U.S.C. § 403(d)(3) (1970), and "severely damage the foreign relations and the national defense of the United States." Id. at 1011, 1013-14 (Aff. of Brent Scowcroft, Ass't to Pres. for Nat'l Sec. Affairs). As the Court of Appeals described the Issue:

In effect, the situation is as if appellant had reques ted and been refused permission to see a document which says either "Yes, we have records related to contacts with the media concerning the Glomar Ex plorer" or "No, we do not have any such records."

Id. at 1012. The Court of Appeals remanded to require the CIA to "submit a public justification, which is as de tailed as is possible, for refusing to confirm or deny the existence of the requested records." Id. at 1015 n.12. The Court of Appeals held that the district court should discharge its de novo review obligation by first creating "as complete a public record as is possible," and only then, if necessary, by "examin[ing] classified affidavits in camera and without participation by plaintiff's coun sel." Id. at 1013.

Later cases, relying on Phillippi I, have approved Glomar responses where substantive responses, either admitting or denying that particular documents existed, "would remove any 'lingering doubts' that a foreign in telligence service might have on the subject, and [where] the perpetuation of such doubts may be an important means of protecting national security." Frugone v. CIA, 169 F.3d 772, 774-75 (D.C. Cir. 1999) (citing Military Audit Project v. Casey, 656 F.2d 724, 745 (D.C. Cir. 1981)); see also Hunt v. CIA, 981 F.2d 1116, 1118 (9th Cir. 1992).

The danger of Glomar responses is that they encour age an unfortunate tendency of government officials to over-classify information, frequently keeping secret that which the public already knows, or that which is more embarrassing than revelatory of intelligence sources or methods. That over-classification was evident in Phil lippi, after administrations changed and "the govern ment acknowledged both that the CIA was responsible for the [Glomar Explorer] project" and that "CIA offi cials had tried to dissuade members of the press from publishing stories about it." Phillippi v. CIA, 655 F.2d 1325, 1328 (D.C. Cir. 1981) [hereinafter Phillippi II]. Yet, even then, the CIA was allowed to redact records to withhold descriptions of conversations between the CIA and the press. The district court rejected plaintiff's ar guments that since the world already knew, possibly from the CIA's own disclosures, that the real purpose of the Glomar Explorer apparently extended beyond oce anic research to raising a lost Russian submarine from the ocean floor, there could be no remaining statutory purpose to withhold descriptions of contacts with the press. The Court of Appeals upheld the district court's deference to the CIA, holding that courts lacked compe tence to decide such delicate questions affecting national security and should defer to "well-documented and spe cific affidavits of the CIA." Id. at 1330.

In sum, the line between what may be revealed and what must be concealed is itself capable of conveying information to foreign intelligence agencies. For this reason, this court cannot simply assume, over the well-documented and specific affidavits of the CIA to the contrary, that revelation of seemingly innocent information which might nonetheless jeopardize a fallback cover story is required under the FOIA, ei ther because the information in question has already been made public, or even, as in the present case, because it was disseminated for confidential pur poses by the CIA itself. Without the ability to engi neer controlled leaks of disinformation, the CIA would be deprived of the ability to disseminate a fall back cover while simultaneously protecting it.

Id. The Court of Appeals also accepted that there was a national interest in keeping foreign analysts in the dark, and leaving them unsure if that which was publicly disclosed was all that was secretly known. As the Court of Appeals put it:

FOIA does not require the CIA to lighten the task of our adversaries around the world by providing them with documentary assistance from which to piece together the truth.

Id. at 1332. And, further, even if the only question was whether to recognize officially that which was informally or unofficially believed to exist, the niceties of interna tional diplomacy sometimes make it important not to embarrass a foreign country or its leaders, and exemp tions from FOIA protect that concern as well. Id. at 1332-33.

Historians will evaluate, and legislators debate, how wise it is for a society to give such regard to secrecy. The practice of secrecy, to compartmentalize knowledge to those having a clear need to know, makes it difficult to hold executives accountable and compromises the basics of a free and open democratic society. It also cre ates a dangerous tendency to withhold information from those outside the insular group, for fear of compromis ing the sources and integrity of intelligence. The conse quences can be dire for, as noted in the 9/11 Commission Report, the strict need-to-know, proprietary approach to intelligence that has been employed by government agencies prevents the effective use of our vast store house of information. 9/11 Comm'n Rep. (2004), § 13.3, at 416-17 ("The biggest impediment to all-source anal ysis-to a greater likelihood of connecting the dots-is the human or systemic resistance to sharing informa tion."). Identities of terrorists may be locked in the files of one agency and not given to another, or reported, if at all, only at the very top of chains of command, denying real-time need to know by those at operating points. The insularity of information tends to cause a multiplic ity of intelligence-gathering agencies, each zealously protecting its own private sources in competition with other agencies. See, e.g., Judith Miller, A New York Cop in Israel, Stepping a Bit on F.B.I. Toes, N.Y. Times, May 15, 2005, § 1, at 37 (discussing tensions between the New York Police Department and the FBI arising from their separate intelligence-gathering endeavors abroad, in turn resulting from the NYPD's desire to have quick access, on an equal footing with federal agencies, to key counter-terrorism information).

There was no more cogent critic of the penchant by government officials to over-classify information than the late Senator Daniel Patrick Moynihan, and few with his competence and experience. Senator Moynihan, re flecting on his experiences as Chairman of the Commis sion on Protecting and Reducing Government Secrecy, among many other relevant positions, commented at the conclusion of his book, Secrecy:

[A] huge proportion of the government's effort at classifying is futile anyway. Let [George F.] Kennan have the last word. In a letter of March 1997 he writes: "It is my conviction, based on some 70 years of experience, first as a government official and then in the past 45 years as an historian, that the need by our government for secret intelligence about af fairs elsewhere in the world has been vastly over- rated." . . .

A case can be made . . . that secrecy is for los ers. For people who don't know how important infor mation really is. The Soviet Union realized this too late. Openness is now a singular, and singularly American, advantage. We put it in peril by poking along in the mode of an age now past. It is time to dismantle government secrecy, this most pervasive of Cold War-era regulations. It is time to begin building the supports for the era of openness that is already upon us.

Daniel Patrick Moynihan, Secrecy, 226-27 (Yale Univ. Press 1998); see generally Rep. of the Comm'n on Pro tecting and Reducing Gov't Secrecy (1997).

This is not to say that there is no room for secrets, or that the courts have the competence or the expertise of national security experts. Indeed, the courts generally respect the CIA's right to make a Glomar response. See Bassiouni v. CIA, 392 F.3d 244, 246 (7th Cir. 2004) ("Every appellate court to address the issue has held that the FOIA permits the CIA to make a 'Glomar re sponse' when it fears that inferences from Vaughn in dexes or selective disclosure could reveal classified sources or methods of obtaining foreign intelligence."). Most such cases involve requests by persons who claim to have had employment or other personal connections to the agency, or who seek such information about oth ers who may have had such relationships. By giving a Glomar response, the CIA is able to avoid identifying its employees, or targets, and their activities. See, e.g., id. at 245 (Glomar response necessary to avoid "reveal[ing] details about intelligence-gathering methods"); Frugone v. CIA, 169 F.3d 772, 774 (D.C. Cir. 1999) (Glomar re sponse necessary to avoid acknowledgment of employ ment); Minier v. CIA, 88 F.3d 796, 801-02 (9th Cir. 1996) (Glomar response necessary to avoid revealing if person was a CIA agent); Hunt v. CIA, 981 F.2d 1116, 1119 (9th Cir. 1992) ("[D]isclosure of the existence or non-exis tence of records pertaining to Eslaminia," an Iranian na tional allegedly murdered by Hunt, "is tantamount to a disclosure whether or not he was a CIA source or intelli gence target.").

Other cases defer to the CIA's unwillingness to de scribe its intelligence-gathering activities. See, e.g., Miller v. Casey, 730 F.2d 773, 774 (D.C. Cir. 1984) (up holding Glomar response to request for "information concerning alleged efforts by the United States and oth er countries to infiltrate intelligence agents and poten tial guerrillas into Albania during the period 1945-53"); Gardels v. CIA, 689 F.2d 1100, 1102-03 (D.C. Cir. 1982) (upholding Glomar response to request by a student at the University of California for "documents revealing covert CIA connections with or interest in the Univer sity"); Wolf v. CIA, 357 F. Supp. 2d 112, 114 (D.D.C. 2004) (upholding Glomar response to request by a re searcher for records concerning Jorge Elicier Gaitan, a former Colombian presidential candidate who was assas sinated in 1948); Earth Pledge Found. v. CIA, 988 F. Supp. 623, 625 (S.D.N.Y. 1996) (upholding Glomar re sponse to request for communications between the CIA station in the Dominican Republic and CIA headquar ters "pertaining to contacts with dissident elements, hostile to the regime of Rafael Trujillo").

In the present case, the CIA justifies its Glomar re sponses, in its publicly filed documents, by referencing the same types of concerns as those found in the cases. Ms. Dorn states that the "CIA would not request legal memoranda from DOJ or authorizations from the Presi dent for intelligence activities in which it had no inter est"; that "[m]erely acknowledging that the CIA sought legal opinions or authorizations addressing specific in terrogation and detention activities is itself classified because the answer provides information about the types of intelligence methods and activities that are available to the CIA or may be of interest to the CIA"; and that "[r]evealing that information reasonably could be expected to interfere with the United States Govern ment's collection of intelligence in the war on terror ism." Fourth Dorn Decl. ¶¶ 11-12. Further, Ms. Dorn states that our foreign relations could be compromised because hitherto cooperating countries "may be less willing to cooperate if the U.S. Government were to offi cially acknowledge CIA current or past clandestine in telligence activities and methods, or intelligence inter ests." Id. ¶ 15. In the Fifth Dorn Declaration, a classi fied document submitted to me in camera, Ms. Dorn provides further elaboration and describes particular ized harms to justify the agency's Glomar responses.

In Miller v. Casey, 730 F.2d 773 (D.C. Cir. 1984), the Court of Appeals upheld a Glomar response under Ex emptions 1 and 3 upon descriptions of specific probable harms that might flow from substantive admissions or denials. The request in Miller was for:

All information on attempts by the U.S., U.K., and other western countries to infiltrate intelligence ag ents and potential guerrillas into Albania during the period between the end of World War II and the death of Stalin in 1953, including but not limited to those operations apparently betrayed to the Rus sians by Kim Philby.

Id. at 774. In response, the Information Review Officer for the Directorate of Operations of the CIA (the same position held by Ms. Dorn), described why national secu rity and the United States' foreign relations would be compromised by a substantive disclosure:

1) disclosure now might prevent foreign countries from participating in future covert missions, 2) dis closure might hamper future relations with Albania, 3) a pattern of denials or affirmances would permit hostile nations to piece together a "catalog" of U.S. covert missions, 4) denial or affirmance would en able the Soviet Union to ascertain the reliability of its double agent, Kim Philby, 5) acknowledgement could jeopardize sources and sympathizers still with in Albania, 6) acknowledgement could hamper future recruitment of sources, and 7) acknowledgement would reveal the particular intelligence method- infiltration of agents-allegedly used in the mission.

Id. at 775-76.

The Information Review Officer showed also how acknowledging the existence of the Albanian program would reveal "intelligence sources or methods" in three possible ways, thereby compromising them: "by provid ing the critical confirmation which would allow Albanian leaders to identify participants in the covert action; by damaging future CIA efforts to recruit sources; and by revealing how, where and when the CIA has deployed its resources." Id. at 777-78. Upon these particularized justifications, the Court of Appeals upheld the CIA's Glomar response under Exemptions 1 and 3 to FOIA.

Courts interpret FOIA to afford agency affidavits "a presumption of good faith" and award agencies "sum mary judgment on the basis of affidavits" that are "ade quate on their face." Carney v. DOJ, 19 F.3d 807, 812 (2d Cir. 1994); see also Miller, 730 F.2d at 776 ("[T]he district court must accord substantial weight to an agency's affidavit concerning the details of the classi fied status of the disputed record." (quotations omit ted)). Clearly, the need for such deference is particu larly acute in the area of national security. The statu tory text of FOIA, however, requires the court to "de termine the matter de novo," 5 U.S.C. § 552(a)(4)(B), for "[i]n no case" is classification to conceal "violations of law" or "inefficiency, or administrative error," or to mask "embarrassment." See E.O. 12958 § 1.7; see also Phillippi I, 546 F.2d at 1013-15 & n.12. Largely, the courts fail to grapple with this tension, ruling instead that the administrative assertions of secrecy should be accepted without much, if any, de novo review.

In the case before me, Item 29, a DOJ memorandum specifying interrogation methods that the CIA may use against top Al-Qaeda members, and Item 61, a directive signed by President Bush granting the CIA the author ity to set up detention facilities outside the United States and/or outlining interrogation methods that may be used against detainees, specifically refer to "interro gation methods" alleged to be considered, and perhaps used, by the CIA in connection with detainees in United States' custody. The discussions of these documents in the public press, undoubtedly arising from numerous leaks of the documents, raise concern, however, that the purpose of the CIA's Glomar responses is less to protect intelligence activities, sources or methods than to con ceal possible "violations of law" in the treatment of pris oners, or "inefficiency" or "embarrassment" of the CIA. Compare 50 U.S.C.A. § 403-3(c)(7) (West 2003) (protect ing intelligence sources and methods), and E.O. 12958 § 1.4 (same; permissible subjects of classification), with E.O. 12958 § 1.7 (criteria that forbid classification). The Dorn Declarations amply discuss the need to protect "intelligence sources and methods." But they do not de scribe the intelligence sources or methods themselves, or reflect any discussion within the administration whe ther the particular methods might constitute a "viola tion[] of law," or an "embarrassment," or administrative "inefficiency" or "error," when debate on these points within the administration probably occurred, as sug gested by the discussions in the press. See E.O. 12958 § 1.7. And since the existence of the documents that plaintiffs request, which give rise to all this controversy, is neither admitted nor denied, there is nothing to show the court that might allow me to arrive at my own con clusions. In short, I am not given enough relevant infor mation to make the de novo determinations that FOIA would seem to require. See 5 U.S.C. § 552(a)(4)(B).

Nevertheless, under the cases and notwithstanding FOIA's clear statutory command, there is small scope for judicial evaluation in this area. See, e.g., Phillippi II, 655 F.2d 1325. The Fifth Dorn Declaration sets out that which the cases require. See Miller, 730 F.2d 773. The agency's arguments that it should not be required officially to acknowledge the precise "intelligence activi ties" or "methods" it employs or considers-for exam ple, whether it has any role whatsoever in the interroga tion of detainees-are given deference by the courts, for the CIA, not the courts, is deemed to have the compe tence to "weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the Agen cy's intelligence-gathering process." Sims, 471 U.S. at 180; see also Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990) (disapproving the district court's performance of "its own calculus as to whether or not harm to the national security or to intelligence sources and methods would result from disclosure"). On the basis of the Fourth and, in particular, the Fifth Dorn Declarations, I accept the CIA's Glomar response with respect to Items 29 and 61 of the August 16, 2004 List.

Item 1, however, a "[m]emorandum from DOJ to CIA interpreting the Convention Against Torture," does not, by its terms, implicate "intelligence sources or meth ods." The CIA's Glomar response to that item focuses, not on plaintiffs' demand, but on plaintiffs' effort to ex plain to the government why, because of frequent refer ences in the public press, it should not be difficult for the government to process its response. Thus, plaintiffs re ferred to news reports of interrogation techniques that may have been justified in the memorandum, such as "sleep deprivation," the "use of phobias," and the "de ployment of 'stress factors,'" distinguishing such prac tices from those that cause "severe physical or mental pain" characteristic of torture. The CIA justifies its Glomar response not on the text of the demand, but on all those references, as if they were part of the demand itself. See Fourth Dorn Decl., at 5 n.4. In effect, the agency seeks to use plaintiffs' attempt to provide assis tance to the government in identifying the memorandum as a basis for withholding information about the item requested. But plaintiffs' speculation as to the possible contents of the memorandum is not controlling; rather, it is the unembellished request set forth in the August 16, 2004 List (set out in the "Description of Record" col umn) that controls. The List was created for the benefit of defendant agencies, and they must be bound by it. See Miller, 730 F.2d at 777 (The "agency [i]s bound to read [the request] as drafted, not as either agency offi cials or [the requester] might wish it was drafted."). I rule, therefore, that acknowledging whether or not the memorandum requested by plaintiffs exists reveals nothing about the agency's practices or concerns or its "intelligence sources or methods." Available exemptions can be proved if necessary to avoid compromise, if any, to the interest of national defense or foreign policy. Since the government has failed in its burden to justify its Glomar response, see 5 U.S.C. § 552(a)(4)(B); Hal pern v. FBI, 181 F.3d 279, 287 (2d Cir. 1999); Carney v. DOJ, 19 F.3d 807, 812 (2d Cir. 1994), the government shall produce the documents relating to Item 1, or prove that the same are exempt from production.

31. IV. CIA Request to DOD to Detain an Iraqi Suspect Without Identifying the Suspect

The fourth set of issues involves seventy-one docu ments responsive to Item 43 of the August 16, 2004 List, a request by former CIA Director Tenet to Defense Sec retary Rumsfeld that the DOD hold an Iraqi suspect at a high-level detention center, but that he not be listed on the prison rolls, and an order by Secretary Rumsfeld implementing the request. The CIA, responding on be half of the government,31 withheld the documents under Exemptions 1, 2,32 3, 5 and 7(A).33 In particular, with respect to Exemption 1, the CIA relied upon Executive Order 12958, which governs the classification of national security information. With respect to Exemption 3, the CIA relied upon the National Security Act, 50 U.S.C.A. § 403-3(c)(7) (West 2003), and Section 6 of the Central Intelligence Agency Act of 1949, as amended,

 

50 U.S.C.A. § 403g (West Supp. 2003), as the statutes furnishing the requisite authority to withhold.34

The CIA supported its position by providing a Vaughn index of 126 pages, describing each document by its length and general subject matter, but not as to its specific content. See Fourth Dorn Decl., Ex. A. At the end of each description, Ms. Dorn represented that "There is no meaningful, reasonably segregable portion of the document that can be released."

Plaintiffs challenge whether, indeed, there are no "meaningful, reasonably segregable" portions of the documents. If there are, those portions must be pro duced. See 5 U.S.C. § 552(b) ("Any reasonably segre gable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection."). Plaintiffs asked the court to review in camera each of the seventy- one responsive documents. Plaintiffs do not press their challenge to Ms. Dorn's showing that the documents overall are exempt from production.

An agency seeking to withhold material may satisfy its burden under FOIA by affidavits evincing a thorough search and providing reasonably detailed explanations for the withholding. Carney v. DOJ, 19 F.3d 807, 812 (2d Cir. 1994). Cases generally disfavor in camera in spections by district court judges as the primary method for resolving FOIA disputes. See, e.g., NLRB v. Rob bins Tire and Rubber Co., 437 U.S. 214, 224 (1978) ("The in camera review provision is discretionary by its terms, and is designed to be invoked when the issue before the District Court could not be otherwise resolved; it thus does not mandate that the documents be individually examined in every case."); Halpern v. FBI, 181 F.3d 279, 287 (2d Cir. 1999) ("When a government agent can attest in a sworn affidavit that the redactions are necessary, and elaborate on the reasons for the redactions with sufficient specificity, the district court should be able to rule on the appropriateness of the redactions without conducting an in camera review of the redacted materi als."); PHE, Inc. v. DOJ, 983 F.2d 248, 253 (D.C. Cir. 1993) (noting that in FOIA cases "in camera review is generally disfavored").

However, when a court is not able to resolve to its own satisfaction an agency's determination to withhold documents, it may require a further showing by the agency and, if necessary, it may conduct an in camera review. See Halpern, 181 F.3d at 295 (ruling that, on remand, "the district court may, in its discretion, order in camera review of the unredacted documents them selves," and remarking that [i]n camera review is con sidered the exception, not the rule, and the propriety of such review is a matter entrusted to the district court's discretion" (quoting Local 3, Int'l Bhd. of Elec. Workers, AFL-CIO v. NLRB, 845 F.2d 1177, 1180 (2d Cir. 1988))).

Ms. Dorn's Fourth Declaration describes the na ture of each of the seventy-one documents, and the pro cedures by which she determined non-segregability with respect to each document. Fourth Dorn Decl. ¶ 22, Ms. Dorn's statement that a "line-by-line review was conducted for all the documents, individually and as [a] whole" is undocumented, and her statement that "there are no meaningful, reasonably segregable, non- exempt portions" of the seventy-one documents is con clusory, for she does not describe the individual docu ments paragraph by paragraph and line by line. Id. FOIA provides that the district judge has the responsi bility, ultimately, to make the determination, 5 U.S.C. § 552(a)(4)(B), and I determined that there was no feasi ble way for me to evaluate the conclusory determination of lack of segregability at the end of each of Ms. Dorn's document descriptions without viewing at least a sample of the documents in camera.

I ordered the plaintiffs to select a sample size of fif teen documents, that is, about 20% of the total set of seventy-one responsive documents, and the government to re-review those fifteen to confirm that there are no segregable portions that may be released, subject to my review. Plaintiffs identified the fifteen documents to be reviewed, numbered according to the numbering scheme provided in Ms. Dorn's Fourth Declaration-13, 39, 263, 269, 273, 279, 291, 304, 335, 337, 346, 402, 428, 429, and 431-and the government re-reviewed them, and con firmed its position as to non-segregability.

Following this confirmation by the government, the CIA, in further support of its position, provided two classified declarations, Decl. of Porter J. Goss, Dir., CIA, dated Aug. 3, 2005; Sixth Decl. of Marilyn A. Dorn, dated Aug. 5, 2005, which I reviewed in camera. The Sixth Dorn Declaration furnishes a further explanation of the agency's determination of non-segregability, and attaches an eighty-eight page Vaughn index addressing solely the fifteen documents identified by plaintiffs. The agency argues that the Sixth Dorn Declaration and Vaughn index should avert the need for an in camera review of the fifteen documents themselves, but, to the extent I determine otherwise, the agency is prepared to provide minimally redacted versions of the documents. The Declaration of CIA Director Goss describes the in formation that is redacted.

I have reviewed the Goss Declaration and the Sixth Dorn Declaration. The explanations provided therein more substantially support the agency's position. In particular, the Vaughn index attached to the Sixth Dorn Declaration conveys a better sense of the nature and contents of the sample fifteen documents identified by plaintiffs. Accordingly, I am now satisfied that there is no meaningful, reasonably segregable, non-exempt por tion of the seventy-one documents that can be produced. See Halpern, 181 F.3d at 294 ("What a district court needs from the government, in a Vaughn affidavit, is information that is . . . specific enough to obviate the need for an in camera review. . . ."). Since plaintiffs' objection was restricted to the issue of segregability, and since plaintiffs have not objected to my tentative ruling that the Goss Declaration and Sixth Dorn Decla ration sufficed, I now consider the fourth dispute to be closed and grant summary judgment to the government.

32. V. The Darby and Related Photographs of Abuse of Detainees

Plaintiffs and defendants seek summary judgment with respect to DOD's withholding of certain photo graphs and videotapes depicting abuse of detainees (Items 10,35 11,36 and 69) in Guantánamo Bay and Iraq. Oral argument focused on Item 69,37 which requested a "report of Detainee mistreatment and a CD with photo graphs that Joseph Darby, a military policeman as signed to Abu Ghraib, provided to the Army's Criminal Investigations Division." The government initially rep resented that 144 original photographs and four movies were responsive, 38 and that the images "were taken for personal, rather than official, purposes." Defs.' Reply Br., at 27 n.12.

I first reviewed, ex parte and in camera, a sample of eight photographs offered by defendant DOD. My Or der dated June 1, 2005 reflected my rulings on the re sponsiveness of each photograph in the sample, as well as on the appropriateness and extent of redactions in connection therewith, and I required the government to apply those rulings to all photographs responsive to plaintiffs' requests. The government processed the re maining photographs taken by Darby, and determined that eighty-seven photographs and four movies, re dacted as appropriate, were responsive. See Third Decl. of Phillip J. McGuire, Dir. of U.S. Army Crime Records Ctr., CID, dated July 20, 2005, ¶ 6. In a session held in camera and ex parte on August 9, 2005, I viewed all eighty-seven photographs and four videos (collectively, the "Darby photographs"), in both their unredacted and redacted forms.

33. (a) Exemptions 6 and 7(C)

The government, contending that FOIA Exemp tions 6, 7(C), and 7(F), 5 U.S.C. § 552(b)(6), (b)(7)(C), (b)(7)(F), apply, opposes the release of the Darby photo graphs. Exemption 6 exempts:

personnel and medical files and similar files the dis closure of which would constitute a clearly unwar ranted invasion of personal privacy.

Exemption 7 exempts:

records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with en forcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or for eign agency or authority or any private institution which 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 conduct ing a lawful national security intelligence investiga tion, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investiga tions or prosecutions if such disclosure could reason ably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual.

I first address Exemptions 6 and 7(C); Exemption 7(F) will be addressed separately in a later section.

The government argues that release of the Darby photographs, even if redacted, would constitute an "un warranted invasion of personal privacy." The govern ment contends that even though the public, in Iraq and elsewhere, has seen photographs from Abu Ghraib when first they appeared in the press, presumably similar to the Darby photographs, the individuals depicted in the photographs would be recognized, even from redacted photographs.

Exemptions 6 and 7(C) contain the identical phrase "unwarranted invasion of personal privacy." Exemption 6, however, has been interpreted to present a higher standard, since the agency must establish that disclo sure "would" constitute a "clearly unwarranted" inva sion, whereas Exemption 7(C) allows for the withholding of records or information that "could reasonably be ex pected" to constitute an "unwarranted" invasion. DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 756 (1989). Nonetheless, both exemptions require similar considerations by the reviewing district court. See, e.g., FLRA v. Dep't of Veterans Affairs, 958 F.2d 503, 510 (2d Cir. 1992) ("And though Reporters Commit tee involved Exemption 7(C) its discussion governs Ex emption 6, for the noted differences bear only on the type of information sought and the degree of invasion to a privacy interest that will be tolerated.").

Exemption 6 is to be interpreted broadly as encom passing "information which applies to a particular indi vidual," Dep't of State v. Washington Post Co., 456 U.S. 595, 602 (1982); in general, this exemption protects "in dividuals from the injury and embarrassment that can result from the unnecessary disclosure of personal infor mation." Id. at 599. When such information is sought, courts are to "determine whether release of the informa tion would constitute a clearly unwarranted invasion of that person's privacy." Id. at 602.

Under Exemption 7, "the government must demon strate that (1) the document was compiled for law en forcement purposes, and (2) release of the material would result in one of the harms enumerated in the stat ute," Ortiz v. Dep't of Health and Human Servs., 70 F.3d 729, 732 (2d Cir. 1995)-in the case of 7(C), an "un warranted invasion of personal privacy." If there is a "personal privacy interest recognized by the statute," courts consider whether the "privacy claim is out weighed by the public interest in disclosure." Nat'l Ar chives and Records Admin. v. Favish, 541 U.S. 157, 160 (2004); see also Dep't of Veterans Affairs, 958 F.2d at 510 ("[O]nce a more than de minimis privacy interest is implicated the competing interests at stake must be bal anced in order to decide whether disclosure is permitted under FOIA.").

34. (b) Analysis

A question may be raised as a threshold matter with respect to Exemption 7(C)'s application to the Darby photographs, whether the photographs were indeed "compiled for law enforcement purposes." The govern ment represents that the Army Criminal Investigation Command ("CID") "opened a report of investigation immediately after receiving these photographs" and that the information therein contained has "been used exten sively by CID agents to conduct the investigations into incidents of abuse of detainees at Abu Ghraib." Defs.' Br., at 67-68 (citing Second McGuire Decl., ¶ 6). The government claims, accordingly, that the Darby photo graphs were "compiled for law enforcement purposes."39 Plaintiffs appear to agree with this analysis. See Pls.' Reply Br., at 16-17 n.4.

Accordingly, even though the Darby photographs were, in the government's own words, "taken for per sonal, rather than official, purposes," Defs.' Reply Br., at 27 n.12, I will assume for the purposes of Exemption 7 that the Darby photographs were "compiled for law enforcement purposes." This assumption is consistent with case law under FOIA. See Ortiz, 70 F.3d at 732-33 (an unsigned, unsolicited letter used by the Department of Health and Human Services' Office of Inspector Gen eral to launch a criminal investigation, and kept in its investigative files, was "compiled for law enforcement purposes"); Dep't of Veterans Affairs, 958 F.2d at 508 ("To qualify as agency records, the requested informa tion must either be created or obtained by the agency and within its control at the time the FOIA request is made."); see also Ctr. for Nat'l Sec. Studies v. DOJ, 331 F.3d 918, 926 (D.C. Cir. 2003) (requiring "(1) a rational nexus between the investigation and one of the agency's law enforcement duties; and (2) a connection between an individual or incident and a possible security risk or vio lation of federal law"); Quiñon v. FBI, 86 F.3d 1222, 1228 (D.C. Cir. 1996) (examining if the record was "cre ated or acquired in the course of an investigation").

I am satisfied from my review that publication of redacted photographs will not constitute an "unwar ranted invasion of personal privacy," since all identify ing characteristics of the persons in the photographs have been redacted, and therefore, as a preliminary matter, I do not find a cognizable "invasion of personal privacy." If, as the government argues, the protagonists might recognize themselves in re-publications of the photographs, or be recognized by members of the public, see, e.g., Massey v. FBI, 3 F.3d 620, 624 (2d Cir. 1993) ("Persons can retain strong privacy interests in govern ment documents containing information about them even where the information may have been public at one time." (citing Reporters Committee, 489 U.S. at 762- 63)), even without identifying characteristics being re vealed, that possibility is no more than speculative, a speculation which could apply equally to textual descrip tions without pictures.

The Supreme Court addressed similar concerns in Dep't of the Air Force v. Rose, 425 U.S. 352 (1976), as further explained in Reporters Committee, 489 U.S. at 768-69 (1989) (remarking that "much of our discussion" in Rose, which dealt with Exemption 6, was applicable to Reporters Committee, which dealt with Exemption 7(C)). Rose involved a request submitted to the Air Force for case summaries of honor and ethics hearings, with personal references and other identifying informa tion removed from the summaries. The summaries were kept in the United States Air Force Academy's Honor and Ethics Code reading files, and were regularly posted on forty squadron bulletin boards and circulated to various faculty members and administration officials. 425 U.S. at 355. Without examining the summaries to form its own view, the district court held that Exemp tion 6 was unavailable to the Air Force because "disclo sure of the summaries without names or other identify ing information would not subject any former cadet to public identification and stigma, and the possibility of identification by another former cadet could not, in the context of the Academy's practice of distribution and official posting of the summaries, constitute an invasion of personal privacy proscribed by § 552(b)(6)," but it granted summary judgment to the Air Force on other grounds. Id. at 357.

The Second Circuit reversed, concluding that the district court's decision "'ignores certain practical reali ties' which militated against the conclusion 'that the Agency's internal dissemination of the summaries less ens the concerned cadets' right to privacy, as embodied in Exemption Six.'" Id. at 358 (quoting 495 F.2d 261, 267-68 (2d Cir. 1974)). The Court of Appeals remanded for further proceedings in which the Air Force was to "'produce the summaries themselves in court' for an in camera inspection 'and cooperate with the judge in re dacting the records so as to delete personal references and all other identifying information. . . . [The Court of Appeals thought] it highly likely that the combined skills of court and Agency, applied to the summaries, will yield edited documents sufficient for the purpose sought and sufficient as well to safeguard affected per sons in their legitimate claims of privacy.'" Id. The Supreme Court affirmed, id. at 380-82, and, as it later explained in Reporters Committee, approved the proce dure by which the district court was to remove identify ing information and thereby protect the claimed privacy interest:

[W]e doubly stressed the importance of the privacy interest implicated by disclosure of the case summa ries. First: We praised the Academy's tradition of protecting personal privacy through redaction of names from the case summaries. But even with names redacted, subjects of such summaries can of ten be identified through other, disclosed informa tion. So, second: Even though the summaries, with only names redacted, had once been public, we rec ognized the potential invasion of privacy through later recognition of identifying details, and approved the Court of Appeals' rule permitting the District Court to delete "other identifying information" in order to safeguard this privacy interest.

489 U.S. at 769; see also id., 489 U.S. at 762, 771 (exam ining the personal privacy interest "in avoiding disclo sure of personal matters" and finding substantial pri vacy interest in criminal rap sheets, even though "events summarized in a rap sheet have been previously dis closed to the public"). The Court has reaffirmed that the "redaction procedure is . . . expressly authorized by FOIA." Dep't of State v. Ray, 502 U.S. 164, 174 (1991) (applying Exemption 6).

The procedures I adopted and the rulings I made in the in camera sessions embody the principles set out in Rose and Reporters Committee. I examined each of the Darby photographs, in both its original and redacted forms. Where I determined that the government could better mask identifying features, I ordered it to do so. Furthermore, in the case of a certain small number of photographs, mainly of female detainees, and one of the videos, where the context compelled the conclusion that individual recognition could not be prevented without redaction so extensive as to render the images meaning less, I ordered those images not to be produced. Having viewed the remaining Darby photographs, as thus re dacted, I hold that there is no "invasion of personal pri vacy" under Exemptions 6 and 7(C). See, e.g., Ray, 502 U.S. at 175-76 (noting that "disclosure of such personal information [regarding marital and employment status, children, living conditions and attempts to enter the United States] constitutes only a de minimis invasion of privacy when the identities of the interviewees are un known"). If, because someone sees the redacted pic tures and remembers from earlier versions leaked to, or otherwise obtained by, the media that his image, or someone else's, may have been redacted from the pic ture, the intrusion into personal privacy is marginal and speculative, arising from the event itself and not the redacted image.

Moreover, even were I to find an "invasion of per sonal privacy," any further intrusion into the personal privacy of the detainees by redacted publications would be, with the exception of the small number described above, minimal and, under a balancing analysis, not "un warranted" in light of the public interest policy of FOIA. The Supreme Court has set forth its most recent itera tion of the balancing analysis under Exemption 7(C) in Nat'l Archives and Records Admin. v. Favish, 541 U.S. 157 (2004); see also Reporters Committee, 489 U.S. at 772 ("[W]hether disclosure of a private document under Exemption 7(C) is warranted must turn on the nature of the requested document and its relationship to the basic purpose of the Freedom of Information Act to open agency action to the light of public scrutiny, rather than on the particular purpose for which the document is be ing requested.") (quotations omitted). As discussed above, since Exemption 7(C) contains the easier burden for the government, I address that Exemption. See Re porters Committee, 489 U.S. at 762 n.12 ("Because Ex emption 7(C) covers this case, there is no occasion to address the application of Exemption 6.").

In Favish, the Supreme Court held that the public interest in photographs of the death scene of Vincent Foster, Jr., deputy counsel to President Clinton, was insufficiently supported in light of the substantial inter est in privacy of Vincent Foster's family. The Court arrived at this holding after asking whether the informa tion requested would advance a significant public inter est:

Where the privacy concerns addressed by Ex emption 7(C) are present, the exemption requires the person requesting the information to establish a suf ficient reason for the disclosure. First, the citizen must show that the public interest sought to be ad vanced is a significant one, an interest more specific than having the information for its own sake. Sec ond, the citizen must show the information is likely to advance that interest. Otherwise, the invasion of privacy is unwarranted.

Favish at 172.

With the exception of the small number of Darby photographs that I ordered to be withheld, where the risk of exposure is too great and the informational value is minimal, the balancing analysis weighs in favor of dis closure in the present case. There is a substantial public interest in these pictures, evidenced by the active public debate engendered by the versions previously leaked to the press, or otherwise obtained by the media. See dis cussion in section (c) of this Opinion, infra. Moreover, the government concedes that wrongful conduct has oc curred. Defs.' Br., at 70-72. Plaintiffs assert that they seek release of the Darby photographs to inform and educate the public, and to spark debate about the causes and forces that led to the breakdown of command disci pline at Abu Ghraib prison and, possibly, by extension, to other prisons in Iraq, Afghanistan, Guantánamo, and perhaps elsewhere. These are the very purposes that FOIA is intended to advance. The photographs are sought to "shed[] light on an agency's performance of its statutory duties" and to "contribut[e] significantly to public understanding of the operations or activities of the government." Pls.' Reply Br., at 24 (quoting Report ers Committee, 489 U.S. at 773 & 775). As I remarked at oral argument:

photographs present a different level of detail and a different medium, and are the best evidence that the public could have as to what occurred at a particular time, better than testimony, which can be self-serv ing, better than summaries, which can be misleading, and better even than a full description no matter how complete that description might be.

Tr. of May 26, 2005, at 14. There is no alternative, less intrusive means by which the information may be elic ited. See, e.g., Dep't of Def. Dep't of Military Affairs v. FLRA, 964 F.2d 26, 29-30 (D.C. Cir. 1992). The redac ted originals, rather than piece-meal leaks and possibly partial depictions of several of the pictures, are more probative of what Darby and his fellow military person nel actually did. Under the requirements of Favish, the claimed public interest in production of the redacted photographs is substantiated and far outweighs any speculative invasion of personal privacy.

The government also opposes production because, it argues, doing so would conflict with the United States' obligations under the Geneva Conventions. The Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, 6 U.S.T. 3316, 74 U.N.T.S. 135 (the "Third Geneva Convention") provides that a detain ing power must protect a prisoner of war "particularly against acts of violence or intimidation and against in sults and public curiosity." Art. 13. The Geneva Con vention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 (the "Fourth Geneva Convention") provides that civilians under detention are entitled to "respect for their persons, their honor. . . . shall at all times be treated humanely, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity." Art. 27.

Defendants present evidence that the United States historically has interpreted these two conventions to forbid the taking and publishing of photographs of de tainees, see Decl. of Edward R. Cummings, Ass't Legal Adviser for Arms Control and Verification, Dep't of State, dated Mar. 24, 2005, ¶¶ 12-17 [hereinafter Cum mings Decl.], and argue that publication of the photo graphs in this case would conflict with the United States' treaty obligations thereunder. See id. ¶ 19; Decl. of Geoffrey S. Corn, Special Ass't to Judge Advocate Gen. for Law of War Matters, Dep't of Army, dated Mar. 25, 2005, ¶¶ 10-11 [hereinafter Corn Decl.]. The govern ment's treaty interpretations are entitled to respect. See Kolovrat v. Oregon, 366 U.S. 187, 194 (1961) ("While courts interpret treaties for themselves, the meaning given to them by the departments of government partic ularly charged with their negotiation and enforcement is given great weight.").

The government argues that "[e]ven if the identities of the subjects of the photographs are never estab lished," those subjects could suffer humiliation and in dignity against which the Geneva Conventions were in tended to protect. Corn Decl. ¶ 11. It also states, with out supporting documentation, that the ICRC has taken the position that the Third Geneva Convention forbids publishing images that "show prisoners of war in de grading or humiliating positions or allow the identifica tion of individual POWs." Cummings Decl. ¶ 17. The re dactions and withholding that I ordered should protect civilians and detainees against "insults and public curios ity" and preserve their "honor." Production of these images coheres with the central purpose of FOIA, to "promote honest and open government and to assure the existence of an informed citizenry [in order] to hold the governors accountable to the governed," Nat'l Council of La Raza v. DOJ, 411 F.3d 350, 355 (2d Cir. 2005). Ac cordingly, I hold that the government may not withhold the Darby photographs, redacted to eliminate all identi fying characteristics of the persons shown in the photo graphs, under Exemptions 6 and 7(C).

35. (c) The Government's Supplemental Argument: Ex emption 7(F)

On July 28, 2005, more than two months after the motion was initially argued, the government add ed another ground of claimed exemption, Exemption 7(F), to supplement its opposition to production of the Darby photographs. Exemption 7(F), 5 U.S.C. § 552(b)(7)(F), exempts

records or information compiled for law enforcement purposes, but only to the extent that the produc tion of such law enforcement records or information . . . (F) could reasonably be expected to endanger the life or physical safety of any individual.

Plaintiffs and amici curiae, The Reporters Commit tee for Freedom of the Press and other prominent news organizations, object to my consideration of the govern ment's eleventh-hour argument in reliance on Exemp tion 7(F). See Proposed Br. Amici Curiae, filed Aug. 3, 2005. Amici argue that the exemption now pressed by the government could have been presented much earlier, certainly by the date of oral argument in May, and that its invocation at this late date delays the ultimate resolu tion of the issues. Amici contend that the government's supplemental argument is not made in "good faith" and should not be considered by the court. See Piper v. DOJ, 374 F. Supp. 2d 73, 78-79 (D.D.C. 2005). While I appreciate the concern of amici, I rule that the govern ment's opposition, although filed late, should be consid ered. See, e.g., Nat'l Council of La Raza v. DOJ, No. 03 Civ. 2559, 2004 WL 2314455, at * 1 (S.D.N.Y. Oct. 14, 2004); see also August v. FBI, 328 F.3d 697 (D.C. Cir. 2003). The issue of the physical safety of our troops in Iraq and Afghanistan, and of the citizens of those coun tries, has been of paramount concern throughout this case, and it is sensible to address the issue squarely un der the framework advanced by the government. The parties agreed to an expedited briefing schedule in or der to minimize delays.40

The government contends that publication of the Darby photographs pursuant to court order is likely to incite violence against our troops and Iraqi and Afghan personnel and civilians, and that redactions will not avert the danger. The government argues that the ter rorists will use the re-publication of the photographs as a pretext for further acts of terrorism. See Second Amended Decl. of Richard B. Myers, Chairman, Joint Chiefs of Staff, dated Aug. 25, 2005, ¶¶ 8, 31 (stating that the "insurgents will use any means necessary to incite violence and, specifically, will focus on perceived U.S. or Coalition mistreatment of Iraqi civilians and detainees as a propaganda and recruiting tool to aid their cause," and that "redaction of the photographs and videos will not alleviate or lessen this risk"). Plaintiffs, on the other hand, provide the declaration of a scholar on the Middle East who states that, in his opinion, "there is nothing peculiar about Muslim culture in Iraq or elsewhere that would make people react to these pictures in a way dif ferent from other people's reactions elsewhere in the world." Decl. of Khaled Fahmy, Prof., New York Univ., dated Aug. 4, 2005, ¶ 8. In addition, Professor Fahmy suggests that there is a large group of Iraqis, and of Muslims generally, who respond favorably when we show the openness of our society and the accountability of our government officials, and that we would suppress those values and that favorable response by preventing publication of the Darby photographs. See id. ¶ 11.

Our nation does not surrender to blackmail, and fear of blackmail is not a legally sufficient argument to pre vent us from performing a statutory command. Indeed, the freedoms that we champion are as important to our success in Iraq and Afghanistan as the guns and missiles with which our troops are armed. As President Bush stated in his 2005 State of the Union address,

[t]he attack on freedom in our world has reaffirmed our confidence in freedom's power to change the world. We are all part of a great venture: to extend the promise of freedom in our country, to renew the values that sustain our liberty, and to spread the peace that freedom brings.

Available at http://www.whitehouse.gov/news/releases/ 2005/02/20050202-11.html. Justice Anthony Kennedy, in a recent interview, expanded on the same point:

Why should world opinion care that the American Administration wants to bring freedom to oppressed peoples? Is that not because there's some underly ing common mutual interest, some underlying com mon shared idea, some underlying common shared aspiration, underlying unified concept of what human dignity means? I think that's what we're trying to tell the rest of the world, anyway.

Jeffrey Toobin, Swing Shift, The New Yorker, Sept. 12, 2005, at 50.

The terrorists in Iraq and Afghanistan do not need pretexts for their barbarism; they have proven to be aggressive and pernicious in their choice of targets and tactics. They have driven exploding trucks into groups of children at play and men seeking work; they have attacked doctors, lawyers, teachers, judges and legisla tors as easily as soldiers. Their pretexts for carrying out violence are patent hypocrisies, clearly recognized as such except by those who would blur the clarity of their own vision. With great respect to the concerns ex pressed by General Myers, my task is not to defer to our worst fears, but to interpret and apply the law, in this case, the Freedom of Information Act, which advances values important to our society, transparency and ac countability in government.

Exemption 7(F) was enacted to protect the safety of individuals involved in law enforcement investigations. Originally, the exemption protected only "law enforce ment personnel." See Pub. L. No. 93-502, 88 Stat. 1561, 1563 (1974) (exempting "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would . . . endan ger the life or physical safety of law enforcement person nel"). In 1986, Exemption 7(F) was amended to protect all those put at risk through their participation in law enforcement proceedings, whether as sources of infor mation or as witnesses. See Freedom of Information Reform Act of 1986, Pub. L. No. 99-570, §§ 1801-1804, 100 Stat. 3207; see also Garcia v. DOJ, Office of Info. and Privacy, 181 F. Supp. 2d 356, 378 (S.D.N.Y. 2002) (withholding names and identifying information of gov ernment agents and private citizen informers where subject of investigation had history of retaliation and violence); Blanton v. DOJ, 182 F. Supp. 2d 81, 87 (D.D.C. 2002) (same, in connection with racial hate crime, the bombing of a church, and charges of first de gree murder), aff'd, 64 Fed. Appx. 787 (2003); Shores v. FBI, 185 F. Supp. 2d 77, 85 (D.D.C. 2002) (same, identi ties of cooperating witnesses where plaintiff had already attempted retaliation).

Exemption 7(F) has thus been construed to protect individuals involved in law enforcement investigations and trials, as officials and as private citizens providing information and giving testimony. At least twice, how ever, the statute has been applied to give protection to broader groups of individuals who were not involved in particular criminal investigations and prosecutions. See Living Rivers, Inc. v. U.S. Bureau of Reclamation, 272 F. Supp. 2d 1313, 1321 (D. Utah 2003) (withholding inun dation maps for fear terrorists could use the information to place at risk the life or physical safety of downstream residents who would be flooded by a breach of the Hoo ver Dam or Glen Canyon Dam); Larouche v. Webster, 75 Civ. 6010, 1984 WL 1061, at *8 (S.D.N.Y. Oct. 23, 1984) (withholding FBI laboratory report describing manufac ture of home-made machine gun to protect law enforce ment personnel from encounters with criminals armed with home-made weapons). Moreover, at least one court has ruled that "[u]nlike Exemption 7(C), which involves a balancing of societal and individual privacy interests, 7(F) is an absolute ban against certain information and, arguably, an even broader protection than 7(C)." Raul erson v. Ashcroft, 271 F. Supp. 2d 17, 29 (D.D.C. 2002). Accordingly, the government argues that once it has established that the Darby photographs are "records or information compiled for law enforcement purposes," any non-trivial concern that it advances about the life or physical safety of any individual entitles it to withhold the photographs under Exemption 7(F).

Plaintiffs, on the other hand, argue that Living Riv ers and Larouche are aberrational, see Maydak v. DOJ, 362 F. Supp. 2d 316, 321 n.4 (D.D.C. 2005) ("In general, this exemption [7(F)] has been interpreted to apply to names and identifying information of law enforcement officers, witnesses, confidential informants and other third persons who may be unknown to the requester."). Plaintiffs also argue that since Congress lodged its con cern about endangerment to life and safety under Ex emption 7, and did not address the concern in an inde pendent and generally applicable exemption, Exemption 7(F) should be applied in its narrow context, to the con cern expressed by Congress, and not as a catch-all ex emption. See Tr. of Aug. 30, 2005, at 22-23. In essence, plaintiffs contend that Exemption 7(F) should not be a substitute for the government's power to classify infor mation requiring protection.

Larouche was decided before the statutory amend ment and without much analysis of Exemption 7(F). Its focus was on law enforcement-on the dangers of home- made machine guns to law enforcement personnel-a nexus to Exemption 7(F)'s central purpose. With regard to Living Rivers, the inundation maps were compiled by the Bureau of Reclamation to "maintain law and order and protect persons and property within Reclamation projects and on Reclamation lands" by protecting and alerting threatened communities, 272 F. Supp. 2d at 1319 (citing 43 U.S.C. § 373b(a)), again a nexus to law enforcement in that context. However, there is no such nexus with respect to the Darby photographs.41 The Darby photographs are being withheld, not to protect anyone involved in the courts martial investigations and prosecutions, but for another purpose. The persons who took the photographs, or handed them over to command ing officers, do not ask for protection. Law enforcement officials charged with investigating the circumstances that surrounded the taking of the Darby photographs do not ask for protection, and there is no allegation that release of the photographs will endanger their lives. And since the identifying characteristics of the detainees are to be redacted, they too are not endangered. The sole justification for suppressing the photographs is the DOD's concern about speech-generally, how some might exploit the Darby photographs, in propaganda and in terrorist activities, by arguing, through false ex tension, that the pictures represent the attitudes of all American soldiers, or indeed of all Americans, toward the Iraqi people.

It is not necessary for me to rule if Larouche and Living Rivers are, or are not, appropriate extensions of Exemption 7(F). I reject, however, the government's argument that reasoning must stop once a threat to life or safety is discerned. Balancing and evaluation are es sential aspects of the judicial function, no less in consid ering the exemptions of FOIA than in other areas of the law. It is clear to me that the core values that Exemp tion 7(F) was designed to protect are not implicated by the release of the Darby photographs, but that the core values of FOIA are very much implicated.

The interest at stake arises from pictures of flagrant ly improper conduct by American soldiers-forcing pris oners under their charge to pose in a manner that com promised their humanity and dignity. As I stated at the time of the original argument, and as I reiterated previ ously in this decision, the pictures are the best evidence of what happened, better than words, which might fail to describe, or summaries, which might err in their at tempt to generalize and abbreviate. Publication of the photographs is central to the purposes of FOIA because they initiate debate, not only about the improper and unlawful conduct of American soldiers, "rogue" soldiers, as they have been characterized, but also about other important questions as well-for example, the command structure that failed to exercise discipline over the troops, and the persons in that command structure whose failures in exercising supervision may make them culpable along with the soldiers who were court-mar tialed for perpetrating the wrongs; the poor training that did not create patterns of proper behavior and that failed to teach or distinguish between conduct that was proper and improper; the regulations and orders that governed the conduct of military forces engaged in guarding prisoners; the treatment of prisoners in other areas and places of detention; and other related ques tions.

Suppression of information is the surest way to cause its significance to grow and persist. Clarity and open ness are the best antidotes, either to dispel criticism if not merited or, if merited, to correct such errors as may be found. The fight to extend freedom has never been easy, and we are once again challenged, in Iraq and Af ghanistan, by terrorists who engage in violence to intim idate our will and to force us to retreat. Our struggle to prevail must be without sacrificing the transparency and accountability of government and military officials. These are the values FOIA was intended to advance, and they are at the very heart of the values for which we fight in Afghanistan and Iraq. There is a risk that the enemy will seize upon the publicity of the photographs and seek to use such publicity as a pretext for enlist ments and violent acts. But the education and debate that such publicity will foster will strengthen our pur pose and, by enabling such deficiencies as may be per ceived to be debated and corrected, show our strength as a vibrant and functioning democracy to be emulated.

In its most recent discussion of FOIA, the Supreme Court commented that "FOIA is often explained as a means for citizens to know what 'their Government is up to.' The sentiment is far from a convenient formalism. It defines a structural necessity in a real democracy." Favish, 541 U.S. at 171-72. As President Bush said, we fight to spread freedom so the freedoms of Americans will be made more secure. It is in compliance with these principles, enunciated by both the President and the highest court in the land, that I order the government to produce the Darby photographs that I have determined are responsive and appropriately redacted.

36. Conclusion.

For the reasons stated, the motions for partial sum mary judgment, by plaintiffs and by defendants, are granted and denied as discussed herein. This Opinion and Order is stayed twenty days in order to allow for appeal by either side, should it wish to do so.

SO ORDERED.

 

Dated: New York, New York

September 29, 2005

 

/s/ ALVIN K. HELLERSTEIN

ALVIN K. HELLERSTEIN

United States District Judge

 

 

 

 

 

 

37. APPENDIX F

38.

39. UNITED STATES COURT OF APPEALS

40. FOR THE SECOND CIRCUIT

 

 

 

 

Docket Number: 06-3140-cv

AMERICAN CIVIL LIBERTIES UNION, CENTER FOR CONSTITUTIONAL RIGHTS, PHYSICIANS FOR HUMAN RIGHTS, VETERANS FOR COMMON SENSE, VETERANS FOR PEACE, PLAINTIFF-APPELLEES

v.

DEPARTMENT OF DEFENSE, AND ITS COMPONENTS DEPARTMENT OF ARMY, DEPARTMENT OF NAVY,

DEPARTMENT OF AIR FORCE, DEFENSE

INTELLIGENCE AGENCY, DEPARTMENT OF

HOMELAND SECURITY, DEPARTMENT OF JUSTICE, AND ITS COMPONENTS CIVIL RIGHTS DIVISION,

CRIMINAL DIVISION, OFFICE OF INFORMATION AND PRIVACY, OFFICE OF INTELLIGENCE POLICY AND

REVIEW, FEDERAL BUREAU OF INVESTIGATION,

DEPARTMENT OF STATE, CENTRAL INTELLIGENCE AGENCY, DEFENDANT-APPELLANTS

 

 

 

 

[Filed: Mar. 11, 2009]

 

 

 

 

ORDER

 

 

 

 

Defendant-Appellants Department of Defense having filed a petition for panel rehearing, or, in the alternative, for rehearing en banc, and the panel that determined the appeal having considered the request for panel re hearing, and the active members of the Court having considered the request for rehearing en banc.

IT IS HEREBY ORDERED that the petition is de nied.

 

For the Court:

Catherine O'Hagan Wolfe, Clerk

 

By: /s/ FRANK PEREZ

FRANK PEREZ, Deputy Clerk

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

41. APPENDIX G

 

42. UNITED STATES DISTRICT COURT

43. FOR THE SOUTHERN DISTRICT OF NEW YORK

 

 

 

 

No. 04 Civ. 4151 (AKH)

AMERICAN CIVIL LIBERTIES UNION, CENTER FOR CONSTITUTIONAL RIGHTS, PHYSICIANS FOR HUMAN RIGHTS, VETERANS FOR COMMON SENSE AND

VETERANS FOR PEACE, PLAINTIFFS

v.

DEPARTMENT OF DEFENSE, AND ITS COMPONENTS DEPARTMENT OF ARMY, DEPARTMENT OF NAVY,

DEPARTMENT OF AIR FORCE, DEFENSE

INTELLIGENCE AGENCY; DEPARTMENT OF

HOMELAND SECURITY; DEPARTMENT OF JUSTICE, AND ITS COMPONENTS CIVIL RIGHTS DIVISION,

CRIMINAL DIVISION, OFFICE OF INFORMATION AND PRIVACY, OFFICE OF INTELLIGENCE POLICY AND

REVIEW, FEDERAL BUREAU OF INVESTIGATION;

DEPARTMENT OF STATE; AND CENTRAL

INTELLIGENCE AGENCY, DEFENDANTS

 

 

 

 

[Filed: Aug. 29, 2005]

 

 

 

 

SECOND AMENDED DECLARATION OF

RICHARD B. MYERS

 

 

 

 

Richard B. Myers, pursuant to 28 U.S.C. sec. 1746, de clares as follows:

1. I am the Chairman of the Joint Chiefs of Staff. I serve as the senior military advisor to the President of the United States, the Secretary of Defense, and the National Security Council. I am the highest ranking uniformed officer in the United States Armed Forces. In performing my duties, I routinely confer with and obtain advice from combatant commanders regarding the operational requirements of their commands; I eval uate and synthesize this information; I advise and make recommendations to the Secretary of Defense with re spect to these requirements; and, as appropriate, I com municate the combatant commands' requirements to other elements of the Department of Defense.

2. Through the exercise of my official duties and as a result of my personal knowledge, I am familiar with this civil action and with Plaintiffs' requests for infor mation under the Freedom of Information Act. Further, I have reviewed the 87 photographic and video images that are identified in paragraph 6 of the Third Declara tion of Philip J. McGuire (collectively referred to as the "responsive Darby Photos"). For the reasons set forth in this declaration, I have concluded that the official re lease of the images further identified below, even if re dacted to obscure identifying information and, where applicable, the genitalia of those depicted, could reason ably be expected to:

a. Endanger the lives and physical safety of the Sol diers, Sailors, Airmen, and Aarines [sic] in the Uni ted States Armed Forces presently serving in Iraq and Afghanistan, as well as other U.S. officials, Co alition Forces allied with the United States, and con tractors serving with these forces;

b. Endanger the lives and physical safety of Iraqi civilians at large, and police and military personnel of the democratic Iraqi Transitional Government working in coordination with the United States and Coalition Forces in support of Operation IRAQI FREEDOM;

c. Endanger the lives and physical safety of Afghan civilians at large, and police and military personnel of the Government of Afghanistan working in coordi nation with the United States and Coalition Forces operating in support of Operation ENDURING FREEDOM, NATO-led operations, and contractors serving with these forces;

d. Aid the recruitment efforts and other activities of insurgent elements, weaken the new democratic gov ernments of Iraq and Afghanistan, and add radical pressures on several of our regional allies and friends; and

e. Increase the likelihood of violence against United States interests, personnel, and citizens worldwide.

44. THE BASES FOR MY CONCLUSIONS

3. My conclusions are based upon my years of ser vice and experience in the United States military; the assessments and evaluations of the U.S. Central Com mander, General John P. Abizaid, and his immediate subordinate commander of the Multi-National Forces- Iraq, General George Casey; and intelligence reports and the assessments of Department of Defense subject- matter experts on the Middle-Eastern region, Arab cul ture, and the tenets of the Islamic religion. In formulat ing the advice I provide to the President, the Secretary of Defense, and the National Security Council in the ordinary course of my duties, I routinely rely on the views of our combat commanders, intelligence synthesis and reports, and the assessments of subject matter ex perts. In formulating my conclusions concerning the Darby Photos, I have used the same approach, types of resources, information, and experts. In particular:

a. I have served in the United States Armed Forces for 40 years at various levels of command and staff. I have served as the Chairman of the Joint Chiefs of Staff since October 1, 2001. I served as the Vice Chairman from March 2000 through September 2001. I have been the President's principal military advisor since shortly after the attacks on the World Trade Center and the Pentagon, including through out the inception, planning, and execution of Opera tion ENDURING FREEDOM and Operation IRAQI FREEDOM. I have intimate, extensive knowledge of our military forces and their capabilities, as well as of the conventional and unconventional forces and capabilities of the enemies arrayed against us. I daily receive and review intelligence analyses of cur rent regional conditions, acute situations, and trends in operations and conditions relating to Operation ENDURING FREEDOM and Operation IRAQI FREEDOM from the Joint Staff, the Department of Defense, as well as from other intelligence sources within the Executive Branch. I routinely travel to the countries within the U.S. Central Command criti cal to these ongoing missions. I meet, receive infor mation from, and provide information to, the senior political, civilian, and military leaders of Iraq, Af ghanistan, and our other regional allies. Our senior field commanders brief me, and I routinely inspect the environment, conditions, and equipment of our Soldiers, Sailors, Airmen, and Marines in the combat theaters of operation.

c. With respect to this matter, I solicited the assess ments and recommendations of the U.S. Central Commander, General John P. Abizaid, and the Multi- National Forces-Iraq Commander, General George Casey, concerning their views of the military implica tions of release of the responsive Darby Photos. Both of them, by dint of their positions and responsi bilities, have highly informed opinions that I have considered in this matter. General Abizaid is con stantly engaged with senior political and civic lead ers in the region. Moreover, General Abizaid has specialized knowledge of the Middle East: he is flu ent in the Arabic language; he holds a Masters De gree in Middle Eastern Studies from Harvard Uni versity; he was a Hoover Institution, Stanford Uni versity Fellow studying Middle Eastern affairs; and he was an Olmsted Scholar at the University of Jor dan at Amman. Before his service as the Com mander, U.S. Central Command, General Abizaid served under General Tommy Franks as his Deputy Commander (Forward) during Operation IRAQI FREEDOM. After the first Gulf War, he served in the Kurdish region of northern Iraq in Operation NORTHERN WATCH. During the course of his military career, he has served in other positions in the Middle East as well as in positions involving eth nic Muslim minorities in the Balkans. His staff as signments have included tours with the United Na tions as operations officer for the Observer Group Lebanon, and he has also served on the Joint Staff as the Director of Strategic Plans and Policy.

d. As the Commander of Multi-National Forces- Iraq, General George Casey is constantly engaged with the senior political and civic leaders in Iraq. He travels extensively throughout the country, and reg ularly confers with commanders and service person nel at all levels of command and operations. In addi tion to his numerous Army command assignments, General Casey most recently served as the Vice Chief of Staff of the Army; immediately before that he served under me, first as the Director of Strategic Plans and Policy, and then as the Director of the Joint Staff. His graduate and post-graduate degrees are in International Relations. General Casey has also served as a Senior Fellow on The Atlantic Coun cil.

e. Both General Abizaid and General Casey agree with and support my conclusions.

f. As I indicated above, I have also considered and relied upon the analysis and assessments of DOD resident subject-matter experts on the Middle- Eastern region, the Arab culture, and the tenets of the Islamic religion.

45. THE STATUS OF OPERATION ENDURING FREEDOM AND OPERATION IRAQI FREEDOM

4. Following the attacks on the United States of Sep tember 11, 2001, the United States military, with the support of a worldwide coalition, launched Operation ENDURING FREEDOM to drive the oppressive Tali ban regime-which provided comfort and support to al- Qaeda terrorists-from Afghanistan. As a result of that successful effort, the Taliban was removed from power, and on October 9, 2004, the Afghan people for the first time ever selected their head of state, the president of Afghanistan, by democratic vote. Similarly, Operation IRAQI FREEDOM was launched, again with the sup port of a worldwide coalition, to remove the dictatorial and murderous regime of Saddam Hussein from power, and succeeded in toppling that dictator and bringing freedom to Iraq. Following a brief period when Iraq was led by a Coalition Provisional Authority, sovereign ty of Iraq was transferred to an interim government, and democratically elected representatives of the Iraqi people are in the process of completing work on a na tional constitution. There is, however, more work to do. Insurgent elements in both Afghanistan and Iraq con tinue to attack the process of democratic transition in those countries by mounting violent and deadly assaults against the multinational forces that remain posted in the region in order to protect and defend those countries as they take their steps toward freedom. As part of the multinational commitment to strengthening and defend ing these emerging democracies, more than 19,000 U.S. troops remain on the ground in Afghanistan and over 140,000 U.S. troops are part of the ongoing mission in Iraq.

5. The situation on the ground in Iraq is dynamic and dangerous, in Baghdad and several other parts of the country. It changes from day to day, and it varies from region to region. With that in mind (and the caveat that numbers alone do not tell the complete story). [sic] I offer the following observations to provide the Court with some in-country context for the conclusion that official disclosure of the responsive Darby Photos de scribed further below reasonably can be expected to endanger, in wartime, the lives and physical safety of U.S. military and other personnel, as well as the general public in Iraq and Afghanistan and elsewhere.

6. As General Abizaid testified to the Senate Armed Services Committee on June 23, 2005, the overall strength of the insurgency is about the same as it was six months ago, although he noted his belief that "there are more foreign fighters coming into Iraq than there were six months ago." Current estimates of the number of insurgents are in the range of 16,000 with perhaps 1,000 of that number being foreign fighters.

7. The number of insurgent attacks per day is ap proximately 70. As I have publicly stated, our assess ments indicate that the lethality of the attacks is on av erage increasing.

8. Among the goals of the insurgency are to use vio lence against innocent civilians to undercut the mission of the U.S. and Coalition forces, as well as the Iraqi Transitional Government, and to stop the transition to democracy in that country. The insurgents will use any means necessary to incite violence and, specifically, will focus on perceived U.S. or Coalition mistreatment of Iraqi civilians and detainees as a propaganda and re cruiting tool to aid their cause.

a. Thus, for example, we have documented situa tions in which insurgents have falsely claimed that U.S. actions in Iraq, rather than their own terrorist attacks, have caused death and suffering. One orga nization, the Global Islamic Media Front, specializes in producing flash videos which typically feature doz ens of images of women and children whose suffering is attributed to U.S. actions in Iraq as opposed to the acts of sabotage and violence perpetrated by the in surgents.

b. Similarly, the insurgents rely on doctored photos and images to support their calls to violence. Last year DOD experts noted doctored images and vide os that purported to document the rape of Iraqi women by U.S. soldiers-but which actually origi nated on a Hungarian pornography site-and that were distributed and presented on pro-Islamic and Arabic news web sites as actual examples of U.S. "barbarism." In conducting Internet discussions re garding these images/videos on her websites, Iraq Patrol and Iraq Tunnel, Iraqi novelist and Middle East expert, Buthaina Al-Nasiri, noted, "You cannot imagine the kind of angry messages I receive every day from young Arab men vowing to avenge the Iraqi girls. . . ."

c. Specific references to the so-called rape photos surfaced in subsequent Muslim sermons throughout the Middle East along with calls for retaliatory vio lence. For example, in response to similarly doc tored rape images, purporting to depict the alleged rape of three Iraqi women at British-run prisons in Iraq, Sheik Abdul-Sattar al-Bahadli of Basra called for Jihad and offered $350 for anyone capturing a British soldier, $150 for killing one, and stated that "Any Iraqi who takes a female soldier (foreign) can keep her as a slave or gift to himself."

d. We have noted other instances of insurgent at tacks after the disclosure of images depicting alleged abuse of detainees. On January 21, 2005, three days after 22 photos of detainees in British custody were made public, an Iraqi insurgent suicide car bomber drove his vehicle toward the gate of a British base in southern Iraq. His vehicle detonated just as it was intercepted before reaching the gate, but the explo sion still resulted in numerous, very serious British injuries. Al Qaeda leader Abu Musab al-Zarqawi described the attack as a "response to the harm in flicted by British occupation forces on our brothers in prison."

9. There have been near-term increases in the as sassination of Iraqi government officials (52 in the three-month period ending June 27, 2005), as well as a recent uptick in insurgent attacks on senior diplomatic officials from regional neighbors of Iraq: the Egyptian envoy was abducted on July 4, 2005, and murdered; and, in separate incidents, the Bahrainian and Pakistani am bassadors' vehicle convoys were attacked on July 6, 2005 (the Bahrainian ambassador was wounded in the hand by automatic weapons fire; the Pakistani ambassador was uninjured, but has been ordered by his government out of the country as a temporary security measure).

10. While I believe that the overall trends in Iraq in dicate improvement, attacks on the economic infrastruc ture in Iraq remain a constant problem, are significantly difficult to defend against (because of generally decrepit conditions and the nature of defending large facilities in diverse geographical locations), and present acute hard ships, particularly to Baghdad residents during the sum mer season. Water, electrical, and oil infrastructure are the main insurgent targets.

11. The situation on the ground in Afghanistan also remains volatile, particularly as the Taliban-led insur gency attempts to derail the political process by increas ing attacks in the run-up to the September 18th Na tional Assembly elections. Violence has steadily risen since May, and levels of Taliban, al-Qaida, and Hezb-e Islami Gulbuddin (HIG) attacks against our military forces in June were the second highest in a single month since the Taliban fell in late 2001.

12. In addition to increasing the quantity of attacks, insurgents are shifting their tactics. Bomb attacks in June were the highest on record, including a rise in sui cide bombings: there have been eight suicide attacks thus far this year compared to four for all of 2004. The Taliban is now targeting candidates and electoral work ers for the National Assembly elections (there have been at least 16 attacks recently), as well as pro-central gov ernment clerics (four have been assassinated since June 1, 2005). The incidents of the Taliban intimidating reform-minded Muslim clerics have also increased. There are, on average, approximately 40-45 insurgent- initiated attacks per week.

13. Insurgents in Afghanistan have a relatively so phisticated and aggressive information operations cam paign. Taliban spokesmen respond quickly to claim credit when insurgents conduct successful attacks against Coalition or Afghan forces, and even claim tacti cal successes for incidents not related to the insurgency. The Taliban are also quick to spread disinformation about culturally sensitive issues such as the Coalition treatment of Afghan women as a means of turning public opinion against the United States and other Western countries.

14. While the Taliban is struggling to maintain popu lar support among Afghans, there are indications that their aggressive information operations campaign, com bined with growing discontent with the Afghan govern ment, could be fueling localized dissatisfaction with the continuing presence of Coalition and NATO forces. For example, the Taliban were quick to capitalize on the May 11-14 protests against the alleged desecration of the Koran at Guantanamo Bay (discussed in more detail be low) and described the protests as "a firm reaction of the people of Afghanistan against the presence of U.S. forc es . . . and inhumane treatment with prisoners at de tention centers . . . showing disrespect to the Muslims' faith" in a 13 May press statement. Protests, some of which turned violent and deadly, occurred in 14 of the 34 provinces.

46. RIOTING AND VIOLENCE FOLLOWING THE NEWSWEEK REPORT OF ALLEGED U.S. DESECRATION OF THE KORAN AT GUANTANAMO BAY

15. On April 30, 2005, Newsweek reported that an unnamed U.S. official had seen a government report documenting desecration of the Koran at the U.S. facil ity at Guantanamo Bay, Cuba. On May 16, 2005, News week retracted the statement in an article that the abuse had been uncovered in an "internal military investiga tion" after its source was unable to confirm where he had seen the purported information. Newsweek also offered further qualifications on the story in its May 23, 2005, issue.

16. The Koran's alleged desecration, as reported by Newsweek, was perceived as such an affront to the Is lamic faith that massive anti-U.S. demonstrations quick ly erupted in the Palestinian territories, Egypt, Sudan, Bangladesh, Pakistan, and Indonesia. Our intelligence assessments indicate that the volatile public sentiments in these Muslim countries were exploited by organized, anti-American extremists who succeeded in fomenting violent and deadly demonstrations.

17. In Afghanistan, in particular, where over 19,000 U.S. troops are currently serving in Operation ENDUR ING FREEDOM, violence erupted as a result of the Newsweek report. Demonstrations began in the eastern provinces and spread to the capital, Kabul. The United Nations, as a precautionary measure, withdrew its en tire foreign staff from Jalalabad, where two of its guest houses were attacked, government buildings and shops were targeted, and the offices of two international aid groups were destroyed. At least 17 deaths in Afghani stan were attributed to the reaction to the Koran story.

18. Despite Newsweek's published retraction, many Muslims still believe that U.S. personnel continue to desecrate the Koran in an effort to humiliate Muslims. For example, one Sunni website asserts that desecration of the Koran is a daily occurrence in Iraq under U.S. occupation and posted numerous photos of another such alleged incident. According to the website: "To humili ate the Koran in Iraq is a well-known tactic of the occu pation and allied forces. The Koran has been desecrated by the Crusaders and the Jews. The latest incident of this happened when American soldiers raided the Al- Quds Mosque in . . . Al-Ramadi . . . The soldiers searched the entire mosque, tore the Koran, and beat the worshippers during the morning prayers."

19. The riots and violence that followed the News week story had a significant impact on U.S. Central Command operations and intelligence assessments of conditions throughout both combat theaters, as well as regionally and beyond. Our intelligence and operations analysts evaluated the Koran incident in order to pro vide assessments and "lessons-learned" both to the com batant commanders and the Department of Defense. While I received and reviewed these assessments, my attention was first brought fully to bear in the context of this case on June 17, 2005. On that day I was informed that disclosure of the Darby Photos could occur as early as June 30, 2005. In light of the nature of the photos, and the riots and violence that occurred after the Newsweek article, I contacted General Abizaid (who in turn contacted General Casey), apprised him of the situ ation, and asked for General Abizaid's military assess ment of the implications of the release of the Darby Pho tos. General Abizaid and General Casey provided their assessments to me on June 20, 2005. They agreed with my determination that disclosure of the Darby Photos created the significant risks discussed in this declara tion.

47. THE REDACTED RESPONSIVE DARBY PHOTOS GRAPHICALLY DEPICT DETAINEE ABUSE AND MISTREATMENT

20. I have personally reviewed the 87 responsive photographic and 4 video images that are identified in paragraph 6 of the Third Declaration of Philip J. Mc Guire.

21. [SEALED]

22. [SEALED]

23. [SEALED]

 

CONCLUSIONS AFTER REVIEWING THE RESPONSIVE DARBY PHOTOS

24. While I have said this previously in countless forums, I condemn in the strongest terms the miscon duct and abuse depicted in these images. It was illegal, immoral, and contrary to American values and charac ter. The Department of Defense has spared no effort and will continue to press the investigation of, and full accountability for, these criminal acts. Based on my re view, I believe that official release of the responsive Darby Photos described in paragraphs 21-23 will pose a clear and grave risk of inciting violence and riots against American troops and coalition forces. I also believe that release of the responsive Darby Photos will expose inno cent Iraqi, Afghan, and American civilians to harm as a result of the insurgency's reaction, which will likely in volve violence and rioting. It is probable that Al-Qaeda and other groups will seize upon these images and vid eos as grist for their propaganda mill, which will result in, besides violent attacks, increased terrorist recruit ment, continued financial support, and exacerbation of tensions between the Iraqi and Afghan populaces and U.S. and Coalition Forces.

25. The recent vitriolic and violent reaction to News week's Koran report described above-even following its retraction-made it clear that U.S. and allied troops and personnel and civilians in the Middle East will be sub ject to a likely, serious, and grave risk if the responsive Darby Photos described in paragraphs 21-23 are pub licly released. Release of these images will be portrayed as part and parcel of the alleged, continuing effort of the United States to humiliate Muslims and, given the pat terns of violence observed there, will be used by the in surgents as propaganda to increase calls for violence against U.S. and Coalition personnel. I believe that if the responsive Darby Photos are released, riots, vio lence, and attacks by insurgents will result.

26. I am also concerned that, while the photos and videos taken together are illustrative only of isolated activity by one military unit, the members of which have been the subject of criminal investigations, prosecutions, and convictions,42 their graphic and offensive nature makes it easy to falsely generalize from those images and characterize the abuse as more widespread than it was, and to impugn the United States Armed Forces as a whole, thereby generating a more vehement-and violent-reaction. The offensiveness of these images will make it more difficult to counteract calls for vio lence against U.S. and Coalition Forces despite the United States Government's immediate and forceful denunciation of the conduct portrayed in these photos, the numerous investigations into the activities and per sonnel they depict, and the criminal and military prose cution of those confirmed to be involved.

48. The Effect of the Responsive Darby Photos on the Predominantly Muslim Populations of Iraq and Afghanistan

27. Specifically, with respect to the video images de scribed in paragraph 23, as common experience has shown and as viewing of the video clips has confirmed, video images are more powerful than still photographs. Video captures a continuum of action, shows cause-and- effect, and portrays the range of emotions of those de picted in a manner that a still photo-which is devoid of those dynamic qualities-fails to convey. The video im ages, thus, evoke a visceral and empathetic connection between the viewer and the person being victimized, and are much more likely to generate a violent reaction or be exploited by insurgents for violent ends.

28. Iraqi and foreign detainees have indicated that an important motivation for their fighting against the Coalition and U.S. forces is their perceived mistreat ment of Iraqis at Abu Ghraib prison. Thus, for example, al Qaeda leader Abu Musab al-Zarqawi demanded the release of all female detainees as the sole condition for the release of American hostages Jack Hensley, Eugene Armstrong, and British hostage Kenneth Bigley, all of whom were subsequently beheaded. British hostage Margaret Hassan (who was also killed by her abductors) also pleaded in a video released by her captors for the release of female detainees.

29. Similarly, on February 28, 2005, a statement by the Media Wing of Abu-Mus'ab al Zarqawi-al-Qa'ida of Jihad Organization in the Land of the Two Rivers [Tan zim Qa'idat al-Jihad fi Bilad al-Rafidayn] was posted on various pro-Al-Qaeda Internet sites in which the group warned and reminded Muslims of the tactics of the ene mies of Islam: "2. They have incarcerated our women in concentration camps, where they raped them and vio lated their honor . . . 3. They gave the rejectionists (Shi'a) access to our women, and the Ministry of Interior jails can testify to the fact. They gave them access to our Mosques, and their impudence reached the point of writing on the Mosques' walls, 'Today [we take] your land, tomorrow [we will take] your honor, [rape your women].'"

49. Redaction of the Responsive Darby Photos Does Not Alter These Conclusions

30. Redaction of the responsive Darby Photos to ob scure individuals' faces and identifying information and, where necessary, genitalia, does not change my opinion. Release of the photographs and videos, even in redacted form, will very likely lead to riots and violence across the Middle East, posing grave risk to both military forc es and civilians.

31. This is because the privacy concerns of the de tainees are separate and distinct from the inflammatory nature and offensiveness of the conduct depicted in the responsive Darby Photos-and thus the risk of harm to our personnel-which remains apparent despite redac tion. Even with the images redacted, the abuses will be apparent. The official release of these graphic photos and videos depicting this type of behavior and abuse by U.S. military personnel will very likely incite violence and result in casualties, and redaction of the photo graphs and videos will not alleviate or lessen this risk.

50. Not Only the Responsive Darby Photos Themselves, But the Official Act of Releasing Them Could Lead to Harm to American Troops and Civilians

32. In my opinion, not only the images themselves, but also the official act of releasing the responsive Darby Photos could significantly harm U.S. interests and endanger U.S. personnel, as well as Iraqi and Af ghan civilians, police, and military personnel working in coordination with Coalition and NATO forces. Our dem ocratic idea of public accountability-the airing of mis deeds by government officials and employees in order to hold government to the highest standards of conduct-is an idea that is misunderstood in other parts of the world. The insurgents likely will perceive and portray an official United States Government release of the Dar by Photos as a deliberate tactic in the war and a con scious degradation to the dignity of Iraqis. While the acts of abuse were originally inflicted by rogue individu als acting illegally and contrary to U.S. policy, this offi cial release will be perceived as the re-infliction of that degradation in full public view and under the full author ity of the U.S. Government. Demagogues will be free to characterize the public disclosure of these images as further evidence of U.S. immorality and hypocrisy. Such a characterization by violent extremists will-in my opinion-put the lives of American troops and civil ians in extreme danger. It also will fuel the efforts of extremists to generate or stimulate opposition to U.S. policies throughout the broader Middle East. It is likely to increase pressures on friendly governments in the re gion to distance themselves from the U.S. All this would be a serious setback to the U.S. Government's efforts to fight the War on Terrorism alongside mainstream Mus lim allies and friends in the Middle East.

51. Release of Photographs That Were Previously Leaked to the Press Poses a Threat to the Safety of Troops and Civilians

33. As an initial matter, the photographs that were previously leaked were not officially released. An offi cial release by the United States Government lends an imprimatur-an official patina-that has never been at tached to these photos.43 As described above, many indi viduals in the Middle East will not understand that this official release is not an intentional effort to further ridi cule and humiliate the individuals depicted, their cul ture, or their religion.

34. Before the Newsweek report of alleged Koran desecration, similar reports had been published by mainstream media publications. In particular, several media outlets previously reported that a Koran had al legedly been flushed down a toilet. Yet it was not until the Newsweek report cited a Government source, who appeared to confirm the reports, that the allegations touched off riots and death abroad. Similarly, official re lease of the responsive Darby Photos by the United States Government (even if some of the images had been leaked before to the press by unofficial sources) is bound to have a much different and more serious effect, differ ent in kind from the prior unofficial release.

35. In addition, some of the previously released pho tographs have not been widely circulated. An official re lease of these photos significantly increases the chances that they will receive much greater circulation through publicly available channels and thereby inflame public sentiments and exacerbate tensions in sensitive geogra phic areas.

52. Sealing Portions of This Declaration

36. In some of the paragraphs of this Declaration, I provide descriptions of the records that are the subject of this litigation. The disclosure of the descriptions could reasonably be expected to endanger the lives and physical safety of persons described in paragraph 2, above. For that reason, I respectfully request the Court seal the following paragraphs: (the captions above para graphs and) 21-23.

53. CONCLUSION

In light of the knowledge and information described herein, and given the provocative and offensive nature of the Darby Photos, I believe that the Darby Photos that I have identified in this declaration must be with held in order to protect the lives of: members of the United States Armed Forces, forces operating in coop eration with the United States, and contractors operat ing with those forces; U.S. officials; Iraqi and Afghan police and military personnel working in coordination with our government and military forces; as well as to protect against the increased likelihood of violence against U.S. interests, personnel, and citizens world- wide.

 

I declare under penalty of perjury that the foregoing is true and correct.

 

/s/ RICHARD B. MYERS

RICHARD B. MYERS

 

Date: Washington, D.C.

August 25, 2005

 

54. APPENDIX H

55.

56. UNITED STATES DISTRICT COURT

57. FOR THE SOUTHERN DISTRICT OF NEW YORK

 

 

 

 

Civ. Action No. 04-CV-4151 (AKH)

AMERICAN CIVIL LIBERTIES UNION, ET AL., PLAINTIFFS

v.

DEPARTMENT OF DEFENSE, ET AL., DEFENDANTS

 

 

 

 

[Filed: Apr. 26, 2006]

 

 

 

 

FOURTH DECLARATION OF PHILLIP J. MCGUIRE

 

 

 

 

 

 

I, Phillip J. McGuire, declare as follows:

(1) I am the Director of the United States Army Crime Records Center ("USACRC"), U.S. Army Crimi nal Investigation Command ("CID") Fort Belvoir, Vir ginia. I have filed three previous declarations with the court in this matter (hereinafter "First McGuire Decla ration", "Second McGuire Declaration" and "Third McGuire Declaration" respectively). This fourth decla ration incorporates and supplements the information provided in my previous declarations.

58. PURPOSE OF THIS DECLARATION

(2) This declaration identifies and briefly describes photos withheld from CID documents provided to Plain tiffs, and provides justification for the withholding of 29 photos pursuant to FOIA exemptions (b)(6), (b)(7)(C) and (b)(7)(F).

IDENTIFICATION OF RESPONSIVE DOCUMENTS

(3) As stated in the First McGuire Declaration in paragraph 9, USACRC identified 198 CID Reports of Investigation (ROI) that were responsive to the requests of Plaintiffs in this matter. As of March 15, 2006, USACRC had processed and released all ROIs that were closed as of January 3, 2006 pursuant to the Dis trict Court's Order of January 10, 2006. Consistent with that Order, investigations in an open status as of Janu ary 3, 2006 were withheld (FOIA Exemption 7(a)). Dur ing the processing and release of the closed investiga tions, all pictures that contained images of individuals, regardless of status, were removed at DOD instruction for further processing. When photographs were re moved from an investigation, Plaintiffs were provided with an insert page indicating that a photo maintained within the file at that location was not provided as it con tained an image of an individual. A total of 358 photos were removed in this manner from the document re leases provided by USACRC to Plaintiffs.

(4) In late 2005, USACRC applied the guidelines and criteria articulated by Judge Alvin K. Hellerstein at in camera proceedings on May 26, 2005 and August 9, 2005 to the 358 photos. Using this guidance, 329 photos were determined to be non-responsive and 29 photos were identified to Plaintiffs as responsive and withheld pursuant to FOIA exemptions (b)(6), (b)(7)(C) and (b)(7)(F). Exhibit A is a copy of the notification provided to Plaintiffs which identifies the photos by ROI number. This notification inadvertently identified 28 responsive photos. The correct number is 29. These 29 photos are the subject of this Fourth McGuire Declaration and are collectively referred to in this declaration as "CID ROI Photos".

(5) The 29 photos at issue are maintained in seven CID ROI's. Each of the identified ROI's was processed and released to Plaintiffs. Exhibit B, attached, is an index which: identifies each photo by ROI number and date of release; describes the outcome of each ROI; identifies the location of the photo(s) within the ROI; and briefly describes each photo. I respectfully request that the photo descriptions within this exhibit be main tained under seal. Exhibit C, attached, describes in greater detail the nature of each ROI and the outcome of disciplinary or criminal actions taken, if any.

59. JUSTIFICATION OF FOIA EXEMPTIONS ASSERTED

(6) USACRC is asserting FOIA exemptions (b)(6), (b)(7)(C) and (b)(7)(F) to support the withholding of the 29 CID ROI Photos. All of these exemptions were as serted and defended in my previous three declarations, with respect to other photos and information. The justi fications provided in the previous three McGuire decla rations are asserted for the 29 CIO ROI Photos involved herein. Additional justification, specific to the photos at issue, is provided below.

EXEMPTIONS (b)(6) and (b)(7)(C)

(7) Unlike the content of many of the Darby photos (identified in my second and third declarations), the con tent of the 29 CID ROI Photos does not necessarily de pict criminal behavior. Many photos depict the normal processing and treatment of individuals captured during the course of the U.S. military operations in Iraq and Afghanistan. Some photos depict behavior that was de termined to be inappropriate, but not criminal. All de tainees pictured are clothed, mostly in their personal, civilian attire. Numerous military and U.S. government employees appear in the photos, both in uniform and in civilian-style clothing. None of the individuals who ap pear in the photos were prosecuted by courts-martial. Some received nonjudicial or administrative discipline.

(8) It is my determination that the individuals in the photos have an important expectation of privacy. As stated above, none of the United States military mem bers, or other government employees, was convicted of a criminal offense with respect to the behavior repre sented by the photos. While some individuals most cer tainly engaged in misconduct, official misconduct alone does not obviate all expectations of privacy. United States military members, and other government officials operating in the theatre of war are targets for enemy aggressors. In this case, the images of these individuals, if released, will be published on the World Wide Web for viewing around the world. Government employees whose pictures are disseminated world-wide become easily identifiable, which puts the individuals, and their families back home, at much greater risk of attack, or harassment.

(9) It is also my determination that the privacy of the individual detainees justifies the withholding of the photos. The detainees depicted in these photos are wearing personal civilian clothing which, even with re dactions of facial features, could be used to identify indi viduals. As explained in the declaration of Mr. Richard B. Jackson, the United States has an obligation to pro tect detainees from harassment and public curiosity. Incorporating Mr. Jackson's declaration herein, it is my opinion that the release and eventual world-wide dis semination of the photos identified by Mr. Jackson de picting certain individuals in detention would violate the privacy expectations of the detainees, as well as poten tially compromise United States obligations for proper treatment of those detainees.

(10) Additionally, the public interest in the release of these photos does not outweigh the important privacy concerns of the individuals depicted. As initially stated in the First McGuire Declaration at paragraph 25, the determination of the public's interest in the disclosure of information is made by analysis of whether the informa tion in question would inform the plaintiff or the general public about the agency's performance of its mission. In this case, the agency which holds the photos is CID Command. CID's stated mission is to conduct felony investigations into crimes that affect the persons and property of the U.S. Army. The release of these photos will in no way shed light on whether CID has adequately performed its mission to conduct investigations into the abuse of detainees. The CID ROI's which detail the en tire investigations into the conduct depicted in each of the photos were released to Plaintiffs through this litiga tion (See release dates at Exhibit B). The pictures do not shed additional light into the agency's performance of its mission or the conduct described in the ROIs pre viously released to plaintiffs. Therefore, it is my analy sis that the privacy interests of the individuals por trayed in the 29 CID ROI Photos outweigh any public interest in the release of the images.

60. EXEMPTION b(7)(F) INFORMATION WHICH COULD ENDANGER THE LIFE OF [sic] SAFETY OF THIRD PARTIES

(11) The First McGuire Declaration (para. 37) and the Second McGuire Declaration (paras. 8-14) have ex plained my basis for analysis and assertion of FOIA Ex emption (b)(7)(F) to CID records withheld in this litiga tion. With respect to the assertion of this Exemption to the 29 CID ROI Photos, I incorporate herein the decla ration of Brigadier General Carter F. Ham.

(12) Based upon the declaration and expertise of Brigadier General Ham and the previous declarations of General Myers and Ronald Schlicher, it is my determi nation that there is a great risk to civilians within the countries of Iraq and Afghanistan, as well as to U.S. forces located within those countries, if the 22 photos identified by Brigadier General Ham are released.

61. CONCLUSION

(13) For the foregoing reasons, I submit this decla ration in support of the decision to withhold the set of 29 photos removed from CID ROI's previously provided to Plaintiffs, pursuant to FOIA exemptions (b)(6), (b)(7)(C) and (b)(7)(F).

 

 

 

 

 

Pursuant to 28 U.S.C. § 1746, I declare the foregoing to be true and correct.

Executed this 25th day of April 2006.

 

/s/ PHILLIP J. MCGUIRE

PHILLIP J. MCGUIRE

Director

U.S. Army Crime Records Center

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EXHIBIT A

 

PHOTO PROCESSING

ACLU et al. v. DoD et al.

Applying the guidelines and criteria articulated by the Court in camera, photographic exhibits withheld from previously released Criminal Investigation Com mand (CID) Reports of Investigation (ROI) were pro cessed.

329 photographs in the below listed ROIs were deter mined to be non responsive.

0136-03-CID259-61187

0147-04-CID259-80210

0153-04-CID146-71446

0137-04-CID899-81702

0473-04-CID023-67329

0234-04-CID259-80271

0041-03-CID899-63500

0149-03-CID469-60209

0035-03-CID259-61144

0055-03-CID349-59657

0025-04-CID469-79635

0133-04-CID452-63629

0140-03-CID389-61697

0260-03-CID259-61229

0013-04-CID789-83982

0537-04-CID034-72601

0264-03-CID259-61231

0374-04-CID093-65446

0014-03-CID919-63732

0190-04-CID259-80234

0085-03-CID939-64011

0184-04CID259-80230

0046-03-CID899-63502

0011-04-CID469-79630

0114-02-CID369-23525

0232-04-CID259-80267

0011-04-CID679-83487

0573-04-CID023-67403

0100-04-CID452-63608

0139-03-CID469-60206

0040-04-CID469-79638

0139-04-CID789-83995

0140-04-CID259-80204

0262-04-CID259-80294

28 photographs in the below listed ROIs were deter mined to be responsive and are withheld, consistent with the Darby photographs currently on appeal, under FOIA Exemptions 6, 7c, and 7f.

0153-04-CID146-71446

0353-03-CID093-45256

0100-04-CID452-63608

0384-04-CID023-67275

0133-04-CID452-63629

0374-04-CID093-65446

0190-04-CID-259-80234

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[FOLD OUT]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[FOLD OUT]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

62. EXHIBIT C

 

Background Information on 29 Responsive Photos

 

All investigations triggered by allegations of detainee abuse/mistreatment.

Tab A (8 images). Images in unknown locations within Afghanistan, between 7 Nov 2002 and 30 Jun 2003. In vestigation did not establish probable cause to believe that any detainee abuse occurred; images did not reveal detainee abuse or mistreatment.

TAB B (2 images). Images at Camp Red, Iraq, between 25 Apr 2003 and 15 Aug 2003. Investigation resulted in insufficient evidence to prove or disprove detainee abuse or mistreatment. Investigation further revealed that Camp Reds Standard operating procedure for detainees who became violent were to separate them from other detainees, tie hands behind them, and cover their heads with empty sandbags as a security measure to ensure that they did not harm themselves or others.

TAB C (one image). U.S. Forces safe house, Al-Quaim, Iraq, between 1 Aug 03 and 31 Mar 04. Investigation established probable cause that soldier committed ag gravated assault when he pointed pistol at EPW he was guarding in Iraq. The soldier was found not guilty in non-judicial punishment proceedings under Article 15, Uniform Code of Military Justice (U.C.M.J.).

TAB D (one image). Division Central Collection point, Iraq, 21 Dec 03. Probable cause to believe that four sol diers committed offenses of conspiracy, fail to obey a lawful general order, and cruelty and maltreatment when they staged and posed for an inappropriate photo graph with detainees. No evidence that an assault oc curred using the broom. Three soldiers received punish ment under Article 15, U.C.M.J. proceedings. One sol dier received a reprimand.

TAB E (13 images). Fire Base Tycze, Dae Rah Wod, Af ghanistan, between 5 Dec 03 and 29 Feb 04. Investiga tion revealed that guards detailed to secure and protect detainees, jokingly pointed weapons at the bound de tainees and took photos of the activity. Probable cause to believe that 8 soldiers committed the offense of dere liction of duty, but aggravated assault unfounded be cause of insufficient evident [sic] that the detainees were in fear for their lives, or of grievous bodily harm, or were even aware weapons were being pointed at them. There was probable cause to believe that one soldier committed assault when he struck a bound detainee in the back of the head. The soldiers involved received punishment under Article 15, U.C.M.J. proceedings.

TAB F (2 images). Iraq, various places, between 13 Jun 03 and 13 Jun 04. The so-called "Ramadi Madness" im ages produced by members of B Co., 1/124th Infantry Reg., FLARNG. Investigation revealed that while inap propriate, none of the images depicted criminal conduct. The investigation indicates that the two still photos were staged.

TAB G (2 images). Baghdad International Airport (BIAP), Iraq, between 4 Mar 2004 and 11 Mar 2004. Detainee depicted in images claimed he was abused while detained by U.S. Forces at Al Baghdadi and BIAP. Insufficient evidence to prove or disprove the detainee's abuse allegations.

 

63. APPENDIX I

 

64. UNITED STATES DISTRICT COURT

65. FOR THE SOUTHERN DISTRICT OF NEW YORK

 

 

 

 

No. 04 Civ. 4151 (AKH)

AMERICAN CIVIL LIBERTIES UNION, CENTER FOR CONSTITUTIONAL RIGHTS, PHYSICIANS FOR HUMAN RIGHTS, VETERANS FOR COMMON SENSE AND

VETERANS FOR PEACE, PLAINTIFFS

v.

DEPARTMENT OF DEFENSE, AND ITS COMPONENTS DEPARTMENT OF ARMY, DEPARTMENT OF NAVY,

DEPARTMENT OF AIR FORCE, DEFENSE

INTELLIGENCE AGENCY; DEPARTMENT OF

HOMELAND SECURITY; DEPARTMENT OF JUSTICE, AND ITS COMPONENTS CIVIL RIGHTS DIVISION,

CRIMINAL DIVISION, OFFICE OF

INFORMATION AND PRIVACY, OFFICE OF

INTELLIGENCE POLICY AND REVIEW, FEDERAL

BUREAU OF INVESTIGATION; DEPARTMENT OF STATE; AND CENTRAL INTELLIGENCE AGENCY,

DEFENDANTS

 

 

 

 

[Filed: Apr. 26, 2006]

 

 

 

 

DECLARATION OF CARTER F. HAM

 

 

 

 

Carter F. Ham, pursuant to 28 U.S.C. sec. 1746, declares as follows:

1. I am a Brigadier General in the United States Army. I am currently the Deputy Director for Regional Operations (DDRO) of the Operations Directorate on the Joint Staff at the Pentagon. The DDRO is the prin cipal advisor to the Director for Operations, J-3, of the Joint Staff for operational matters outside of the conti nental United States. As such, the DDRO coordinates and communicates frequently with the staffs of US Cen tral Command, US European Command, US Pacific Command and US Southern Command to ensure com batant command concerns are addressed by the Joint Staff. The DDRO develops and coordinates operational orders and, once the Secretary of Defense approves such orders, communicates operational orders to the combat ant commands. Additionally, the DDRO manages the Global Force Management system, which, in close coor dination with US Joint Forces Command, US Transpor tation Command and US Strategic Command, ensures the highest priority combatant command requirements are met most effectively and efficiently. The DDRO maintains oversight of the National Military Command Center. In performing my duties as DDRO, I routinely confer with and obtain advice from combatant command ers' staffs regarding the operational requirements of their commands; I evaluate and synthesize this informa tion; and I advise and make recommendations to the Chairman of the Joint Chiefs of Staff through the Direc tor of Operations and other members of the Joint Staff.

2. Through the exercise of my official duties and as a result of my personal knowledge, I am familiar with this civil action and with Plaintiffs' requests for informa tion under the Freedom of Information Act. Further, I have reviewed the 29 photographic images that are iden tified in Exhibit B of the Fourth Declaration of Philip J.

McGuire (collectively referred to as the "Responsive Ar my Photos"). For the reasons set forth in this declara tion, I have concluded that the official release of the im ages further identified below, even if redacted to ob scure identifying information, could reasonably be ex pected to:

a. Endanger the lives and physical safety of the Sol diers, Sailors, Airmen, and Marines in the United States Armed Forces presently serving in Iraq and Afghanistan, as well as other U.S. officials, Coalition Forces allied with the United States, and contractors serving with these forces;

b. Endanger the lives and physical safety of Iraqi civilians at large, and police and military personnel of the democratic Iraqi Transitional Government working in coordination with the United States and Coalition Forces in support of Operation IRAQI FREEDOM;

c. Endanger the lives and physical safety of Afghan civilians at large, and police and military personnel of the Government of Afghanistan working in coordi nation with the United States and Coalition Forces operating in support of Operation ENDURING FREEDOM, NATO-led operations, and contractors serving with these forces;

d. Aid the recruitment efforts and other activities of insurgent elements, weaken the new democratic gov ernments of Iraq and Afghanistan, and add radical pressures on several of our regional allies and friends; and

e. Increase the likelihood of violence against United States interests, personnel, and citizens worldwide.

66. THE BASES FOR MY CONCLUSIONS

3. My conclusions are based upon my years of ser vice and experience in the United States military, the assessments and evaluations of the battlefield command ers responsible for Iraq and Afghanistan, and intelli gence reports and assessments of Department of De fense subject-matter experts on the Middle-Eastern region. In performing my duties, I routinely rely on the views of our combat command operations staffs, intelli gence synthesis and reports, and the assessments of subject matter experts. In formulating my conclusions concerning the Responsive Army Photos, I have used the same approach, types of resources, information, and experts. In particular:

a. I have served in the United States Armed Forces for more than 30 years at various levels of command and staff. I have served in my current position as Deputy Director of Regional Operations on the Joint Staff at the Pentagon since April 2005. From August 2003 through February 2005, I was Deputy Com manding General for Training and Readiness for the US Army's I Corps, which included duty as Com mander, Multi-National Brigade Northwest, Opera tion IRAQI FREEDOM. In the period of January 2004 to February 2005, I also was the senior U.S. commander in Mosul, Iraq, responsible for all U.S. and Coalition operations in the northern provinces of Iraq. From August 2001 to July 2003, I served in Central Command, including deployment to Qatar with the Central Command Headquarters, for the initial phases of Operation IRAQI FREEDOM. As a result of my experiences, I have intimate, extensive knowledge of our military forces and their capabili ties, as well as of the conventional and unconven tional forces and capabilities of the enemies arrayed against us.

b. As Deputy Director for Regional Operations, I receive and review daily operations briefings, re ports and intelligence analyses from Central Com mand, the Joint Staff, the Defense Intelligence Agency, the Central Intelligence Agency and the Na tional Security Agency. I oversee the Current Oper ations cell in the National Military Command Center, which is responsible for reporting real-time, world wide events affecting national security and US inter ests. Given my familiarity with current Operation IRAQI FREEDOM / Operation ENDURING FREEDOM events, I frequently provide briefings to the Senate and House Armed Services Committees and Congressional Delegations traveling to Iraq and Afghanistan. In short, my job requires me to be an expert in worldwide current operations.

c. In reaching my conclusions, I have reviewed and relied upon the Second Amended Declaration of for mer Chairman of the Joint Chiefs of Staff, General Richard B. Myers, dated August 25, 2005, that was submitted to this Court regarding the so-called Dar by photos. See Second Amended Declaration of Richard B. Myers, dated August 25, 2005, ¶¶ 2, 24-26.

d. With respect to this matter, I also have solicited and relied upon the assessments and recommenda tions of the following three individuals regarding their views of the military implications of release of the Responsive Army Photos: l) General John P. Abizaid, Commander, U.S. Central Command, who is the ultimate military Commander responsible for the geographical area that includes both Iraq and Af ghanistan; 2) General George Casey, the commander of the Multi-National Forces-Iraq (the ultimate mili tary commander in Iraq of the coalition armed forc es); and 3) Lieutenant General Karl W. Eikenberry, Combined Forces Command Afghanistan (the ulti mate military commander in Afghanistan of the coali tion armed forces). Each of these three command ers, by virtue of their positions and responsibilities and their immediate visibility of the battlefield envi ronment, have highly informed opinions that I have considered in this matter. Each of these three com manders agree with and support my conclusions about release of the Responsive Army Photos.

e. As I indicated above, I have also considered and relied upon the analysis and assessments of DOD resident subject-matter experts on the Middle-

Eastern region.

OPERATION ENDURING FREEDOM

AND OPERATION IRAQI FREEDOM

4. Following the attacks on the United States of September 11, 2001, the United States military, with the support of a worldwide coalition, launched Operation ENDURING FREEDOM to drive the oppressive Tali ban regime-which provided comfort and support to al- Qaeda terrorists-from Afghanistan. As a result of that successful effort, the Taliban was removed from power, and on October 9, 2004, the Afghan people for the first time ever selected their head of state, the president of Afghanistan, by democratic vote. Operation IRAQI FREEDOM was launched, again with the support of a worldwide coalition, to remove the dictatorial regime of Saddam Hussein from power, with the aim of ending an active threat to the safety of the U.S. and fostering the establishment of a democratic form of government in Iraq. Following a brief period when Iraq was led by a Coalition Provisional Authority, sovereignty of Iraq was transferred to an interim government, and democrati cally elected representatives of the Iraqi people are in the process of completing work on a national constitu tion. There is, however, more work to do. Insurgent elements in both Afghanistan and Iraq continue to at tack the process of democratic transition in those coun tries by mounting violent and deadly assaults against the multinational forces that remain posted in the region in order to protect and defend those countries as they take their steps toward freedom. As part of the multina tional commitment to strengthening and defending these emerging democracies, more than 23,000 U.S. troops remain on the ground in Afghanistan and over 132,000 U.S. troops are part of the ongoing mission in Iraq.

5. As General Myers' declaration sets forth in more detail, perceived mistreatment or humiliation of detain ees in the custody of the United States Armed Forces has been exploited or misrepresented for violent ends in Iraq, Afghanistan and elsewhere in the Middle East. See General Myers' Decl. ¶¶ 8, 14-19, 24-29. A prime ex ample of such violence was the rioting that occurred as a result of a Newsweek report-later retracted-of al leged abuse of the Koran by United States' personnel. Id. ¶¶ 14-19.

67. A. Current Situation in Iraq

6. The situation on the ground in Iraq remains dy namic and dangerous in Baghdad and several other parts of the country. It changes from day to day, and it varies from region to region. Insurgent attacks against Coalition Forces in Iraq average about 1,700 attacks per month. However, significant events can cause those lev els to spike to approximately 2,500 insurgent attacks per month.

7. As General Myers' declaration makes clear, one of the goals of the insurgency is to use violence against innocent civilians to undercut the mission of the U.S. and Coalition forces, as well as the Iraqi Transitional Government, and to stop the transition to democracy in that country. Thus, the insurgents will use any means necessary to incite violence and, specifically, have and will focus on perceived U.S. or Coalition mistreatment of Iraqi civilians and detainees as a propaganda and re cruiting tool to aid their cause.

8. For example, two British soldiers were killed and another was injured in Amarah, Iraq, by way of an Improvised Explosive Device in February 2006. Open sources linked these killings to recent use of a 2004 vi deo of British soldiers beating Iraqi youths in the Amarah area. Amarah, which is located north of Basra in the British-controlled Maysan province, is dubbed the "Wild West" by British troops and has been the focus of heavy attacks by insurgents. There had been warnings in the Arab media that there could be reprisals against British forces in the area as a result of the video. The warnings proved true. More than 1,000 protestors, many of them supporters of Shia cleric Muqtada al-Sadr, gather and shouted slogans against the alleged abuse of the youths in Amarah. The release of the tape inflamed tensions and led to the ruling council of Maysan province making a public declaration that they would suspend cooperation with all British forces and officials. Mem bers of Shiite political groups opposed to the U.S.-led coalition appeared to have engineered that move, appar ently seeking to exploit public sensitivities after at tempts by the British to be more aggressive with Shiite militias.

68. B. Current Situation in Afghanistan

9. The situation on the ground in Afghanistan also remains volatile. In addition to the details set forth in General Myers' declaration, the most recent estimates indicate that there are about 250 insurgent attacks per month against the Coalition Forces, which forces oper ate in support of the Government of Afghanistan. The insurgency in Afghanistan relies heavily on aggressive information operations to turn perceived insult or depre cation towards Islam into causes for violent uprisings.

10. As noted in General Myers' declaration, when Newsweek incorrectly reported that U.S. military per sonnel at Guantanamo Bay, Cuba had desecrated the Koran, at least eleven people died and many were hurt during several anti-U.S. protests in Afghanistan. Open sources reported that two United Nations guest-houses were attacked, as were shops and government buildings. Two offices of international aid groups were destroyed. And uprising of Muslims was not limited to Afghanistan. Open sources reported that about 12,000 people gath ered in Egypt, many of them supporters of the outlawed Muslim Brotherhood. About 30 people were injured during that protest. A similar number gathered in Bei rut, Lebanon, where the crowd carried black banners and burned American and Israeli flags. In Bangladesh's capital of Dhaka, about 5,000 people rallied after Friday prayers, spitting on U.S. flags and burning them. While doing so, they shouted "Death to America!" and "De stroy America!"

11. The recent reaction to re-publication of the Dan ish cartoon of the Prophet Muhammad is another exam ple of images being used in information operations to stir violent reactions in Afghanistan. In January 2006, a Norwegian publication reprinted a Danish cartoon depiction of the Prophet Muhammad. As a direct result, open sources reported that at least eleven people were killed in Afghanistan, including two people who died when protesters turned on the U.S. airbase at Bagram. As a result of the cartoon, violence erupted elsewhere as well. Again, open sources reported that the cartoon sparked violence between Nigeria's Muslim and Chris tian communities, leaving nearly 150 people dead and thousands displaced after five days of violence. Five protestors were killed in Pakistan during demonstra tions. One teenage boy died in Somalia after protestors attacked police. In Turkey-where U.S. forces are also stationed-a Catholic priest was killed, allegedly by a teenage shooter who was influenced by the cartoon. Protestors also attacked the Danish embassies in Iran, Syria and Lebanon. In addition to these violent reac tions, open sources reported protests at many locations in reaction to the Muhammad cartoon.

 

 

THE RESPONSIVE ARMY PHOTOS

12. I have personally reviewed the 29 responsive photographic images that are identified in Exhibit B of the Fourth Declaration of Philip J. McGuire.

13. [SEALED]

14. [SEALED]

15. [SEALED]

16. [SEALED]

17. [SEALED]

CONCLUSIONS AFTER REVIEWING

THE RESPONSIVE ARMY PHOTOS

18. Based on my review, I believe that official re lease of the 22 Responsive Army Photographs described in paragraphs 13-16 above will pose a clear and grave risk of inciting violence and riots against American troops and coalition forces. I also believe that release of the Responsive Army Photos will expose innocent Iraqi, Afghan, and American civilians to harm as a result of the insurgency's reaction, which will likely involve violence and rioting. It is probable that the insurgents and other groups will seize upon these images as grist for their propaganda mill, which will result in, besides violent at tacks, increased terrorist recruitment, continued finan cial support, and exacerbation of tensions between the Iraqi and Afghan populaces and U.S. and Coalition Forces.

19. My opinion is based upon the information set forth in General Myers' declaration, including but not limited to the vitriolic and violent reaction to News week's Koran report, as well as the updated assessment of the conditions in Iraq and Afghanistan, which is in formed by the violence arising out [sic] the publication of cartoons depicting the Prophet Muhammed and re lease of a British video depicting the mistreatment of Iraqi nationals. Release of these Responsive Army Pho tos will be portrayed as part of an alleged, continuing effort of the United States to humiliate Muslims and, given the patterns of violence observed there, will be used by the insurgents as propaganda to increase calls for violence against U.S. and Coalition personnel. I be lieve that if the Responsive Army Photos are released, riots, violence, and attacks by insurgents will result.

20. I am also concerned that, while the photographs are illustrative of isolated activity, their graphic and offensive nature will make it easy to falsely generalize from those images and impugn the United States Armed Forces as a whole, thereby generating a more vehement -and violent-reaction. The offensiveness of these im ages will make it more difficult to counteract calls for violence against U.S. and Coalition Forces.

Redaction of the Responsive Army Photos

Does Not Alter These Conclusions

21. Redaction of the Responsive Army Photos to ob scure individuals' faces and identifying information does not change my opinion. Release of the photographs, even in redacted form, will very likely lead to riots and violence in Iraq, Afghanistan and elsewhere in the Mid dle East, posing grave risk to both military forces and civilians. This is because the privacy concerns of the detainees are separate and distinct from the inflamma tory nature of the images depicted in the Responsive Army Photos-and thus the risk of harm to our per sonnel-which remains apparent despite redaction.

Sealing Portions of This Declaration

22. In some of the paragraphs of this Declaration, I provide descriptions of the records that are the subject of this litigation, and I respectfully request that the Court seal the paragraphs 13-17.

CONCLUSION

In light of the knowledge and information described herein, and given the inflammatory nature of the Re sponsive Army Photos, I believe that the Responsive Ar my Photos that I have identified in this declaration must be withheld in order to protect the lives of: members of the United States Armed Forces, forces operating in co operation with the United States, and contractors oper ating with those forces; U.S. officials; Iraqi and Afghan police and military personnel working in coordination with our government and military forces; as well as to protect against the increased likelihood of violence against U.S. interests, personnel, and citizens world- wide.

I declare under penalty of perjury that the foregoing is true and correct.

/s/ CARTER F. HAM

CARTER F. HAM

 

Date: Washington, D.C.

April 26, 2006

 

69. APPENDIX J

70.

71. UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

 

 

 

 

No. 06-3140-cv

AMERICAN CIVIL LIBERTIES UNION, ET AL.,

PLAINTIFFS-APPELLEES

v.

DEPARTMENT OF DEFENSE, ET AL.,

DEFENDANTS-APPELLANTS

 

 

 

 

[Filed: May 28, 2009]

 

 

 

 

DECLARATION OF GENERAL DAVID H. PETRAEUS

 

 

 

 

I, General David H. Petraeus, pursuant to 28 U.S.C. 1746, hereby declare as follows:

(U) 1. I currently serve as the Commander of United States Central Command

(USCENTCOM). This Combatant Command was established by the Presi dent pursuant to Title 10, U.S. Code, Section 161. USCENTCOM seeks to promote cooperation, to re spond to crises, to deter aggression, and when neces sary, to defeat our adversaries in order to promote secu rity, stability, and prosperity within the USCENTCOM

Area of Responsibility (AOR). The USCENTCOM AOR stretches across more than 4.6 million square miles and 20 countries located through the Middle East and Cen tral Asia, including Iraq, Afghanistan, and Pakistan. The statements in this declaration are based upon my personal knowledge and upon information made avail able to me in the performance of my official duties.

(U) 2. Through the exercise of my official duties and as a result of my personal knowledge, I am familiar with this civil action and have reviewed the 21 photographic images that the district court ordered released on 21 June 2006, and that are the subject of the appeal in ACLU v. Department of Defense, 543 F.3d 59 (2d Cir. 2008). I am also aware that in addition to the 21 images specifically addressed in the appeal before the Second Circuit, there is a substantial number of additional im ages that are responsive to the Freedom of Information Act request in this case. For the reasons set forth in this declaration, I have concluded that the official re lease of those images, even if redacted to obscure identi fying information, could be reasonably expected to ad versely impact current military, political, and civil ef forts in the USCENTCOM AOR. In addition to fueling civil unrest, causing increased targeting of U.S. and Co alition forces, and providing an additional recruiting tool to insurgents and violent extremist groups, the destab ilizing effect on our partner nations cannot be underesti mated. Many of our partner nations in the region strug gle with their populations' perceptions that they are merely instruments of the U.S. government and do not have their citizens' best interests at heart. These per ceptions are directly fueled by extremist groups' expert

public affairs campaigns to win "hearts and minds" across the USCENTCOM AOR and to recruit new mem bers. Nowhere are USCENTCOM's efforts to win this struggle, by strengthening the legitimacy and efficacy of host nation governments, more critical than in Pakistan, Afghanistan, and Iraq. The release of images depicting U.S. servicemen mistreating detainees in Iraq and Af ghanistan, or that could be construed as depicting mis treatment, would likely deal a particularly hard blow to USCENTCOM and U.S. interagency counterinsurgency efforts in these three key nations, as well as further en danger the lives of U.S. Soldiers, Marines, Airmen, Sail ors, civilians, and contractors presently serving there.

(U) 3. My conclusions are based on my years of ser vice and experience in the United States military; intelli gence and operations reports, as well as assessments of the situation in the USCENTCOM AOR, and Pakistan, Afghanistan and Iraq specifically; assessments and eval uations of my subordinate commanders; the declarations made previously in this case; and regular interaction with both military and civilian leadership of the nations in the USCENTCOM AOR. In particular:

a. (U) I have served in the United States Army for 35 years at various levels of command and staff. I have commanded at the battalion, brigade, division, Multi-National Force-Iraq (MNF-I) and theater levels, including at the two-, three-, and four-star levels in Iraq. My staff experience includes serving as the Executive Assistant to the Chairman of the Joint Chiefs of Staff; Aide to the Chief of Staff of the Army; Military Assis tant to Supreme Allied Commander-Europe; Chief of Operations of the United Nations Force in Haiti; and Assistant Chief of Staff for Operations of the NATO Sta bilization Force in Bosnia.

b. (U) I have extensive experience in Iraq, inc luding command at the division and theater levels. In addition to commanding Multi-National Force-Iraq (MNF-I) for over 19 months prior to taking command of USCENTCOM, I commanded the 101st Airborne Divi sion (Air Assault), during the first year of Operation Iraqi Freedom. I was also the first commander of Multi- National Security Transition Command-Iraq from June 2004 to September 2005, and the commander of the NATO Training Mission-Iraq from October 2004 to Sep tember 2005. Prior to my tour as MNF-I commander, I commanded the U.S. Army Combined Arms Center and Fort Leavenworth, during the development and publica tion of both the U.S. Army Field Manual 3-24, Counter insurgency, and U.S. Army Field Manual 2-22.3, Hu man Intelligence Collector Operations.

c. (U) As a result of this experience, I have inti mate and extensive knowledge of our military forces and interagency partners and their capabilities, as well as those of the enemies who threaten U.S., Coalition, Iraqi, Afghan, and Pakistani forces and interests.

d. (U) As the Commander of USCENTCOM, I receive daily intelligence and operations briefings re garding the political, economic, diplomatic, and security environment in the countries in the USCENTCOM AOR, with particular emphasis on Pakistan, Afghani stan, and Iraq. These briefings are produced by sub ject-matter experts, and I rely on and trust their exper tise and insights.

e. (U) I frequently travel throughout the USCENTCOM AOR to personally view the situation across the region. During these missions, I receive re ports from subordinate operational and tactical com manders who provide insights from the local and re- gional levels. I also meet regularly with national politi cal and military leaders.

f. (U) I reviewed and relied upon the Declara tion of Brigadier General Carter F. Ham, dated April 26, 2006, and the Second Amended Declaration of the for mer Chairman of the Joint Chiefs of Staff, General Rich ard B. Myers, dated August 25, 2005, which were sub mitted to the district court regarding photos purporting to show detainee abuse.

g. (U) I strongly condemn any misconduct and abuse depicted in these images that were the responsi bility of U.S. military personnel. I am committed to en suring all detainees in the USCENTCOM AOR are treated humanely, and that any allegation of detainee mistreatment is immediately investigated and appropri ate disciplinary action taken. In fact, as Commander of both MNF-I and USCENTCOM, I have repeatedly stressed that we must "live our values," and not only ensure U.S. servicemen treat detainees humanely, but that the nations we are assisting also do the same. Ear ly on in our operations in Iraq in the late spring of 2003, I directed the 101st Airborne Division commanders to ensure observance of the Geneva Conventions regarding treatment of those we detained. As the Commander of MNF-I, I directed MNF-I forces to intervene to stop abuse if it occurs, and to prevent abuse through educa tion, training, and mentoring.

PAKISTAN

(U) 4. The need to establish a trusting, mutually ben eficial U.S.-Pakistan partnership is pressing, yet the ability to do so is severely challenged by current events. The Government of Pakistan (GOP) faces a burgeoning threat from the Taliban, indigenous Pakistani militant groups, and foreign extremists in Pakistan's Federally Administered Tribal Areas (FATA) and Northwest Frontier Province (NWFP).

(U) 5. To counter this threat, Pakistan's Frontier Corps (FC) commenced security operations in the area in late-August 2008. Despite these efforts, which were undermined by a wavering commitment from the GOP, the security situation in Pakistan deteriorated further. The Taliban quickly came to control the entire Swat Val ley in the NWFP. Pakistan's leaders became anxious to develop a means of restoring stability and order to the region. The GOP entered into peace talks with NWFP militants who proffered a diplomatic solution, including the implementation of Shari'a law within the Swat Val ley and the Malakand Division. In exchange, the GOP agreed that the Pakistan Military would cease opera tions and the militants would lay down their arms.

(U) 6. This arrangement was short-lived, however, and disagreements quickly arose over the militants' im mediate and brutal implementation of Shari'a law in Swat Valley. The militants resumed offensive opera tions and by late-April 2009, they had pushed to within 60 miles of Islamabad, Pakistan's capital. As militant influence grew toward the urban heart of the country, the international community and civil society groups became increasingly alarmed, forcing the government to recognize the growing threat and deploy the Pakistan Military. While the current offensive by the Pakistan Military seems their most serious effort to date, endur ing success against the militants has yet to be seen, and several hundred-thousand Pakistani civilians have been displaced in the latest fighting.

(U) 7. The stabilization of Pakistan via a strong part nership with the United States is critical. Violent Ex tremist Organizations (VEO), Al Qaeda (AQ) and the Taliban not only destabilize Pakistan, they undermine the regional stability necessary for fulfillment of U.S. goals in the region. Al Qaeda and Associated Move ments (AQAM) use the ungoverned space of the FATA to plan for and train terrorists intent on attacking the U.S. and U.S. interests abroad, including sending fight ers across the border into Afghanistan.44 Even with new supplemental distribution networks, sustainment opera tions of U.S. forces in Afghanistan are highly dependent on air and ground routes through Pakistan. Separately, the security of the Pakistani nuclear arsenal is of con cern, and it is not entirely inconceivable that a country like Pakistan, facing many complex problems, could de teriorate at a pace that would challenge their and our best capabilities to restore order.

(U) 8. Newly released photos depicting abuse of de tainees in U.S. military custody in Afghanistan and Iraq would negatively affect the on-going efforts by Pakistan to counter its internal extremist threat. Anti-U.S. senti ment has already been increasing in Pakistan. Most poll ing data reflects this trend, especially in regard to cross-border operations and reported drone strikes, which Pakistanis perceive to cause unacceptable civilian casualties. In June 2008, 45% of Pakistanis said that U.S. presence in the region was a threat to Pakistan, and that jumped to 54% in October 2008. It may be higher today, and will certainly increase if new detainee abuse photos are released. Most Pakistanis also feel that U.S.-Pakistan cooperation does not "mostly benefit" Pakistan (2% in October 2008, down from 7% in June 2008). While other polling data show minor improve ments in US-Pakistan relations, 63% of Pakistanis still oppose cooperating with the U.S. on counter-terror op erations, and 35% say they do not support U.S. strikes into Pakistan, even if they are coordinated with the GOP and the Pakistan Military ahead of time. Preventing Pakistan-based militants from exacerbating strained U.S.-Pakistan tensions has been very difficult for the GOP in recent months and years. Release of images depicting, or that could be construed as depicting, U.S. forces abusing detainees who would likely be depicted as "fellow Muslims" would undermine this effort.

(U) 9. Based on historical precedents, such as the publication of Danish cartoons depicting the Prophet Mohammed in late 2005 and a Newsweek article errone ously highlighting desecration of the Koran by U.S. mili tary members in 2006, civil unrest via spontaneous dem onstrations in Pakistan's largest cities would be a likely result of publication of images depicting U.S. abuse of detainees in its custody in Iraq and Afghanistan. Mili tant and extremist groups would use these images to foment anti-U.S. sentiment and to incite demonstrators to conduct deliberate attacks against U.S. targets,45 as well as western Non-Government Organization (NGO) facilities and personnel.46

(S) 10. [REDACTED]

AFGHANISTAN47

(U) 11. Afghanistan's nationwide violence is present ly 95% higher than it was during this same period last year. The increase in violence is expected to continue throughout the summer following the conclusion of the spring poppy harvest. Fighters will refocus on conduct ing insurgent operations and additional U.S. forces will begin operations. Despite recent U.S. and International Security Assistance Force (ISAF) operations to disrupt insurgents in southern Afghanistan, insurgents continue planning for organized attacks against the provincial capitals of Helmand and Kandahar Provinces. The end of the poppy harvest in southern Afghanistan will likely lead to a significant increase in violence there, once again surpassing that of violence in all other regions.

(U) 12. Newly released photos depicting, or that could be construed as depicting, abuse of detainees in U.S. military custody in Iraq and Afghanistan would place U.S. servicemen in Afghanistan at heightened risk and corrosively affect U.S. relations with President Kar zai's government, as well as further erode control of the Afghan government in general. Spontaneous demon strations might occur in Kabul, Kandahar City, Mazar e Sharif and other population centers in Afghanistan. Public condemnations by Afghan leaders and insurgency leaders would be certain. An influx of foreign fighters from outside Afghanistan and new recruits from within Afghan [sic] could materialize, as the new photos serve as potent recruiting material to attract new members to join the insurgency. New photos would also serve to en hance fund-raising efforts for insurgent sympathizers across the Muslim world. Attacks against newly-arriv ing U.S. Marines and soon-to-arrive U.S. Army units in the south, and transitioning U.S. Amy units in the east, could increase, thus further endangering the life and physical safety of military personnel in these regions.

(U) 13. Attacks against Afghan offices and govern ment leaders in Kabul and provincial capitals could also occur, as could attacks against the primary ground line of communication or disruption of the Northern Distri bution Network. The Afghan presidential election cycle might also be disrupted. Indeed, Taliban and insurgent forces have stated that disrupting the 2009 presidential elections is one of their objectives. Release of the pho tos would make attacks and disruptions even more like ly. Coordinated attacks focused on polling stations or destruction of votes could raise concerns over the valid ity of the elections, and any hint of improper elections would exacerbate perceptions that the Afghan govern ment lacks legitimacy. Managing preparations for Af ghanistan elections, while simultaneously enduring pro tests and public condemnations from Afghanistan lead ers regarding detainee images and civilian casualties caused by U.S. air strikes, would make the situation very challenging for U.S. and ISAF forces. Perhaps most importantly, release of the photos could undermine U.S. goals in the region, particularly if Muslim sensitivi ties become inflamed and Muslim willingness to work with the U.S. is degraded, which would be likely with publication of photos depicting, or that could be con strued as depicting, U.S. detainee abuse of detainees in its custody in Iraq and Afghanistan.

(S// REL [REDACTED]) 14. [REDACTED]

(S// REL [REDACTED]) 15. [REDACTED]

IRAQ

(U) 16. Iraq continues to sustain progress in security and stability, but the progress remains fragile and re versible. Despite security gains, Sunni and Shi'a ex tremists continue to pose threats to Iraq's security. While overall violence decreased significantly48 in 2008, a string of high profile attacks aimed at Iraqi Shi'a in Baghdad, from late-March to early-May of this year, demonstrated the tenuous nature of Iraq's present secu rity environment. These attacks highlight the lethality of small terrorist cells despite their reduced capacity. Shi'a extremist-related violence appears to be largely focused against U.S. forces. The focus of the Sunni in surgency has been pushed into parts of Northen Iraq as Coalition forces, Iraqi Security Forces (ISF), and Sons of Iraq (SOI) have worked to limit Sunni insurgent free dom of movement. Meanwhile, Iraq's security responsi bilities are in a period of transition as responsibilities shift from Coalition Forces to Iraqi Security Forces, per the terms of the Iraqi-US Security Agreement that went into effect on 1 January 2009.

(U) 17. Newly released photos depicting abuse, or that could be construed as depicting abuse, of Iraqis in U.S. military custody would inflame emotions across Iraq and trigger the same motivations that prompted many young men to respond to calls for jihad following the Abu Ghraib photo release. After the Abu Ghraib photos were publicized in 2004, there was a significant response to the call for jihad, with new extremists com mitting themselves to violence against U.S. forces. Al-Qaeda in Iraq (AQI) and Sunni insurgents groups in Iraq will likely use any release of detainee abuse images for propaganda purposes, and possibly as an opportunity to widen the call for jihad against U.S. forces, which could result in a near-term increase in recruiting and attacks. Anti-American and anti-Iraqi government pro tests can also be expected, with most of the anger likely directed towards the U.S. presence.49 With national elec tions approaching later in the year, Iraqi politicians can be expected to use the detainee images as fodder for their campaigns, especially in response to anti-U.S. sen timent that may increase as elections draw near and final U.S. withdrawal becomes more imminent. Addi tionally, pressure will mount on the Prime Minister to allow for a national referendum on the Security Agree ment and the Strategic Framework Agreement.

(U) I declare under the penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Executed on 27th May 2009.

 

/s/ DAVID H. PETRAEUS

DAVID H. PETRAEUS

General, U.S. Army

Commander, USCENTCOM4

 

72. APPENDIX K

 

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

 

 

 

 

No. 06-3140-cv

AMERICAN CIVIL LIBERTIES UNION, ET AL., PLAINTIFFS-APPELLEES

v.

DEPARTMENT OF DEFENSE, ET AL.,

DEFENDANTS-APPELLANTS

 

 

 

 

[Filed: May 28, 2009]

 

 

 

 

DECLARATION OF GENERAL RAYMOND T. ODIERNO

 

 

 

 

I, General Raymond T. Odierno, pursuant to 28 U.S.C. § 1746, hereby declare as follows:

1. (U) I am the Commander of Multi-National Force-Iraq (MNF-I). MNF-I is the strategic headquar ters responsible for coalition operations in Iraq. I have served in the Iraq Theater of Operations (ITO) for 36 months in the past six years. The statements in this declaration are based upon my personal knowledge and upon information made available to me in the perfor mance of my official duties. In relevant areas I will re late the views and opinions of senior Iraqi leaders.

2. (U) Through the exercise of my official duties and as a result of my personal knowledge, I am familiar with this civil action and have reviewed the 21 photo graphic images ("the photos") that the district court ordered released on June 21, 2006, that are the subject of the appeal in ACLU v. Department of Defense, 543 F.3d 59 (2d Cir. 2008). For the reasons set forth in this declaration, I have concluded that the official release of these images, even if redacted to obscure identifying information, could reasonably be expected to:

a. (U) Endanger the lives of U.S. and coalition Soldiers, Airmen, Marines, Sailors, civilians, and con tractors presently serving in Iraq;

b. (U) Endanger the lives of Iraqi civilians, po lice, military personnel and government officials;

c. (U) Aid in the recruitment and financing of extremists and insurgent groups; and

d. (U) Undermine the improving security condi tions in Iraq.

3. (U) My conclusions are based on my years of service and experience in the United States military in general and Iraq in particular, intelligence and opera tions reports and assessments of the situation in Iraq, the assessments and evaluations of my subordinate com manders, the declarations made previously in this case, and regular interaction with Iraqi leaders. In particu lar:

a. (U) I have served in the United States Army for over 32 years at various levels of command and staff. I have commanded units at every echelon, from platoon to theater. My staff experience includes serving as the Assistant to the Chairman of the Joint Chiefs of Staff, where I was the primary military advisor to Secretaries of State Colin Powell and Condoleezza Rice. I have ex tensive experience in Iraq, including command at the division, corps, and theater levels. I commanded the 4th Infantry Division, which was headquartered in the Sunni Triangle, when it was deployed to Iraq from April 2003 to March 2004. I commanded the Multi-National Corps- Iraq, which is the operational command responsible for coalition forces throughout Iraq, from December 2006 to February 2008, during the surge of U.S. forces. I as sumed my current command at Multi-National Force- Iraq, which is the strategic command responsible for coalition operations in Iraq, in September 2008. As a re sult of this experience, I have intimate and extensive knowledge of our forces and their capabilities, as well as those of the enemies who threaten U.S., Coalition, and Iraqi forces and interests.

b. (U) I receive daily intelligence and operations briefings regarding the political, economic, diplomatic, and security environment in Iraq. These briefings are produced by subject-matter experts, and I rely on and trust their expertise and insights.

c. (U) I frequently travel throughout Iraq to see firsthand the situation across the country. During these missions, I receive reports from subordinate operational and tactical commanders who provide insights from the local and regional levels.

d. (U) I reviewed and relied upon the Declara tion of Brigadier General Carter F. Ham, dated April 26, 2006, and the Second Amended Declaration of the for mer Chairman of the Joint Chiefs of Staff, General Rich ard B. Myers, dated August 25, 2005, which were sub mitted to the district court regarding photos purporting to show detainee abuse.

e. (U) I am constantly engaged with the senior political leaders in Iraq, who share with me their unique insights into the conditions within their country. As the conflict on Iraq will impact their nation for decades to come, I find their perspective to be persuasive.

4. (U) I strongly believe the release of these pho tos will endanger the lives of U.S. Soldiers, Airmen, Ma rines, Sailors and civilians as well as the lives of our Iraqi partners. Certain operating units are at particu lar risk of harm from the release of the photos. One ex ample is our training teams throughout Iraq. These are small elements of between 15 and 30 individuals who live on Iraqi-controlled installations and thus do not have the same protections afforded to many of our service mem bers. In addition, as they assist our Iraqi partners, members of such teams are regularly engaged in small- unit patrols, making them more vulnerable to insurgent attacks or other violence directed at U.S. forces. Ac cordingly, there is good reason to conclude that the sol diers in those teams and in similarly situated units would face a particularly serious risk to their lives and physical safety.

5. (U) The publication of these photos will be likely to significantly and adversely impact the MNF-I mission to develop a strategic partnership with a stable, secure, prosperous, and democratic Iraq that reflects its society and culture, stands as an ally in the war on ter ror, and contributes to peace and stability in the region. The photos will likely cause a very public and emotional response in Iraq and in the larger Arab world because the images may touch on a number of deep-rooted Arab cultural values that will resonate with the Iraqi public. The Iraqi public, if inflamed with emotion, may be easily manipulated by competitors seeking to exploit this op portunity to their full advantage. Many Arabs harbor long-standing perceived grievances against the west in general and the U.S. in particular. The release of these photographs likely will only fuel this resentment.

6. (U) In April 2004, news organizations published reports of U.S. abuses of Iraqi detainees that publicly disseminated an initial set of photographs taken at the Abu Ghraib prison. Extremist organizations including al Qaeda in Iraq (AQI) and Islamic State of Iraq (ISI) used the revelations of detainee abuse and copies of as sociated photographs to recruit and motivate organiza tion members. The graphic revelations of detainee abuse motivated some terrorists including foreign fight ers from Syria, Yemen and Saudi Arabia to join the ji had. Reporting also indicates that some organizations may have staged and disseminated photographs of Arab women being abused by men in U.S. uniforms. Extrem ist groups initially misrepresented the depicted abuse as evidence of the widespread rape of female Iraqi detain ees by U.S. soldiers as a further motivation for recruit ment and to support the exhortation for attacks against Coalition Forces (CF).

7. (U) The public dissemination of detainee abuse photos in 2004 likely contributed to a spike in violence in Iraq during the third quarter of 2004 as foreign fighters and domestic insurgents were drawn to Iraq to train and fight. Attacks on CF increased from around 700 in March 2004 to around 1800 in May (after the photo graphs were broadcast and published) and 2800 in Au gust 2004. Attacks on CF did not subside to March 2004 levels until June 2008. These increased attacks resulted in the death of CF, Iraqi forces, and civilians.

8. (U) The 2004 publication of detainee photos re sulted in a number of postings on internet websites. In May 2004, one posting called for the dissemination of photographs depicting Iraqi women being raped in U.S. prisons, "because now the timing is better than ever." Another posting referenced "torture and rape" of Mus lims in Iraqi prisons, while calling for Saudi security forces to refrain from assisting CF. In June 2004, sev eral Islamist, Jihadist, and Salafist websites provided links to an audio message, purportedly made by al- Qaeda leader Abu Musab al-Zarqawi. The message in cluded a threat to kill the Prime Minister of Iraq, Ayad Allawi, and referred to alleged degrading treatment suffered by female detainees.

9. (U) Perhaps the most gruesome of internet re actions to the photo publication was a video posted in May of 2004 showing the decapitation murder of U.S. contractor Nicholas Berg. A man believed to be Zar qawi specifically made the linkage between the abuses at Abu Ghraib and Berg's murder, saying, "And how does a free Muslim sleep comfortably watching Islam being slaughtered, and [its] dignity being drained. The shameful photos are evil humiliation for Muslim men and women in the Abu Ghraib prison. . . . We tell you that the dignity of the Muslims at the Abu Ghraib prison is worth the sacrifice of blood and souls. We will send you coffin after coffin and box after box slaughtered in this way." The June 2004 kidnapping and murder of U.S. contractor Paul Johnson, Jr. and other anti-West ern incidents in Saudi Arabia were possibly influenced by the coverage of Berg's kidnapping and murder.

10. (U) While conditions in Iraq have improved since the declaration of BG Ham and Gen Myers, I concur with their overall assessment of the potential impact of releasing images purporting to show detainee abuse. Extremist groups will likely use any means necessary to incite violence and, specifically, have and will likely fo cus on perceived U.S. or Coalition mistreatment of Iraqi civilians and detainees as a propaganda and recruiting tool to aid their cause. See BG Ham's Decl. ¶ 7 and Gen Myers' Decl. ¶ 8. The next six to eight months are a time of particular fragility in Iraq. Withdrawal of U.S. combat forces from Iraqi cities, villages, and localities, elections for the Kurdistan Regional Government, a na tional referendum on the Security Agreement, a national census, and national elections are tipping points in the near future that extremist groups reinvigorated by re lease of the photos may seek to manipulate through vio lence.

11. (U) MNF-I will likely experience an increase in security incidents particularly aimed at U.S. personnel and facilities following the release of the photos. Inci dents of spontaneous violence against U.S. Forces, pos sibly including attacks from outraged Iraqi police or army members are likely. This could weaken our part nership with the Iraqi Security Forces, decrease secu rity, and lead to more violence. Attacks against soft targets which represent visible symbols of U.S. presence or culture are also likely. Such increased attacks will put U.S. Forces, civilians, and Iraqi partners at risk of being killed, injured, or kidnapped. The photos will like ly be used as a justification for adversaries conducting retribution attacks against the U.S. for bringing shame on Iraq.

12. (U) Sunni ethno-sectarian nationalist and Is lamist resistance groups, Salafist-jihadist extremist groups and Shia armed militia groups all oppose the U.S. presence and will likely attempt to exploit the re lease in their propaganda campaigns. Anti-U.S. groups will likely attempt to misrepresent the photos as evi dence of continuing U.S. misconduct and noncompliance with international law and the standards of a humane and civilized society. The U.S. will also likely be por trayed as the continuing oppressor of Iraqis, Arabs and Muslims. In addition, opponents of a U.S. presence, such as the Sadrists and Iran, may use the photographs as propaganda supporting calls for a referendum on the U.S.-Iraq bilateral security agreement. The release of the photographs is likely to harden existing anti-US opinion in the Council of Representatives (COR), and in local and regional media.

13. (U) These propaganda measures will likely in crease popular and financial support for anti-U.S. groups and may have a positive influence on recruitment for some groups. In particular, Sadrist political figures and their associated groups may respond to the release of photos by calling for mass demonstrations against the continuing presence of U.S. forces in Iraq.

14. (U) The Security Agreement Referendum is scheduled for this summer. The release of the photos may incite the Iraqi public and cause the referendum to be defeated. If the referendum is defeated, U.S. Forces will be required to leave Iraq earlier than scheduled, further destabilizing the region and leaving Iraq vulner able to outside influences, especially from Iran.

15. (U) MNF-I detainee release and reconciliation initiatives may be impacted as adversaries exploit these images to increase recruiting and motivate members to conduct attacks against the U.S. Iraqi community and political leaders will likely seek to avoid any potential liability associated with ties to U.S. detainee operations. Detainees released from our facilities may provide a fo cused target for extremist recruiting by characterizing all former detainees as having an obligation to restore the honor taken from the specific victims in the photos. This characterization may gain momentum among those detainees who were already vulnerable due to unemploy ment or community hostility by making them believe that the taint of their detention in a U.S. facility leaves them with no options.

16. (U) I believe these images will be used to in flame outrage against the U.S. and be used by terrorist organizations to recruit new members. The release of the photos will likely incite Muslim idealists to join the cause to seek retribution for the dishonor they may per ceive to have been brought against all Muslims by the U.S. inside Iraq, the publicity over the images could in cite additional attacks on U.S. personnel by members of the Iraq Security Forces ("green-on-blue" attacks); whether individually motivated, or instigated by an ex tremist affiliation. Groups most likely to use this as an opportunity to recruit and engage in attacks against US Forces are Sunni foreign fighters and Sunni extremists. Groups more likely to use this as an opportunity to draw attention to Iraqi jurisdiction and the relationship be tween Iraq and the United States are Shia extremists.

17. (U) MNF-I will likely experience an increase in attacks against U.S. Forces and bases as the photos in cite retaliation by the Iraqi public. Iraqi Security Forces and the Government of Iraq (GoI) may experi ence a similar increase in attacks as a protest against the U.S./GoI partnerships. Less violent, but still posing a challenge for the U.S., may be an increase in the num ber of unspecified allegations of recent mistreatment in order to contradict our statements that the photos do not represent our policies, practices, or values. These claims could be exacerbated by calls for criminal prose cutions in Iraqi courts over U.S. servicemembers alleged to have engaged in mistreatment.

18. (U) The Iraqis, from their point of view, may feel largely excluded from the public discourse these im ages may generate in the U.S. and world stage. As was the case following Abu Ghraib, Iraqis may feel that the dignity of any Arab is of little consequence to the Ameri cans when compared to their own interests. The official positions and talking points of the various stakeholders may do little to refute their certainty. The Iraqis likely will express this sentiment in a very public way utilizing media, political, and cultural mechanisms.

19. (U) During my conversations with senior Iraqi officials, they have expressed extreme concern about the impact of the potential release of photos depicting actual or perceived abuse of detainees ("abuse photos"). Among their concerns were that release of such photos would increase the pressure to release individuals that U.S. forces are currently holding as security detainees. These individuals currently are being released in a safe and orderly fashion, and accelerating the process could disrupt the delicate security balance in Iraq. They also stated that those in violent opposition to the political process would likely use abuse photos to maximize sup port, increase funding, and stiffen the resistance. They believe that releasing such photos will result in an out break of violence directed at U.S. forces and facilities. Furthermore, they are concerned that releasing abuse photos will severely impact reconciliation as former op position elements meet resistance to reconciling with a Government that has aligned itself with the country that committed this abuse.

20. (S) [REDACTED]

21. (S) [REDACTED]

22. (S) [REDACTED]

23. (U) A senior member of a prominent Sunni poli tical group and a member of the Council of Representa tives (the COR is the parliament) told a senior MNF-I leader that insurgents and terrorist groups will exploit the release of abuse photos to steadily increase attacks against U.S. Forces and Iraqis working with U.S. Forc es. This COR member was consulted for a Sunni per spective, and he wished to emphasize that release of abuse photos would cause disturbances in Iraq: "With all due respect to freedom of information in the United States," for Iraq's sake he urged that they not be re leased at this time. "A release would disturb plans for [democratic] progress in the country because the Iraqi people would react poorly. In light of upcoming national elections, Iraqi politicians would exploit the situation to attract votes, further stirring things up."

24 (S) [REDACTED]

25. (U) A senior Shi'a member of the COR in a re cent discussion with a senior MNF-I leader also raised concerns that the release of abuse photos would disrupt Iraq's democratic process, its security environment, and U.S.-Iraq relations. He stated that this is the worst pos sible time to release abuse photos as it is just prior to the beginning of the second Iraqi national election sea son. The release, he explained, would only serve to em barrass the Maliki government. The release would also expose the Maliki government to criticism from political opponents like militant Sunni nationalists or the Sadrists who would want to use any tool available to em barrass the current government. Furthermore, the "op positionists" could tie the abuse scandal to their support for the U.S./Iraq Security Agreement (SA). He added that the lack of support could impact the ability of the GoI to defend the implementation of provisions in the SA, including any requests for U.S. military support in security operations in cities, villages, and localities, and implementing legal provisions concerning U.S. troops accused of crimes while conducting operations. More over, he explained that release of abuse photos would only serve to increase calls for a referendum on the Se curity Agreement and would prejudice the Iraqi public against any agreement that would serve Iraq and U.S. long term security interests. Release of abuse photos would serve insurgent or terrorist interests by providing them with a propaganda windfall that would help recruit and find support from the population since it would be inevitable that many in the Iraqi public would feel a de sire to take revenge on those whom they see as occupi ers who humiliated them. Finally, he stated release of abuse photos would, in his opinion, directly endanger U.S. troops and civilians attempting to support the GoI efforts to improve security and services to the popula tion as well as put Iraqi civilians at risk.

26. (U) Reconciliation among the various groups in Iraq is one of the prime efforts with which we support and assist the GoI. Recently, a senior official within the Government of Iraq who addresses reconciliation issues stated that timing now is poor for Iraq. He observed that those who support the reconciliation process might treat the photo release with equanimity, while those who oppose the political process would seek to use it as an instrument to create difficulties in advancing the strate gic relationship. Further, those who oppose the process through violent means would likely seek to use abuse photos to maximize their support, seek additional fund ing from regional paymasters, and use the anger gener ated as a "recruiting sergeant" to stiffen the resistance. He agreed this is a problematic issue that needs resolu tion, but now would not be a good time, and it would not assist the reconciliation process.

27. (U) Political competitors are likely to exploit abuse photos as a means to gain leverage or improve ne gotiating positions-this political maneuvering may be focused on MNF-I and our allies in the Government of Iraq. Indeed, this could be a destabilizing event for the Prime Minister and his government. Moreover, any key leaders associated with our detention programs, such as judges or tribal leaders who participate in recon ciliation efforts for released detainees, may distance themselves from the U.S. If publicly challenged, they could support a contrarian position against the U.S. Even if conditions do not rise to the level of green-on- blue attacks, units could experience increased tension from their Iraqi partner units, resulting in a reduction in the level of combined operations and training. This lack of partner unit cooperation would severely impact our ability to continue to operate under the Security Agreement, which requires agreement and coordination with the GoI.

28. (U) Iraq today is safer, but it is not without risk. The near future has several critical events that ex tremist groups may attempt to influence through vio lence. There are still attacks against coalition and Iraqi forces, and release of the photos would likely boost the recruiting and fund raising that enables those attacks. While not every attacker is as honest about his motiva tion as the murderers of Nicholas Berg, it is my belief, based on my years of experience and judgment, that release of the photos would reasonably be expected to destabilize the country and endanger American, Coali tion, and Iraqi lives.

(U) I declare under the penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

 

Executed on 27 May 2009.

 

/s/ RAYMOND T. ODIERNO

RAYMOND T. ODIERNO

General, U.S. Army

Commanding General, MNF-I

 

73.

APPENDIX L

 

 

1. The Freedom of Information Act, 5 U.S.C. 552, pro vides in pertinent part:

Public information; agency rules, opinions, orders, re cords, and proceedings

* * * * *

(b) This section does not apply to matters that are-

(1)(A) specifically authorized under criteria estab lished by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;

(2) related solely to the internal personnel rules and practices of an agency;

(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for with holding or refers to particular types of matters to be withheld;

(4) trade secrets and commercial or financial infor mation obtained from a person and privileged or confi dential;

(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;

(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwar

ranted invasion of personal privacy;

(7) records or information compiled for law enforce ment purposes, but only to the extent that the produc tion of such law enforcement records or information (A) could reasonably be expected to interfere with en forcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwar ranted invasion of personal privacy, (D) could reason ably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or au thority or any private institution which furnished infor mation on a confidential basis, and, in the case of a re cord or information compiled by criminal law enforce ment 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, (E) would disclose techniques and procedures for law enforcement investigations or prose cutions, or would disclose guidelines for law enforce ment investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual;

(8) contained in or related to examination, operat ing, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or

(9) geological and geophysical information and data, including maps, concerning wells.

* * * * *

 

 

2. The Freedom of Information Act, 5 U.S.C. 552 (1982), provided in pertinent part:

Public information; agency rules, opinions, orders, re cords, and proceedings

* * * * *

(b) This section does not apply to matters that are-

* * * * *

(7) investigatory records compiled for law enforce ment purposes, but only to the extent that the produc tion of such records would (A) interfere with enforce ment proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence inves tigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel;

* * * * *

1 The Honorable John Gleeson of the United States District Court for the Eastern District of New York, sitting by designation.

2 In a letter dated June 29, 2006, the defendants informed the plain tiffs that they were withholding an additional 23 images of detainees based upon FOIA exemptions 6, 7(C), and 7(F), and that they would consider the release of those photographs to be governed by the final ruling in this case.

3 We therefore assume for the purposes of this appeal, but need not decide, that the photographs could reasonably be expected to incite vio lence against United States troops, other Coalition forces, and civilians in Iraq and Afghanistan.

4 We draw support from the fact that Congress elsewhere in the Code distinguishes between assessing a threat to a reasonably iden tifiable person and assessing a generalized threat to a broader group. The Bail Reform Act asks courts to determine whether a person's re lease from pretrial detention "will endanger the safety of any other person or the community." 18 U.S.C. § 3142(b) (2006) (emphasis add ed). The reference to the safety of "the community" would be superflu ous if such generalized risks could be captured by assessing threats to the safety of "any" person other than the releasee. This authorization to consider risks to the broader "community," considered necessary by Congress in the Bail Reform Act, is conspicuously absent from exemp tion 7(F).

5 FOIA's exemption 3, justifying withholding pursuant to other specific statutory authorization, § 552(b)(3), has also been applied to protect certain classes of national security information, see CIA v. Sims, 471 U.S. 159, 167-68 (1985) (holding CIA's organic statute quali fies as statutory authorization for withholding records of "intelligence sources and methods" under exemption 3). If anything, this demon strates that Congress has given due attention to the unique issues re lating to national security and further undermines the defendants' sug gestion that exemption 7(F) must be read to overlap the statutory scheme protecting national security information.

6 For more discussion of Congress's 1974 amendments to exemption 1, see Section B.3, infra.

7 The defendants have not explained whether the Army photos may be properly classified, and thereby rendered exempt from disclosure, or why that has not occurred. Their failure to invoke exemption 1 would not foreclose their resort to exemption 7(F) if it applied, but the exis tence of the separate national security exemption undercuts their argu ment that exemption 7(F) encompasses information solely because of the national security harm it threatens.

8 When FOIA was first enacted and modified by a minor stylistic amendment, the nine exemptions were articulated as follows:

The provisions of this section shall not be applicable to matters that are

(1) specifically required by Executive order to be kept secret in the interest of national defense or foreign policy;

(2) related solely to the internal personnel rules and practices of an agency;

(3) specifically exempted from disclosure by statute;

(4) trade secrets and commercial or financial information obtained from any person and privileged or confidential;

(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;

(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(7) investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency;

(8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of any agency re sponsible for the regulation or supervision of financial institutions; and

(9) geological and geophysical information and data (including maps) concerning wells.

5 U.S.C. § 552(b) (1967).

9 As amended in 1974, Section 552(b) provided as follows:

This section does not apply to matters that are-

(1)(A) specifically authorized under criteria established by an Ex ecutive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;

(2) related solely to the internal personnel rules and practices of an agency;

(3) specifically exempted from disclosure by statute;

(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in liti gation with the agency;

(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) inter fere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforce ment authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investiga tion, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel;

(8) contained in or related to examination, operating, or condition re ports prepared by, on behalf of, or for the use of an agency responsi ble for the regulation or supervision of financial institutions; or

(9) geological and geophysical information and data, including maps, concerning wells.

Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.

5 U.S.C. § 552(b) (1974); see also Pub. L. No. 93-502, § 2, 88 Stat. 1561, 1563-64 (1974) (amending FOIA exemptions).

10 S. 774 was passed by the Senate, but it was not acted on by the House during the 98th Congress. However, § 10 of the bill supplied the language for the 1986 amendments to exemption 7, and the Senate Judiciary Committee's report on § 10 of S. 774 was explicitly adopted by both the Senate and the House sponsors of those amendments. 132 Cong. Rec. S14,296 (daily ed. Sept. 30, 1986) (statement of Sen. Leahy) (adopting S. Rep. No. 221 as "set[ting] out the legislative history which should be consulted to determine the scope of the section we are adop ting in this bill"); 132 Cong. Rec. H9465-66 (daily ed. Oct. 8, 1986) (joint statement of Reps. English and Kindness) (similar).

11 As amended in 1986, exemption 7 allows government withholding of:

records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement rec ords or information

(A) could reasonably be expected to interfere with enforcement pro ceedings,

(B) would deprive a person of a right to a fair trial or an impartial ad judication,

(C) could reasonably be expected to constitute an unwarranted in vasion of personal privacy,

(D) could reasonably be expected to disclose the identity of a confi dential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confiden tial basis, and in the case of a record or information compiled by crim inal law enforcement authority in the course of a criminal investiga tion or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source,

(E) would disclose techniques and procedures for law enforcement in vestigations or prosecutions, or would disclose guidelines for law en forcement investigations or prosecutions if such disclosure could rea sonably be expected to risk circumvention of the law, or

 

 

 

(F) could reasonably be expected to endanger the life or physical safety of any individual.

5 U.S.C. § 552(b)(7) (1986)

12 See also, e.g., Rugiero v. U.S. Dep't of Justice, 257 F.3d 534, 552 (6th Cir. 2001) (information about DEA agents who investigated FOIA plaintiff); Shores v. FBI, 185 F. Supp. 2d 77, 85 (D.D.C. 2002) (informa tion identifying three cooperating witnesses and others interviewed during investigation of FOIA plaintiff); Garcia v. U.S. Dep't of Justice, 181 F. Supp. 2d 356, 378 (S.D.N.Y. 2002) (information identifying gov ernment agents, private citizens and third parties who participated in investigation of FOIA plaintiff), cf. Ruston v. Dep't of Justice, No. 06-0224, 2007 WL 809698, at *6 (D.D.C. Mar. 15, 2007) (finding 7(F) in applicable where government failed to establish "palpable risk" to BOP psychologist's life or physical safety if former inmate's FOIA request were to be granted).

13 The other cases the defendants cite give even less consideration than does Living Rivers to the question of how far exemption 7(F) can be extended. In L.A. Times the government sought to withhold the names of private security contractors ("PSC's") working in Iraq be cause of the risk that insurgents could use that information to organize attacks on vulnerable PSC's and their projects. 442 F. Supp. 2d at 898. The court upheld the government's reliance on exemption 7(F), but did so without any discussion of the exemption's scope. Id. at 900. Simi larly, the brief discussion of exemption 7(F) in Center for National Se curity Studies examined only the causation component of the exemp tion, not the exemption's scope. See 215 F. Supp. 2d at 108 (accepting the government's representations that disclosure of locations of deten tion facilities in the United States holding people for investigation in the wake of September 11, 2001 would place life or physical safety at risk and noting an "absence of any contrary evidence, or any reason to dis credit the government's representations"). Moreover, in affirming that decision, the D.C. Circuit relied solely on exemption 7(A), and made no mention of the district court's reliance on exemption 7(F). See Ctr. for Nat't Sec. Studies v. U.S. Dep't of Justice. 331 F.3d 918, 933-34 (D.C. Cir. 2003). Finally, as noted in Section B.1, Brady-Lunny v. Massey misquotes the exemption, compare 185 F. Supp. 2d at 932 ("'Under 5 U.S.C. § 552(b)(7)(F), the Government is exempt from disclosing infor mation about any individual that 'could reasonably be expected to en danger life or physical safety.'"), with 5 U.S.C. § 552(b)(7)(F) (exempt ing law enforcement records from disclosure only if production of the records "could reasonably be expected to endanger the life or physical safety of any individual"), before, like the foregoing cases, simply as suming the issue currently before us.

14 It does cite Garcia, 181 F. Supp. 2d at 378, which supports the pro position that the individuals at risk need not be law enforcement per sonnel. Living Rivers, 272 F. Supp. 2d at 1321. But Garcia, which ap plied exemption 7(F) to justify withholding the names and identifying information for several private citizens who provided information to the FBI, 181 F. Supp. 2d at 378, provides no support for the proposition

that the government need not identify the individuals in question, or that it may do so in the most general terms.

15 While the defendants here claim endangerment only to persons drawn from the populations of two nations and not the entire world, the defendants' reading of exemption 7(F) does not provide any limiting principle.

16 Still, because these two exemptions involve related standards, prec edent applying exemption 6 is relevant to our analysis of exemption 7(C). See Reporters Committee, 489 U.S. at 768 (applying exemption 6 caselaw to analysis of exemption 7(C)); see also FLRA, 958 F.2d at 509 (holding the same degree of privacy interest is required to trigger bal ancing pursuant to exemptions 6 and 7(C), though once a privacy inter est is implicated the two exemptions provide differing levels of protec tion).

17 The defendants have not relied on any privacy interest of the sol diers depicted in the Army photos, and we do not address that issue here. The district court considered the privacy rights of the soldiers during the redaction hearing, and found that where they appeared to pose for photographs, their consent removed any privacy interest that might otherwise have warranted redaction of their identifying features.

18 Outside the FOIA context, we have found that where the public right of access to judicial documents competes with privacy rights, "it is proper for a district court, after weighing competing interests, to edit and redact a judicial document in order to allow access to appropriate portions of the document." United States v. Amodeo, 44 F.3d 141, 147 (2d Cir. 1995).

19 One non-FOIA case cited by the defendants, Northwestern Memor ial Hospital v. Ashcroft, 362 F.3d 923 (7th Cir. 2004), supports the no tion that a privacy interest may be at risk even where identities are unknown. In Northwestern, the government subpoenaed medical rec ords of certain patients who received late-term abortions. Id. at 924. The records would be used in aid of the government's constitutional challenge to the Partial Birth Abortion Act of 2003, 18 U.S.C. § 1531, and would include details related to the patients' medical and sexual his tory. Id. at 929. In rejecting the government's efforts to gain access to

such information for the purposes of litigation, the court noted the fol lowing:

Even if there were no possibility that a patient's identity might be learned from a redacted medical record, there would be an invasion of privacy. Imagine if nude pictures of a woman, uploaded to the In ternet without her consent though without identifying her by name, were downloaded in a foreign country by people who will never meet her. She would still feel that her privacy had been invaded. The rev elation of the intimate details contained in the record of a late-term abortion may inflict a similar wound.

Northwestern, 362 F.3d at 929. Northwestern, however, based its hold ing not on this hypothetical privacy analysis but on the patients' fear of recognition and retaliation in light of the highly charged political con troversy regarding abortion; the possibility that many pregnant women would not understand the redactions to protect their privacy; and the high likelihood of actual recognition despite the redactions. Id. at 928- 29. Northwestern is thus inapplicable here.

20 See, e.g., Miller v. Bell, 661 F.2d 623, 630-31 (7th Cir. 1981) (per curiam) (holding identifying information about FBI agents to be cov ered by exemption 7(C) and noting that public documents already pro vided substantial information about FBI's investigation), abrogated in part on other grounds by U.S. Dep't of Justice v. Landana, 50S U.S. 165, 181 (1993); N.Y. Times Co. v. NASA, 782 F. Supp. 628, 632-33 (D.D.C. 1991) (withholding audio recording of final words of astronauts in space shuttle disaster under exemption 6 in part because transcript was already public); In re KSTP Television, 504 F. Supp. 360, 362-64 (D. Minn. 1980) (concluding common law right of access to public rec ords did not justify disclosure of videotapes of blindfolded and bound kidnap victim when information had been made public at trial).

21 See Miller, 661 F.2d at 630 ("There is no allegation of wrongdoing by high-ranking government officials or indeed by any FBI personnel to support any public interest in any further probe into the thorough ness of the instant investigation."); N.Y. Times, 782 F. Supp. at 633 (finding information on tapes "sheds absolutely no light on the conduct of any Governmental agency or official"); KSTP Television, 504 F. Supp. at 363 ("In [the Abscam] case there was a definite public interest in release of the tapes because the tapes involved the alleged wrongdo ing of elected public officials. There is, however, no public interest to be served by release of the tapes here. . . .").

22 We note in passing that the defendants did not produce any evi dence that any detainees pictured wished the redacted photographs to be withheld in order to protect their privacy.

23 With respect to the remainder of plaintiffs' outstanding requests, the Opinion and Order of September 15, 2004 required the government to produce responsive documents or identify them in a log to be publicly filed or examined ex parte and in camera.

24 The CIA informed plaintiffs on April 15, 2005 that all Office of In spector General ("OIG") documents pertaining to ongoing investiga tions or law enforcement activities were exempt under FOIA. The CIA subsequently informed plaintiffs, in a letter dated July 15, 2005, that all responsive documents in the files of the OIG that no longer relate to pending investigations or law enforcement proceedings were also ex empt under FOIA.

25 Plaintiffs also originally moved for summary judgment on Items 50 and 51. Defendant DOD claimed that there were no documents respon sive to requests 50 (Memorandum for MP and MI personnel at Abu Ghraib from Col. Marc Warren, regarding a new plan to restrict Red Cross access to Abu Ghraib) and 51 (Memorandum from a top legal ad viser to Lt. Gen. Ricardo S. Sanchez, to military intelligence and police personnel at Abu Ghraib, regarding a new plan to restrict Red Cross access to Abu Ghraib), except, potentially, a four-page memorandum, dated January 8, 2004, memorializing communications from the ICRC regarding a visit to Abu Ghraib, which DOD is withholding. Plaintiffs accordingly withdrew those two requests without prejudice to reassert ing them at a later date.

26 Tab A pertained to Item 8, which was no longer contested; I exam ined the documents provided under Tabs B, C, and D.

27 Since the parties have not advised me of any continuing issues, I consider this phase of the proceedings closed.

28 In response to my question at oral argument about whether a DOJ memorandum could instead be requested, and even possibly be ob tained, from the Department of Justice, the government represented that "agencies with the equities in the existence or nonexistence of documents tend to be the ones responding. So . . . it is appropriate that the CIA is litigating this issue." See Tr. of May 31, 2005, at 63.

29 Ms. Dorn has the requisite classification authority. See E.O. 12958 §§ 1.1(a), 1.3.

30 The recently enacted Intelligence Reform and Terrorism Preven tion Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (Dec. 17, 2004) (ex cept as otherwise expressly stated, effective not later than six months after enactment, as provided by section 1097 of such Act), amends the National Security Act. For example, section 1011(a) of the 2004 Act, 50 U.S.C.A. § 403-1(i)(1), provides that the "Director of National Intelli gence shall protect intelligence sources and methods from unauthorized disclosure." The government argues, however, that the withholding statute in effect at the time of plaintiffs' requests governs the requests. Plaintiffs have not challenged this position. I agree with the govern ment, see Pub. Citizen Health Research Group v. FDA, 704 F.2d 1280, 1284 (D.C. Cir. 1983) ("To invoke Exemption 3, an agency must demon strate that . . . a statute exists and was in effect at the time of the re quest. . . ."), and apply the withholding statute in effect at the time of plaintiffs' requests.

31 Perhaps as the agency with the greatest "equity" in the documents. See note 6, supra.

32 Exemption 2 exempts from FOIA matters that are "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2).

33 Exemption 7(A) exempts "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A).

34 Exemptions 1 and 3, and their implementing regulations and sta tutes, were discussed in the previous section of this Opinion, in connec tion with the CIA's Glomar response.

35 Item 10 requested videotapes, photographs and other records of abuse, including videotapes, photographs and other records of abuse ca talogued and stored in Guantánamo Bay facilities

36 Item 11 requested videotapes, photographs and other records de picting abuse at Iraqi facilities.

37 The government indicated at oral argument and in its reply papers that DOD had not yet finished processing all of the photographs and other media in its possession that might be responsive to requests 10 and 11, but that to the extent any such items already had been pro cessed and withheld under Exemptions 6 and 7(C), DOD would apply my rulings on the Darby photographs to any such images. I held at oral argument that that procedure was satisfactory. See Tr. of May 26, 2005, at 14; see also id., at 28 (suggesting that the parties, at the end of oral argument, create a schedule of items that need to be processed).

38 These figures reflected the number of images initially determined to be responsive. Other images on the two CDs provided by Darby to the Army's Criminal Investigation Command ("CID"), including dupli cates and photographs wholly unrelated to plaintiffs' concerns, are not part of this litigation. See Second Decl. of Phillip J. McGuire, Dir. of U.S. Army Crime Records Ctr., CID, dated Mar. 30, 2005, ¶¶ 3, 4 [hereinafter Second McGuire Decl.].

39 Amicus curiae The American Legion, in a brief filed August 11, 2005, at 8-9, argues that the Darby photographs are not properly the subject of plaintiffs' FOIA requests since the photographs were actual ly under the control of courts martial or of military authority exercised in the field in time of war when plaintiffs made their second FOIA re quest on May 25, 2004. Since, however, the government is the party in interest and since the government has not raised this objection, I do not consider it.

40 As requested by the government, certain portions of the govern ment's submission-its Supplemental Memorandum of Law and supple mental declarations-were filed under seal in accordance with my Seal ing Order of July 28, 2005 to withhold (1) specific descriptions of the im ages whose release is in issue, and (2) sensitive information relating to national security and the United States' foreign relations. Plaintiffs ob jected to the sealing of the submission except with respect to the first item, the specific descriptions of the Darby photographs. However, I was able to establish consensus in enlarging the public record so that all the government's arguments could be made publicly. Oral argument on the expanded public record was held on August 15, 2005. This Opin ion discloses no fact or argument that is not part of the public record.

41 In its brief, at 4, amicus The American Legion suggests that be cause the Darby photographs "apparently concern, at least in part, ac tivities inside a reserve brigade of military police," the photos should be withheld because "[t]heir lives would be endangered by disclosure of the Darby photos, and they deserve no less protection than civilian po lice receive under the FOIA." The government makes no such argu ment, and indeed, it is clear from General Myers' declaration that he is concerned broadly about potential danger to all members of the United States' armed forces and public, as well as to Iraqi and Afghan person nel and civilians.

42 A separate addendum is attached that delineates the current status of disciplinary actions taken against those personnel who were involved in the abuse and mistreatment of detainees at Abu Grhaib [sic] some of which is depicted in the Darby photos.

43 The United States Government has not previously released the re sponsive photos to the general public, but, as required by law, has pro vided relevant photos to civilian and military defense counsel in military courts-martial proceedings. Those disclosures have been subject to the requirements and proscriptions of the Military Rules of Evidence, the Rules for Courts-Martial, the Military Rules of Professional Conduct, and applicable military precedent.

44 (S) [REDACTED]

45 (S) [REDACTED]

46 (C) [REDACTED]

47 (U) Release of detainee abuse images depicting, or that could be construed as depicting, U.S. forces abusing detainees in its custody in Iraq and Afghanistan could reasonably be expected to endanger the life or physical safety of diplomatic personnel via invigorated kidnapping and assassination attempts.

48 (S) [REDACTED]

49 (C) [REDACTED]

 

 

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