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No. 09-160

In the Supreme Court of the United States

UNITED STATES DEPARTMENT OF DEFENSE, ET AL.,

PETITIONERS

v.

AMERICAN CIVIL LIBERTIES UNION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

REPLY BRIEF FOR PETITIONERS

ELENA KAGAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

 

In the Supreme Court of the United States

 

No. 09-160

UNITED STATES DEPARTMENT OF DEFENSE, ET AL.,

PETITIONERS

v.

AMERICAN CIVIL LIBERTIES UNION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

REPLY BRIEF FOR PETITIONERS

 

The court of appeals has affirmed an order directing the public disclosure of records that, in the judgment of the President of the United States and the Nation's highest- ranking military officers responsible for ongoing combat operations in Iraq and Afghanistan, would pose a signifi cant risk to the lives and physical safety of United States and Coalition personnel. Respondents do not dispute the accuracy of that judgment. Indeed, respondents' brief in opposition, like the decision of the court of appeals (Pet. App. 9a-10a & n.3), assumes that the court-ordered disclo sure in this case "could reasonably be expected to endan ger" the lives and physical safety of many individuals, both military and civilian, overseas. 5 U.S.C. 552(b)(7)(F). Re spondents nonetheless contend that disclosure is required. They defend the Second Circuit's interpretation of Exemp

tion 7(F)-which applies when the disclosure of law-en forcement records "could reasonably be expected to endan ger the life or physical safety of any individual" (ibid.)-on the ground that the words "any individual" require the gov ernment to "identify at least one individual with reasonable specificity" and show that disclosure "could reasonably be expected to endanger that individual," Pet. App. 18a. That novel restriction cannot be squared with Exemption 7(F)'s text, purpose, or legislative history. Pet. 16-30.

Exemption 7(F) broadly encompasses danger to "any individual," with no suggestion of the Second Circuit's ex tra-textual specificity requirement. Respondents quote extensively from the court of appeals' decision but ignore much of the government's petition showing the court's stat utory construction to be flawed. Indeed, their own defense of the court's decision underscores several of its analytical errors. Those errors, if uncorrected, would place American personnel at significant risk of death and injury. Before those risks are borne by the Nation's service members and others in harm's way, this Court should review the decision of the court of appeals.

1. As the petition explains (Pet. 16-25), nothing in Ex emption 7(F) supports the court of appeals' requirement that the government "identify at least one individual with reasonable specificity" and show that disclosure "could rea sonably be expected to endanger that individual," Pet. App. 18a.

a. Respondents contend (at 9-10) that the court's victim-specificity requirement is necessary to give content to "any individual." But that phrase has content-just not the content that the court of appeals imported. Congress exempted from FOIA's requirements certain records whose disclosure would imperil the "life or physical safety" of "any" natural person (i.e., "individual"), not some partic ular person or subcategory of persons. That conclusion is reinforced by Congress's decision in 1986 to substitute "any individual" for the prior term "law enforcement personnel" (5 U.S.C. 552(b)(7)(F) (1982))-an amendment designed to expand Exemption 7(F)'s protection from only some indi viduals to all individuals facing serious danger. Pet. 20-21, 26, 28.

Respondents quote (at 10-11) the court of appeals' state ment that its victim-specificity requirement is appropriate because it results in a "narrower construction" of Exemp tion 7(F). That reasoning is doubly flawed. It ignores the "practical approach" required by this Court to give FOIA's exemptions "meaningful reach and application." Pet. 23-24. And critically, the court's reasoning fails to ground the in terpretation of Exemption 7(F) in FOIA's text. Even re spondents admit (at 10 n.7) that Exemption 7(F) does not require at-risk individuals to be "named" because the rele vant statutory language does "not read 'any named individ ual.'" Respondents fail to recognize that restricting the exemption to "any named individual" is a "narrower con struction" in precisely the same way that limiting it to "any identifiable individual" is. Neither restriction has any foun dation in the words of the statute.

Moreover, Congress's explicit focus on "identifiable individual[s]" in the Privacy Act (Pet. 18) and Congress's emphasis elsewhere in FOIA Exemption 7 on the "identity" of individuals who are confidential sources, 5 U.S.C. 552(b)(7)(D), confirm that Congress's use of the term "any individual"-without textual qualification-is not limited to at-risk individuals who are "identifiable" in advance. Cf. CIA v. Sims, 471 U.S. 159, 169 n.13 (1985) (similarly relying on Privacy Act to construe FOIA). Respondents do not respond to those arguments.

Notably, respondents do not dispute that the ordinary meaning of "any" is expansive (Pet. 17), arguing instead (at 14-15) that the Court has interpreted the word "in a limited manner where the context has so demanded." Br. in Opp. 15 n.8 (emphasis added). Yet respondents fail to explicate what aspects of the context of Exemption 7(F) call for im posing an extra-textual restriction on the statute's natural, capacious meaning. In these circumstances, this Court should reject both respondents' and the Second Circuit's efforts to redefine the meaning of the word "any."

b. Respondents contend (at 11-14) that the court of ap peals' interpretation is justified because it prevents the government from circumventing the "safeguards and stan dards" necessary to withhold documents under FOIA Ex emption 1, 5 U.S.C. 552(b)(1), which applies to classified records. Respondents assert (at 13) that the government's interpretation of Exemption 7(F) would improperly estab lish "a different, much lower standard for withholding in formation on national security grounds" than Exemption 1 does. That contention is meritless.

First, respondents' premise is wrong. The government here is not withholding records "on national security grounds." It is withholding records under Exemption 7(F) because their disclosure reasonably could be expected to endanger the lives and physical safety of individuals. That is a basis for withholding distinct from harm to the "na tional security" that would warrant classification under Executive Order 12,958 and withholding under Exemption 1. Accordingly, Exemption 7(F) often will apply when Ex emption 1 does not, and vice versa. The question at issue is not whether the photographs meet the requirements of the classification Executive Order regarding national security, but instead whether the disclosure of those photographs will endanger individuals. That is precisely the harm Ex emption 7(F) addresses.

Moreover, this Court has declined to read Exemption 1 to restrict the scope of FOIA's other exemptions. In Sims, the Court construed Exemption 3, 5 U.S.C. 552(b)(3), to permit the CIA to withhold records concerning intelligence sources and methods even though the government had de clined to reclassify the (then-declassified) records to trig ger Exemption 1. See 471 U.S. at 166-177; see also id. at 184 n.3 (Marshall, J., concurring in the result). Justice Marshall specifically advocated interpreting Exemption 3's scope in light of Exemption 1, and stated that the Court's contrary reading "enables the [government] to avoid mak ing the showing required under the carefully crafted bal ance embodied in Exemption 1 and thereby thwarts Con gress's effort to limit the [government's] discretion." Id. at 189; see id. at 182-193. Seven Members of the Court were unpersuaded by that argument, which respondents repack age here. Nothing in Exemption 1 warrants restricting or otherwise altering Exemption 7(F)'s scope as written. See Pet. 25.1

2. Respondents contend (at 8, 17) that the govern ment's interpretation of Exemption 7(F) would "turn FOIA on its head" by providing "the greatest protection against disclosure to records that depict the most egregious abuses." To the contrary, the government insists on noth ing more than that Exemption 7(F) applies when the requi site risk of death or physical injury is present. The danger to lives and safety that triggers the exemption may or may not be correlated with governmental misconduct. And, in any event, the court of appeals' decision itself does not turn on the degree of governmental misconduct, but instead would authorize withholding regardless of this factor so long as an agency can identify at-risk individuals with rea sonable specificity. Respondents' apparent support for a balancing approach that would weigh the asserted public interest in revealing government misconduct against the risk of harm resulting from disclosure thus finds as little support in the approach of the Second Circuit as in the text of the statute. See Pet. App. 5a, 40a (rejecting balancing approach).2

The court of appeals' insistence on identification of at- risk individuals imposes a limitation on Exemption 7(F)'s protective scope similar to the one Congress eliminated from the statute in 1986. Pet. 26; cf. 130 Cong. Rec. 3502 (1984) (statement of Sen. Hatch). Both respondents and the court of appeals fail to explain why Congress would have wanted to protect only those victims who are identifi able in advance. Congress made clear that the standard in Exemption 7(F)-"could reasonably be expected to endan ger"-establishes "the degree of risk of harm from disclo sure which must be shown to justify withholding." S. Rep. No. 221, 98th Cong., 1st Sess. 23 (1983); see Pet. 18-19; cf. Pet. App. 33a n.10. So long as a FOIA disclosure suffi ciently risks the lives or physical safety of individuals under that standard, the matter of prior identification is irrele vant: Congress would have had no reason to protect indi viduals whom a federal agency could identify in advance with "reasonable specificity" while disregarding the dan gers to individuals not specifically identifiable when Ex emption 7(F) is invoked. Insofar as the purpose of the Ex emption is concerned, identifiable and non-identifiable vic tims are identically situated. It therefore is not surprising that Congress declined to distinguish between them.

Significantly, respondents do not dispute that the Sec ond Circuit's reasoning would require the disclosure of re cords certain to cause the death of numerous individuals if an agency were unable to identify the individual victims sufficiently in advance. Pet. 16-17. The Congress that en acted broad protection for the life and safety of "any indi vidual" would not have countenanced that result. See Pet. 26-27, 30 (explaining that the 1986 amendment was inten ded to protect "anyone" whose life or physical safety was sufficiently endangered).

3. Respondents' reliance on legislative history is un availing. Respondents claim that Congress intended Ex emption 7(F) to protect against "specific threats to particu lar individuals arising out of law enforcement investiga tions." Br. in Opp. 18 (quoting Pet. App. 24a)3. But the 1986 amendment to Exemption 7(F) specifically deleted its prior textual restriction to law enforcement personnel, making clear that Congress wanted Exemption 7(F)'s safe guarding of life and physical safety to extend beyond indi viduals with a "law enforcement" connection. Exemption 7(F), as its history reflects, is intended to protect "anyone" subject to a sufficient risk of harm from disclosure of the records it covers. Pet. 26-28.

Moreover, the court of appeals' extra-textual require ment of victim specificity does not follow from respondents' apparent view (at 18) that Congress intended to focus on protecting "persons associated with law enforcement inves tigations." The court's victim-specificity requirement is orthogonal to respondents' focus on victims associated with law enforcement: The court's requirement would encom pass some but not all of those victims, as it would include some but not all victims having no relationship to law en forcement.

Respondents' assertion (at 21) that Congress intended its 1986 amendments to have only a "limited effect" on the scope of Exemption 7(F) does not withstand scrutiny. The full statement of the Deputy Attorney General from which respondents quote in fact supports the government's posi tion. Deputy Attorney General Carol Dinkins was not ad dressing Exemption 7(F), but instead Exemption 7 more generally when she said the statutory language would be "modified slightly," and she was referring to the scope of two amendments unrelated to the language in dispute be tween the parties here. 131 Cong. Rec. 248 (1985) (discuss ing S. 774, 98th Cong., 1st Sess. (1983)). The Deputy Attor ney General made clear that FOIA reflects a "balance" in which the "interest in protecting [certain] information from disclosure often can be even more important" than "the goal of openness," and she therefore specifically recom mended, in another part of her statement, an amendment to Exemption 7(F) to expand its protection for "law enforce ment" personnel to give "similar protection to the life of any other person." Id. at 247-248, 253 (emphasis added). That broader understanding of Exemption 7(F) is repeat edly reflected in statements of former Attorneys General while the amendment was under consideration and in au thoritative guidance provided after enactment. Pet. 26-27, 29-30. Respondents disregard all those statements.

Respondents' reliance (at 21) on the remarks of Repre sentative English, who supported less expansive amend ments than Congress ultimately adopted, are of little use in interpreting Exemption 7(F).4 After those remarks, Sena tor Hatch-the "principal author" and sponsor of the Ex emption 7 amendments-emphasized that "[t]here should be no misunderstanding" that the relevant amendments "are intended to broaden the reach of this exemption" and "ease considerably [the government's] burden in invoking it." 132 Cong. Rec. 31,423-31,424 (1986); see Pet. 23-24.

4. Respondents' observation (at 21-24) that most Ex emption 7(F) cases have involved records identifying the individuals at risk from disclosure provides no support for the Second Circuit's decision to require reasonably specific victim identification in every case. And indeed, respon dents' treatment of the cases presenting Exemption 7(F) questions similar to the issue presented here reinforces the conclusion that the Second Circuit's imposition of this re quirement is unprecedented. Pet. 30-31. The best respon dents can do is to label one decision "anomalous" (while identifying no contrary authority) and state that other rul ings are factually different. Br. in Opp. 21, 24 n.11. But in all those prior cases, courts have held Exemption 7(F) to apply when the government sufficiently established that disclosure could reasonably be expected to endanger the lives and safety of individuals-without requiring the at- risk individuals to be identified in advance with reasonable specificity. That central holding of the cases, which respon dents do not contest, is what makes those cases relevant to the dispute at issue here.

5. Respondents ultimately rest on the contention (at 25-27) that further review should be denied because it will delay public disclosure of the photographs at issue. Yet respondents do not dispute that lives are at risk from dis closure, nor do they disavow the court of appeals' assump tion (at least for purposes of this appeal) that the govern ment sufficiently established the threshold level of danger to trigger Exemption 7(F). Especially in light of this dan ger of death and injury, respondents' assertion that certio rari should be denied because of the normal delay associ ated with this Court's review is seriously mistaken.

This litigation has been pending for five years and was argued on appeal nearly three years ago. The relatively short additional time associated with review by this Court is fully warranted given the stakes. Even the court of ap peals appears to have rejected respondents' claimed injury from delay, ordering its mandate to be recalled and held pending this Court's resolution of the present petition. Pet. 14.

The importance of this case and the need for further review are apparent. The President of the United States and the Nation's top military officers have concluded that the disclosure ordered here would significantly risk the lives and safety of American and Coalition personnel and civilians. Before those individuals are forced to bear that risk, this Court's review is warranted.

* * * * *

For the foregoing reasons and those stated in the peti tion, the petition for a writ of certiorari should be granted.

Respectfully submitted.

ELENA KAGAN
Solicitor General

SEPTEMBER 2009

1 Respondents' view (at 12) that the government's reading would im properly permit the government to evade the "safeguards and stan dards" for classification is also undermined by the ability of the Exec utive to change those standards. Exemption 1 authorizes the Executive to determine the "criteria" for classifying information by "Executive order." 5 U.S.C. 552(b)(1). Because Exemption 1 does not preclude the Executive from changing the criteria for classification, the standards existing at any given time are an inappropriate guide for interpreting other FOIA exemptions.

2 The public interest in disclosure here, moreover, is diminished by the public disclosure of the Army's underlying investigatory reports for all 21 responsive photographs at issue. Pet. 6-7 & nn.4-5, 15. (The peti tion (at 6) contains a typographical error and should state that "[a]ll 21 photographs," rather than "[a]ll 29 photographs," are in reports that were publicly released with redactions.).

3 Respondents heavily rely (at 19-20) on legislative statements re garding the need to protect "informants." Such statements, however, concern amendments to a different subparagraph of Exemption 7- Exemption 7(D)-which Congress modified to provide greater protec tion for informants than Exemption 7(F)'s protection for individuals generally. See 132 Cong. Rec. 26,769, 26,771, 29,619 (1986).

4 See 132 Cong. Rec. 29,616 (1986) (statement of Rep. English) (stat ing that he was "not in complete agreement with the Senate changes" to the bill, "would not have chosen this time or this bill" to amend FOIA, and believed concerns voiced by the Department of Justice "about the negative effects of the FOIA were greatly exaggerated").