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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

SUPPLEMENTAL BRIEF FOR PETITIONERS

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

JEH CHARLES JOHNSON
General Counsel
Department of Defense
Washington, D.C. 20301

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

 

SUPPLEMENTAL BRIEF FOR PETITIONERS

Pursuant to Rule 15.8 of the Rules of this Court, the Solicitor General, on behalf of the Department of Defense and the Department of the Army, files this supplemental brief to address the effect on this case of the Department of Homeland Security Appropriations Act, 2010 (Act), Pub. L. No. 111-83, 123 Stat. 2142, which was signed by the Presi dent on October 28, 2009, and a certification issued pursu ant to Section 565 of that Act by the Secretary of Defense (Secretary) on November 13, 2009. Section 565 and the Sec retary's certification are reproduced as appendices to this brief. The Act and the Secretary's certification require that the photographs currently at issue in this case be exempt from mandatory disclosure under the Freedom of Informa tion Act (FOIA), 5 U.S.C. 552. The judgment of the court of appeals therefore should be vacated and the case re manded to the court of appeals for further consideration in light of the new legislation and the Secretary's certification.

A. Respondents filed this action under FOIA in district court seeking the release of various agency records, includ ing the 21 photographic records presently at issue, which relate to allegations of abuse and mistreatment of detainees in United States custody overseas. Pet. 3, 6-7 & n.5; Reply Br. 6 n.2. The 21 photographs, which were taken between 2002 and 2004 and are contained in files concerning investi gations conducted by the Army's Criminal Investigation Command, depict detainees held in United States military custody in Iraq and Afghanistan. See Pet. App. 161a-162a, 169a-170a; Pet. 6-7; Reply Br. 6 n.2.

Petitioners argued, inter alia, that the photographs are exempt from mandatory disclosure under FOIA Ex emption 7(F) because they are records compiled for law- enforcement purposes and their disclosure under FOIA "could reasonably be expected to endanger the life or physi cal safety of any individual." 5 U.S.C. 552(b)(7)(F). The district court disagreed, found Exemption 7(F) inapplica ble, and ordered petitioners to produce the 21 photographs under FOIA. Pet. App. 62a, 64a; see Pet. 4-5, 9.

The court of appeals affirmed. Pet. App. 1a-60a. The court accepted for the purpose of its opinion that disclosure of the 21 photographs could reasonably be expected to en danger the lives and physical safety of United States mili tary and civilian personnel overseas. Id. at 10a n.3. The court nevertheless held that Exemption 7(F) did not ex empt the photographs from mandatory disclosure because, in its view, Exemption 7(F) requires that the government "identify at least one individual with reasonable specificity and establish that disclosure of the documents could rea sonably be expected to endanger that individual." Id. at 18a. Concluding that the government failed to "identify a single person and say that the release * * * could reason ably be expected to endanger that person's life or physical safety," the court found Exemption 7(F) inapplicable. Ibid.

B. 1. In response to the decision of the court of ap peals, several legislative provisions were introduced in Con gress to provide the Secretary with new authority to ex empt from mandatory disclosure under FOIA detainee pho tographs such as those presently at issue. See Pet. 11 n.8. On October 28, 2009, the President signed into law the De partment of Homeland Security Appropriations Act, 2010. Section 565 of that Act vests the Secretary with authority to issue a certification with respect to certain photographic records. If such a certification is issued, the covered re cords are not subject to disclosure under FOIA.

More specifically, Section 565(b) states that, "[n]otwith standing any other provision of the law to the contrary, no protected document, as defined in subsection (c), shall be subject to disclosure under [FOIA] or any proceeding un der [FOIA]." App., infra, 1a.

Section 565(c)(1) defines "protected document" to mean "any record" that is a photograph (1) taken between Sep tember 11, 2001 and January 22, 2009, that "relates to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States," (2) "for which the Secretary of Defense has issued a certifi cation" under Section 565(d). App., infra, 1a-2a.

Section 565(d) states that "the Secretary of Defense shall issue a certification" with respect to such a photo graph if the Secretary "determines that disclosure of that photograph would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside of the United States." App., infra, 2a.

Section 565 further provides that its provisions "shall take effect on the date of enactment," i.e., October 28, 2009, and "apply to any protected document." App., infra, 3a (Section 565(f)).

2. On November 13, 2009, the Secretary personally exercised his certification authority under Section 565 with respect to a collection of photographs, including the 21 pho tographs now at issue before this Court and the 23 addi tional photographs identified in the decision of the court of appeals. App., infra, 4a-5a; cf. Pet. App. 6a & n.2 (discuss ing photographs).1

The Secretary's certification explains that the 44 photo graphs referred to by the court of appeals-i.e., the 21 pho tographs that were the immediate subject of the govern ment's appeal and the 23 other photographs noted by the court in its decision, see Pet. App. 6a & n.2-were taken between September 11, 2001 and January 22, 2009, and relate to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States, in operations outside the United States. App., infra, 4a. The certification also states that the Secre tary has "determined that public disclosure of these photo graphs would endanger citizens of the United States, mem bers of the United States Armed Forces, or employees of the United States Government deployed outside the United States." Id. at 4a-5a. Based on that determination, the Secretary has concluded that the photographs are "pro tected documents." Id. at 5a. Pursuant to Section 565, those documents are exempt from mandatory disclosure under FOIA. Ibid.

C. Section 565 and the Secretary's certification govern the disposition of this case. Congress provided that Section 565 would take effect upon enactment and specified that its provisions apply to "any protected document" in "any pro ceeding under [FOIA]." App., infra, 1a, 3a (Section 565(b) and (f)). Section 565 therefore authorizes the Secretary to exempt from mandatory FOIA disclosure any records in the present proceeding that qualify as "protected docu ments."2 In light of the Secretary's certification, the 21 photographic records that the district court ordered dis closed and that are the subject of the government's petition for a writ of certiorari are "protected documents."

As explained in the government's petition and reply brief, plenary review by this Court was warranted before the intervening legislation because the court of appeals erred in engrafting on to Exemption 7(F) an extra-textual requirement of victim specificity. Pet. 16-30; Reply Br. 2- 10. The court of appeals' error was particularly significant in light of the conclusion of the President and the Nation's highest-ranking military officers that disclosure of the pho tographs at issue would pose a significant risk to American military and civilian personnel overseas. Pet. 14-15, 30-32; Reply Br. 10.

But given Congress's enactment of intervening legisla tion resolving the present dispute by providing for with holding of the records at issue, the Court now has no occa sion to address the proper construction of Exemption 7(F) as set forth in the government's petition. The appropriate disposition, after these events, is for this Court to grant the certiorari petition, vacate the judgment of the court of ap peals, and remand for further proceedings (GVR) in light of the intervening legislation. See Lords Landing Vill. Condo. Council of Unit Owners v. Continental Ins. Co., 520 U.S. 893, 896 (1997) (per curiam) (GVR order appropriate where intervening developments give rise to reasonable probability that lower court's judgment would change if it were "given the opportunity for further consideration"); Lawrence v. Chater, 516 U.S. 163, 166-167 (1996) (per curiam) (explaining that this Court has ordered GVR for a "wide range of developments" including "new federal stat utes"); id. at 182 (Scalia, J., dissenting) (noting the Court's practice of vacating in light of intervening statute).

This Court has decided in numerous cases affected by intervening legislation to grant certiorari, vacate the judg ment of the lower court, and remand to allow the lower court to consider the effect of the new legislation in the first instance.3 Indeed, in circumstances analogous to those here, the Court granted, vacated, and remanded to permit further consideration of a FOIA disclosure order in light of intervening legislation that directed that no statute shall be construed to require the disclosure of certain tax-return processing information when the Secretary of the Treasury determines that such disclosure would seriously impair assessment, collection, or enforcement under the internal revenue laws. See Bureau of Econ. Analysis v. Long, 454 U.S. 934 (1981) (GVR in light of Economic Recovery Tax Act of 1981, Pub. L. No. 97-34, § 701, 95 Stat. 340 (amend ing 26 U.S.C. 6103(b)(2)), vacating Long v. Bureau of Econ. Analysis, 646 F.2d 1310 (9th Cir.) (affirming FOIA disclo sure order)). Cf. Department of Justice v. City of Chi., 537 U.S. 1229 (2003) (vacating and remanding in FOIA case for further consideration in light of intervening legislation after having granted certiorari to review City of Chicago v. United States Department of Treasury, 287 F.3d 628 (7th Cir.), amended, 297 F.3d 672 (7th Cir. 2002)). The same disposition is appropriate here.

 

* * * * *

For the foregoing reasons, the petition for a writ of cer tiorari should be granted, the judgment of the court of ap peals vacated, and the case remanded for further consid eration in light of Section 565 of the Department of Home land Security Appropriations Act, 2010, and the certifica tion by the Secretary of Defense pursuant to that provision.

Respectfully submitted.

ELENA KAGAN
Solicitor General

JEH CHARLES JOHNSON
General Counsel
Department of Defense

NOVEMBER 2009

APPENDIX A

1. The Department of Homeland Security Appropria tions Act, 2010, Pub. L. No. 111-83, 123 Stat. 2142, pro vides in pertinent part:

SEC. 565. (a) SHORT TITLE.-This section may be cited as the ''Protected National Security Documents Act of 2009''.

(b) Notwithstanding any other provision of the law to the contrary, no protected document, as defined in sub section (c), shall be subject to disclosure under section 552 of title 5, United States Code or any proceeding un der that section.

(c) DEFINITIONS.-In this section:

(1) PROTECTED DOCUMENT.-The term ''protected document'' means any record-

(A) for which the Secretary of Defense has is sued a certification, as described in subsection (d), stating that disclosure of that record would endan ger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States; and

(B) that is a photograph that-

(i) was taken during the period beginning on September 11, 2001, through January 22, 2009; and

(ii) relates to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United

States in operations outside of the United States.

(2) PHOTOGRAPH.-The term ''photograph'' encom passes all photographic images, whether originals or copies, including still photographs, negatives, digital images, films, video tapes, and motion pictures.

(d) CERTIFICATION.-

(1) IN GENERAL.-For any photograph described under subsection (c)(1), the Secretary of Defense shall issue a certification if the Secretary of Defense deter mines that disclosure of that photograph would endan ger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States.

(2) CERTIFICATION EXPIRATION.-A certification and a renewal of a certification issued pursuant to subsection (d)(3) shall expire 3 years after the date on which the certification or renewal, is issued by the Secretary of Defense.

(3) CERTIFICATION RENEWAL.-The Secretary of De fense may issue-

(A) a renewal of a certification at any time; and

(B) more than 1 renewal of a certification.

(4) NOTICE TO CONGRESS.-The Secretary of Defense shall provide Congress a timely notice of the Secretary's issuance of a certification and of a renewal of a certifica tion.

(e) RULE OF CONSTRUCTION.-Nothing in this section shall be construed to preclude the voluntary disclosure of a protected document.

(f) EFFECTIVE DATE.-This section shall take effect on the date of enactment of this Act and apply to any pro tected document.

 

APPENDIX B

 

1. CERTIFICATION OF THE

2. SECRETARY OF DEFENSE

This certification pertains to a collection of photo graphs (as that term is defined in Section 565(c)(2) of the Department of Homeland Security Appropriations Act, 2010 (Pub. L. 111-83) ("DHS Appropriations Act")) assembled by the Department of Defense that were taken in the period between September 11, 2001 and January 22, 2009, and that relate to the treatment of individuals engaged, captured or detained after Septem ber 11, 2001 by the Armed Forces of the United States in operations outside the United States. These photo graphs are contained in, or derived from, records of in vestigations of allegations of detainee abuse, including the records of investigation processed and released in American Civil Liberties Union v. Department of De fense, 04 Civ. 4151 (AKH) (S.D.N.Y.). The photographs include but are not limited to the 44 photographs re ferred to in the decision of the United States Court of Appeals for the Second Circuit in American Civil Liber ties Union v. Department of Defense, 543 F.3d 59, 65 & n.2 (2d Cir. 2008), petition for cert. filed, 78 U.S.L.W. 3083 (Aug. 7, 2009) (No. 09-160).

Upon the recommendations of the Chairman of the Joint Chiefs of Staff, the Commander of U.S. Central Command, and the Commander of Multi-National Forces-Iraq, and by the authority vested in me under Section 565(d)(1) of the DHS Appropriations Act, I have determined that public disclosure of these photographs would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States.

Therefore, these photographs meet the standard for protected documents, as that term is defined in section 565(c)(1) of the DHS Appropriations Act and are exempt from disclosure under the Freedom of Information Act, 5 U.S.C § 552, and in all proceedings pursuant to that law. As required by Section 565(d)(4) of the DHS Ap propriations Act, I hereby direct that notice of this Cer tification be provided to Congress.

 

Date: 11/13/09 /s/ ROBERT M. GATES

Secretary of Defense

1 The Secretary may, but did not in this case, delegate his certifica tion authority under Section 565 to a subordinate official in the Depart ment of Defense, including the Deputy Secretary of Defense. 10 U.S.C. 113(d) (authorizing the Secretary to delegate "any of his functions or duties" to such persons within the Department of Defense as he may designate "[u]nless specifically prohibited by law"); see 10 U.S.C. 132(b).

2 Neither the Act nor the Secretary's certification implicates retro activity concerns. See Landgraf v. USI Film Prods., 511 U.S. 244, 273 (1994) ("When [an] intervening statute authorizes or affects the propriety of prospective relief, application of the new provision" is "unquestionably proper" and "not retroactive."); Southwest Ctr. for Biological Diversity v. United States Dep't of Agric., 314 F.3d 1060, 1061-1062 (9th Cir. 2002) (holding that Congress's enactment of a statu tory provision authorizing the withholding of information in response to a FOIA request applies to pending FOIA proceedings even when Congress did not clearly express its intent to apply the provision to pending cases); cf. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 226 (1995) (Congress may alter operative law to govern cases still pending on appellate review.); Miller v. French, 530 U.S. 327, 347-348 (2000) (Congress may modify the prospective operation of an injunctive order even after the order has become final and unreviewable.).

3 See, e.g., Diawara v. Gonzales, 546 U.S. 1086 (2006); American Bible Soc'y v. Richie, 522 U.S. 1011 (1997); Doherty v. Pennington, 522 U.S. 909 (1997); K.R. v. Anderson Cmty. Sch. Corp., 521 U.S. 1114 (1997); American Life & Cas. Ins. Co. v. Trostel, 519 U.S. 1104 (1997); Fields v. Battle, 519 U.S. 801 (1996); Dennler v. Trippet, 503 U.S. 978, amended, 503 U.S. 1003 (1992); Holland v. First Va. Banks, Inc., 502 U.S. 1086 (1992); INS v. National Ctr. for Immigrants' Rights, 481 U.S. 1009 (1987); see also Heckler v. Lopez, 469 U.S. 1082 (1984) (GVR with instructions in light of intervening legislation); cf. Mouelle v. Gonzales, 548 U.S. 901 (2006) (GVR for intervening regulatory provision); Long Island Care at Home, Ltd. v. Coke, 546 U.S. 1147 (2006) (same); Slekis v. Thomas, 525 U.S. 1098 (1999) (same).