ACLU v. DOD, No. 17-3391, 2020 WL 419757 (S.D.N.Y. Jan. 27, 2020) (Engelmayer, J.)

ACLU v. DOD, No. 17-3391, 2020 WL 419757 (S.D.N.Y. Jan. 27, 2020) (Engelmayer, J.)

Re:  Request for records concerning raid carried out by United States military on January 29, 2017, in al Ghayil, Yemen

Disposition:  Granting in part defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Exemption 1 & Waiver:  Regarding a withheld email, the court holds that "the DoS declarations provide sufficient grounds to justify the invocation of Exemption One."  The court relates that "[plaintiff] does not dispute that the withheld information is properly classified, instead positing that the 'email likely contains officially acknowledged information that can be reasonably segregated and disclosed.'"  "Specifically, then-Press Secretary Spicer publicly revealed that, at the January 6 Deputies Committee meeting, '[t]he deputies recommended at that time that they go ahead [with plans for the Raid] . . . .'"  "[Plaintiff] argues that, if the email, which summarizes the January 6 meeting, contains segregable information about the recommendations . . . the Government must disclose such information."  "The DoS declarant, in turn, explains that the information withheld under Exemption One 'includes a great degree of detail about particular plans, possible contingencies, and potential consequences relating to the operation that have not been officially acknowledged' and does not include officially acknowledged information."  "Further, following [plaintiff's] identification of specific acknowledgments, including those made by Spicer, in its opening brief, the DoS declarant 'reviewed the documents provided by [plaintiff] in support of this argument' and re-reviewed the email readout of the January 6, 2017 meeting.'"  The court holds that "although [plaintiff] met its initial burden of identifying official acknowledgments, . . . the Government has met its ultimate burden of showing that its justification for non-disclosure is 'logical or plausible,' . . . ."  "The DoS declarations explained the types of information withheld and the harm to national security that would likely result from disclosure, and they represented that line-by-line review of the documents in conjunction with the official acknowledgments provided by [plaintiff] revealed no additional information subject to disclosure."  "The Court finds it logical and plausible that references to the Deputies Committee's recommendation . . . if any, in this classified and narrowly distributed email are so intertwined with other, non-acknowledged information that disclosure would reveal new information that undisputedly would be more specific than, and not merely match, Spicer's limited revelations."
  
  The court finds similarly regarding other email chains, holding that "an official acknowledgment that is similar to, or even partially overlaps with, information withheld by an agency does not necessarily require disclosure of the withheld information."  "Here, DoD's declarants have, in sworn affidavits, explained that information withheld from the email chains . . . involves discussion of military tactics and strategy that would be far more revealing than prior acknowledgments of the general fact that the U.S. military has engaged in certain categories of support for the Shabwah Offensive."  "This explanation, to which the courts are instructed to defer, appears logical and plausible."  The court finds that "[e]ven the paragraph containing legal analysis regarding an aspect of post-Raid military operations is not, under the circumstances present here, required to be disclosed."  "As reviewed above, legal analysis may be properly classified where it is 'so intertwined with facts entitled to protection that disclosure of the analysis would disclose such facts.'"
  
  The court also finds similarly regarding a withheld presidential authorization memorandum.  "The Court finds DoD's justifications for its redactions, as well as the absence of the information cited by [plaintiff] in the disclosed portion of the Authorization Memo, to be logical and plausible."  "Indeed, [defendant's] description of the withheld information – 'the specific operational scope of the President's approval, including information regarding the number of personnel, the assets to be utilized, the parameters of the mission, and the time span of approval,' . . . – provides precisely the type of 'reasonably specific detail' that warrants summary judgment 'on the basis of agency affidavits.'"  "These disclosed portions, released after voluntary re-review by DoD, track the official acknowledgments . . ., providing substantially similar information."  "Moreover, DoD's disclosures from the Authorization Memo shed light on the information likely contained in the still-redacted parts of the document."  "DoD's declarants confirm that the remaining redactions appear to be specific descriptions of operational details that go far beyond the limited official acknowledgments that have been made in this case, . . . and they predict harm to national security from additional disclosures from this document . . . ."  "And, while [plaintiff] has pointed to three pieces of officially acknowledged information that one might expect to find in the Authorization Memo, it is hardly illogical or implausible that any references to such categories of information would be so specific and/or intertwined with properly classified information as to justify non-disclosure."
  
  "The Court [also] accepts DoD's representation and [plaintiff's] concession, holding that [the titles of two operational proposals] were properly withheld."  The court relates that plaintiff "speculates [that the titles] w[ere] revealed (and thus officially acknowledged) in another email released by the Government in this case."  "At argument, Government counsel represented that, having reviewed the document, the title of these records had not been revealed, is materially different than what [plaintiff] thought it might be, and remains classified."  "Counsel for [plaintiff], in turn, conceded that 'it would be appropriate for [the Court] to accept that representation' in granting summary judgment as to this record."
  
  However, regarding military orders concerning conducting the operations at issue, the court decided to "exercise its discretion to review in camera [two documents]."  "Unlike in the context of the email threads discussed above – for which, the Court held, a general factual acknowledgment . . . did not require the release of similar (but more specific) factual information regarding particular operations – the prior disclosures that [plaintiff] points to here are legal standards that the Government has officially acknowledged apply to all military operations in Yemen."  "Put differently, the prior disclosures here do not merely 'overlap' with the withheld information."  "Rather, they necessarily encompass a category of information that [plaintiff] provides evidence to suggest may be present in the withheld record."  "For example, because the Government has officially acknowledged that all operations against [al Qaeda in the Arabian Peninsula] in the relevant area during the relevant period were carried out with the consent of the Government of Yemen, the Government would not be justified in withholding a mention of Yemeni consent to the Raid in the Military Order here."  "DoD does not meet this argument head on."  "Instead it asserts that '[t]he information that continues to be withheld from these records . . . is more specific than (and not matched by) information previously officially acknowledged and made public in the documents identified by [plaintiff].'"  "Under these circumstances, the Court cannot conclude that DoD's affidavits alone contain sufficient 'specificity of detail as to demonstrate that the withheld information logically falls within the claimed exemption.'"
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "[t]he Government's justification for withholding [a] Operational Proposal in its entirety pursuant to the deliberative process privilege remains logical and plausible."  The court relates that "[plaintiff] does not dispute that the DoD Operational Proposal was predecisional and deliberative at the time of its creation, but instead argues that the document became non-privileged 'working law,' either through express adoption or incorporation by reference."  The court addresses three arguments advanced by plaintiff.  First, the court relates that, "[a]ccording to [plaintiff], the subject line of the Authorization Memo, 'Presidential Authorization on Department of Defense Proposals Related to Yemen,' constituted an incorporation by reference of the Operational Proposal."  The court finds that "[t]his argument is easily dispatched"  "[E]ven if the 'Department of Defense Proposals' mentioned in the title could be construed as a reference to the Operational Proposal, much more would be required to transform the challenged record into 'working law.'"  Second, "[plaintiff] correctly points out that the Military Order's statements that the President 'approved [the proposal]' and that CENTCOM may support the Shabwah Offensive 'as described in [the proposal]' appear to approve both the conclusion and reasoning of the Operational Proposal."  "However, 'mere agreement with a document’s reasoning and conclusion is insufficient to transform advice into law.'"  "Rather, 'the document must be treated as binding by the agency (i.e. "[express] adoption") or explicitly relied upon in a formal decision (i.e. "incorporation by reference").'"  Third, "[t]he circulation of a document from a superior to subordinates with instructions to obey the advice rendered therein may sometimes be an indication that a document has been expressly adopted."  "But, the limited circulation here of the Operational Proposal to high-level officials – 'to provide factual context regarding the details and execution of the operation,' . . . – is insufficient evidence of express adoption."