ACLU v. DOD, No. 17-779, 2018 WL 3977021 (2d Cir. August 21, 2018) (Jacobs, J.)

ACLU v. DOD, No. 17-779, 2018 WL 3977021 (2d Cir. August 21, 2018) (Jacobs, J.)

Re: Photographs of detainees taken by U.S. Army personnel in Afghanistan and Iraq

Disposition: Reversing judgment of the district court and remanding with directions to enter judgment for the government

• Exemption 3: The Court of Appeals for the Second Circuit holds that "even under the de novo review that the ACLU argues is applicable if the [Protected National Security Documents Act of 2009 (PNSDA)] falls within FOIA Exemption 3 . . . the Government provided sufficient information to justifying withholding the photographs under the PNSDA."  The court explains, "[d]eference to the executive's national security and military judgments is appropriate only where we have sufficient information to evaluate whether those judgments were logical and plausible." The court finds that the "three-part review involving OGC attorneys and commissioned officers from Joint Staff J37—with 'extensive knowledge' of the U.S. Armed Forces and the methods of this country's enemies abroad—would likely have satisfied the Government's burden."  However, additional recommendations by several commanders "who each opined as to the danger of releasing the photographs based on the samples they reviewed . . . further supports the conclusion that the Secretary's determination that the PNSDA applies was logical and plausible."