ACLU v. DOD, No. 17-9972, 20-43, 2020 WL 5913758 (S.D.N.Y. Oct. 5, 2020) (Ramos, J.)

ACLU v. DOD, No. 17-9972, 20-43, 2020 WL 5913758 (S.D.N.Y. Oct. 5, 2020) (Ramos, J.)

Re:  Request for updated policies concerning procedures and criteria DOD and DOJ used in identifying which suspected terrorists Trump administration would attempt to capture or kill abroad

Disposition: 

• Exemption 1 & Waiver:  "[T]he Court finds that the agencies have shown that their conclusion that potential harm to the national security could result if the existence of updates to the [policies] are disclosed is logical and plausible."  Based upon the parties' briefing focusing solely on DOD, the court relates that "plaintiffs . . . argue . . . that [defendant's] reasons for keeping the existence of any [Trump] Administration update to the Obama Guidance secret are illogical and implausible."  "In the public version of [its] declaration, [defendant] argues that revealing the existence of updates to the Obama Guidance could allow adversaries to avoid detection by the U.S. Government, although [it] does not detail how."  "Alone, this public declaration would be insufficient to show that the agencies' invocation of Exemption 1 was logical and plausible."  "The Court has reviewed the classified version of the report, however, and is satisfied with the reasoning offered therein."  "[Redacted]"  "This is a logical and plausible explanation of the dangers disclosure could pose."
  
  "The Court [then] turns to the plaintiffs' first response to the Defense Department’s use of Exemption 1:  that the Department has officially acknowledged changes made to the Obama Guidance in the Niger ambush report."  The court finds that "[t]he Defense Department's argument ["that the information requested by the [plaintiffs] is not the same as that mentioned in the report about the Niger ambush principally because of differing titles"] is contradicted by the report itself."  First, the court finds that "[t]he information in the report is as specific as, and matches the information the [plaintiffs] seek here."  However, the court then finds that "the record does not contain enough support for the Court to determine that the disclosure in the Niger ambush report was 'official.'"  "'It is one thing for a reporter or author to speculate or guess that a thing may be so or even, quoting undisclosed sources, to say that it is so; it is quite another thing for one in a position to know of it officially to say that it is so.'"  "To be sure, finding that a Defense Department report authored by a major general and approved by the leader of a U.S. combatant command is not 'official' approaches being a distinction without a difference."  "But this decision – an admittedly close one – comports with the principle behind the official doctrine."  "It is a doctrine of waiver, 'a privilege reserved to the agency asserting a Glomar response.'"  "To allow an ancillary disclosure such as this one to force the Defense Department to waive an exemption could turn future FOIA suits into a game of 'gotcha,' allowing the decision of one subset of an organization to lead to the release of information potentially harmful to national security."
  
  Finally, the court relates that "the Second Circuit held that information that does not serve to waive an agency's ability to invoke a FOIA exemption can still be relevant for determining whether that invocation remains logical and plausible."  "In other words, even if a disclosure is not 'official' . . . , 'such [a] disclosure may well shift the factual groundwork upon which a district court assesses the merits' of a FOIA exemption."  "The Niger ambush report has indeed shifted that groundwork."  "Given the report's authorship and import, the Court finds that confirming or denying the existence of updated guidance regarding direct action cannot still 'reasonably [ ] be expected to result in damage to the national security.'"  "Much of the Court's conclusion in this regard stems from the unchallenged credibility of the report."  "It was authored by [a Major General] and was transmitted to the Secretary of Defense by the commander of U.S. Africa Command . . . ."  "One of the report's findings was that actions of U.S. forces conflicted in some respects with both the Obama Guidance and the subsequent updates."  The court also finds that "[defendant's] unclassified declaration does not explain why a foreign government might find a White House confirmation of updated guidance regarding rules governing military operations more worthy of response than a Defense Department confirmation of the same information."  "Even though the Court must accord the Defense Department and its submissions deference in matters of national security, . . . to accept its claim that there is anything left to hide would be to give in to 'a fiction of deniability that no reasonable person would regard as plausible.'"
   
• Exemption 3:  The court finds that "[t]he same does not hold true for Exemption 3."  "The parties agree the National Security Act of 1947, 50 U.S.C. § 3024(i)(1), is such an exempting statute."  "The parties disagree, however, that the information at issue here is covered by the National Security Act, which 'mandates that the Director of National Intelligence "shall protect intelligence sources and methods from unauthorized disclosure."'"  "Unlike the reasons proffered for non-disclosure under Exemption 1, [defendant's] declaration is far too conclusory in this regard."  "In particular, the agencies argue that because disclosure could reduce the efficacy of operations that may involve the collection of intelligence, the information at issue relates to intelligence sources and methods, i.e., the category of information protected by the National Security Act."  "Although the Court is aware of the 'broad sweep' of the Act in protecting intelligence sources and methods, . . . it is the burden of the agencies to educate the Court on the connection between those concepts within the context of this case."  "They have done so only through ipse dixit."  "As stated above, the Court credits the potential harm to national security of disclosure, but it does not see – through its review of the classified and unclassified [defendant] Declaration – the connection between that harm and the disclosure of intelligence sources and methods protected by the National Security Act."