Am. Civil Liberties Union v. CIA, No. 10-436, 2015 WL 3777275 (D.D.C. June 18, 2015) (Collyer, J.)

Am. Civil Liberties Union v. CIA, No. 10-436, 2015 WL 3777275 (D.D.C. June 18, 2015) (Collyer, J.)

Re: Request for records concerning use of drone strikes to carry out targeted killings of alleged Islamist terrorists overseas

Disposition: Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Litigation Considerations, Vaughn Index/Declaration:  The court holds that, although "CIA did not prepare a traditional Vaughn Index," "the Court finds that CIA's response to [plaintiff's] revised FOIA request has been fully explained and adequately justified."  The court relates that "the CIA has submitted a distinctly modified Vaughn Index that addresses each kind of requested document—(1) legal memoranda and 2) four types of intelligence products that contain charts or compilations of U.S. drone strikes—and the bases for their withholding."
   
• Exemption 1:  "The Court concludes that CIA has sustained its burden of showing that all the documents at issue were properly withheld from disclosure under FOIA Exemption 1."  "Because [plaintiff] does not oppose CIA's affirmations with respect to these three requirements, the Court treats . . . as conceded" "CIA['s] . . . affirmative showing that (1) all of the withheld records were classified by . . . an original classification authority, (2) all of the withheld records are owned, produced or controlled by the United States Government, and (3) that disclosure of the withheld records could reasonably be expected to result in damage to national security."  The court relates that plaintiff "objects only to CIA's statements that the withheld records come under one or more of eight protected categories listed in Section 1.4 of E.O. 13526."  The court finds that, "[c]ontrary to [plaintiff's] argument," "a legal analysis need not constitute an intelligence activity, source, or method by itself to warrant protection so long as it pertains to an intelligence activity, source, or method."  "Here, CIA has withheld legal memoranda responsive to [plaintiff's] request for legal memoranda that 'concern[ ] the U.S. Government's use of armed drones to carry out premeditated killings.'"
   
• Exemption 5, Deliberative Process Privilege, Attorney-Client Privilege, Presidential Communications Privilege:  "[T]he Court concludes that the contested legal memoranda, including the redacted portions of the DOJ White Paper, were properly withheld under Exemption 5 based on the applicable deliberative process, attorney-client, and presidential communication privileges."  The court explains that "the classified . . . [d]eclaration, which was provided to the Court for ex parte, in camera review, . . . provides fully detailed descriptions of the legal memoranda with more than sufficient information for this Court to determine the nature of each memo."  The court determines that it "is fully satisfied that the cited privileges have been validly invoked and applied."
   
• Waiver:  "The Court finds that none of the requested information is available through an official disclosure and, accordingly, CIA has not waived its validly invoked FOIA exemptions with respect to the withheld records."  The court holds that "[plaintiff] has merely pointed to alleged disclosures of vaguely similar information, but has failed to identify officially disclosed information that 'precisely track[s]' or 'duplicates' the information it has requested."  "[Plaintiff] has identified public statements regarding U.S. drones strikes in Yemen, Pakistan, and Somalia and against Anwar al-Aulaki, but these references merely establish that the Obama Administration has spoken publicly about the same subject matter as the requested information."  Additionally, "[b]ased on its careful review of the classified . . . [d]eclaration, which contains detailed descriptions of the legal memoranda, the Court concludes that [plaintiff] has not met its burden to show that there has been official acknowledgment of any of the withheld legal memoranda."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "The Court finds that CIA has demonstrated that it has not withheld any segregable, non-exempt materials."  The court explains that "[t]he three . . . [d]eclarations provide a reasonably detailed justification that any non-exempt material cannot be segregated and released."  "Moreover, the Court concludes that any isolated words or phrases that might not be redacted for release would be meaningless."