Am. Civil Liberties Union v. DOD, No. 15-9317, 2017 WL 4326524 (S.D.N.Y. Sept. 27, 2017) (Hellerstein, J.)

Am. Civil Liberties Union v. DOD, No. 15-9317, 2017 WL 4326524 (S.D.N.Y. Sept. 27, 2017) (Hellerstein, J.) 

Re:  Request for records referenced in Senate's report on CIA's use of 'enhanced interrogation techniques' on post-September 11 detainees

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

• Exemption 5, Deliberative Process Privilege & Attorney-Client Privilege:  First, the court holds that "a CIA attorney's preliminary, pre-decisional legal analysis concerning the applicability of the Geneva Conventions in relation to the CIA's detention program, are exempt from disclosure under both the deliberative process privilege and the attorney-client privilege."  "The document clearly indicates that the lawyer is providing this analysis in the context of the development of policy and in response to information provided by the client."  The court finds similarly regarding "'an email from a CIA attorney to Agency component personnel forwarding a draft letter to the Attorney General regarding the former detention and interrogation program[,]'" "a request for legal advice concerning the use of waterboarding," "pre-decisional legal advice regarding whether CIA detainees should be moved from Guantanamo Bay, Cuba in light of a pending Supreme Court case," "'discussions that preceded DOJ's final decision regarding its assessments as to the lawfulness of certain proposed techniques[,]'" and records concerning "CIA's decision to publicly discuss the detention and interrogation program[.]"
  
  The court finds only the deliberative process privilege applicable to "'a communication between an Agency client and OGC attorney providing information in connection with a request for legal advice[]" because, while the document "is completely devoid of any request for legal advice," it "request[s] 'guidance from Headquarters employees regarding the next phase of interrogation[]'" and is therefore, "properly withheld under the deliberative process privilege."  The court finds similarly regarding another cable, but also finds that "[b]ecause [certain] sections 'embody the agency's effective law and policy,' . . . they are not exempt from production."  Likewise, the court finds that "'a communication from an Agency employee in the field to Headquarters containing a summary of [an] interrogation, an assessment of the situation and a recommendation based on that information[]'" is partially withholdable under the deliberative process privilege, but that "passages [which] consist entirely of 'purely factual material' . . . [are] segregable from the deliberative passages" and those passages are also not covered by the attorney-client privilege because " the 'predominant purpose of the communication' was not 'to render or solicit legal advice.'"  The court also finds similarly regarding "opinions and assessments concerning aspects of the CIA's detention and interrogation program," "[an] author's assessment from the field regarding [certain] medical issues," "recommendations regarding the 'interrogation plan' of a detainee," "'one employee's recommendation for future training and the development of a curriculum,'" certain "edits and comments," and certain questions and answers."
  
  The court also finds certain records not withholdable because the discussions at issue "[are] not pre-decisional; [they are] the decision[s] [themselves]."  The court finds similarly regarding information which "would not reveal anything of substance."  Finally, regarding "a selective, draft account of one Agency officer's impressions of the detention and interrogation program,” the court finds that, "[i]n short, [it does] not know anything about the document other than what is apparent from the document itself."  "Consequently, the Government has failed to show that the document 'formed an essential link in a specified consultative process,' . . . or that the document 'was prepared to assist the agency in the formulation of some specific decision,' . . . or that it in any way 'bear[s] on the formulation or exercise of policy-oriented judgment.'"
   
• Exemptions 1 & 3:  Regarding one document, the court holds that, "[f]or two reasons, the Government has failed to satisfy its burden to show that Exemptions 1 and 3 apply to [certain] information . . . that reflects 'intelligence sources and methods,' 'CIA intelligence activities' or 'counterterrorism techniques.'"  "First, the Government has not made clear which information in [the document] it seeks to withhold pursuant to Exemptions 1 and 3."  "Second, the Government has failed to satisfy the criteria set out in Executive Order 13526 because it has not shown that 'unauthorized disclosure of the information reasonably could be expected to result in damage to the national security,' nor has it sufficiently 'identif[ied] or describe[d] the damage.'"