Bonner v. CIA, No. 19-9762, 2021 WL 3193090 (S.D.N.Y. July 28, 2021) (Furman, J.)

Bonner v. CIA, No. 19-9762, 2021 WL 3193090 (S.D.N.Y. July 28, 2021) (Furman, J.)

Re:  Request for records concerning "the Manchester Manual,' an al Qaeda training manual that law enforcement recovered from the home of an al Qaeda suspect in Manchester, England, in 2000, and the CIA later used in developing the 'enhanced interrogation techniques' it applied to certain detainees following the September 11th attacks"

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

• Exemption 1; Exemption 3; Exemption 5, Deliberative Process Privilege & Litigation Considerations:  "[T]he Court concludes that the CIA's withholding of the Mitchell Report and the Classified Cable Correspondence is adequately supported by [defendant's] declarations but that the CIA has not met its burden with respect to its withholding of the Draft Intelligence Report."  First, the court finds that "[t]he CIA satisfies its burden of establishing that the redacted portions of the Mitchell Report are exempt from disclosure pursuant to Exemptions 1 and 3."  The court finds that "[t]he CIA logically and plausibly avers that the redacted portions of the Mitchell Report 'contain discussion of classified CIA sources and methods,' including 'classified analyses' of the interrogation resistance techniques described in al Qaeda training manuals and of 'their use in interrogation, including responding to their use with countermeasures and guidance concerning the creation of such countermeasures.'"  "The CIA determined that this information was properly classified because its release 'could benefit [the] CIA's adversaries by allowing them to understand and develop responses to CIA interrogation practices, including ways to evade or mislead questioners.'"  "For the same reasons, the CIA establishes that material redacted from the Mitchell Report is shielded from disclosure under Exemption 3 in light of the National Security Act."  "The CIA conducted a line-by-line review of the Mitchell Report and concluded that no additional, non-exempt information can be segregated and released."  Additionally, the court finds that "[t]he CIA states in its declaration that the information redacted from the Mitchell Report does not pertain to 'any of the [interrogation] techniques' that [plaintiff] identified as having been previously disclosed or the use of any interrogation techniques 'to cause . . . the inability to resist in a detainee,' regardless of whether the terms 'enhanced interrogation techniques' or 'learned helplessness' were used to describe these topics."  "Put simply, [plaintiff] does not 'point[ ] to specific information in the public domain that appears to duplicate that being withheld.'"
  
  Second, the court finds that "[t]he CIA also satisfies its burden of establishing that the Classified Cable Correspondence is exempt from disclosure in its entirety pursuant to Exemptions 1, 3, and 5."  "The CIA determined that the classification of information in both documents was proper because its release 'could benefit a foreign intelligence service or terrorist organization by enabling it to identify particular CIA sources, circumvent CIA monitoring efforts, and generally enhance its intelligence or deception activities at the expense of the United States,' and would 'reveal targets of [the] CIA's intelligence collection efforts, allowing adversaries to thwart them or make collection more difficult to accomplish.'"  "For the same reasons, portions of the Classified Cable Correspondence discussing CIA sources and methods are shielded from disclosure under Exemption 3 and the National Security Act."  "To the extent that portions of the Classified Cable Correspondence do not discuss CIA sources and methods, and Exemptions 1 and 3 do not apply, the CIA logically and plausibly avers that they 'reflect[ ] pre-decisional inter- and intra-agency deliberations,' including 'recommendations from an outside agency to [the] CIA,' 'recommendations from a[ ] [CIA] office to [CIA] leadership,' and 'views as to the possible causes of and potential responses to particular situations.'"  "Additionally, the Court concludes that the CIA satisfies FOIA's foreseeable harm requirement."  The court explains that "'[t]he degree of detail necessary to substantiate a claim of foreseeable harm is context-specific' and, '[i]n some instances, the withheld information may be so obviously sensitive . . . that a simple statement illustrating why the privilege applies and identifying the harm likely to result from release may be enough.'"  "Here, as the CIA explains, the classified nature of the intelligence report contained within the Classified Cable Correspondence makes it impossible to describe its 'specific subject matter . . . on the public record without revealing exempt information.'"  "In light of that explanation, and the Court's review in camera of the CIA's classified declaration containing 'more detailed information about the substance of [the Classified Cable Correspondence],' . . . the Court concludes that the CIA meets its burden of establishing that any reasonably segregable, non-classified portions of the Classified Cable Correspondence are subject to the deliberative process privilege."
  
  Third, the court finds that, "[b]y contrast, the CIA fails to establish that the Draft Intelligence Report is subject to the deliberative process privilege because it fails to identify any agency decision-making process in connection with which the document was created."  "The Draft Intelligence Report is a draft of a 'Terrorism Open Source Intelligence Report [that] was prepared on a weekly basis' for the director of the CIA's Counterterrorism Center, 'ultimately for the background use by members of the intelligence and law enforcement communities in carrying out their duties.'"  The court finds that "although the CIA may be correct that draft documents are often predecisional, . . . a document's 'draft status alone . . . does not lead to a per se exemption' . . . ."  "Meanwhile, the CIA's assertion that the Draft Intelligence Report is predecisional because it was intended 'to guide the policy judgments of the CIA and other intelligence and law enforcement personnel' who would receive the final report . . . fails to provide the requisite 'reasonably detailed explanation[ ]' as to why Exemption 5 applies."  "At a minimum, to properly invoke Exemption 5, an agency 'must be able to demonstrate that, ex ante, the document for which [deliberative process] privilege is claimed related to a specific decision facing the agency.'"  "Merely stating that a document may have informed the exercise of policy judgment on any of the decisions facing intelligence and law enforcement personnel, as the CIA does here, does not meet that standard."
   
• Litigation Considerations, In Camera Inspection:  The court holds that "[plaintiff] argues that in camera review of the documents at issue is warranted, for two principal reasons:  first, because the CIA has produced documents and portions of documents that it previously withheld over the course of this litigation, casting doubt on the propriety of its remaining withholdings; and second, because controversy surrounding the CIA's use of 'enhanced interrogation techniques' suggests that the CIA may be withholding non-exempt material to avoid public embarrassment."  The court finds that, "[w]ith respect to [plaintiff's] first rationale, this Court has previously declined to 'hold against [an agency] the fact that it revisited records it had already reviewed and reconsidered earlier exemption determinations in the face of continued challenges from the [plaintiff],' reasoning that such thoughtful reconsideration is 'the way the FOIA process should work.'"  "As for [plaintiff's] conjecture that the CIA may be withholding documents because of their potential to embarrass the CIA, it is well established that 'speculative assertions are insufficient to rebut the presumption [of good faith] accorded to agency affidavits.'"