Judicial Watch v. DOD, No. 16-360, 2017 WL 1166322 (D.D.C. Mar. 28, 2017) (Walton, J.)

Judicial Watch v. DOD, No. 16-360, 2017 WL 1166322 (D.D.C. Mar. 28, 2017) (Walton, J.)

Re: Request for records concerning raid that killed Osama bin Laden

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

• Exemption 5, Other Privileges: The court holds that "[t]he five memoranda requested by the plaintiff were prepared by former President Obama's senior advisors charged with investigating and formulating advice to be provided the President regarding 'the raid on Osama bin Laden's compound in Abbottabad, Pakistan,' . . . and reflect presidential decision-making and deliberations, and thus are protected from disclosure under the presidential communications privilege." Specifically, the court notes that the information withheld was "'information [that] was conveyed to the President's national security advisors in an attempt to influence and inform the formation of the President's decision, and is not a recitation of a final policy, position, or decision.'" "And, . . . the five requested memoranda 'provide frank and candid opinions of senior government officials, the release of which could chill future deliberations.'" The court finds that "the five requested memoranda were not only prepared for the purpose of advising the President and his closest national security advisors on the legality of the specific military operation of raiding bin Laden's compound, but also were solicited, reviewed, and formed an integral part of the President's decision to launch the raid." "Thus, the presidential communications privilege applies to the five requested memoranda."
   
• Exemption 5, Attorney-Client Privilege: "The Court agrees with the defendants that the five requested memoranda are shielded from production based on the attorney-client privilege." The court relates that "defendants initially noted that the attorneys are the authors of the five requested memoranda who provided confidential legal advice to their clients, 'the President and his closet advisors.'" The court also finds that "the five requested memoranda served as 'legal advice that was briefed to the President and his closet advisors for the purpose of providing an understanding of the legal implications associated with taking certain courses of action.'" "[B]ecause the defendants have provided more than conclusory statements regarding the legal advice requested, the nature of the confidential information provided in response, and the need to preserve the confidentiality of the content of that information in the five memoranda, the Court concludes that the defendants have sufficiently demonstrated the applicability of the attorney-client privilege to the five requested memoranda."
   
• Exemption 3: The court holds that defendants' use of Exemption 3 was proper. The court relates that, "[h]ere, the defendants invoke Section 102A(i)(1) of the National Security Act of 1947. . . , as amended (now codified at 50 U.S.C. § 3024(i)(1)), which 'requires the Director of National Intelligence to "protect intelligence sources and methods from unauthorized disclosure."'" The court finds that "defendants' declarations note, among other things, that the five requested memoranda concerned 'the risks and the potential consequences associated with conducting a raid on Osama bin Laden's compound' and the 'legal advice that was briefed to the President and his closest advisors for the purpose of providing an understanding of the legal implications associated with taking certain courses of action.'" "[Defendants'] declaration also references the need for non-disclosure of the memoranda resulting from the memoranda having been imparted to the President who was 'formulating a decision on a sensitive operation with substantial foreign policy impacts.'" "Considering the totality of the representations made by the defendants' declarants and the substantial weight that courts must afford agencies in the national security context, . . . the Court concludes that the defendants have sufficiently demonstrated the need to protect from disclosure classified, discrete information contained within the five requested memoranda that identifies intelligence sources and methods, . . . and therefore, Exemption 3 applies."
   
• Exemption 1: "Similar to the circumstances underlying the applicability of Exemption 3, the defendants have demonstrated that the five requested memoranda contain classified, confidential information that are protected from production by Exemption 1." The court finds that "defendants have indicated that 'disclosing the information would reveal the sources and method of underlying intelligence collection.'" "Additionally, the information in the five requested memoranda 'involves a contemplated [United States] Government operation in Pakistan, and [the] legal analysis attendant to such an operation in a foreign country,' which 'necessarily implicates foreign activities within the meaning of the Executive Order.'" "Consequently, for the same reasons underlying its ruling regarding Exemption 3, . . . the Court finds that the defendants properly withheld the classified, confidential information contained within the five requested memoranda from production under Exemption 1 pursuant to Executive Order 13,526."
   
• Litigation Considerations, "Reasonably Segregable" Requirements: The court holds that "[it] is satisfied that the defendants have conducted a proper segregability analysis and may withhold the five requested memoranda in their entirety." The court notes that "defendants assert that they 'conducted a document-by-document and line-by-line review and determined that no segregable, non-exempt portions of the[ ] [five] memoranda can be released without potentially compromising privileged information.'" "Moreover, under Exemption 5, the presidential communications privilege safeguards from disclosure documents in their entirety to which the privilege applies."