American Civil Liberties Union v. United States Department of Defense

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 23, 2010 Decided January 18, 2011

No. 09-5386

AMERICAN CIVIL LIBERTIES UNION AND AMERICAN CIVIL

LIBERTIES UNION FOUNDATION,

APPELLANTS

v.

UNITED STATES DEPARTMENT OF DEFENSE AND CENTRAL

INTELLIGENCE AGENCY,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cv-00437)

Benjamin E. Wizner argued the cause for appellants.

With him on the briefs was Arthur B. Spitzer.

Michael P. Abate, Attorney, U.S. Department of Justice,

argued the cause for appellees. With him on the brief were

Ronald C. Machen, U.S. Attorney, and Douglas N. Letter,

Attorney. R. Craig Lawrence, Assistant U.S. Attorney,

entered an appearance.

Before: SENTELLE, Chief Judge, GRIFFITH, Circuit Judge,

and SILBERMAN, Senior Circuit Judge.

2

Opinion for the Court filed by Chief Judge SENTELLE.

SENTELLE, Chief Judge: Appellants, the American Civil

Liberties Union and the American Civil Liberties Foundation

(jointly “ACLU”), submitted Freedom of Information Act

(“FOIA”) requests to the Department of Defense and the

Central Intelligence Agency (“CIA”) seeking documents

related to fourteen “high value” detainees held at the U.S.

Naval Base in Guantanamo Bay, Cuba. In response, the

government released redacted versions of the requested

documents, from which specific information relating to the

capture, detention, and interrogation of the detainees had been

withheld. The government defended the redactions as

justified by FOIA exemptions 1 and 3, which permit the

government to withhold information related to “intelligence

sources and methods.” We agree with the district court that

the information withheld by the government was exempt from

FOIA disclosure. We also conclude that the district court did

not abuse its discretion by declining to perform in camera

review. For these reasons, we affirm the judgment of the

district court.

I. Background

Since January of 2002, the United States has operated a

detention facility at the United States Naval Base at

Guantanamo Bay, Cuba, for detainees captured in the war on

terror. In a September 2006 speech, President Bush revealed

that fourteen “suspected terrorist leaders and operatives” had

been held and questioned outside of the United States in a

separate program operated by the CIA. Remarks on the War

on Terror, 42 WEEKLY COMP. PRES. DOC. 1569, 1570 (Sept.

6, 2006). In his speech, the President announced that this

program had been discontinued and that the fourteen

detainees were being transferred to Guantanamo Bay. Id. at

3

1573-74. After their transfer, these so-called “high value”

detainees received hearings before Combatant Status Review

Tribunals (“CSRTs”).

Although the Department of Defense had publicly posted

redacted transcripts of the detainees’ CSRT proceedings, the

ACLU submitted Freedom of Information Act requests to the

Department seeking full CSRT transcripts of the 14 detainees

and all records provided to the CSRTs by or on behalf of the

detainees. In response to the request, the government

identified and released the following:

eight unclassified CSRT transcripts;

six redacted CSRT transcripts;

an unclassified version of a one-page document

submitted by detainee Abu Zubayduh to the CSRT;

an unclassified version of two pages of “Detainee Session

Notes” prepared by the Personal Representative of

detainee Majid Khan and submitted to the CSRT;

a redacted version of a two-page written statement of

detainee Khalid Sheikh Muhammad that was submitted to

the CSRT;

a redacted version of a seven-page written statement of

detainee Hambali that was submitted to the CSRT; and

a redacted version of a one-page written statement of

detainee Bin Lap that was submitted to the CSRT.

From the redacted documents, the CIA withheld all

information relating to the capture, detention, and

interrogation of the “high value” detainees.

4

The ACLU filed the present action in the district court

challenging the government’s withholdings. The government

stood by its withholdings and filed affidavits in support of its

position. The government principally relied on the affidavit

of Wendy Hilton, the Associate Information Review Officer

of the National Clandestine Service of the CIA, to justify the

redactions as information protected by FOIA exemptions 1

and 3. See 5 U.S.C. § 552(b) (listing nine exemptions from

FOIA disclosure requirements). Exemption 1 provides for the

exemption of records that are:

(A) specifically authorized under criteria established by

an Executive order to be kept secret in the interest of

national defense or foreign policy and (B) are in fact

properly classified pursuant to such Executive order.

5 U.S.C. § 552(b)(1). As applicable to the claimed exemption

in this case, Executive Order 12,958, as amended, sets out

eight categories of information subject to classification,

including “intelligence activities,” “intelligence sources or

methods,” and the “foreign relations or foreign activities of

the United States.” Exec. Order No. 12,958 § 1.4(c)-(d), 60

Fed. Reg. 19,825 (Apr. 17, 1995), as amended by Exec. Order

No. 13,292, 68 Fed. Reg. 15,315 (Mar. 25, 2003) (hereinafter

“Exec. Order No. 12,958”). Exemption 3 provides for the

exemption of records that are “specifically exempted from

disclosure by statute,” thereby incorporating the protections of

other shield statutes. 5 U.S.C. § 552(b)(3).

The government moved for summary judgment to

dispose of the ACLU’s lawsuit. On October 29, 2008, the

district court granted the government’s motion, ruling that the

government had complied with the ACLU’s FOIA request

insofar as it was required to do so, and that it had provided

sufficient support for the claimed exemptions. See A.C.L.U.

v. Dep’t of Defense, 584 F. Supp. 2d 19, 26 (D.D.C. 2008).

5

The ACLU appealed the district court’s decision to this court,

but before the parties filed their briefs, four events caused the

government to reevaluate its redactions to the requested

documents. First, in January 2009, President Obama issued

three executive orders: Executive Order 13,491 limiting the

use of interrogation techniques to those listed in the Army

Field Manual and ordering the CIA to close any detention

centers it operated; Executive Order 13,492 ordering the

Department of Defense to close the detention facility at

Guantanamo Bay within one year; and Executive Order

13,493 establishing a taskforce to review the lawful options

available to the government with respect to the apprehension,

detention, and disposition of suspected terrorists. See Exec.

Order Nos. 13,491-93, 74 Fed. Reg. 4893-902 (Jan. 22, 2009).

Second, in April 2009, President Obama declassified and

released to the public four legal memoranda issued by the

Department of Justice Office of Legal Counsel (“OLC”) that

discussed the legality of enhanced interrogation techniques.

Third, also in April 2009, the New York Review of Books

published a leaked report from the International Committee of

the Red Cross (“Red Cross”) that contained accounts of the

treatment of the fourteen “high value” detainees while in CIA

custody. Finally, in August 2009, the government released a

declassified version of the CIA Inspector General’s report that

detailed the CIA’s interrogation techniques and discussed

certain aspects of the detainees’ conditions of confinement.

At the government’s request, we remanded the case to the

district court to provide the CIA with the opportunity to

“reprocess” the requested documents in light of the further

developments. The CIA’s additional efforts resulted in the

release of one additional CSRT transcript in its entirety and

the revision of the redactions to the remaining five transcripts

and three detainee written statements. In August 2009, the

government filed a new motion for summary judgment,

relying on a second declaration from Wendy Hilton to support

6

its claim that the information still redacted after the CIA’s

reprocessing was exempt from release under FOIA

exemptions 1 and 3. The district court granted the

government’s motion, A.C.L.U. v. Dep’t of Defense, 664 F.

Supp. 2d 72, 79 (D.D.C. 2009), and the ACLU appealed.

II. FOIA Exemptions 1 and 3

The Freedom of Information Act “calls for broad

disclosure of Government records.” C.I.A. v. Sims, 471 U.S.

159, 166 (1985). However, Congress has recognized that

“public disclosure is not always in the public interest,” id. at

167, and has therefore provided the nine exemptions listed in

5 U.S.C. § 552(b). As we noted above, the government in this

case supports its redactions on the basis of exemptions 1 and

3. As we further noted above, exemption 1 permits the

government to withhold information “specifically authorized

under criteria established by an Executive order to be kept

secret in the interest of national defense or foreign policy” if

that information has been “properly classified pursuant to

such Executive order.” 5 U.S.C. § 552(b)(1). In this case, the

government argues that the redacted information was properly

classified under Executive Order 12,958, which “prescribes a

uniform system for classifying, safeguarding, and

declassifying national security information.” Exec. Order No.

12,958.1 Specifically, the government asserts that the

information it withheld was classified as “intelligence sources

or methods” pursuant to section 1.4(c) of Executive Order

12,958. See id. § 1.4 (listing the categories of information

authorized to be classified).

1

Executive Order 12,598 and all amendments thereto have since been

superseded by Executive Order 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009).

7

Exemption 3 permits the government to withhold

information “specifically exempted from disclosure by

statute,” if such statute either “requires that the matters be

withheld from the public in such a manner as to leave no

discretion on the issue” or “establishes particular criteria for

withholding or refers to particular types of matters to be

withheld.” 5 U.S.C. § 552(b)(3). The government relies on

the National Security Act of 1947 to justify withholding the

redacted information under exemption 3. We have previously

held that the National Security Act, which also authorizes the

Executive to withhold “intelligence sources and methods”

from public disclosure, 50 U.S.C. § 403-1(i)(1), qualifies as

an exemption statute under exemption 3. Larson v. Dep’t of

State, 565 F.3d 857, 865 (D.C. Cir. 2009); Fitzgibbon v.

C.I.A., 911 F.2d 755, 761 (D.C. Cir. 1990).

An agency withholding responsive documents from a

FOIA release bears the burden of proving the applicability of

claimed exemptions. Typically it does so by affidavit. We

review the district court’s decision on the adequacy of the

agency’s showing de novo. Larson, 565 F.3d at 862; Wolf v.

C.I.A., 473 F.3d 370, 374 (D.C. Cir. 2007). Because courts

“lack the expertise necessary to second-guess such agency

opinions in the typical national security FOIA case,”

Krikorian v. Dep’t of State, 984 F.2d 461, 464 (D.C. Cir.

1993), we “must accord substantial weight to an agency’s

affidavit concerning the details of the classified status of the

disputed record.” Wolf, 473 F.3d at 374 (quotations omitted);

Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984); Military

Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). If

an agency’s affidavit describes the justifications for

withholding the information with specific detail, demonstrates

that the information withheld logically falls within the

claimed exemption, and is not contradicted by contrary

evidence in the record or by evidence of the agency’s bad

faith, then summary judgment is warranted on the basis of the

8

affidavit alone. Larson, 565 F.3d at 862; Wolf, 473 F.3d at

374. Moreover, a reviewing court “must take into account . . .

that any affidavit or other agency statement of threatened

harm to national security will always be speculative to some

extent, in the sense that it describes a potential future harm.”

Wolf, 473 F.3d at 374; Halperin v. C.I.A., 629 F.2d 144, 149

(D.C. Cir. 1980). “Ultimately, an agency’s justification for

invoking a FOIA exemption is sufficient if it appears ‘logical’

or ‘plausible.’” Larson, 565 F.3d at 862 (quoting Wolf, 473

F.3d at 374-75).

The ACLU challenges the CIA’s claim that it was

authorized to withhold the redacted information as

“intelligence sources or methods” either under exemption 1 or

under exemption 3 on several bases.2 It first argues that the

withheld information has already been declassified and is

widely available to the public. Secondly, it contends that the

interrogation techniques and conditions of confinement

described in the requested documents have been prohibited by

the President. Thirdly, it contends that the government lacks

the authority to classify information derived from the

detainee’s personal observations and experiences. In addition,

the ACLU argues that the government cannot withhold the

information under exemption 1 because public release of the

information would not damage national security—one of the

prerequisites for classification under Executive Order 12,958.

See Exec. Order No. 12,958 § 1.1 (listing four conditions that

must be met to permit classification). We consider each of

the ACLU’s arguments in turn.

2

We note that the government need not prevail on both exemptions, but under

the statute may refuse disclosure if the withheld records satisfy one

exemption. See generally 5 U.S.C. § 552(b).

9

A.

The ACLU first claims that the withheld information is

not exempt from FOIA because it has already been

declassified and is available to the public. The ACLU points

to three sets of declassified and released government

documents that the ACLU believes contain the same

information that the CIA has withheld from the requested

CSRT documents: the OLC memoranda, the CIA Inspector

General’s report, and a CIA “Background Paper” released

with the CIA Inspector General’s report. The ACLU also

argues that a fourth document, the leaked Red Cross report,

although not an official government disclosure, contains the

same information and is available to the public.

In its affidavit, the CIA asserts that despite the

declassification and disclosure of some government

documents, the specific operational details of the capture,

detention, and interrogation of the “high value” detainees

remain classified. Hilton Aff. ¶ 55, Aug. 28, 2009. The

affidavit states that the declassified documents contain

“descriptions of the enhanced interrogation techniques in the

abstract” that are “of a qualitatively different nature than the

conditions of confinement and interrogation techniques as

applied described in the CSRT transcripts and detainee

written statements.” Id. at ¶ 70 (emphasis in original). The

affidavit also asserts that the documents “discuss[] issues of

detainee confinement, rather than specific operational details

of the confinement of any specific detainee,” and that

although the disclosed documents “discuss the legality of

specific proposed intelligence activities, they do not reveal the

level of detail described in the [CSRT] transcripts and

statements.” Id. at ¶¶ 70, 71 (emphasis in original). The CIA

also argues that under our opinion in Fitzgibbon, the leaked

Red Cross report is irrelevant because it does not qualify as an

official and documented disclosure by the government. See

10

911 F.2d at 765 (requiring, inter alia, “that the information

requested must already have been made public through an

official and documented disclosure” to compel release over an

agency’s otherwise valid exemption claim).

If the government has officially acknowledged

information, a FOIA plaintiff may compel disclosure of that

information even over an agency’s otherwise valid exemption

claim. Wolf, 473 F.3d at 378; Fitzgibbon, 911 F.2d at 765.

For information to qualify as “officially acknowledged,” it

must satisfy three criteria: (1) the information requested must

be as specific as the information previously released; (2) the

information requested must match the information previously

disclosed; and (3) the information requested must already

have been made public through an official and documented

disclosure. Wolf, 473 F.3d at 378; Fitzgibbon, 911 F.2d at

765. As we further explained in Wolf, “[p]rior disclosure of

similar information does not suffice; instead, the specific

information sought by the plaintiff must already be in the

public domain by official disclosure. This insistence on

exactitude recognizes the Government’s vital interest in

information relating to national security and foreign affairs.”

473 F.3d at 378 (citations and quotation omitted).

Review of the government documents cited by the ACLU

supports the CIA’s assertion that there are substantive

differences between the disclosed documents and the

information that has been withheld. The OLC memoranda

contain descriptions of the enhanced interrogation techniques

requested for use on the “high value” detainees, evaluations of

physical and mental pain caused by those techniques,

descriptions of “prototypical interrogations,” and analyses of

the techniques’ potential effects if implemented in

combination. The CIA Inspector General’s report, which is

heavily redacted, contains particular details from various

interrogations, but does not include thorough descriptions of

11

any specific interrogations. The CIA “Background Paper,”

drafted to provide the Department of Justice with background

information regarding the CIA program and a “generic

description of the process,” contains only general descriptions

of the confinement conditions and interrogation techniques

used by the CIA. Despite the ACLU’s arguments to the

contrary, none of these documents contains a comprehensive

description of the actual capture, detainment, or interrogation

of any specific detainee. The CIA affidavit asserts that there

are substantive differences between the content of the

publically released government documents and the withheld

information. We find nothing in the record that discredits the

agency’s claim. According the agency’s affidavit the

substantial weight it is due regarding the details of the

classified status of the disputed record, see Wolf, 473 F.3d at

374; Miller, 730 F.2d at 776; Military Audit Project, 656 F.2d

at 738, we agree with the district court’s conclusion that the

information withheld by the government “is specific and

particular to each detainee and would reveal far more about

the CIA’s interrogation process than the previously released

records.” A.C.L.U., 664 F. Supp. 2d at 77.

As the ACLU readily admits, the Red Cross report was

not released pursuant to a government declassification

process, but was instead leaked to a journalist. We note at the

outset that the Red Cross report is not a government

document, and we are hard pressed to understand the ACLU’s

contention that the release of a nongovernment document by a

nonofficial source can constitute a disclosure affecting the

applicability of the FOIA exemptions. The distinction

between an official government disclosure and references in

an unofficial document from a nonofficial source is essential

and would be fatal to the ACLU’s argument even without the

other shortcomings discussed with reference to the ACLU’s

other contentions. “[I]n the arena of intelligence and foreign

relations there can be a critical difference between official and

12

unofficial disclosures.” Fitzgibbon, 911 F.2d at 765. Because

the Red Cross report was not “made public through an official

and documented disclosure,” the information it contains

cannot be considered “officially acknowledged.” See Wolf,

473 F.3d at 378 (requiring that “the information requested

must already have been made public through an official and

documented disclosure” to be officially acknowledged). As

the Fourth Circuit has noted, “[i]t 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.” Alfred A. Knopf, Inc. v. Colby, 509 F.2d

1362, 1370 (4th Cir. 1975). Similarly, a journalist’s version

of what a nongovernmental organization, such as the Red

Cross, reports is hardly the same thing as an official

government acknowledgment.

Neither the official government disclosures of the OLC

memoranda and CIA reports nor the unofficial publication of

the Red Cross report are sufficient to qualify the information

withheld from the CSRT documents as “officially

acknowledged.” Therefore, despite the ACLU’s claim that

the information is already widely available to the public, we

conclude that FOIA exemptions 1 and 3 validly apply.

B.

The ACLU also argues that the redacted information is

not exempt from FOIA because the interrogation techniques

and conditions of confinement withheld from the requested

documents have been prohibited by the President. Relying on

the Supreme Court’s ruling in C.I.A. v. Sims, the ACLU

argues that because the President banned the future use of the

interrogation techniques and confinement conditions formerly

authorized for use on the “high value” detainees, those

techniques and conditions are no longer within the “Agency’s

13

mandate to conduct foreign intelligence,” and therefore not

protectable “intelligence sources and methods.” See 471 U.S.

at 169-70.

Sims, the only case offered by the ACLU in support of

this proposition, does not remotely support such a claim. The

Sims decision does in fact discuss the breadth of the

protection offered by exemption 3, but says nothing

suggesting that the change in the specific techniques of

intelligence gathering by the CIA renders unprotected sources

and methods previously used. As the Sims Court stated,

“[t]he ‘plain meaning’ of section 102(d)(3) may not be

squared with any limiting definition that goes beyond the

requirement that the information fall within the agency’s

mandate to conduct foreign intelligence.” 471 U.S. at 169. In

short, the Sims decision refutes rather than supports the

ACLU’s claim.

To the extent that the ACLU’s claim rests on the ACLU’s

belief that the enhanced interrogation techniques were illegal,

there is no legal support for the conclusion that illegal

activities cannot produce classified documents. In fact,

history teaches the opposite. Documents concerning

surveillance activities later deemed illegal may still produce

information that may be properly withheld under exemption 1.

See Lesar v. Dep’t of Justice, 636 F.2d 472, 483 (D.C. Cir.

1980) (holding that although the FBI’s surveillance “strayed

beyond the bounds of its initial lawful security aim, that does

not preclude the possibility that the actual surveillance

documents and the Task Force materials that comment upon

those documents may nevertheless contain information of a

sensitive nature, the disclosure of which could compromise

legitimate secrecy needs”). We conclude that the President’s

prohibition of the future use of certain interrogation

techniques and conditions of confinement does not diminish

the government’s otherwise valid authority to classify

14

information about those techniques and conditions and to

withhold it from disclosure under exemptions 1 and 3.

C.

Next, the ACLU argues that the redacted information

does not qualify as “sources or methods” under FOIA

exemptions 1 and 3 because the government lacks the

authority to classify information derived from the detainees’

personal observations and experiences. The ACLU asserts

that the government’s ability to prevent the public release of

the withheld information is derived solely from its continued

detainment of the “high value” detainees at Guantanamo Bay;

that the only thing preventing the detainees from speaking out

about their personal experiences in CIA custody is their

continued detention with no access to the public. The ACLU

argues that indefinite detention cannot be a permissible

justification for the classification of information.

The ACLU’s argument is irrelevant to the reality that the

information that the CIA wishes to withhold is within the

government’s control. Executive Order 12,958 granted the

CIA the authority to classify information that was “under the

control of the United States Government,” defining control as

“the authority of the agency that originates information, or its

successor in function, to regulate access to the information.”

Exec. Order No. 12,958 §§ 1.1(a)(2), 6.1(s). Neither party

disputes that the Department of Defense and the CIA retain

exclusive authority to regulate access to the requested

documents. The fact that the information originated from

detainees then in the government’s custody has no relevance

to the unquestionable fact that the information so obtained is

in the government’s control. Any documents generated in the

process of interrogation are in the hands of the government

and will remain subject to the government’s authority whether

the detainees are retained, released, or transferred. Not only

15

may the information within such records constitute

intelligence in and of itself, it certainly may reveal the sources

and methods of the government’s acquisition. Even if the

detainees were to be released, erstwhile detainees might

embellish or outright lie about their experiences, illustrating

the government’s continuing interest in keeping its own

records secret. There is simply no legal support for the

ACLU’s argument that the government lacks the authority to

classify the information withheld from the CSRT documents.

D.

Finally, in addition to arguing that the information

withheld from the requested documents does not qualify for

FOIA exemptions 1 and 3 as “intelligence sources or

methods,” the ACLU also argues the government cannot

withhold the information under exemption 1 because public

release of the information would not damage national

security.3 Quoting an opinion from the United States District

Court for the District of Columbia, the ACLU argues that “if

the information has already been disclosed and is so widely

disseminated that it cannot be made secret again, its

subsequent disclosure will cause no further damage to the

national security.” Washington Post v. U.S. Dep’t of Defense,

766 F. Supp. 1, 9 (D.D.C. 1991) (emphasis omitted). The

ACLU also objects specifically to the government’s assertion,

made in the CIA affidavit, that the redacted information will

harm national security because it could be used as propaganda

by al Qaeda. The ACLU contends that this purpose is

expressly prohibited by the same executive order upon which

the government relies for its authority to classify the

information.

3

We reiterate that the government need prevail on only one exemption; it need

not satisfy both.

16

As discussed above, the government may only withhold

information under exemption 1 if that information is

“specifically authorized under criteria established by an

Executive order to be kept secret in the interest of national

defense or foreign policy” and if that information is “in fact

properly classified pursuant to such Executive order.” 5

U.S.C. § 552(b)(1). The CIA asserts that the withheld

information was properly classified pursuant to Executive

Order 12,958. Executive Order 12,958, which authorizes the

classification of “intelligence sources or methods,” requires as

a prerequisite to classification that disclosure of the

information to be classified “reasonably could be expected to

result in damage to the national security” and that the

government must be “able to identify or describe the

damage.” Exec. Order No. 12,958 § 1.1(a)(4). Thus, the

“intelligence sources or methods” withheld by the government

are properly classified under Executive Order 12,958, and

therefore exempt from disclosure under exemption 1, only if

the CIA can establish that public disclosure of the withheld

information will harm national security. See 5 U.S.C.

§ 552(a)(4)(B) (placing the burden on the agency to sustain its

action under FOIA).

Because “[t]he assessment of harm to intelligence

sources, methods and operations is entrusted to the Director of

Central Intelligence, not to the courts,” Fitzgibbon, 911 F.2d

at 766, the government’s burden is a light one. “[I]n the

FOIA context, we have consistently deferred to executive

affidavits predicting harm to national security, and have found

it unwise to undertake searching judicial review.” Ctr. for

Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927

(D.C. Cir. 2003). The CIA’s arguments need only be both

“plausible” and “logical” to justify the invocation of a FOIA

exemption in the national security context. See Wolf, 473

F.3d at 374-75.

17

In this case the CIA identified five reasons why the

disclosure of the withheld information might harm national

security. Specifically, the CIA affidavit asserted that public

release of the information would potentially damage national

security by: (1) revealing the CIA’s needs, priorities, and

capabilities, Hilton Aff. ¶¶ 50-51; (2) degrading the CIA’s

ability to effectively question terrorist detainees, id. at ¶¶ 58-

59; (3) providing terrorists with insight into the CIA’s

interrogation techniques, strategies, and methods, id. at ¶¶ 60-

64; (4) damaging the CIA’s relations with foreign

governments, id. at ¶¶ 65-69; and (5) providing al Qaeda with

material for propaganda, id. at ¶ 72.

Although the ACLU generally disputes the government’s

claim that public release of the withheld information would

damage national security, the ACLU only specifically

challenges the fifth potential harm identified by the CIA. The

ACLU argues that the allegations of detainee abuse that the

CIA has withheld from the CSRT documents would be

effective propaganda for al Qaeda because those allegations

are embarrassing to the United States and possibly violations

of law. Executive Order 12,958, however, expressly prohibits

the classification of information to “conceal violations of law”

or to “prevent embarrassment to a person, organization, or

agency.” Exec. Order No. 12,958 § 1.7(a)(1)-(2).

We need not decide the issues raised by this argument.

The government does not rely on the propaganda justification

alone. The CIA affidavit identified four other potential harms

that the government argues also justify withholding the

information under FOIA exemption 1.

Even ignoring the propaganda justification, the CIA’s

affidavits establish that public disclosure of the withheld

information “reasonably could be expected to result in

damage to the national security.” Exec. Order No. 12,958

18

§ 1.1(a)(4). The CIA asserts that the public disclosure of the

withheld information may degrade the CIA’s ability to

interrogate detainees, improve al Qaeda’s insight into the

United States’s intelligence activities, and hinder the CIA’s

ability to obtain assistance from foreign nations. These

potential harms all pertain to the CIA’s core mission of

collecting and analyzing intelligence that reveals the plans,

intentions and capabilities of the nation’s enemies. According

substantial weight and deference to the CIA’s affidavit, see

Wolf, 473 F.3d at 374, we conclude that it is both plausible

and logical that the disclosure of information regarding the

capture, detention, and interrogation of detainees would

degrade the CIA’s ability to carry out its mission. Having

concluded that the CIA’s arguments are both “plausible” and

“logical,” and finding no evidence in the record to support the

opposite conclusion, no further investigation is required. See

Larson, 565 F.3d at 865 (“If an agency’s statements

supporting exemption contain reasonable specificity of detail

as to demonstrate that the withheld information logically falls

within the claimed exemption and evidence in the record does

not suggest otherwise, . . . the court should not conduct a

more detailed inquiry to test the agency’s judgment and

expertise or to evaluate whether the court agrees with the

agency’s opinions.”).

Finally, the ALCU’s argument that the information

withheld by the CIA is “so widely disseminated” that it could

not cause harm to national security is foreclosed by our

requirement, discussed above, that information be “officially

acknowledged.” See Wolf, 473 F.3d at 378. The “officially

acknowledged” test recognizes that even if information exists

in some form in the public domain that does not mean that

official disclosure will not cause harm cognizable under a

FOIA exemption. Id. To the extent that the ALCU relies on

the government’s official disclosures in the OLC memoranda

and CIA reports, we have repeatedly rejected the argument

19

that the government’s decision to disclose some information

prevents the government from withholding other information

about the same subject. See, e.g., Ctr. for Nat’l Sec. Studies,

331 F.3d at 930-31 (rejecting plaintiffs’ argument that the

government’s release of some detainees’ names estopped the

government from withholding the names of other detainees);

Students Against Genocide v. Dep’t of State, 257 F.3d 828,

835 (D.C. Cir. 2001) (“The fact that some ‘information

resides in the public domain does not eliminate the possibility

that further disclosures can cause harm to intelligence sources,

methods and operations.’”) (quoting Fitzgibbon, 911 F.2d at

766)). Because the release of the information withheld by the

CIA “reasonably could be expected to result in damage to the

national security,” we conclude that the information may be

withheld under FOIA exemption 1.

E.

The district court, relying on the CIA affidavit, held that

the redacted information qualified as “intelligence sources or

methods” under exemptions 1 and 3, A.C.L.U., 664 F. Supp.

2d at 76-78, and we agree. The CIA affidavit described, in

general terms but on a document-by-document basis, the

information withheld from each responsive document. Hilton

Aff. ¶¶ 27-34. That information included: information

regarding the capture of detainees; the detainees’ confinement

conditions and locations; questions posed to detainees that

would reveal intelligence interests of the United States;

intelligence information provided by detainees; information

relating to the collection, analysis, and dissemination of

foreign intelligence; and information regarding the foreign

relations and foreign activities of the United States. Id. For

each category of information in each document, the CIA

specified whether the redacted information was classified

pursuant to Executive Order 12,958 or to the authority granted

by the National Security Act of 1947. Id.

20

In the CIA affidavit, Hilton declared that she had

personally reviewed the redacted information and affirmed

that it was currently and properly classified. Id. at ¶ 48. She

further stated that the redacted information described the

actual, operational implementation of CIA “intelligence

sources and methods” and that the disclosure of the withheld

information would reveal the United States’s intelligence

needs, priorities and capabilities. Id. at ¶¶ 49-51. In addition,

Hilton avowed that disclosure would harm national security

by advising foreign government services and other hostile

organizations of the United States’s intelligence operations,

making future intelligence operations more difficult and more

dangerous. Id. at ¶ 51. Specifically, Hilton stated that release

of the redacted information was reasonably likely to degrade

the CIA’s ability to effectively interrogate terrorist detainees

and to undermine the CIA’s ability to obtain the cooperation

of foreign governments. Id. at ¶ 58.

Based on the strength of the CIA affidavit, we hold that

the government properly invoked FOIA exemptions 1 and 3.

The CIA explained with sufficient detail why the withheld

information qualifies as “intelligence sources or methods” and

adequately described the potential harm to national security

that could result from the information’s public disclosure.

Nothing in the CIA’s affidavit is contradicted by the record

and we find no evidence of bad faith by the government. We

conclude that summary judgment was warranted on the basis

of the CIA’s affidavit alone.

III. In Camera Review

Finally, we consider the ACLU’s argument that the

district court erred by failing to perform in camera review of

the redacted information. This court reviews a district court’s

decision whether to conduct in camera review of FOIA

documents for abuse of discretion. Larson, 565 F.3d at 869;

21

Juarez v. Dep’t of Justice, 518 F.3d 54, 60 (D.C. Cir. 2008).

Although Congress provided district courts the option to

conduct in camera review under FOIA, the statute does not

compel the exercise of that option. Larson, 565 F.3d at 869

(citing 5 U.S.C. § 552(a)(4)(B)). “Congress intended to

impose no mandates upon the trial court, but instead leave the

decision of whether to conduct in camera inspection to the

broad discretion of the trial judge.” Center for Auto Safety v.

E.P.A., 731 F.2d 16, 20 (D.C. Cir. 1984). “If the agency’s

affidavits ‘provide specific information sufficient to place the

documents within the exemption category, if this information

is not contradicted in the record, and if there is no evidence in

the record of agency bad faith, then summary judgment is

appropriate without in camera review of the documents.’”

Larson, 565 F.3d at 870 (quoting Hayden v. N.S.A., 608 F.2d

1381, 1387 (D.C. Cir. 1979)). “When the agency meets its

burden by means of affidavits, in camera review is neither

necessary nor appropriate.” Hayden, 608 F.2d at 1387. In

camera inspection is particularly a last resort in national

security situations like this case—a court should not resort to

it routinely on the theory that “it can’t hurt.” Larson, 565

F.3d at 870.

The ACLU claims that in camera review of the withheld

information is appropriate in this case because there is

evidence of bad faith by the CIA. See Spirko v. U.S. Postal

Service, 147 F.3d 992, 996 (D.C. Cir. 1998) (stating that “in

camera inspection may be particularly appropriate when . . .

there is evidence of bad faith on the part of the agency”). The

ACLU argues that differences between the government’s first

and second redactions of the CSRT documents establish that

the government acted in bad faith. In the ACLU’s view,

information disclosed during the second FOIA review

demonstrates that the CIA improperly withheld information

during the initial review, proving that the CIA abused its

classification authority and therefore acted in bad faith.

22

The ACLU’s claim that the government acted in bad faith

is meritless. None of the information originally redacted but

later disclosed after the documents were reprocessed

demonstrates that the CIA improperly withheld information.

The additional disclosures cited by the ACLU all pertain to

methods of interrogation and conditions of confinement used

or allegedly used by the CIA; the same kind of information

that the government still wishes to withhold under exemptions

1 and 3. See, e.g., Brief for the Plaintiffs-Appellant at 41-42,

A.C.L.U. v. Dep’t of Defense, No. 09-5386 (D.C. Cir. Feb. 24,

2010) (citing Abu Zubaydah’s complaints about the injuries

he incurred “after months of suffering and torture,” Al

Nishiri’s allegation that he can no longer walk more than ten

minutes, and Zubaydah’s allegations that he gave false

answers during interrogations). The government’s later

decision to declassify these specific detainee allegations does

not prove that they were originally improperly withheld or

that the government acted in bad faith. To the contrary, we

find that the government demonstrated good faith by

voluntarily reprocessing the documents after the President

declassified the OLC memoranda and the CIA Inspector

General’s report. As in previous FOIA cases, we decline to

penalize a government agency for voluntarily reevaluating

and revising its FOIA withholdings. See Military Audit

Project, 656 F.2d at 753-54 (rejecting the petitioner’s

argument that the government’s admission of error and

release of additional information demonstrated that the agency

was fallible and its affidavits suspect).

We agree with the district court that the CIA affidavit is

sufficiently detailed that in camera review is not necessary

and that there is no evidence of bad faith. See A.C.L.U., 664

F. Supp. 2d at 79. The affidavit sets forth with specificity the

information withheld and the reasons preventing its

disclosure. See Hilton Aff. ¶¶ 26-34. The district court did

23

not abuse its discretion by granting the government’s motion

for summary judgment without conducting in camera review.

IV. Conclusion

We affirm the district court’s grant of summary judgment

for the Department of Defense and CIA. We agree that the

specific details of the “high value” detainees’ capture,

detention, and interrogation are exempt from FOIA disclosure

under exemptions 1 and 3. The district court acted within its

broad discretion when it declined to perform in camera

review.

So ordered.