Amicus Curiae Brief — Justice Justice v. Department of Defense (No. 08-125)

, FILED

(1) AUG 2 9 2008

No. 08-125 SUPREME THE CLE

In THE

Supreme Court of the Anited States

NATIONAL INSTITUTE OF MILITARY JUSTICE,

Petitioner,

Vv.

UNITED STATES DEPARTMENT OF DEFENSE,

Respondent

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BriEF AMICUS CURIAE OF

THE REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS

Lucy Dalglsh

Counsel of Record

Gregg P. Leslie

Corinna J. Zarek

Scott Albright

The Reporters Committee for

Freedom of the Press

1101 Wilson Blvd, Suite 1100

Arlington, Va. 22209

(703) 807-2100

i

TABLE OF CONTENTS

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STATEMENT OF INTEREST ......................::2c:ceeeeeees 1

SUMMARY OF ARGUMENT. ..............ccccccsssseseeneeteees 2

TTT nthicphtasininbiebeiitiinedcinnwsnsestevesetenetinnnsvenmnnrinees 3

I. FOLA Exemptions Must be Applied Narrowly to

Ensure That the Act’s Central Purpose is

aac nadine aia naiat nas caemlbdnengnnents 3

A. FOIA Provides Broad Access to Federal

SEE ERED eA OE OE 3

B. In this Case, this Court can Clarify a

Significant Area of FOIA Law.......................... 4

II. An Overly Broad Interpretation of FOLA’s

Exemption 5 Dramatically Hinders

Oversight of Federal Agencies.............................2- 8

A. The Press has Often Used FOIA to Obtain

Records Produced by Third Parties Hired by

the Government to Assess Government

ERE AER cee 8

B. The Public has a Right to Know About the

Process and Influences by which the Bush

Administration’s Illegitimate Military

Commissions were Devised .....................-..+++ 10

PT Si iericint cchininnininiiabsanstsentinesdninnsdniniinateniienioetii 12

il

TABLE OF AUTHORITIES

CASES

Dep’t of Air Force v. Rose, 425 U.S. 352 |

TREES RASS EEN FE ee SEE nk ae 4 |

Dep't of Interior v. Klamath Water Users

Protective Ass’n, 532 U.S. 1 (2001)................... 4-7 |

Dep’t of Justice v. Reporters Committee for |

Freedom of the Press, 489 U.S. 749 (1989)......... 3 :

Dep't of Justice v. Tax Analysts, 492 U.S. 136

i a cemenleiniconsuae 4

FBI v. Abramson, 456 U.S. 615 (1982) ........:seeseeee 4 .

Hamdan v. Rumsfeld, 548 U.S. 557 (2006) ............. 11 |

Nat'l Inst. of Military Justice v. Dep’t of Defense, |

612 F.3d 677 (D.C. Cir. 2008) ................ccceceseceee 5 |

Richmond Newspapers, Inc. v. Virginia, 448 U.S. |

ITED tndmrensiecniniocnstiseuciguiavenuninnnitniesnsouionnnesiess 1

!

:

STATUTES AND REGULATIONS

ee a sesiueienidatiinii 5

Detention, Treatment, and Trial of Certain Non-

Citizens in the War on Terrorism, 66 Fed.

BS STII: Ci cies sccdscarsrsaseseuvscnicoes 5

ill

OTHER

Christian Lowe, Flawed Body Armor, Marine |

Corps Times, May 16, 2008, at 22 ...................... 9

Ken Ward, Jr., Mine Agency Misses ‘Systematic’ |

Problems, Study Says, Charleston Gazette, ,

I 9, 10 |

Todd C. Frankel, Why did this Cable at the Arch

Break?, St. Louis Post-Dispatch, taal 8,

| A RA i 8, 9

,

S. Rep. No. 89-813 (1965) .......c.c.ccccceccsssccssssecssecesessenees 3 |

Statement by the President Upon Signing Bill Revis-

ing Public Information Provisions of

the Administrative Procedure Act, 2 Weekly

Comp. Pres. Doc. 895 (July 4, 1966)................... 3

es ee eS

Se eee ee ee oe ce

STATEMENT OF INTEREST!

The Reporters Committee for Freedom of the

Press is a voluntary, unincorporated association of

reporters and editors that works to defend the First

Amendment rights and freedom of information inter-

ests of the news media. The Reporters Committee

has provided representation, guidance and research

in First Amendment and Freedom of Information Act

(“FOIA” or “the Act’) litigation since 1970.

The Reporters Committee assists journalists in

accessing information integral to the public’s partici-

pation in its government, including access to federal

agency records under FOIA. As “surrogates for the

public,” Richmond Newspapers, Inc. v. Virginia, 448

U.S. 555, 573 (1980), journalists need unfettered ac-

cess to all information, including records relating to

the influences of outside consultants, that sheds light

on government performance. .

1 Pursuant to Sup. Ct. R. 37, counsel for amicus curiae declare

that they authored this brief in total with no assistance from

the parties; that no individuals or organizations other than the

amicus made a monetary contribution to the preparation and

submission of this brief; that counsel] for both parties were given

timely notice of the intent to file this brief; and that written

consent of all parties to <i:e filing of the brief amicus curiae has

been filed with the Clerk.

SUMMARY OF ARGUMENT

Congress enacted the Freedom of Information Act

to shed light on the inner workings of government

and pierce the veil of administrative secrecy that is

detrimental to creating a responsive and accountable

government. In this case, the Petitioner used FOIA

to request records created by non-governmental at-

torneys who were solicited by the Department of De-

fense to offer recommendations relating to the crea-

tion of military commissions. If disclosed, the attor-

neys’ records would supply unique insight into the

formation of military commissions that ultimately

led to years of costly litigation and the eventual in-

validation of the commissions as they existed in

2006. The lower courts agreed with the government

in this case that the requested records could be with-

held citing FOIJA’s Exemption 5. But the lower

courts’ analyses as to whether the attorneys’ com-

munications constituted “inter-agency” or “intra-

agency” records is incomplete, because the attorneys’

potential self-interests were not sufficiently evalu-

ated. Because this Court has ruled that this type of

in-depth analysis is required in Exemption 5 cases,

the petition should be granted and the lower court's

decision ultimately reversed.

ARGUMENT

I. FOIA EXEMPTIONS MUST BE APPLIED

NARROWLY TO ENSURE THAT THE ACT’S

CENTRAL PURPOSE IS FULFILLED.

A. FOIA Provides Broad Access to Federal

Agency Documents.

The Freedom of Information Act was designed to

facilitate the public's ability to monitor and evaluate

federal agencies. As Congress noted when the Act

was created, FOIA’s purpose is “to establish a gen-

eral philosophy of full agency disclosure.” 5S. Rep. No.

89-813, at 38 (1965). In signing the bill into law,

President Lyndon Johnson noted that a democracy

works best when the public is privy to more informa-

tion concerning its government rather than less: “No

one should be able to pull the curtains of secrecy

around decisions which can be revealed without in-

jury to the public interest.” Statement by the Presi-

dent Upon Signing Bill Revising Public Information

Provisions of the Administrative Procedure Act, 2

Weekly Comp. Pres. Doc. 895 (July 4, 1966).

During the more than forty years since FOIA’s

enactment, this Court has repeatedly recognized that

Congress intended the Act to be an instrument for

shedding light on the federal government's perform-

ance. See, e.g., Dep't of Justice v. Reporters Commit-

tee for Freedom of the Press, 489 U.S. 749 (1989). In

fulfilling this central purpose of showing what the

“government is up to,” the Act must be construed

broadly in favor of disclosure. Jd. at 773. More spe-

cifically, the Court has viewed FOIA as a tool for

holding the government accountable by dissolving

the walls of secrecy. As the Court noted, FOLA was

enacted to “[t]Jo make clear the congressional objec-

tive ... to pierce the veil of administrative secrecy and

to open agency action to the light of public scrutiny.”

Deptt of Air Force v. Rose, 425 U.S. 352, 361(1976)

(internal quotations omitted).

To serve the Act’s overriding interest in providing

broad access to government documents, this Court

has acknowledged that FOJA’s exemptions must be

interpreted narrowly. See Dept of Interior v.

Klamath Water Users Protective Ass’n, 532 U.S. 1, 7-

8 (2001) (citing Rose at 425 U.S. at 361 (holding that

exemptions are “limited”); Dep't of Justice v. Tax

Analysts, 492 U.S. 136, 151 (1989) (recognizing that

given FOIA’s “goal of broad disclosure, these exemp-

tions have been consistently given a narrow com-

pass’); and FBI v. Abramson, 456 U.S. 615, 630

(1982) (finding that “FOLA exemptions are to be nar-

rowly construed)). This Court has recognized that

FOIA was originally conceived to default in favor of

disclosure. As it noted in Rose, “these limited exemp-

tions do not obscure the basic policy that disclosure,

not secrecy, is the dominant objective of the Act.” 425

U.S. at 361.

B. In this Case, this Court can Clarify a

Significant Area of Freedom of

Information Act Law.

The Act’s Exemption 5 permits federal agencies to

withhold “interagency or intra-agency memoranda or

letters which would not be available by law to a

party other than an agency in litigation with the

agency.” 5 U.S.C. § 552(b)(5). To qualify for the ex-

emption, the records must also be deliberative and

pre-decisional. Klamath, 532 U.S. at 8-9. In

Klamath, this Court found that letters submitted by

Indian tribes to the Department of the Interior were

not exempt from disclosure because the tribes had

been acting explicitly in their own interests in filing

the letters. Jd. at 14. This Court expressly declined to

rule whether Exemption 5 might apply to reports

produced by third-party consultants in other circum-

stances. Id. at 12.

In this case, Petitioner seeks to obtain through

FOIA records of communications between Depart-

ment of Defense (“DoD”) personnel and members of

the public relating to the Military Order (“the Or-

der”) signed by President Bush on November 13,

2001. Nati? Inst. of Military Justice v. Dep't of De-

fense, 512 F.3d 677, 678-79 (D.C. Cir. 2008); Deten-

tion, Treatment, and Trial of Certain Non-Citizens in

the War on Terrorism, 66 Fed. Reg. 57833 (Nov. 13,

2001). The Order authorized the establishment of

military commissions to try suspected terrorists. Id.

Petitioner has also requested documents relating to

DoD’s subsequent implementing orders and regula-

tions related to the Order. Id. In rejecting the Peti-

tioner’s records request, the DoD claims that the re-

quested records, which feature non-governmental at-

torneys’ opinions and recommendations, may be

withheld from disclosure through Exemption 5 be-

cause the records qualify as “intra-agency or inter-

agency” documents. Id. The DoD argues that in the

absence of a consultant’s clearly identified self-

interest, D.C. Circuit precedent authorizes records

with pre-decisional, deliberative content to be with-

held through Exemption 5. /d.

The D.C. Circuit Court in this case agreed with

the DoD and found the records at issue could be

withheld through Exemption 5, despite the fact that

the attorneys’ relationship with the agency was not

memorialized through a formal contract and the at-

torneys are not public officials. Jd. The circuit court

held that Klamath did not control the outcome in this

case, because the attorneys’ interests in soliciting

their comments were not identified. Id. The lower

court instead relied upon its own precedent in find-

ing that records submitted by non-agency parties in

response to federal agency requests can be withheld.

Id. at 681.

The Petitioner has conceded and the circuit court

has found that there is no persuasive evidence that

the non-governmental attorneys in this case were

motivated by their own personal interests to submit

their comments to the DoD. Id. at 683. But even if

the attorneys’ interests were not sufficiently identi-

fied to trigger the rule from Klamath, neither is it

sufficiently clear by the facts in this case that the at-

torneys’ comments were absolutely not motivated by

their self-interests. See id. The lack of a formal, con-

tractual relationship between the DoD and the at-

torneys, along with the attorneys’ status as private

citizens rather than as public officials makes it in-

herently difficult to discern what, if any, interests

the attorneys may have represented.

D.C. Circuit Court Judge David S. Tatel’s dissent

acknowledged this key point in arguing that the ma-

jority has in essence ignored the analysis of potential

interests that this Court instituted through Klamath.

As Judge Tatel noted, the majority has seemingly

adopted a rule for Exemption 5 cases that views “in-

tra-agency” as a “purely conclusory term.” Id. at 690-

91 (Tatel, J., dissenting) (citing Klamath, 532 U.S. at

12). Without a more in-depth analysis of a given con-

sultant’s potential interests, the circuit court’s rule

allows an intra-agency or inter-agency “label to be

placed on any document the Government would find

it valuable to keep confidential.” Jd.

In granting this petition, the Court has an oppor-

tunity to clarify the reach of Exemption 5, and, most

importantly, correct the D.C. Circuit’s rule, which

injects a degree of ambiguity into what constitutes

an intra-agency or inter-agency communication that

is inconsistent with both the Klamath decision and

Congress’ intent for broad disclosure under FOIA.

See supra Part I.A. If the circuit court’s rule on this

issue is permitted to stand, federal agencies will con-

tinue to withhold documents with little or no regard

for the potentially significant interests represented

by the private citizens by whom agencies can be in-

fluenced. This Court should make clear the narrow

circumstances by which Exemption 5 may be applied

and, in so doing, ensure that such records are avail-

able for public scrutiny.

8

II. ANOVERLY BROAD INTERPRETATION OF

FOIA’S EXEMPTION 5 DRAMATICALLY

HINDERS OVERSIGHT OF FEDERAL

AGENCIES.

A. The Press has Often Used FOIA to Obtain

Records Produced by Third Parties Hired

by the Government to Assess Government

Performance.

A crucial function of the press is to maintain a

close eye on government decision-making, taking

care to scrutinize the process by which public offi-

cials spend taxpayers’ money and act on the public’s

behalf. In fulfilling this watchdog role, the press is

often dependent on FOIA as an invaluable tool to un-

cover government waste, corruption, and ineptitude.

Because such transgressions often leave a paper

trail, the public is better served when the press has

full, unobstructed access to government documents.

In many cases, this paper trail begins with the

work of third-party consultants who have either been

hired by the federal agencies to assess government

performance or who have been solicited without

compensation to provide expertise and insight to

government decision makers. In their own investiga-

tions, reporters routinely depend upon the objective

analysis provided by such consultants.

For example, the St. Louis Post-Dispatch recently

used FOIA to obtain an independent contractor’s re-

port that found the National Park Service (“NPS”) to

be partly at fault for a tram cable that snapped

within the Gateway Arch in St. Louis. Todd C.

Frankel, Why did this Cable at the Arch Break?, St.

Louis Post-Dispatch, Aug. 8, 2008, at Al. While no

one was injured when the braided steel cable plum-

meted more than 500 feet within the national his-

toric landmark on July 21, 2007, experts said the fal-

ling cable had the potential to cut through metal

“like a knife through butter.” Id. The ensuing inves-

tigation culminated in a report produced by a Penn-

sylvania engineering firm, which found workmanship

by the NPS tc be partly to blame for the near-

disaster. Id. While there is no evidence that the NPS

attempted to withhold the report or otherwise cover

up the report's criticisms, the Post-Dispatch report

shows the availability of FOLIA absolutely ensured

the valuable report’s public release. Id.

In 2005, a newspaper’s FOIA request for consult-

ant-produced documents led to one of the more eye-

opening and disturbing stories of the current Iraq

War. The Marine Corps Times used FOLIA to obtain

an outside consultant’s memoranda to the Marine

Corps that recommended body armor vests being is-

sued to American soldiers be replaced. Christian

Lowe, Flawed Body Armor, Marine Corps Times,

May 16, 2005, at 22. By obtaining the memoranda,

the newspaper showed the Marine Corps had disre-

garded the recommendations, which were later vali-

dated by another government agency, and left

American soldiers vulnerable while in combat. Jd. As

a result of the Marine Corps Times story, the Marine

Corps recalled more than 5,000 of the ineffective

body armor vests. Id.

In 2004, the Charleston Gazette obtained a con-

sultant’s report that found U.S. Mine Safety and

10

Health Administration (“MSHA”) officials had been

ignoring large scale safety concerns through inade-

quate mine inspections. Ken Ward, Jr., Mine Agency

Misses ‘Systematic’ Problems, Study Says, Charleston

Gazette, Nov. 9, 2004, at 1D. The Gazette asserted

that the agency only released the report that was

drafted by a consultant’s firm hired by MSHA once

the newspaper filed a FOIA request. Id.

The examples above are just a brief snapshot of

how FOIA has been used to obtain consultants’

documents that otherwise might have been locked

away from public view. Because the reports and

memoranda were all produced by third-party con-

sultants hired by federal agencies for purposes unre-

lated to the consultants’ interests, the reports could

have arguably been withheld by applying an overly

broad interpretation of FOLA’s Exemption 5. The ex-

amples above show the public has been better served

by a narrow interpretation that leads to disclosure of

consultants’ documents, thereby permitting journal-

ists to properly perform their important oversight

function.

B. The Public has a Right to Know About

the Process and Influences by Which the

Bush Administration’s Illegitimate

Military Commissions were Devised.

The Bush Administration's attempts to create fair

and just military commissions to try detainees held

in Guantanamo Bay, Cuba, were arguably a failure.

After years of litigation derived from challenges over

the commissions’ legitimacy, this Court ruled in

11

Hamdan v. Rumsfeld, 548 U.S. 557 (2006), that the

commissions were unauthorized by federal statutes

and violated international law.

Given the tremendous resources that were ex-

pended by the federal government to create the mili-

tary commissions and then defend the commissions’

legitimacy through litigation, the American people

deserve to know how and why the administration

created the commissions in the first place. By with-

holding the identities and communications of the in-

dividuals who may have influenced an outrageously

flawed episode of policy making, the DoD has overtly

excluded the public from the process, precluding any

oversight concerning the commissions and their crea-

tion. Furthermore, if such communications are per-

mitted to be withheld, the DoD will have little incen-

tive in the future to avoid the influence of the indi-

viduals who may have played a part in creating the

failed military commissions.

12

CONCLUSION

The public has a right to scrutinize the govern-

ment decisions made in its name, for its benefit and

with its tax dollars. As in this case, where the inter-

ests and influence of non-governmental consultants

are ambiguous and not identified through a formal,

contractual relationship, the communications be-

tween such consultants and public officials should be

disclosed to the public, as Congress intended by en-

acting FOIA. The petition for a writ of certiorari filed

by the National Institute of Military Justice should

be granted.

Respectfully submitted,

Lucy A. Dalglish

Counsel of Record

Gregg P. Leslie

Corinna J. Zarek

Scott Albright

The Reporters Committee

for Freedom of the Press

1101 Wilson Blvd., Ste. 1100

Arlington, VA 22209-2211

(703) 807-2100

August 29, 2008