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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0173%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2008

## Text

, 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
A Fe BF CE BI ses care ccerecccscccescceccsesescosses li
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0173%3A5. Public record. Not legal advice.