Opposition Brief — Department of Defense v. American Civil Liberties Union, (2009) (No. 160)

G) Supreme Court. US

FILED

NoX697160 SEP 8 - 2009

OFFICE OF THit CLERK

IN THE

Supreme Court of the Hnited States

o_o -—

UNITED STATES DEPARTMENT OF DEFENSE, ET AL.,

Petitioners,

——yY, —

AMERICAN CIVIL LIBERTIES UNION, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

LAWRENCE S. LUSTBERG JAMEEL JAFFER

JENNIFER B. CONDON Counsel of Record

GIBBONS, DEL DEO, DOLAN STEVEN R. SHAPIRO

GRIFFINGER & VECCHIONE, P.C. AMRIT SINGH

One Riverfront Plaza JUDY RABINOVITZ

Newark, New Jersey 07102 LUCAS GUTTENTAG

(973) 596-4700 AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, New York 10004

(212) 549-2500

ARTHUR EISENBERG

BETH HAROULES

NEW YORK CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street GITANJALI S. GUTIERREZ

New York, New York 10004 SHAYANA KADIDAL

(212) 344-3005 CENTER FOR CONSTITUTIONAL

RIGHTS

666 Broadway, 7th Floor

New York, New York 10012

(212) 614-6485

Attorneys for Respondents

COUNTER-STATEMENT OF THE

QUESTION PRESENTED

Whether the government may rely on

Exemption 7(F) of the Freedom of Information Act,

an exemption intended to protect individuals who

would be endangered by the disclosure of identifying

information contained in law enforcement records, to

withhold photographs depicting the abuse of

prisoners by U.S. personnel in Afghanistan and Iraq

based on a general assertion that release of the

photographs could provoke a violent response.

CORPORATE DISCLOSURE STATEMENT

Respondents have no parent corporations,

and no publicly held company owns 10% or more

of respondents’ stock.

1

TABLE OF CONTENTS

COUNTER-STATEMENT OF THE QUESTION

FE ninpiigaviinciremsnericeiniatinniiiaiintgledsoniuinniecieien i

CORPORATE DISCLOSURE STATEMENT ........... i

See Oe IIE evcvenccrcsscnnssncnsetnevecercssevsessees lil

TGRRERIE GPE FRET CRIES BO vei csc ccesiscccsesessessesoneenecsocsens iv

STATEMENT OF THE CASE ...0000.. oo. ceeeeee eee eee eee ]

REASONS FOR DENYING THE PETITION............ 7

I. THE SECOND CIRCUIT PROPERLY

REJECTED THE GOVERNMENT'S

RELIANCE ON EXEMPTION 7(F) TO

WITHHOLD PRISONER ABUSE IMAGES

BASED ON A GENERAL ASSERTION THAT

RELEASE COULD PROVOKE A VIOLENT

ee iicseinieniievenninenininininnaspenimtesinineaiicesyes 9

A. The Plain Language and Statutory

Context of Exemption 7(F) Compel the

Second Circuit's Conclusion ..................... 9

B. The Legislative History of Exemption

7(F) and Case Law Construing that

Provision Support the Second Circuit’s

a ehcecdiaiiiiliiuiain 18

Il. GRANTING THE PETITION WOULD

FURTHER DELAY THE DISCLOSURE OF

RECORDS THAT ARE OF

EXTRAORDINARY IMPORTANCE TO AN

ONGOING NATIONAL DEBATE. ................ 25

IT sole deiedsnniensaissrcdesdnibininisunietiaciesinitnsnnndited 28

ill

TABLE OF AUTHORITIES

Cates

Ali v. Fed. Bureau of Prisons,

552 U.S. 214, 128 S. Ct. 831 (2008)...........0........... 15

Am. Civil Liberties Union v. Dep't of Def.,

339 F. Supp. 2d 501 (S.D.N-Y. 2004).............0....0.... 1

Antonelli v. Fed. Bureau of Prisons,

623 F. Supp. 2d 55 (D.D.C. 2009)...............0. 24

Buckley v. Valeo, 424 U.S. 1 (1976) ...................0cee 27

Circuit City Stores, Inc. v. Adams,

I Rs aaslenainnennnteetenents 16

Cline v. Gen. Dynamics Land Sys., Inc.,

296 F.3d 466 (6th Cir. 2002).........0.0.0.0.0.0.. cece eee eee. 16

Dep't of Air Force v. Rose, 425 U.S. 352 (1976) ........ 1)

Detroit Free Press, Inc. v. Dep't of Justice,

TS F.OG GS GEE Cae. 1DGG).ncccccscccccccscccccccccsscvccscssees 26

Docal v. Bennsinger,

543 F. Supp. 38 (M.D. Pa. 1981) ..................... 22, 23

Dolan v. U.S. Postal Serv.,

I i, GE I ca uicctinsdeseonniinnesenesietessndies 14, 15

Fed. Bureau of Investigation v. Abramson,

ee a. cisconetnupesnninsonssedsesen 11,14

Ferri v. U.S. Dep't of Justice,

573 F. Supp. 852 (W.D. Pa. 1983) ........................ 22

Fiumara v. Higgins,

572 F. Supp. 1093 (D.N.H. 1983) .......................... 23

Flora v. United States, 362 U.S. 145 (1960)............. 16

1V

Gen. Dynamics Land Sys., Inc. v. Cline,

8 Ee BP ka nen ee 15, 16

Gutierrez v. Ada, 528 U.S. 250 (2000) ...................... 16

John Doe Agency v. John Doe Corp.,

is icntnabanpaeedecesnebianie 13

Larouche v. Webster,

No. 75 Civ. 6010, 1984 WL 1061 (S.D.N-Y.

assassin ediiliinniiia einai 22

Malizia v. U.S. Dep't of Justice,

519 F. Supp. 338 (S.D.N.Y. 1982).......................... 23

Maroscia v. Levi, 569 F.2d 1000 (7th Cir. 1977)...... 22

Middlesex County Sewerage Auth. v. Nati Sea

Clammers Ass'n, 453 U.S. 1 (1981)....................... 16

Moody v. Drug Enforcement Admin..,

592 F. Supp. 556 (D.D.C. 1984)....................ccseeeees 22

Nat'l Archives & Records Admin. v. Favish,

PO aeedeiiabagiiosaichacendeubs 8

Nixon v. Mo. Mun. League,

I sa enulecneiiiigs 15, 16

NLRB v. Lion Oil Co., 352 U.S. 282 (1957).............. 14

NLRB v. Robbins Tire & Rubber Co.,

a a serianiilinnmieniiedioodd 8, 25

Nunez v. Drug Enforcement Admin.,

497 F. Supp. 209 (S.D.N.Y. 1980).......................... 23

Ray v. Turner, 468 F. Supp. 730 (D.D.C. 1979)........ 23

Raygor v. Regents of the Univ. of Minn.,

Eh GI sii cdicidincss katndasieingacanidbuneiiedeakedess 16

Republic of New Afrika v. Fed. Bureau of

Investigation, 656 F. Supp. 7 (D.D.C. 1986) ......... 22

Rugtero v. U.S. Dep't of Justice,

Be te BO Gee GRE, BI ac vccecccccccescccscccesesccccces 24

Schanen v. U.S. Dep’t of Justice,

creche & (oR eer eE inne 22

Scherer v. Kelley, 584 F.2d 170 (7th Cir. 1978)........ 22

Shaver v. Bell, 433 F. Supp. 438 (N.D. Ga. 1977) ....23

Small v. United States, 544 U.S. 385 (2005)............ 15

U.S. Dep't of Justice v. Julian, 486 U.S. 1 (1988) ....11

United States v. Alvarez-Sanchez,

Sn iil iesinncichmnnnindanniicsionasanbsbonichaasii 15

United States v. Gonzales, 520 U.S. 1 (1997)........... 15

United States v. Monia, 317 U.S. 424 (1943) ........... 14

United States v. Palmer,

16 U.S. (3 Wheat.) 610 (1818) ......0...... ee. 10, 16

Statutes and Regulations

Freedom of Information Act.................c.cccceceeee passim

ee i cnicatsctsanebsadicestiaccankeatiséa 5,11, 12

ns i i os cceepbinnniie 2,9

al 11

Exec. Order No. 13,292, 68 Fed. Reg. 15,315

a I os alaciancoeaaineniiaadiiacliiaiinbins 12

vl

Miscellaneous

131 Cong. Rec. (1985):

By I I SI, Dh UII vnccnccceccsccsceccdcsceesccucses 21

SZES (Gaily ed. Jan. 3, 1965) ..........ccccccccovcssescesseees 19

132 Cong. Rec. (1986):

Fa, Ge GEaiky 06. Oct. B, IBD) on.....cccccccccsecsecseccsces 21

H9,465 (daily ed. Oct. 8, 1986)..................0. 19, 20

$14,038 (daily ed. Sept. 27, 1986)..................00... 19

$14,040 (daily ed. Sept. 27, 1986)..................000... 19

2 O'Reilly, Federal Information Disclosure § 17.12

SIS i sea letad gs ccepganiionmabanmadcagammanieeanens pralt Ne Re ROB 22

Letter from Lev L. Dassin, Acting U.S. Attorney, to

Hon. Alvin K. Hellerstein (Apr. 23, 2009) .............. 6

Memorandum from President George Bush,

Humane Treatment of Taliban and al Qaeda

I I cla eseasedoaios 2

The White House, Office of the Press Secretary,

Press Briefing, Robert Gibbs (Apr. 24, 2009) ......... 6

vl

STATEMENT OF THE CASE

This case concerns the public’s right to know

about the treatment of prisoners held by the U.S.

government overseas. It arises from Freedom of

Information Act (“FOIA”) requests filed’ by

respondents after news organizations reported that

prisoners held by the Defense Department and

Central Intelligence Agency had been abused,

tortured, and in some cases killed in custody.

Respondents’ FOIA requests, filed in October 2003

and May 2004, sought records concerning the

“treatment of Detainees” held by the United States

overseas, the “deaths of [such] Detainees” in custody,

and the “rendition of Detainees and _ other

individuals” to countries known to employ torture.

Respondents commenced the instant litigation in

June 2004. At the time, nine months had passed

since respondents’ first request, but the only record

that the government had released was a five-page set

of talking points authored by the State Department.

In August 2004, the district court ordered the

government to process respondents’ requests and

directed respondents to supply the government with

a priority list in order to aid the government in doing

so. Am. Civil Liberties Union v. Dep't of Def., 339 F.

Supp. 2d 501, 502-05 (S.D.N.Y. 2004). On their

priority list, respondents identified, among other

records, a set of photographs and videos that Army

Specialist Joseph Darby had provided to Army

investigators (the “Darby photographs”). A subset of

those photographs had been published by the media

in April 2004; they depicted prisoners at the Abu

Ghraib prison in Iraq who had been stripped naked,

sexually humiliated, held in “stress positions,” and

threatened with dogs.

The government refused to release the Darby

photographs, citing FOIA Exemptions 6 and 7(C),

which authorize withholding where disclosure would

constitute an “unwarranted invasion of personal

privacy.” See Pet. App. 112a-113a. It argued that

the disclosure of the photographs would infringe the

privacy interests of the prisoners depicted even if the

photographs were redacted to obscure identifying

features. Jd.' More than two months after oral

argument, however, the government offered a new

justification for withholding the photographs: that

the photographs were exempt under 5 U.S.C.

§ 552(b)(7)(F) because they were “compiled for law

enforcement purposes” and_ disclosure “could

reasonably be expected to endanger the life or

physical safety of any individual.” Pet. App. 124a.

The government contended, in particular, that

release of the photographs could reasonably be

expected to endanger the life or safety of U.S. troops,

other Coalition forces, and civilians in Iraq and

Afghanistan. Jd. at 125a. The government stated

that these concerns related to “national security,” but

' The government also argued that disclosure would violate the

prisoners’ Geneva Convention rights, Pet. App. 122a-123a,

though the government had contended in other contexts that at

least some of the prisoners were not entitled to the protection of

those Conventions, see, e.g., Memorandum from President

George Bush, Humane Treatment of Taliban and al Qaeda

Detainees (Feb. 7, 2002). Both the district court and Second

Circuit rejected the argument, Pet. App. 52a-59a, 122a-124a,

and the government does not pursue rt here.

it did not invoke FOIA’s national security exemption.

Id. at 20a.

In a September 2005 order, the district court

rejected the government’s privacy arguments, finding

that the prisoners’ privacy interests could be

protected by the redaction of identifying features and

that any residual privacy interest would be

outweighed by the public interest in disclosure. Id.

at 116a-122a. The district court also rejected the

government's “supplemental” argument relating to

Exemption 7(F). Jd. at 124a-133a. The court

acknowledged the “risk that the enemy will seize

upon the publicity of the photographs and seek to use

such publicity as a pretext for enlistments and

violent acts.” Jd. at 132a. It rejected the contention,

however, that the language of Exemption 7(F)—and

in particular the phrase “any individual’—could be

stretched to authorize the withholding of evidence of

governmental misconduct based solely on general

assertions of harm that might attend its potential

use as propaganda. /d. at 130a-13la. The court also

noted that the public interest in the photographs was

significant, that disclosure would foster “education

and debate,” and that the “core values of FOIA [were]

very much implicated.” Jd. at 13la-132a.

The government appealed the district court’s

order but withdrew its appeal after a third party

published the Darby photographs on the Internet.

The government ' subsequently acknowledged,

however, that it possessed 29 other photographs

responsive to respondents’ FOIA requests. Whereas

the Darby photographs involved abuse at the Abu

Ghraib prison, according to the government the 29

additional photographs were taken in at least seven

different locations in Afghanistan and Iraq. Relying

on the reasoning of its September 2005 order, the

district court ordered the government to disclose 21

of the photographs, all but one in redacted form. Id.

at 6la-62a. The court found that 8 of the

photographs were not responsive to respondents’

FOIA requests. Id. at 64a.2

A unanimous panel of the Second Circuit

affirmed. The court found that the plain language of

Exemption 7(F) requires the government to do more

than “point to a group composed of millions of people

and establish that it could reasonably be expected

that someone in that group will be endangered.” Jd.

at lla. While the provision does not require the

government to name a specific individual, or even to

identify a single individual rather than a small group

of individuals, the provision’s reference to “any

individual,” the court held, requires “that the subject

of the danger be identified with at least reasonable

specificity.” Id. Conversely, to construe the

provision in the sweeping manner proposed by the

government, the court concluded, would read the

phrase “any individual” out of the statute altogether.

Id. at 16a. Whether the government had satisfied

the proper standard here, the court then found, was

“not a close question.” Jd. at 18a.

2 The government informed respondents on June 29, 2006, that

it possessed an additional 23 images responsive to respondents’

requests, Pet. App. Ga n.2, and on May 28, 2009, it

acknowledged the existence of an unspecified but “substantial

number’ of additional responsive images, td. at 185a. All of the

images at issuc here relate to closed investigations. Pet. 6.

The court supported its conclusion as to the

scope of Exemption 7(F) by noting that FOIA

includes a separate exemption for withholdings

justified by national security concerns and that this

exemption, together with the Executive Order

referenced in the exemption, “set[{] forth limits on

what may be classified, by what authority, and for

how long.” Jd. at 20a.3 To adopt the government's

unprecedented construction of Exemption 7(F), the

court reasoned, would “convert exemption 7(F) into,

in effect, an alternative classification mechanism

entirely lacking the executive’s safeguards and

standards.” Jd. at 22a-23a.

The court also found that its construction of

Exemption 7(F) was consistent with that provision’s

legislative history and with the weight of the case

law interpreting the exemption. Id. at 24a-43a.

Finally, the court observed that the government’s

alternative construction would have implications far

beyond the circumstances presented by this case. As

the court explained, the government’s argument

could be advanced “with respect to many other

documents in a wide range of cases, particularly

controversial documents that the government might

have the greatest motivation to withhold.” Jd. at

42a. The government’s construction, the court

concluded, “would radically transform exemption

3 Specifically, Exemption 1 provides for the withholding of

“matters 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 1n fact

properly classified pursuant to such Executive order.” 5 U.S.C.

§ 552(b)(1).

qr

7(F) from a flexible but tailored protection for a fluid

but limited class of persons into an alternative

secrecy mechanism far’ broader’ than _ the

government's classification system.” Jd. at 43a.‘

The Second Circuit denied the government’s

petition for rehearing en banc on March 11, 2009. Id.

at 134a-135a. On April 23, the government informed

the district court in writing that it would “not seek

certiorari of the Second Circuit's decision,” Letter

from Lev L. Dassin, Acting U.S. Attorney, to Hon.

Alvin K. Hellerstein (Apr. 23, 2009), available at

http://www.aclu.org/pdfs/safefree/letter_singh_20090

423.pdf, and the court of appeals issued its mandate

on April 27.5 On May 13, however, the government

announced that it had changed its position and

would petition this Court for review of the Second

Circuit’s decision. The government moved the

appeals court to recall its mandate on May 13, and

that motion was granted on June 10. The

government filed its petition for a writ of certiorari

on August 7, 2009.

4 The court also rejected the government's reliance on

Exemptions 6 and 7(C), Pet. App. 43a-59a, and the government

does not ask this Court to review those rulings, Pet. 9 n.7.

5 At a press conference on April 24, 2009, the White House

Press Secretary explained that “the Department of Justice [had]

decided based on the [Second Circuit’s}] ruling that it was

hopeless to appeal.” The White House, Office of the Press

Secretary, Press Briefing, Robert Gibbs (Apr. 24, 2009),

available at http://www.whitehouse.gov/the_press_office/

Briefing-by-White-House-Press-Secretary-Robert-Gibbs-4-24-

O9.

REASONS FOR DENYING THE PETITION

The appeals court correctly determined that

the FOIA exemption invoked by the government in

this case—Exemption 7(F)—does not authorize the

government to withhold prisoner abuse photographs

based on a general assertion that release of the

photographs could provoke a violent response. There

was no dissent from the court of appeals’ well-

reasoned decision, and the government does not

claim any conflict in the circuits on the scope of

Exemption 7(F). Moreover, the appeals court’s

decision has no effect on the government’s ability to

argue that particular records—including

photographs—can be withheld on the basis of FOIA’s

national security exemption, because the government

has not invoked that exemption in this case and the

courts below did not consider its scope. To grant the

government's petition would only serve to further

delay the disclosure of information that is of

extraordinary interest to the public and of crucial

importance to the ongoing national discussion about

the abuse of prisoners in U.S. custody overseas.

The government’s contention that the court of

appeals misconstrued Exemption 7(F) is without

merit. As the court noted, the provision’s plain

language, its statutory context, its legislative history,

and the weight of the relevant case law all support

the same conclusion: While Exemption 7(F) does not

require the government to name a specific individual

who could reasonably be expected to be endangered

by disclosure, the exemption requires’ the

government to identify the subjects of the danger

with reasonable specificity. Indeed, virtually all of

the cases that have upheld the government’s reliance

on Exemption 7(F) have involved law enforcement

records that themselves identified, at least

inferentially, the individuals whom the government

asserted would be harmed by disclosure. Although

Congress expanded Exemption 7(F) in 1986 to

protect non-law-enforcement personnel potentially

endangered by the release of law enforcement

records, Congress did not, in doing so, make the

exemption limitless, and no court has endorsed the

sweeping construction that the government proposes.

As the court of appeals properly recognized, Congress

did not intend the exemption to become an “ersatz

classification system, Pet. App. 42a; nor did it

intend the exemption to be used as an “all-purpose

damper on global controversy,” id. at 36a.

This Court has noted that FOIA was enacted

“to ensure an informed citizenry, vital to the

functioning of a democratic society, needed to check

against corruption and to hold the governors

accountabie to the governed.” NLRB vu. Robbins Tire

& Rubber Co., 437 U.S. 214, 242 (1978); see also Nat'l

Archives & Records Admin. v. Favish, 541 U.S. 157,

172 (2004) (describing FOIA as “a_ structural

necessity in a real democracy’). The government's

argument here, however, would turn FOIA on its

head by affording the greatest protection from

disclosure to records that depict the worst

governmental misconduct. The court of appeals was

right to reject this argument, and this Court should

deny the government’s petition.

I. THE SECOND CIRCUIT PROPERLY

REJECTED THE GOVERNMENT’S

RELIANCE ON EXEMPTION 7(F) TO

WITHHOLD PRISONER ABUSE IMAGES

BASED ON A GENERAL ASSERTION

THAT RELEASE COULD PROVOKE A

VIOLENT RESPONSE.

A. The Plain Language and Statutory

Context of Exemption 7(F) Compel

the Second Circuit’s Conclusion

Exemption 7(F) permits the withholding of

“records or information compiled for law enforcement

purposes, but only to the extent that the production

of such law enforcement records or information ...

could reasonably be expected to endanger the life or

physical safety of any individual.” 5 U.S.C.

§ 552(b)(7)(F). The court of appeals correctly found

that this language requires the government to do

more than establish that “out of a population the size

of two nations and two international expeditionary

forces combined, someone somewhere will be

endangered as a result of the release of the Army

photos.” Pet. App. 18a. As the court explained, had

Congress used the phrase “endanger life or physical

safety” (without more), it would have signaled a

concern with “danger in_ general’; Congress's

inclusion of the words “of any individual,” however,

“indicates a requirement that the subject of the

danger be identified with at least reasonable

specificity.” Jd. at lla; see also id. at 17a. Thus, the

6 The statute's specificity requirement 1s not satisfied by the

government's still-general claim—raised for the first time in its

motion to the Second Circuit secking a recall of the mandate—

government's contention that the court of appeals

grafted an “extra-textual” requirement onto the

language of the statute is simply wrong. The court’s

construction was rooted in the statute’s plain

language, while the government’s proposed

construction would render the phrase “any

individual” entirely superfluous. The decision below

properly construed Exemption 7(F) to “avoid

surplusage.” Id. at 16a.’

Also counseling against the government's

sweeping construction of Exemption 7(F) is the

statutory context in which the exemption appears.

The title of the “Freedom of Information Act” reflects

an overarching purpose, which was to expand public

access to information in the hands of the

government. Jd. at 15a (“The title of an act cannot

control its words, but may furnish some aid in

showing what was in the mind of the legislature.”

(quoting United States v. Palmer, 16 U.S. (3 Wheat.)

610, 631 (1818) (Marshall, C.J.))). The Act instructs

that agency records are to be made available “‘except

as specifically stated in one of the enumerated

that the danger to certain American personne! stationed abroad

is heightened because their assignments generally place them

in greater danger. See Pet. 31 n.11. Moreover, the government

does not assert that any such danger would stem from the

disclosure of identifying information.

7 Recognizing that the text of Exemption 7(F) did not read “‘any

named individual,” the court understood the term “individual”

“to include individuals identified in some way other than by

name—such as, for example, being identified as family

members or coworkers of a named individual, or some simuarly

small and specific group.” Pet. App. lla (emphasis tn original).

10

exemptions.” Pet. App. 15a (emphasis in original)

(quoting 5 U.S.C. § 552(d)). Those exemptions, this

Court has instructed, are to be “narrowly

construed.” Pet. App. 15a (quoting Fed. Bureau of

Investigation v. Abramson, 456 U.S. 615, 630 (1982));

accord U.S. Dep't of Justice v. Julian, 486 U.S. 1, 8

(1988); Dep't of Air Force v. Rose, 425 U.S. 352, 361

(1976). As the court of appeals rightly observed:

The defendants’ construction of “any

individual” as not’ requiring’ the

government to name or even roughly

identify any individual, besides

gesturing to the populations of two

nations and two international

expeditionary forces and showing that it

could reasonably be expected that at

least one person within them will be

endangered, is not a narrow one. The

reading of “any individual” as requiring

a FOIA defendant to identify an

individual with reasonable specificity is

a narrower construction, and to be

preferred on that ground alone.

Pet. App. lia.

The court of appeals also properly recognized

that the government's nearly limitless construction

of Exemption 7(F) is further undercut by the

existence of FOIA’s national security exemption. Jd.

at 20a. As noted above, Exemption 1 exempts from

disclosure 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

11

properly classified pursuant to such Executive

order.” 5 U.S.C. § 552(b)(1). Executive Order 13,292,

in turn, “prescribes a uniform system for classifying

.. national security information.” Exec. Order No.

13,292, 68 Fed. Reg. 15,315 (Mar. 25, 2003). It also

“sets forth limits on what may be classified, by what

authority, and for how long.” Pet. App. 20a. Among

these limits is the prohibition against classifying

information in order to “conceal violations of law,

inefficiency, or administrative error,” or to “prevent

embarrassment to a person, organization, or agency.”

Id. at 20a-2la (quoting Exec. Order No. 13,292,

§ 1.7(a)) (internal quotation marks omitted). As the

court of appeals observed, the government’s

construction of Exemption 7(F) would allow an

agency to “evade the strictures and safeguards of

classification” simply by asserting that records

compiled for law enforcement purposes could, if

disclosed, “reasonably be expected to endanger

someone unidentified somewhere in the world.” Pet.

App. 22a. This would in effect create “an alternative

classification mechanism entirely lacking’ the

executive’s safeguards and standards,” id. at 22a-

23a, an outcome that would be “inconsistent with the

structure of FOIA’s exemptions,” td. at 23a.

Moreover, “[t]he limitation of exemption 7(F)

to law enforcement records does not diminish that

inconsistency, id., for two reasons:

First, the ease with which the

government can find refuge for its

records on the ground that they were

compiled for “law enforcement

purposes” can hardly be overstated. See

[John Doe Agency v. John Doe Corp.,

493 U.S. 146, 162-64 (1989)] (Scalia, J.,

dissenting) (describing the ability to

transfer records to an investigation file

as “a hole one can drive a_ truck

through”). Second, assuming the

utmost good faith of the government,

the disparate treatment that would be

accorded law enforcement national

security information and _non-law-

enforcement national security

information confirms that exemption

7(F) will not bear the weight the

defendants place upon it. Information

generated from national _ security

operations unconnected to law

enforcement would be _ inexplicably

subject to higher judicial scrutiny,

through exemption 1, than information

generated from _ national — security

operations performed by means of law

enforcement.

Id.

The government takes issue with the Second

Circuit's discussion of FOIA’s national security

exemption, contending that because Exemptions 1]

and 7(F) involve “different inquirfies],” Exemption 1

cannot provide a basis for reading Exemption 7(F)

restrictively. Pet. 25. The government misses the

point. Its construction of Exemption 7(F) is

untenable precisely because it would establish a

different, much lower standard for withholding

information on national security grounds, and would

13

thereby allow the government to circumvent the

safeguards and limitations set out in Exemption 1

and the Executive Order referenced therein. Pet.

App. 22a-23a. The problem with the government’s

construction is not simply that Exemptions 1 and

7(F) “may both be available” with respect to the same

records, Pet. 25, but that the government's

construction would render Exemption 1 superfluous,

Pet. App. 22a-23a.

The government insists that the “textual

breadth,” of the term “any individual!” is necessarily

“all-encompassing.” Pet. 17, 23. But like every other

word, the word “any” takes its meaning from its

context. As this Court has recognized in another

FOIA case:

[t}he notion that because the words of a

statute are plain, its meaning is also

plain, is merely pernicious

oversimplification. ... For our duty ...

is to find that interpretation which can

most fairly be said to be imbedded in

the statute, in the sense of being most

harmonious with its scheme and with

the general purposes that Congress

manifested.

Abramson, 456 U.S. at 625 n.7 (quoting United

States v. Monia, 317 U.S. 424, 431 (1943)

(Frankfurter, J., dissenting), and NLRB v. Lion Oil

Co., 352 U.S. 282, 298 (1957) (Frankfurter, J.,

concurring in part and dissenting in part)) (internal

quotation marks omitted); see also Dolan v. U.S.

Postal Serv., 546 U.S. 481, 486 (2006) (“The

definition of words in isolation ... is not necessarily

14

controlling in statutory construction. A word in a

statute may or may not extend to the outer limits of

its definitional possibilities. Interpretation of a word

or phrase depends upon reading the whole statutory

text, considering the purpose and context of the

statute, and consulting any precedents or authorities

that inform the _ analysis.”). This Court’s

jurisprudence construing the word “any” confirms

that “any can and does mean different things

depending upon the setting.” Nixon v. Mo. Mun.

League, 541 U.S. 125, 132 (2004).8

® Cases cited by the government in support of an expansive

interpretation of the word “any,” see Pet. 17, only confirm the

relevance of statutory context in construing that word. See Ali

v. Fed. Bureau of Prisons, 552 U.S. 214, 128 S. Ct. 831, 837-38

(2008) (considering context in construing the phrase “any other

law enforcement officer”); United States v. Gonzales, 520 U'S. 1,

9-11 (1997) (considering context and a later statutory

amendment in construing the phrase “any other term of

imprisonment’). Notably, although the government relies on

Ali's broad construction of the phrase “any other law

« nforcement officer,” this Court interpreted a virtually identical

phrase in United States v. Alvarez-Sanchez much more

narrowly in hght of the statutory context there. 511 U.S. 350,

357 (1994) (holding that it was error to “placile] dispositive

weight on the broad statutory reference to ‘any’ law

enforcement officer or agency without considering the rest of

the statute,” and construing “any” law enforcement officer to be

limited to federal officers); see also Ali, 552 U.S. at 836 n.4

(citing Alvarez-Sanchez).

This Court has interpreted the word “any” in a hmuited

manner where the context has so demanded. See, e.g., Small v.

United States, 544 U.S. 385, 394 (2005) (concluding that “the

phrase ‘convicted in any court’ refers only to domestic courts,

not to foreign courts”); Gen. Dynamics Land Sys., Inc. v. Cline,

540 U.S. 581, 586-91 (2004) (rejecting the appellate court's

The government assured the court below that

its proposed construction would be “[ljimited to the

[flacts [p]resented by [t]his [c]ase.” Pet. App. 42a.

There is no doubt, however, that the government’s

proposed construction of Exemption 7(F) would

permit the suppression of a wide array of

information, including information § relating to

governmental misconduct. Jd. (“While it is true .

that expert affidavits deem these _ particular

[photographs] to pose such a danger, we have no

construction of the Age Discrimination in Employment Act—

that its prohibition of age discrimination against “any

individual” protects younger, as well as older, individuals, Cline

v. Gen. Dynamics Land Sys., Inc., 296 F.3d 466, 469 (6th Cir.

2002)—1in favor of a limited construction more consonant with

the “whole provision” and its legislative history); Nixon, 541

U.S. at 132 (rejecting argument that a statute’s reference to

“any entity” encompasses both private and public entities);

Raygor v. Regents of the Univ. of Minn., 534 U.S. 533, 542

(2002) (construing the phrase “any claim asserted” not to

include state-law claims against non-consenting states that are

dismissed on Eleventh Amendment grounds); Circuit City

Stores, Inc. v. Adams, 532 U.S. 105, 113-19 (2001) (narrowly

construing the phrase “any other class of workers engaged in

foreign or interstate commerce” in light of its context); Gutverrez

v. Ada, 528 U.S. 250, 254-58 (2000) (construing the phrase

“votes cast in any election” in light of congressional intent to

apply only to votes cast for gubernatonal slates); Middlesex

County Sewerage Auth. v. Natl Sea Clammers Ass'n, 453 U.S. 1,

15-16 (1981) (“It is doubtful that tne phrase ‘any statute’

includes the very statute in which this statement was

contained.”); Flora v. United States, 362 U.S. 145, 149 (1960)

(“A catchall the phrase [‘any sum’] surely is; but to say this is

not to define what it catches.”); Palmer, 16 U.S. (3 Wheat.) at

631 (Marshall, C.J.) (adopting a limited interpretation of “any

person or persons” because “general words” must be limited “to

those objects to which the legislature intended to appiy them”).

doubt that similar affidavits could be produced with

respect to many other documents in a wide range of

cases, particularly controversial documents that the

government might have the greatest motivation to

withhold.”). Indeed, the government’s construction of

Exemption 7(F) would grant the greatest protection

against disclosure to records that depict the most

egregious abuses, because it is these records that are

most likely to be inflammatory, and it is these

records that insurgents and terrorist groups are most

likely to ‘seize upon ... as grist for their propaganda

mill.” Jd. at 18la. Accepting the government’s

argument would turn FOIA on its head.

The government's further argument that the

court of appeals’ construction of Exemption 7(F)

assumes that Congress placed a “low value on

human life,” Pet. 17, misunderstands both the

structure of FOIA and the principles underlying the

Act. Through its nine exemptions, FOIA balances

the public interest in disclosure on the one hand with

significant governmental concerns on the other. As

the court made clear, Exemption 7(F) remains

available where the government can identify, with

“reasonable specificity,” those who would be harmed

by disclosure. The court continued: “To say that

Exemption 7(F) does not contemplate withholding

records on the basis of diffuse threats of death or

physical injury, threats which are _ individually

speculative but which can reasonably be expected

with respect to large populations, is not to denigrate

such threats, which of course are characteristic of the

national security sphere.” Pet. App. 19a-20a. In

those circumstances, “FOIA... provides a separate

17

exemption specifically tailored to the national

security context.” Jd. at 20a. The government has

not invoked the national security exemption in this

case, however, id. at 22a n.7, and accordingly, the

courts below did not consider it.

B. The Legislative History of Exemption

7(F) and Case Law Construing that

Provision Support the Second

Circuit’s Conclusion

The legislative history of Exemption 7(F)

underscores that the exemption was intended to

apply where the government can identify, with

“reasonable specificity,” individuals who would be

harmed by the disclosure of identifying information

contained in law enforcement records. Although the

1986 amendments to Exemption 7(F) were meant to

expand the scope of that exemption, Congress did not

intend to make the exemption limitless or to render

Exemption 1, the national security exemption,

superfluous. Rather, as the Second Circuit

explained: “Congress has always’ envisioned

exemption 7(F) as a shield against specific threats to

particular individuals arising out of law enforcement

investigations, never as a means of suppressing

worldwide political violence.” Pet. App. 24a.

As the court of appeals observed, the

legislative history shows that in amending

Exemption 7(F) Congress sought to address a specific

concern: preventing criminals from exploiting FOIA

as a means of intimidation or retaliation against

persons associated with law enforcement

investigations. Prior to the 1986 amendments,

18

Exemption 7(F) applied only to certain records that,

if disclosed, could endanger “law enforcement

personnel.” The relatively limited scope of this

exemption compromised the “ability of law

enforcement officers to enlist informants and carry

out confidential investigations,” because lawbreakers

could use FOIA to obtain information about

informants and retaliate against them. /d. at 33a

(quoting 132 Cong. Rec. $14,038 (daily ed. Sept. 27,

1986) (statement of Sen. Hatch)) (internal quotation

marks omitted). In amending Exemption 7(F),

Congress extended the protections of FOIA to others

who might be harmed by the disclosure of identifying

information in law enforcement files. Pet. App. 36a.

Thus, Deputy Attorney General Carol Dinkins

testified that the 1986 amendments would “expand|[]

Exemption 7(F) to include such persons as witnesses,

potential witnesses, and family members whose

personal safety is of central importance to the law

enforcement process.” Jd. at 32a (quoting 131 Cong.

Rec. $253 (daily ed. Jan. 3, 1985) (statement of Carol

E. Dinkins, Deputy Attorney General)) (internal

quotation marks omitted); see also 132 Cong. Rec.

S14,040 (daily ed. Sept. 27, 1986) (quoting letter

from William H. Webster, Dir., FBI, to Sen. Dole)

(‘This provision would amend the Freedom of

Information Act to offer needed protections for

confidential undercover informants and

investigations.”). Many legislators made statements

to the same effect. See, e.g.. 132 Cong. Rec. H9,465

(daily ed. Oct. 8, 1986) (statement of Rep. Kindness)

(“Much of the impetus for adjustment of the [FOIA]

provisions ... comes from the concerns ... that the

19

act is exploited by organized crime figures

attempting to learn... the identities of

informants....The amendments to [FOIA] are

designed to deal with these particularized law

enforcement problems.”). See generally Pet. App.

3la-36a.

The court of appeals correctly concluded that

“defendants’ argument for an expansive

interpretation of the phrase ‘any individual’

misapprehends the special problem the 1986

amendment was enacted to correct.” Pet. App. 36a.

The legislative history cited by the government

shows that Congress did not intend to limit the types

of individuals whose safety could provide a basis for

withholding records under Exemption 7(F). See, e.g.,

Pet. 26 (quoting testimony of then-Professor Scalia:

“Why only law enforcement personnel? Why not

their spouses and children? Come to think of it, why

not anyone, even you and me?”); id. (quoting

Attorney General Civiletti’s statement that there is

“no reason” for protecting “law enforcement

personnel to the exclusion of all others’). That

history does not establish, however, that Congress

intended to permii the government to withhold

records without identifying with reasonable

specificity the individuals who would be harmed by

release. As the court of appeals noted, there is no

support in the legislative history for the notion that

Congress intended to radically expand Exemption

7(F) to serve as “an all-purpose damper on global

controversy.” Pet. App. 36a.

In fact, the legislative history makes clear that

Congress intended the 1986 amendments to have

20

only a limited effect on the scope of Exemption 7(F).

See, e.g., 131 Cong. Rec. S248 (daily ed. Jan. 3, 1985)

(statement of Carol E. Dinkins, Deputy Attorney

General) (the 1986 amendments modify Exemption

7(F) only “slightly”); 132 Cong. Rec. H9,462 (daily ed.

Oct. 8, 1986) (statement of Rep. English) (the 1986

amendments make “only modest changes to the

FOLIA” and only “slight[ly] expan{d]” Exemption

7(F)). As the court of appeals noted, there is no

evidence that Congress intended the 1986

amendments to “transform[]}” Exemption 7(F) into “a

diffuse and nebulous’ authority for keeping

inflammatory information secret (though, curiously,

only inflammatory information in law enforcement

files).” Pet. App. 35a. There is certainly no evidence

that Congress intended to create an alternative

mechanism for withholding records on national

security grounds without compliance with the

substantive and precedwral safeguards set out in

Exemption 1 and the Executive Order referenced

therein. The court of appeals properly held that the

government's “attempt to sweep far-reaching and

speculative national security concerns into

exemption 7(F) reaches far beyond the intent of

Congress 1n enacting or amendimg the provision.” /d.

at 36a.

As the cowrt of appeals neted, the case law

overwhelmingly supports this understanding of

Exemption 7(F)'s plain language, statuterw context,

and legislative history. Jd. at 37a, 42a. No circwit

court has adopted a construction remotely as bread

as the one the government proposes here The

government relies on am amomalous. unreported

21

district court case from 1984 that read the exemption

broadly, Pet. 21 (citing Larouche v. Webster, No. 75

Civ. 6010, 1984 WL 1061 (S.D.N.Y. Oct. 23, 1984)),

but virtually all of the pre-1986 cases addressed

Exemption 7(F) in contexts in which the government

asserted that disclosure of records would endanger

specific officers, see, e.g., Republic of New Afrika v.

Fed. Bureau of Investigation, 656 F. Supp. 7, 12 n.15

(D.D.C. 1986) (Exemption 7(F) applies “where the

information relates to ‘possible future targets for

retaliation.” (quoting 2 O'Reilly, Federal Information

Disclosure §17.12 (1984)); Moody v £4Drug

Enforcement Admin., 592 F. Supp. 556, 558 (D_D.C.

1984) (“Exemption (b)(7)(F) is designed to protect the

identities of law enforcement sources.’).°

° See also Schanen v. U.S. Dep’ of Justice, 773 F.2d 1065, 1066

(9th Cr 1985) (ordering the government to produce for im

camera inspection, in the context of Exemption 7(F), ‘the

name(s) of the person or persons that apmellamt alleges would

be physically endangered by disclosure, the precsse facts that, if

disclosed would create such # danger, the precise manner in

which such damger would arase if disclosure xs ordemed, and the

name(s) of the persom or pergoms who allegedly pose such a

danger”), Scherer vu. Kelley. 384 F.2d 170, 176 (7th Cor. 1978)

(wp holding, undet Exemption 7(F), the withholding of details of

the involvement of law emforcement agents in the criminal

investigation of the FOLA requester); Maroscia v. Levi, 569 F.2d

1000, 1002 (7th Cw. 1977) (same for “the identities of FBI and

other law enforcement personmel’); Moody, 592 F. Supp. at 558

(same for the identities of “DEA supervisory agents and other

special DEA agents, as well as local law enforcement officers’);

Ferri v. U.S. Dep't of Justice, 573 F. Supp. 852, 864 (W.D. Pa.

1983) (same for the “names of the government agents contained

in the DEA investigative reports”); Docal v. Bennsinger, 543 F.

Supp. 38, 48 (M.D. Pa. 1981) (same for “the names and

identities of DEA Special Agents, Supervisory Special Agents,

22

Cases post-dating the 1986 amendments

appropriately take a broader view of Exemption 7(F)

because they address danger to individuals other

than law enforcement personnel, but they, too,

almost uniformly address contexts in which the

government has identified with reasonable specificity

the individuals who could be endangered by the

release of requested records. Indeed, almost all of

these cases involve contexts in which the files

themselves identified, at least inferentially, the

individuals who could be endangered by disclosure.

See Pet. App. 42a (“[V]Jirtually every court having

occasion to interpret exemption 7(F) has been called

upon to determine whether the disclosure of law

enforcement records could reasonably be expected to

endanger the life or physical safety of any

individuals who participated in some way in the

investigation, be they law enforcement employees,

informants, or witnesses, or others associated in

some way with those persons.”); id. at 37a & n.12

and local law enforcement officers’); Malizia v. U.S. Dept o/

Jusilice, 519 F. Supp. 398, 351 (S.D.N-Y. 1981) (same for “the

identities of DEA special agents”); Nunez v. Drug Enforcement

Admin., 497 F. Supp. 209, 212 (S.D.N.Y. 1980) (same for “the

names of DEA personne! inwolved in the investigations in

questzon”); Ray vu. Turner, 468 F. Supp. 730, 737 (D.D.C. 1979)

(same for “the name of a Customs Service agent”); Shaver v.

Bell, 433 F. Supp. 438, 441 (N.D. Ga. 1977) (same for the

“names and information that might lead to the identity of such

law enforcement personne!”); see also Fiumara vu. Haggins, 572

F. Supp. 1093, 1107 (D.N.H. 1983) (“Deletion of names and

information that might lead to the identity of such law

enforcement personnel may be appropriate.”).

(citing cases).!° Accordingly, the Second Circuit

properly construed the 1986 amendments.!!

In sum, the court of appeals correctly

determined that Exemption 7(F)’s text, its statutory

context, its legislative history, and the relevant case

law do not support the government’s construction of

that provision. Consequently, the government has

failed to present any basis for disturbing the court of

appeals’ well-reasoned decision. !?

0 See, e.g., Rugiero v. U.S. Dep't of Justice, 257 F.3d 534, 542

(6th Cur. 2001) (agency properly withheld “information about

DEA agents”); Antonelli v. Fed. Bureau of Prisons, 623 F. Supp.

2d 55, 58 (D.D.C. 2009) (‘In general, [Exemption 7(F)] has been

interpreted to apply to names and identifying information of

law enforcement officers, witnesses, confidential informants

and other third persons who may be unknown to the requester.

in reviewing claims under exemption 7(F), courts have inquired

whether there 1s some nexus between disclosure and possible

harm and whether the deletioms were narrowly made to avert

the possibality of such harm.” (citations omutted)).

i! The government cites three post-1986 dustmct court cases in

arguing for a “broader reach” for Exemptiom 7(F). Pet. 31. In

none of those cases, however. did the court permit the

wethholding of records om the groumds that dssclosure would be

inflammatory and provoke violence by unspecified mdividuals

agaist other unspecified indmadwals. See also Pet. App. 37a-

41a.

2 The government now contends that the Second Circuit's

holding 1s “problematic” because thst court did not remand to

provide the government an opportunity to satisfy the specificity

requirement of Exemption 7(F), Pet. 31 nll, but the

government had ample notice that ws alternative construction

of Exemption 7(F) was contrary to prevailng case law.

Moreover, in proceedings before the district court, the

government's counsel was specifically asked by the court if the

military police depicted in the Abu Ghraib photographs were

Il. GRANTING THE PETITION WOULD

FURTHER DELAY THE DISCLOSURE OF

RECORDS THAT ARE OF _ EXTRA-

ORDINARY IMPORTANCE TO AN

ONGOING NATIONAL DEBATE.

As this Court has recognized, “[t]he basic

purpose of FOLA is to ensure an informed citizenry,

vital to the functioning of a democratic society,

needed to check against corruption and to hold the

governors accountable to the governed.” Robbins

Tire & Rubber Co., 437 U.S. at 242; see aiso Pet. App.

5la. The photographs at issue here are precisely the

kinds of records that the statute was meant to

address. They depict governmental misconduct of

the gravest sort, “placiing!} governmental

accountability at the center of the dispute.” Pet.

App. 4la. The public interest in their disclosure is

“significant,” :d. at Sla: see also id. (“The defendants

concede that these photographs yield evidence of

governmental wrongdoing... .”); Pet. 16

(acknowledging that “certain photographs at issue

depict reprehensible conduct by American

personne!”). particularly now as the nation debates

whether to further imvestigate these and other

similar abuses.

The government suggests that the disclosure

of envestigative files—which describe the images at

“partécularly mm danger.” C.A. App. 333. The court noted that

there was “no andication wm the recerd thet suggested that was

the case.” Id. at 332. The gowermment's counsel responded that

“the sense of damger is Droad ... wm terms o parseng out who

might be im more danger than others, | don't know that we can

fairly do that.” Id.

issue here, Pet. 6 & n.5—satisfies its obligation

under FOIA, id. at 15. FOIA does not permit the

government to withhold records, however, simply

because it believes that the public has enough

information already. In any event, it is plain that

textual descriptions of photographs are not a

substitute for the photographs themselves. As the

district court explained, “photographs present a

different level of detail and a different medium, and

are ... better than testimony, which can be self-

serving, better than summaries, which can _ be

misleading, and better even than a full description

no matter how complete that description might be.”

Pet. App. 122a; see also Detroit Free Press, Inc. v.

Dep't of Justice, 73 F.3d 93, 98 (6th Cir. 1996) (noting

that photographs of government misconduct can

“serve to subject the government to public oversight”

and “reveal ... circumstances ... in a way that

written information cannot”). It is not surprising,

therefore, that photographs have historically played

an important role in drawing attention to abuses and

advancing the cause of human rights throughout the

world. Brief for Human Rights Watch et al. as Amici

Curiae Supporting Respondents (Sept. 8, 2009) (No.

09-160). Here too, as the Second Circuit noted,

release of the photographs may “deter]] the future

abuse of prisoners.” Pet. App. 58a.

In essence, the government contends that it

should be entitled to withhold the best evidence of its

own misconduct because that evidence may be

inflammatory. FOIA, however, proceeds on the very

different premise that an informed electorate is

critical to democratic decision-making and the best

26

antidote to governmental abuse. As Justice Brandeis

observed many years ago: “Sunlight is said to be the

best of disinfectants.” Buckley v. Valeo, 424 U.S. 1,

67 (1976) (quoting L. Brandeis, Other People’s Money

62 (1933)). This Court should not further delay the

disclosure of information that relates’ to

governmental musconduct, that is crucial to an

ongoing national debate, and that both the district

court and the Second Circuit correctly concluded has

been withheld unlawfully.

27

CONCLUSION

For the foregoing reasons, the petition for a

writ of certiorari should be denied.

Respectfully submitted,

Jameel Jaffer

Counsel of Record

Steven R. Shapiro

Amrit Singh

Judy Rabinovitz

Lucas Guttentag

American Civil Liberties

Union Foundation

125 Broad Street

New York, NY 10004

(212) 549-2500

Lawrence S. Lustberg

Jennifer B. Condon

Gibbons, De! Deo, Dolon

Griffinger & Vecchione,

P.C.

One Riverfront Plaza

Newark, NJ 07102

(973) 596-4700

Arthur Eisenberg

Beth Haroules

New York Civil Liberties

Union Foundation

125 Broad Street

Ce New York, NY 10004

(212) 344-3005

28

Gitanjali S. Gutierrez

Shayana Kadidal

Center for Constitutional

Rights

666 Broadway, 7‘ Floor

New York, NY 10012

(212) 614-6485

September 8, 2009

29