Appeals court opinion in drone case

An appeals court says the government can withhold additional details of lethal-drone operations.

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 15-5217

September Term, 2015
FILED ON: APRIL 21, 2016

AMERICAN CIVIL LIBERTIES UNION AND AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
APPELLANTS
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-00436)

Before: TATEL and GRIFFITH, Circuit Judges, and SENTELLE, Senior Circuit Judge.
JUDGMENT
This appeal from the order of the United States District Court for the District of Columbia
was presented to the court and briefed and argued by counsel. The court has accorded the issues
full consideration and has determined that they do not warrant a published opinion. See D.C. Cir.
R. 36(d). It is
ORDERED AND ADJUDGED that the judgment of the District Court be affirmed.
In this long-running Freedom of Information Act suit, the American Civil Liberties Union
and the American Civil Liberties Union Foundation (collectively, the ACLU) seek records from
the Central Intelligence Agency related to the United Statesa use of armed drones to conduct
atargeted killings.a We need not recount here much of the procedural and factual history leading
to the present appeal. Suffice it to say that the ACLU now seeks two categories of documents: (1)
certain afinal legal memoranda (as well as the latest version of draft legal memoranda which
were never finalized) concerning the U.S. Governmentas use of armed drones to carry out
premeditated killingsa; and (2) certain intelligence products acontaining charts or compilations
about U.S. Government strikes sufficient to show the identity of the intended targets, assessed
number of people killed, dates, status of those killed, agencies involved, the location of each
strike, and the identities of those killed if known.a Declaration of Martha M. Lutz, Chief of the
Litigation Support Unit, Central Intelligence Agency, at AP 6 (Nov. 25, 2014). After searching for

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responsive records, the CIA identified twelve legal memoranda responsive to the first part of the
request and athousands of recordsa responsive to the second. Id. APAP 8a9. The agency refused to
release any records, save for a redacted version of a May 2011 white paper by the Department of
Justice. The agency then moved for summary judgment before the district court, arguing that the
redacted portions of the DOJ White Paper and the remaining records were exempt from
disclosure under FOIA Exemption 1 (pertaining to classified records), FOIA Exemption 3
(pertaining to records specifically exempted from disclosure by statute), and/or FOIA Exemption
5 (pertaining to agency memoranda subject to certain litigation privileges). After reviewing a
public and a classified affidavit regarding the agencyas justifications for nondisclosure, the
district court granted the CIAas motion. The ACLU now appeals. Because we agree that the
withheld records may be shielded from disclosure under FOIA Exemption 1, we affirm.
We review the grant of summary judgment de novo. See Mobley v. CIA, 806 F.3d 568,
574 (D.C. Cir. 2015). In FOIA cases, a[s]ummary judgment is warranted on the basis of agency
affidavits when the affidavits describe the justifications for nondisclosure with reasonably
specific detail, demonstrate that the information withheld logically falls within the claimed
exemption, and are not controverted by either contrary evidence in the record nor by evidence of
agency bad faith.a Larson v. Department of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (internal
quotation marks omitted). Although FOIA authorizes district courts to review agency records in
camera to determine if they are properly withheld, see 5 U.S.C. ASS 552(a)(4)(B), this court has
said that in national security cases like this one, aain camera review is neither necessary nor
appropriateaa when an agency has met its burden through reasonably specific affidavits, Mobley,
806 F.3d at 588 (quoting Larson, 565 F.3d at 870); see ACLU v. Department of Defense, 628
F.3d 612, 626 (D.C. Cir. 2011) (aIn camera inspection is particularly a last resort in national
security situations like this caseaa court should not resort to it routinely on the theory that it
canat hurt.a (internal quotation marks omitted)); Hayden v. National Security Agency, 608 F.2d
1381, 1387 (D.C. Cir. 1979) (aIn camera review is a alast resorta to be used only when the
affidavits are insufficient for a responsible De novo decision.a).
Here, in both its public and classified affidavits, the CIA invokes FOIA Exemption 1 to
protect all of the requested records from disclosure. Pursuant to that exemption, agencies may
withhold records aspecifically authorized under criteria established by an Executive order to be
kept secret in the interest of national defense or foreign policya and that aare in fact properly
classified pursuant to such Executive order.a 5 U.S.C. ASS 552(b)(1). Executive Order 13,526
currently governs the classification of government records. 75 Fed. Reg. 707 (Dec. 29, 2009).
Under that orderas substantive criteria, information may be classified if it apertains toa one or
more of eight categories of information, id. ASS 1.4, and if an original classification authority has
adetermine[d] that the unauthorized disclosure of the information reasonably could be expected
to result in [identifiable or describable] damage to the national security,a id. ASS 1.1(a)(4). Relevant
here, information may be classified if it apertains toa aintelligence activities . . . [,] sources or
methods,a and/or aforeign relations or foreign activities of the United States.a Id. ASS 1.4(c), (d). As
this court has previously noted, apertains is not a very demanding verb.a Judicial Watch, Inc. v.
Department of Defense, 715 F.3d 937, 941 (D.C. Cir. 2013) (internal quotation marks omitted).

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And a[b]ecause courts lack the expertise necessary to second-guess . . . agency opinions in the
typical national security FOIA case, [they] must accord substantial weight to an agencyas
affidavit concerning the details of the classified status of . . . disputed record[s].a ACLU, 628
F.3d at 619 (internal quotation marks and citation omitted).
Of course, even if information falls within an exemption, an agency may be forced to
disclose it if the agency has already aofficially acknowledgeda the information. Mobley, 806 F.3d
at 583 (internal quotation marks omitted). This circuit applies a three-part test to determine when
an agency has aofficially acknowledgeda requested information: a(1) the information requested
must be as specific as the information previously released; (2) the information requested must
match the information previously disclosed; and (3) the information requested must already have
been made public through an official and documented disclosure.a Id. (internal quotation marks
omitted). This test is quite strict. aPrior disclosure of similar information does not suffice;
instead, the specific information sought by the plaintiff must already be in the public domain by
official disclosure.a Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007). This court has explained
that this ainsistence on exactitude recognizes the Governmentas vital interest in information
relating to national security and foreign affairs.a Id. (internal quotation marks omitted). In each
case where a FOIA requester contends that an agency has acknowledged information it seeks to
withhold, the burden is on the requester to point to specific information in the public domain that
aappears to duplicate that being withheld.a Id. (internal quotation marks omitted).
Having carefully and thoroughly reviewed the CIAas classified affidavit, we affirm the
district courtas grant of summary judgment largely for the reasons set forth in its opinion. In
brief, the agency has satisfied its burden to show that the records are properly classified under
Executive Order 13,526, and that they are, therefore, properly withheld under FOIA Exemption
1. The affidavit describes, in considerable detail, the records and the agencyas reasons for
withholding them. See Larson, 565 F.3d at 862. The classified affidavit amply demonstrates that
the information withheld apertains toa aintelligence activities . . . [,] sources or methodsa and/or
aforeign relations or foreign activities of the United States,a Exec. Order 13,526, ASS 1.4(c), (d),
and that its disclosure could reasonably be expected to damage national security, id. ASS 1.1(a)(4).
The agencyas explanations as to why the records are classified are both alogicala and aplausible,a
and uncontroverted by evidence in the record. Larson, 565 F.3d at 862 (internal quotation marks
omitted). The ACLU never argues in its brief that the agency exhibited bad faith. But to the
extent it intended to suggest bad faith by pointing out that this court previously overruled the
CIAas initial refusal to confirm or deny the existence of responsive records, we are unpersuaded
that such attempt exhibited bad faith, and, given the considerable detail presented in the CIAas
classified affidavit, we believe that attempt presents an insufficient reason to doubt the veracity
of the agencyas current assertions about the contents of the records and their classified status. The
CIAas affidavit also adequately demonstrates that there are no areasonably segregable portion[s]a
of the documents that could be disclosed. 5 U.S.C. ASS 552(b).
Finally, the ACLU has failed to point to any officially acknowledged information that
appears to duplicate or match that being withheld. The district court was, accordingly, well

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within its discretion to decline to review the documents in camera. See Mobley, 806 F.3d at 588.
For the same reasons, we find it unnecessary to review the documents to determine whether the
information has been properly withheld. See id. (aWhen an agency meets its burden through
affidavits, in camera review is neither necessary nor appropriate, and in camera inspection is
particularly a last resort in national security situations like this case.a (internal quotation marks
and alteration omitted)). Nothing in the ACLUas Rule 28(j) letter, dated April 13, 2016, alters
that assessment. See ACLUas 28(j) Letter at 1a2 (Apr. 13, 2016).
The ACLUas arguments regarding the standards that we should apply in this case are
largely unavailing and, in some instances, run contrary to our precedent. To take just one
example, the ACLU advocates a narrow reading of the phrase apertains toa in Executive Order
13,526 because, in its view, a broad reading would agive the CIA a near-categorical exemption
from the FOIAasomething Congress considered but rejected.a ACLU Br. 17. It adds that a
broad construction would aeffectively sanction secret lawa in contravention of FOIAas aprincipal
purposes.a Id. at 18 (internal quotation marks omitted). These arguments, however, ignore this
courtas prior statement that apertains is not a very demanding verb.a Judicial Watch, 715 F.3d at
941 (internal quotation marks omitted). They also misunderstand the role of the Executive Order
in our analysis. That order has relevance beyond FOIA, and our task is not to construe it in light
of FOIAas purposes. Instead, our task in this FOIA suit is to determine whether the records the
CIA seeks to withhold under FOIA Exemption 1 are aspecifically authorized under criteria
established by an Executive order to be kept secret in the interest of national defense or foreign
policy,a and aare in fact properly classified pursuant to such Executive order.a 5 U.S.C.
ASS 552(b)(1). As noted above, the CIAas affidavit adequately establishes that the records satisfy
those criteria.
Finally, we decline the ACLUas post-oral argument invitation to remand the case for
further consideration in light of the governmentas recent announcement that ain the coming
weeks, the Administration will publicly release an assessment of combatant and non-combatant
casualties resulting from strikes taken outside areas of active hostilities since 2009,a and that
a[g]oing forward, these figures will be provided annually.a Lisa O. Monaco, Assistant to the
President for Homeland Security and Counterterrorism, Evolving to Meet the New Terrorist
Threat (Mar. 7, 2016), available at https://www.whitehouse.gov/the-pressoffice/2016/03/07/remarks-lisa-o-monaco-council-foreign-relations-kenneth-moskow-memorial;
see ACLUas 28(j) Letter at 2 (Mar. 14, 2016). As an initial matter, we cannot know at this
juncture whether the government will actually disclose this information or how that information
will be presented. It is, therefore, not yet possible to determine whether the information the
government plans to release will duplicate that being withheld or undermine the governmentas
assertion that disclosing summary strike data can reasonably be expected to harm national
security. More importantly, however, the question in FOIA cases is typically whether an agency
improperly withheld documents at the time that it processed a FOIA request. See Bonner v.
Department of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991). Although there may be some
circumstances in which it is appropriate to consider new information that comes to light during
litigation, courts must be wary of creating aan endless cycle of judicially mandated reprocessinga

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of FOIA requests, lest they undermine the Actas apremium on the rapid processing of [such]
requests.a Id. Under the circumstances presented here, including that the case was already
submitted following oral argument by the time the government announced its intention to
disclose new information, we believe that it would be inappropriate to remand the case for
further processing. If the information that the government ultimately releases undercuts the
governmentas exemption claims, the ACLU can file a new FOIA request.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is
directed to withhold issuance of the mandate herein until seven days after resolution of any
timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C.
Cir. Rule 41.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY:

/s/
Ken Meadows
Deputy Clerk