Case Detail

FOIA Project Annotation: Judge Amy Berman Jackson has ruled the CIA properly withheld 11 reports prepared by its Inspector General concerning the use of unauthorized interrogation techniques on detainees held abroad under Exemption 1 (national security) and Exemption 3 (other statutes). The ACLU requested the reports and argued they could not be withheld because since the techniques were unauthorized they did not qualify as intelligence sources and methods. The ACLU relied on CIA v. Sims, 471 U.S. 159 (1985), where the Supreme Court had observed that "the phrase 'intelligence sources and methods'â€"though broadâ€"does not encompass conduct that falls outside of the CIA's mandate." But, analyzing the agency's Exemption 3 claim, Jackson noted that "Sims does not stand for that broad proposition. As long as the withheld information pertains to methods of collection that the agency used to perform its 'statutory duties with respect to foreign intelligence,' it is irrelevant whether the actual techniques were unauthorized." The ACLU, however, contended that "the techniques at issue here are not merely illegal, but were unauthorized at the time they were used. . .[I]t draws the conclusion that unauthorized conduct cannot be within the CIA's mandate, and therefore falls outside the definition of 'intelligence methods and sources' under Sims." Jackson responded by noting that "this argument misconstrues Sims just the way that the D.C. Circuit rejected in ACLU v. Dept of Defense, 628 F.3d 612 (D.C. Cir. 2011). The D.C. Circuit found that under Sims, what matters is that the activity was conducted for intelligence purposes, not that it was illegal or unauthorized." Jackson indicated the analysis was the same under Exemption 1. She pointed out that "although aspects of the techniques in question may not have been authorized at the time of their use, the Court cannot find it unreasonable for the government to believe that disclosure of information about their use would reveal details about interrogation methods that could assist foreign terrorist organization and foreign governments, and thereby damage national security." The ACLU also argued that much of the information had already been made public in prior FOIA releases. After an in camera review, Jackson found that the CIA needed to re-review one document for further consideration of whether some material might already be public. Jackson also found the documents contained some information protected by Exemption 5 (deliberative process privilege). She concluded the information was predecisional, but found the agency's affidavits had not substantiated whether they were deliberative as well. However, she observed that after in camera review, "the Court finds that the withheld documents are deliberative reports recommending certain actions. To the extent there are certain limited purely factual portions in one or more of them, the Court need not determine whether they are non-deliberative or segregable because it has already found that they are covered by Exemption 1 and 3."
Issues: Exemption 1 - Harm to national security, Exemption 3 - Statutory prohibition of disclosure

Date Filed	Doc #	Docket Text
2011-05-18	1	COMPLAINT against CENTRAL INTELLIGENCE AGENCY ( Filing fee $ 350, receipt number 4616038942) filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Attachments: # 1 Civil Cover Sheet)(jf, ) (Entered: 05/19/2011)
2011-05-18		SUMMONS (3) Issued as to CENTRAL INTELLIGENCE AGENCY, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 05/19/2011)
2011-05-18	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (jf, ) (Entered: 05/19/2011)
2011-05-20	3	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/18/2011. Answer due for ALL FEDERAL DEFENDANTS by 6/17/2011. (Spitzer, Arthur) (Entered: 05/20/2011)
2011-05-27	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. CENTRAL INTELLIGENCE AGENCY served on 5/24/2011 (Spitzer, Arthur) (Entered: 05/27/2011)
2011-06-06	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 05/26/2011. (Spitzer, Arthur) (Entered: 06/06/2011)
2011-06-14	6	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Jameel Jaffer, :Firm- American Civil Liberties Union Foundation, :Address- 125 Broad Street, New York, NY 10004. Phone No. - 212-549-7814. Fax No. - (212) 549-2651 by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Declaration of Jameel Jaffer, # 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 06/14/2011)
2011-06-14	7	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Alexander Abdo, :Firm- American Civil Liberties Union Foundation, :Address- 125 Broad Street, New York, NY 10004. Phone No. - 212-549-2517. Fax No. - (212) 549-2651 by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Declaration of Alexander Abdo, # 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 06/14/2011)
2011-06-16	8	AMENDED COMPLAINT against CENTRAL INTELLIGENCE AGENCY filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION.(td, ) (Entered: 06/20/2011)
2011-06-17		MINUTE ORDER granting 6 Motion for Jameel Jaffer to Appear Pro Hac Vice and 7 Motion for Alexander Abdo to Appear Pro Hac Vice only upon condition that the lawyers admitted, or at least one member of the lawyers' firm, undergo CM/ECF training, obtain CM/ECF username and password, and agree to file papers electronically. No court papers will be mailed to any lawyer. Signed by Judge Amy Berman Jackson on 6/17/11. (MT) (Entered: 06/17/2011)
2011-06-24	9	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. CENTRAL INTELLIGENCE AGENCY served on 6/20/2011 (Spitzer, Arthur) (Entered: 06/24/2011)
2011-07-06	10	ANSWER to 8 Amended Complaint by CENTRAL INTELLIGENCE AGENCY. Related document: 8 Amended Complaint filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION, AMERICAN CIVIL LIBERTIES UNION.(Coleman Snead, Jacqueline) (Entered: 07/06/2011)
2011-07-07	11	ORDER that defendant shall file a dispositive motion or, in the alternative, a report setting forth a document production schedule on or before 8/4/2011. Signed by Judge Amy Berman Jackson on 7/7/2011. (MT) (Entered: 07/07/2011)
2011-07-08		Set/Reset Deadlines: Dispositive Motion or report setting forth a document production scheduled due on or before 8/4/2011. (tb, ) (Entered: 07/08/2011)
2011-08-04	12	RESPONSE TO ORDER OF THE COURT re 11 Order filed by CENTRAL INTELLIGENCE AGENCY. (Coleman Snead, Jacqueline) (Entered: 08/04/2011)
2011-08-05		MINUTE ORDER that the parties are directed to file a joint status report on October 7, 2011 advising the Court of the status of the processing of plaintiffs' FOIA request and proposing a briefing schedule if necessary. Signed by Judge Amy Berman Jackson on 8/5/2011. (MT) (Entered: 08/05/2011)
2011-08-08		Set/Reset Deadlines: The parties are directed to file a Joint Status Report by 10/7/2011 advising the Court of the status of the processing of plaintiffs' FOIA request and proposing, if necessary, a briefing schedule. (jth) (Entered: 08/08/2011)
2011-10-07	13	RESPONSE TO ORDER OF THE COURT re Order, Joint Status Report filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Abdo, Alexander) (Entered: 10/07/2011)
2011-10-11	14	SCHEDULING ORDER: Defendant's motion for summary judgment will be due on 1/10/2012. The opposition to the motion for summary judgment and the cross motion for summary judgment will be due on 2/7/2012. The reply to the motion for summary judgment and opposition to the cross motion for summary judgment will be due 2/21/2012. The reply to the cross motion for summary judgment will be due 3/6/2012. SEE ORDER FOR COMPLETE DETAILS. Signed by Judge Amy Berman Jackson on 10/11/2012. (MT) (Entered: 10/11/2011)
2011-10-11	15	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Mitra Ebadolahi, :Firm- American Civil Liberties Union Foundation, :Address- 125 Broad Street, NY NY 10004. Phone No. - (212) 284-7305. Fax No. - 212-549-2651 by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Declaration of Mitra Ebadolahi, # 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 10/12/2011)
2011-10-12		Set/Reset Deadlines: Defendant's Vaughn Index due by 11/14/2011; Plaintiff's Response/Challenges to the Vaughn Index due by 11/29/2011 (jth) (Entered: 10/12/2011)
2011-10-12		MINUTE ORDER that the 14 Scheduling Order filed on 10/11/2011 is amended as follows: In paragraph 3. the last sentence that reads "and the cross motion reply will be due on March 6, 2013." it should read "and the cross motion reply will be due on March 6, 2012." All remaining aspects of the scheduling order are unchanged. Signed by Judge Amy Berman Jackson on 10/12/2011. (jth) (Entered: 10/12/2011)
2011-10-13		MINUTE ORDER granting 15 Motion for Leave of Mitra Ebadolahi to Appear Pro Hac Vice only upon condition that the lawyer admitted, or at least one member of the lawyer's firm, undergo CM/ECF training, obtain CM/ECF username and password, and agree to file papers electronically. No court papers will be mailed to any lawyer. Signed by Judge Amy Berman Jackson on 10/13/2011. (MT) (Entered: 10/13/2011)
2012-01-10	16	MOTION for Summary Judgment by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Memorandum of Points and Authorities, # 2 Statement of Material Facts Not in Dispute, # 3 Lutz Declaration)(Coleman Snead, Jacqueline) (Entered: 01/10/2012)
2012-02-03	17	Consent MOTION for Extension of Time to File an Opposition to Defendant's Motion for Summary Judgment and Cross-Motion for Summary Judgment by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Text of Proposed Order)(Ebadolahi, Mitra) (Entered: 02/03/2012)
2012-02-03		MINUTE ORDER granting 17 Consent Motion for Extension of Time. The opposition to the motion for summary judgment and cross-motion for summary judgment will be due 2/17/2012. The reply to the motion for summary judgment and opposition to the cross-motion for summary judgment will be due 3/6/2012. The reply to the cross-motion for summary judgment will be due 3/20/2012. Signed by Judge Amy Berman Jackson on 2/3/2012. (MT) (Entered: 02/03/2012)
2012-02-04		Set/Reset Deadlines: Opposition to the Motion for Summary Judgment and Cross Motion due by 2/17/2012; Reply in support of the Motion for Summary Judgment and Opposition to Cross Motion due by 3/6/2012; Reply to Cross Motion due by 3/20/2012. (jth) (Entered: 02/04/2012)
2012-02-17	18	Memorandum in opposition to re 16 MOTION for Summary Judgment filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Attachments: # 1 Statement of Facts, # 2 Declaration, # 3 Exhibit A - OIG Special Review, # 4 Exhibit B - Joint Status Report, # 5 Exhibit C - ACLU Letter to CIA, # 6 Exhibit D - First Vaughn Index, # 7 Exhibit E - Durham Decl., # 8 Text of Proposed Order)(Ebadolahi, Mitra) (Entered: 02/17/2012)
2012-02-17	19	Cross MOTION for Summary Judgment by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Statement of Facts, # 2 Declaration, # 3 Exhibit A - OIG Special Review, # 4 Exhibit B - Joint Status Report, # 5 Exhibit C - ACLU Letter to CIA, # 6 Exhibit D - First Vaughn Index, # 7 Exhibit E - Durham Decl., # 8 Text of Proposed Order)(Ebadolahi, Mitra) (Entered: 02/17/2012)
2012-03-06	20	REPLY to opposition to motion re 16 MOTION for Summary Judgment filed by CENTRAL INTELLIGENCE AGENCY. (Attachments: # 1 Durham Declaration)(Coleman Snead, Jacqueline) (Entered: 03/06/2012)
2012-03-06	21	Memorandum in opposition to re 19 Cross MOTION for Summary Judgment filed by CENTRAL INTELLIGENCE AGENCY. (Attachments: # 1 Counterstatement of Material Facts, # 2 Durham Declaration)(Coleman Snead, Jacqueline) (Entered: 03/06/2012)
2012-03-20	22	REPLY to opposition to motion re 19 Cross MOTION for Summary Judgment filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Ebadolahi, Mitra) (Entered: 03/20/2012)
2012-07-12		MINUTE ORDER. It is ORDERED that on or before July 26, 2012, defendant is directed to deliver to chambers the documents that have been withheld from plaintiffs or that have been provided to plaintiffs with redactions, for in camera inspection to assist the Court in making a responsible de novo determination, see Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978). Signed by Judge Amy Berman Jackson on 7/12/12. (lcabj1) (Entered: 07/12/2012)
2012-07-13		Set/Reset Deadline: In-Camera Submission due by 7/26/2012. (jth) (Entered: 07/13/2012)
2012-07-25	23	NOTICE of Appearance by Marcia Berman on behalf of CENTRAL INTELLIGENCE AGENCY (Berman, Marcia) (Entered: 07/25/2012)
2012-07-25	24	NOTICE of Lodging of Classified Documents by CENTRAL INTELLIGENCE AGENCY (Berman, Marcia) (Entered: 07/25/2012)
2012-09-10	25	NOTICE to the Court by CENTRAL INTELLIGENCE AGENCY re 16 MOTION for Summary Judgment (Coleman Snead, Jacqueline) (Entered: 09/10/2012)
2012-09-25	26	ORDER granting in part and denying in part 16 Motion for Summary Judgment; granting in part and denying in part 19 Motion for Summary Judgment. It is ORDERED that defendant's motion for summary judgment and plaintiffs' cross-motion for summary judgment are both GRANTED in part and DENIED in part. It is FURTHER ORDERED that on or before October 16, 2012, defendant release any portion of the document numbered 3 in its Vaughn Index that matches information previously disclosed from the government's partially-redacted release of the Special Review: Counterterrorism Detention and Interrogation Activities (September 2001October 2003), and file a notice with the Court indicating that it has complied with this Order. (SEE ORDER FOR COMPLETE DETAILS). Signed by Judge Amy Berman Jackson on 9/25/12. (lcabj1) (Entered: 09/25/2012)
2012-09-25	27	MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 9/25/12. (lcabj1) (Entered: 09/25/2012)
2012-09-25		Set/Reset Deadlines: Defendant's Notice indicating compliance with the Court's Order of 9/25/2012 is due by 10/16/2012. (jth) (Entered: 09/25/2012)
2012-10-16	28	NOTICE by CENTRAL INTELLIGENCE AGENCY re 26 Order on Motion for Summary Judgment,,,,,,, (Coleman Snead, Jacqueline) (Entered: 10/16/2012)
2012-10-17		MINUTE ORDER. Defendant has submitted a notice indicating that it has complied with the Court's September 25, 2012 Order. [Dkt. # 28]. Therefore, without rearguing any matters upon which the Court has already ruled, plaintiffs shall inform the Court by October 29, 2012 of their position on whether defendant has complied with the Court's September 25, 2012 Order, [Dkt. # 26], and whether there is any remaining reason why this Court should not enter judgment in favor of defendant. Signed by Judge Amy Berman Jackson on 10/17/12. (lcabj1) (Entered: 10/17/2012)
2012-10-17		Set/Reset Deadlines: Plaintiffs shall inform the Court of their position on whether defendant has complied with the Court's 9/25/2012 Order (Dkt #26) and whether there is any remaining reason why this Court should not enter judgment in favor of defendant. Plaintiff to inform the Court by 10/29/2012. (jth) (Entered: 10/17/2012)
2012-10-26	29	NOTICE to Court by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION re Order,, (Ebadolahi, Mitra) (Entered: 10/26/2012)
2012-10-31	30	ORDER dismissing action. (SEE ORDER FOR COMPLETE DETAILS). Signed by Judge Amy Berman Jackson on 10/31/12. (lcabj1) (Entered: 10/31/2012)
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