American Civil Liberties Union et al v. Department of Defense et al, No. 1:2017cv09972 - Document 40 (S.D.N.Y. 2020)
Court Description: MEMORANDUM OPINION: For these reasons, the Court finds that the Defense Department never properly invoked Exemption 3 and that its invocation of Exemption 1 was rendered illogical and implausible by the release of the Niger ambush report. Accordingly, the agencies' motion for summary judgment was DENIED, and the cross-motions of both the ACLU and the Times were GRANTED. The instructions within the Court's Order of September 29, 2020, Doc. 39, remain in effect. (Signed by Judge Edgardo Ramos on 10/5/2020) (mro)
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American Civil Liberties Union et al v. Department of Defense et al UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK AMERICAN CIVIL LIBERTIES UNION and AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Doc. 40 MEMORANDUM OPINION Plaintifs, against- 17 Civ. 9972 (ER) DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, and DEPARTMENT OF STATE, Deendants. THE NEW YORK TIMES COMPANY, Plaintif, - against- 20 Civ. 43 (ER) DEPARTMENT OF DEFENSE, Deendant. RMos,D.J.: In 2013, the Obama Administration codiied the procedures and criteria it used in identiying which suspected terrorists it would attempt to capture or kill abroad. According to September and October 2017 articles in the New ork Times, the Trump Administration changed those policies in October 2017. Two years later, a report made public by the Department of Deense examining an ambush that killed our U.S. soldiers in Niger disclosed inormation seemingly confirming the Times' reporting. Now, both the Times and the American Civil Liberties Union seek to secure disclosure of those updated polices through a lawsuit under the Freedom oflnormation Act ("FOIA"), 5 U.S.C. § 552. Although the Deense Depaiiment has declined to confom or deny the existence of such guidance, this Court inds that it may no longer Dockets.Justia.com maintain that response. As a review of the report concerning the Niger ambush makes clear, there is no doubt that these policies govening operations of the Defense Department have been updated since the Obama Administration's 2013 guidance. Accordingly, the Court DENIED the Defense Department's motion or summary judgment in these cases and GRANTED the cross-motions of both the ACLU and the Times in a September 29, 2020, Order. Doc. XX. This Memorandum Opinion explains the reasons or that Order. I. BACKGROUND 1 A. he Obama Guidance & Its Purported Update In 2013, as the so-called War on TetTOrism approached its twelfth year, then- President Barack Obama announced that his administration had ormalized its policies or approving operations that sought to capture or kill persons identiied by the United States as terrorists located outside the United States and outside areas of active hostilities. he Obama administration simultaneously released a act sheet outlining those policies on May 23, 2013. 2 The ull policy was contained document titled "Procedures or Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities," or "Presidential Policy Guidance" ("PPG"), dated May 22, 2013. 3 Although the ull document was originally classiied by the National Security Council, night Deel. r 9, Doc. 30, the ACLU secured the release of a redacted version in August 2016 through a FOIA action against the Department of Justice, the Department of Deense, the Department of State, and the Central Intelligence Agency. See ACLU . Dep 't ofJustice, No. 15 Civ. 1954 (CM), 2016 WL 8259331, at **14-22 (S.D.N.Y. Aug. 1 All documents reerenced are those filed in No. 17 Civ. 9972 unless otherwise noted. 2 Press Release, Oice of the Press Secretary, White House, Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities (May 23, 2013), https://obamawhitehouse.archives.gov/the-press-oice/2013/05/23/act sheet-us-policy-standards-and-procedures-use-orce-counterte-orism. 3 Available at https://www.justice.gov/oip/oia-library/procedures_or_approving_direct_action_against _terorist_targets/download. See also Knight Deel. 8, Doc. 30. 2 8, 2016), vacated in irrelevant part, 894 F.3d 490 (2d Cir. 2018) (directing district court to vacate inding of oicial acknowledgment about a document irrelevant to this case). The Obama Guidance prioritized capturing suspects, limiting lethal operations to "when capture of an individual is not easible and no other reasonable alternatives exist to efectively address the threat." PPG at 1. It directed that these operations only be attempted when the United States has identified and located the target with near certainty, and when there is a near certainty that non-combatants will not be harmed. Id. Only those individuals who pose a "continuing, imminent threat to U.S. persons" would be eligible to be targeted or a lethal operation. Id. § 3.A. Notably, the Obama Guidance directed that all of these operations go through a multi-step interagency review, including by members of the Principals and Deputies Committees of the National Security Counci14 beore being approved by the President himself. Id. §§ 1.B, l .G, 1.H. According to reporting by the New York Times, President Donald J. Trump issued new rules in October 2017, called "Principles, Standards and Procedures" or "P.S.P.", which relaxed the Obama Guidance's policies govening which suspected terrorists may be targeted to be killed and the rigor of the interagency review process or individual operations. See Charlie Savage & Eric Schmitt, Trump Poised to Drop Some Limits on Drone Strikes and Commando Raids, N.. Times (Sept. 21, 2017), htps://nyti.ms /35XW6W (reporting that the changes were under consideration per "oicials amiliar with intenal deliberations"); Charlie Savage, ill Congress Ever Limit the Forever Expanding 9/11 War?, N.Y. Times (Oct. 28, 2017), https://nyti.ms/2yTGUmc (reporting that the President "had recently signed his new rules," per "[t]wo govenment oicials"). At the time, the regular members of the Principals Committee included the Secretaries of State, Treasury, Deense, Energy, and Homeland Security, the Attoney General, the Director of the Oice of Management and Budget, the U.S. Representative to the United Nations, the President's Chief of Staf, the Director of National Intelligence, and the Chairman of the Joint Chiefs of Staf. Presidential Policy Directive 1: Organization of the National Security Council System at 2-3 (Feb. 13, 2009), https://as.org/irp/ofdocs /ppd/ppd-1.pdf. he Deputies Committee included the deputies of the members of the Principals Committee. Id. at 4. 4 3 In response, the ACLU iled a FOIA request with the Department ofJustice, the Department ofState, and the Department ofDeense seeking, "the release ofthe Trump administration's rules govening the use oflethal orce abroad, known as the "Principles, Standards, and Procedures," as well as any cover letter or other document attached thereto." Hogle Deel. ex. 1 ("ACLU Request") at 5-6, Doc. 34. The request clariied that it "should be construed to include the record containing the Trump administration's rules govening the use oflethal orce as described in [the Times' reporting], even ifthe final version ofthis document bears a diferent title or orm than that specifically requested here." I. at 6 n.21. When the ACLU did not receive a decision on its FOIA request rom any ofthe agencies, it iled suit before this Court in December 2017. Doc. 1. The agencies filed their answer in February 2018, declining to conirm or deny the existence ofrecords responsive to the ACLU's Request. Doc. 14 at 9. B. he Niger Ambush Report In June 2019, the Department ofDefense transmitted to jounalists a redacted version ofthe results ofan investigation into a deadly October 2017 ambush on U.S. soldiers and their local partners in Tango Tonga, Niger by orces ailiated with the Islamic State. Hogle Deel. ex. 2.4 at 2; see also Schmitt Deel. ex. A, No. 20 Civ. 43, Doc. 19 (containing email to jounalists rom Deense Department spokesperson Cdr. Candice Tresch). The report-which sent investigators to ive countries, included 143 interviews, and was supervised by Maj. Gen. Roger J. Cloutier, Jr., Hogle Deel. ex. 2.7 at 2- made numerous indings regarding the cause ofthe casualties and actions necessary to rectiy those shortcomings. According to the report, U.S orces had been stationed in Niger to train, advise, assist, and accompany Nigerien orces in the country's operations against Islamic militants. Hogle Deel. ex. 2.1 i 4. he report indicated that on the day ofthe ambush, a U.S. special operations team, called "Team OUALLAM," was dispatched to find and 4 capture a leader of the Islamic State in Iraq and Syria - Greater Sahara. Id. The team, accompanied by Nigerien partners, was unable to find the leader, and, as they were retuning to their base, stopped at the village ofTongoTongo or water and to speak with village elders. Id. at 4. As the team let the village, they were ambushed by a large orce of militants, leading to the death of our U.S. soldiers and our of their Nigerien partners. Id. Most relevant to this case is Investigation Finding 2, which discussed the active and exclusive role U.S. forces had taken in planning and executing direct action missions - a role that likely conflicted with White House policies. Hogle Deel. ex. 2.7 at 109. The finding began by noting, "On 3 October 2017, the Executive Policy govening direct action against terrorists on the continent in Arica was codiied in the 'U.S. Policy Standards and Procedures or the use of orce in counterterrorism operations outside the United States and areas of active hostilities,' (CT-PPG)." 5 Hogle Deel. ex. 2.3 at 8. It continued: Since 3 October, the President has issued new guidance on [RE DACTED]. The PSP supersedes the CT-PPG and makes substantive changes to the standards and procedures or approval of U.S. direct action missions, but the core principle remains the same: decisions to use U.S. orces to conduct [EDACTED] will be made at the most senior levels after reasonable review and considerable over sight. Hogle Deel. ex. 2.7 at 109. The report urther noted, "[T]he CT-PPG itself is classiied above the classiication of this report, but the Obama Administration published an unclassified 'Fact Sheet' outlining the principles of the policy or public release." I. at n.819. The report ound thatTeam OUALLAM's actions under the "advise, assist, and accompany" umbrella "more closely resembled U.S. direct action than oreign partner-led 5 Although the phrase "direct action against terrorists" is redacted in the underlying report, Hogle Deel. ex. 2.7 at 109, the summaty table of findings discloses this phrase. In a glossaty, the report defines "CT-PPG" as "Counterterrorism-Presidential Policy Guidance." Ex. 2.7 at 169. 5 operations aided by U.S. advice and assistance." Hogle Deel. ex. 2.7 at 109. In short, it was U.S. forces in Niger that had made the decision to pursue the Islamic State leader not the Nigeriens or high-level U.S. military leadership. Id. Furthermore, the report observed that members of U.S. forces "expressed a casual understanding of' and "an equally casual application of' rules governing their interactions with Nigerien partners. Id. at 111. The report concluded that there existed "several problems with the advise, assist, and accompany activity as it relates to the CT-PPG and the PSP," observing: Exercised conservatively, with advisors remaining ar rom the ight, advising higher echelon commanders, the policy [ of advise, assist, and accompany] could be executed in accordance with Presidential Policy. Exercised aggressively, with U.S. advisors accompanying platoons, squads, and ire teams, the direct actions of our partners cannot be distinguished from U.S. direct action. Hogle Deel. ex. 2.6 at 111-12. Based on these indings, the report recommended that U.S. Arica Command "provide a clear and unequivocal standard to the orce or advise, assist, and accompany operations that is consistent with Presidential Policy as it relates to U.S. direct action in Arica and ensure it is understood and enforced by Commanders." Id. at 111-12. The report made no unclassified recommendations regarding changes to U.S. or Africa Command policies. Id. at 112. Cloutier concluded his investigation on January 31, 2018. Hogle Deel. ex. 2.6 at 1. The report was approved with comments by the commander of U.S. Arica Command, Gen. Thomas D. Waldhauser, id. at 4, who eventually transmitted the indings and recommendations to the Secretary of Deense in February 2018, Hogle Deel. ex. 2.1. In his memorandum to the Secretary, Waldhauser noted that "U.S. orces in Niger have been operating in accordance with guidance ormulated at the Presidential level." Id. r 4. He urther explained that the success of his forces' mission in Niger required, inter alia, that "commanders at each level [] understand their authorities, assess known and oreseeable 6 risks, and then articulate these actors in a manner commensurate with their echelon of command." Id. 1 8. Based on the disclosure of this repo1i, including the contents of Finding 2, the ACLU wrote to the Deense Department in June 2019 asking that they confirm or deny the existence of updates to the Obama Guidance. Hogle Deel. ex. 3. The Department again declined to do so. Hogle Deel. ex. 4. In October 2019, the imes iled a lawsuit against the Deense Department seeking a response to an October 7, 2019, FOIARequest asking or "access to (and declassiication review of, if necessary) the document (including any annexes or appendices) in which President Trump laid out a revised set of principles, standards, and procedures or counterterrorism kill-or-capture operations, replacing the Obama-era 'Presidential Policy Guidance' rules." Compl., No. 20 Civ. 43, 1 9, Doc. 1. 1hat case was assigned to this Court as related to the ACLU' s case in January 2020. In its answer filed in February 2020, the Department likewise declined to confirm or deny the existence of responsive records. Doc. 12. In February 2020, brieing began on cross-motions or summary judgment in both cases. C. The Knight Declaration In its briefing, the Department of Deense6 relies on the Declaration of Ellen J. Knight, then-Senior Director or Records Access and Inormation Security Management at the National Security Council, the agency that initially classiied the Obama Guidance. Authorized to assess the classiication of inormation related to the Council, Knight Deel. 1 2, Knight opines in the partially unclassiied declaration7 on the potential impacts of 6 Although the ACLU has sued the Departments of State and Justice, as well, the parties' briefing is ocused solely on the Department of Deense. 7 The declaration contains classified material, as well. The Court has reviewed this material ex parte and in camera. See Wilner v. NSA, 592 F.3d 60, 68 (2d Cir. 2009). 7 disclosing the existence vel non of updates to the Obama Administration's Presidential Policy Guidance. She avers that the National Security Council classified the current status of the Obama Guidance in 2017, including whether it has been rescinded or updated "to avoid disclosing inormation to potential terrorist targets and other oreign adversaries about the process used by the U.S. Govenment to goven direct action against terorist targets." Knight Deel. 1 12. She explains that revealing that the Guidance has been updated could "allow[] potential te1TOrist targets to modiy their operations to avoid detection or targeting by the U.S. Govenment." Id. 115. "The more inormation that terrorists have about the standards and procedures currently in place," she writes, "the more easily they will be able to modiy their behavior to avoid detection or targeting, or otherwise thwart military or intelligence operations." Id. Knight also directly addresses the June 2019 disclosure of the report concening the Niger ambush. She asserts that any disclosure of the existence of updated presidential guidance in a Defense Department report does not carry the same weight as an oicial acknowledgment by the National Security Council or by another agency with the Council's authorization. Knight Deel. 123. She notes that adversaries of the United States monitor statements by the White House to lean about U.S. policy and that "oreign govenments may eel compelled to respond to oicial White House statements of policy." I. Accordingly, she concludes, "[t]he asserted [Deense Department] disclosure does not eliminate the harms, described above, that could reasonably be expected to result rom an oicial disclosure of the current status of the PPG." I. Knight's declaration contains our paragraphs of classified material, as well. 8 I II. LEGALSTANDARDS Courts almost exclusively resolve FOIA actions through the submission of cross- motions or summary judgment. See NRDC v. U.. Dep 't of Interior, 73 F. Supp. 3d 350, 355 (S.D.N.Y. 2014). "Summary judgment is appropriate only where the parties' submissions 'show that there is no genuine issue as to any material act and that the moving party is entitled to a judgment as a matter of law.'" Bei v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999) (quoting F ed. R. Civ. P. 56(c)). "Where, as here, the parties have filed cross-motions or summary judgment, 'each party's motion must be examined on its own merits, and in each case all reasonable inerences must be drawn against the party whose motion is under consideration.'" NY. Times Co. v. U.S. Dep 't of Defense, 499 F. Supp. 2d 501, 509 (S.D.N.Y. 2007) (quoting Morales v. Quintel Entm 't, Inc., 249 F.3d 115, 121 (2d Cir. 2001)). "he agency asserting the exemption bears the burden of proof, and all doubts as to the applicability of the exemption must be resolved in avor of disclosure." Wilner v. 9 NSA, 592 F.3d 60,69 (2dCir. 2009). A district court reviews an agency's classification decision de nova. 5 U.S.C. § 552(a)(4)(B). In its analysis,a district court must ultimately determine whether the exemptions invoked by the agency are "logical and plausible." Florezv. CIA, 829F.3d 178,185 (2dCir. 2016). In this case,the agencies have given what is known as a "Glomar response." 8 See Wilner, 592 F.3d at 68. Just as if the agencies were seeking to withhold a document,the agencies must invoke one of the nine exemptions to theFOIA to preclude acknowledgment of the existence of the purported documents at issue. Id. "In evaluating an agency's Glomar response,a court must accord 'substantial weight' to the agency's aidavits,provided that the justiications or nondisclosure are not controverted by contrary evidence in the record or by evidence of bad faith." Id. (intenal quotation marks and citations omitted). Nevertheless,a Glomar response is "justiied only in unusual circumstances,and only by a particularly persuasive aidavit." Florez, 829F.3d at 182 (quotation marks and intenal citation removed). III. DISCUSSION In this case,the agencies argue that they properly invokedFOIA Exemption 1 and 3 when they reused to confirm or deny the existence of updates to the Obama Guidance. Besides objecting to those invocations in the irst instance,both the ACLU and the Times claim that the Defense Department oicially disclosed the info1mation at issue in the Niger ambush report. They urther argue that any rationale for continuing to withhold the status of the Obama Guidance was undennined with the release of the report. TheCourt finds the inonnation at issue,when viewed on its own,was properly withheld under Exemption 1. But the Niger ambush report "shift[ed] the factual 8 "The term 'Glomar response' refers to a response that neither conirms nor denies the existence of documents responsive to the request. The term arises from the CIA' s successul defense of its reusal to conim1 or deny the existence of records regarding a ship named the Hughes Glomar Explorer in Phillippi v. Cent. Intelligence Agency, 546 F.2d 1009, 1011 (D.C. Cir. 1976)." Florez, 829 F.3d at 181 n.2 (quotation marks and intenal citations omitted). 10 groundwork" on which the Court examines the propriety of the FOIA Exemptions. Florez v. CIA, 829 F.3d 178, 186 (2d Cir. 2016). Although disclosure of the repo1i does not qualiy as an "oicial disclosure" that would waive the agencies' ability to invoke Exemption 1, it does make the continued use of that exemption illogical and implausible. Accordingly, the Court GRANTED the plaintifs' motions or summary judgment and DENIED that of the agencies. A. Propriety of the Original Classiication The agencies in these cases invoke FOIA Exemptions 1 and 3, 5 U.S.C. §§ 552(b)(l) and (3). Viewing the agencies' reasons or those exemptions on their own, the Court inds that only Exemption 1 was properly invoked when the agencies irst answered the ACLU's complaint in February 2018 - critically, beore the release of the Niger ambush report. 1. Exemption 1 Put simply, Exemption 1 protects rom disclosure material properly classiied by executive order. See . . imes v. CIA, 965 F.3d 109, 114 (2d Cir. 2020). he agencies claim that the cun-ent status of the Obama Guidance, and therefore the existence of any update by the Trump Administration, is properly classiied under Executive Order 13526, 75 Fed. Reg. 707 (Dec. 29, 2009). That order lists four conditions for classiication: ( 1) an original classiication authority is classiying the inor mation·, 9 (2) the inormation is owned by, produced by or for, or is under the control of the United States Govenment; (3) the inonnation alls within one or more of the categories of in ormation listed in section 1.4 of this order; and (4) the original classiication authority determines that the unauthor ized disclosure of the ino1mation reasonably could be expected 9 In the context of Executive Order 13526, an original classiication authority is any oicial who may decide whether inormation ought to be classified. See EO 13526 § 1.3 (allowing either the President, Vice President, or an agency head to delegate that authority). In this case, an unnamed oicial at the National Security Council served in that role. Knight Deel. r 12. 11 to result in damage to the national security, which includes de fense against transnational tenorism, and the original classiica tion authority is able to identiy or describe the damage. Id. § 1. l(a); see also N. Times, 965 F.2d 109 at 114. In her declaration, Knight avers that all our criteria have been met. Knight Deel. rr 13-14. Neither the ACLU nor the Times contest the first three conditions. The plaintifs do argue, however, that Knight's reasons or keeping the existence of any Tnmp Administration update to the Obama Guidance secret are illogical and implausible. In the public version of her declaration, Knight argues that revealing the existence of updates to the Obama Guidance could allow adversaries to avoid detection by the U.S. Government, although she does not detail how. Alone, this public declaration would be insuicient to show that the agencies' invocation of Exemption 1 was logical and plausible. Cf Halpen v. FBI, 181 F.3d 279, 295 (2d Cir. 1999) (rejecting a Vaughn index- akin to a privilege log- due to the supporting aidavit's "vague and conclusory" nature). The Court has reviewed the classiied version of the report, however, and is satisied with the reasoning ofered therein. logical and plausible explanation of the dangers disclosure could pose. Accordingly, given the "deerential posture in FOIA cases regarding the uniquely executive purview of national security," Wilner v. NSA, 592 F.3d 60, 76 (2d Cir. 2009) (intenal quotation marks and citation omitted), the Court inds that the agencies have shown that their conclusion that potential harm to the national security could result if the existence of updates to the PPG are disclosed is logical and plausible. 12 2. Exemption 3 The same does not hold true or Exemption 3. "Exemption 3 applies to records 'specifically exempted rom disclosure by statute."' NY. Times, 965 F.3d at 115 (quoting 5 U.S.C.§ 552(b)(3)). he parties agree the National Security Act of 1947, 50 U.S.C. § 3024(i)(l ), is such an exempting statute. See NY. imes, 965 F.3d at 115. The parties disagree, however, that the infmmation at issue here is covered by the National Security Act, which "mandates that the Director of National Intelligence 'shall protect intelligence sources and methods rom unauthorized disclosure."' NY. Times, 965 F.3d at 115 (quoting§ 3024(i)(l )). To properly apply the National Security Act, the agencies must show that it is "logical and plausible" that non-disclosure would "protect[] our intelligence sources and methods rom oreign discovery." NY. imes Co. v. U.S. Dep 't ofJustice, 756 F.3d 100, 119 (2d Cir. 2014) (intenal quotations and citations removed). Knight argues that "the cunent status of the PPG relates to intelligence sources and methods because revealing the existence or non-existence of updated guidance could undermine intelligence operations against transnational terrorist targets, which by their nature involve intelligence sources and methods." Knight Deel. r 27. 1his is the agencies' only justiication or non-disclosure under Exemption 3. Unlike the reasons profered or non-disclosure under Exemption 1, Knight's declaration is far too conclusory in this regard. In particular, the agencies argue that because disclosure could reduce the eicacy of operations that may involve the collection of intelligence, the inormation at issue relates to intelligence sources and methods, i.e., the category of inormation protected by the National Security Act. Although the Court is aware of the "broad sweep" of the Act in protecting intelligence sources and methods, CIA v. Sims, 471 U.S. 159, 169 (1985), it is the burden of the agencies to educate the Court on the connection between those concepts within the context of this case. They have done so only through ipse dixit. As stated above, the Court credits the potential harm to national security of disclosure, but it does not see - through its review of the 13 classiied and unclassiied Knight Declaration - the connection between that harm and the disclosure of intelligence sources and methods protected by the National Security Act. Neither of the two cases the Deense Department cites in support counsel otherwise. In Sims, the plaintifs sought to gain access to the names of individuals and organizations associated with the Central Intelligence Agency's MK.ULTRA project. The Supreme Court held that the entities were "intelligence sources" within the meaning of the National Security Act and thereore protected rom disclosure. 471 U.S. at 173-74. And in ACLU v. US. Department ofJustice, the Second Circuit ound that records and photographs of interrogations related to an intelligence method, and thereore protected by the National Security Act. 681 F.3d 61, 75, 76 (2d Cir. 2012). In both cases, disclosing the inormation at issue would have revealed something about how the CIA collected intelligence. Here, based on the Court's review of Knight's declaration, disclosing the existence of updated guidance would reveal nothing of the sort. Accordingly, the Court inds that the agencies did not properly invoke Exemption 3. B. he Oicial Disclosure Doctrine The Court now tuns to the plaintifs' irst response to the Deense Department's use of Exemption 1: that the Department has oicially acknowledged changes made to the Obama Guidance in the Niger ambush report. The Deense Department argues in reply (1) that the inormation disclosed is not the same as that sought by the plaintifs, and (2) that the disclosure in the report was not "oicial" because the Deense Department was not authorized by the National Security Council to declassify the inormation in question. Although the Court inds that the inormation disclosed is as speciic as and matches the inormation the plaintifs seek, the Deense Department's actions did not waive its ability to invoke the exemption. The oicial disclosure doctrine prevents an agency from invoking FOIA Exemption 1 ater the govenment has, as the name of the doctrine suggests, oicially disclosed the inormation sought. See Osen LLC . U. Cent. Command, 969 F.3d 102, 14 109 (2d Cir. 2020). In the Second Circuit, "[c]lassiied inormation that a party seeks to obtain or publish is deemed to have been oicially disclosed only ifit ( 1) is as specific as the inormation previously released, (2) matches the inormation previously disclosed, and (3) was made public through an oicial and documented disclosure." Wilson v. CIA, 586 F.3d 171, 186 (2d Cir. 2009) (internal quotation and alterations omitted). "All three prongs ofthe Wilson test must be met beore an agency will be deemed to have oicially disclosed classiied inormation." Osen, 969 F.3d at 109. I. Speciciy & Matching "[F]or inormation to be 'as specific as' that which was previously disclosed, there cannot be any substantive diferences between the content ofthe publicly released govenment documents and the withheld inormation." Osen, 969 F.3d at 110 (intenal quotation and alterations omitted). As for the second prong ofthe oicial disclosure test, "there must be enough ofan overlap in subject matter between disclosed and withheld records to airly say that the two records 'match' - in other words, that they present the same information about the same subject." Id. at 112. "In the Glomar context . . . ifthe prior disclosure establishes the existence (or not) ofrecords responsive to the FOIA request, the prior disclosure necessarily matches both the inormation at issue - the existence ofrecords - and the specific request for that infmmation." Wof v. CIA, 4 73 F.3d 370, 379 (D.C. Cir. 2007). The Deense Department argues that the inormation requested by the ACLU and the Times is not the same as that mentioned in the report about the Niger ambush principally because ofdifering titles. The report discusses a "PSP" that "supersedes the CT-PPG," and, although "CT-PPG" is defined as "Counterterrorism-Presidential Policy Guidance" in the report, "PSP" is never defined. Furthermore, the ull title ofthe Obama Guidance is "Procedures or Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas ofActive Hostilities," while the ull title ofthe CT PPG reerenced in the report is "U.S. Policy Standards and Procedures or the use of 15 orce in counterterrorism operations outside the United States and areas ofactive hostilities." Because ofthese ambiguities, the Depaitment argues, an adversary may still wonder ifthe Obama Administration's policies on the use ofdirect action abroad were truly revised. The Deense Department's argument is contradicted by the report itself. The report notes that the Obama Administration released an unclassified act sheet outlining the CT-PPG. And as discussed above, on May 23, 2013, the Obama Administration issued an unclassiied fact sheet or the PPG. It urther notes that the "core principle" of the PSP "remains the same" as that ofthe CT-PPG: that decisions to use U.S. orces in direct action missions would be made "at the most senior levels ater reasonable review and considerable oversight." Hogle Deel. ex. 2.7 at 109. It can be airly said that the Obama Guidance, which set up a rigorous process or reviewing and approving direct action missions that ended with the President, also involved approval at the most senior levels. Additionally, and most persuasively, Gen. Waldhauser referred to the Obama Guidance as the "CT-PPG" in Congressional testimony in 2017. 10 Furthermore, the FOIA request submitted by the ACLU, at least, does not limit itselfto updates to the Obama Guidance alone. Rather, the ACLU asks or "the record containing the Trump administration's rules govening the use oflethal orce abroad," regardless ofthe title it may bear. ACLU FOIARequest at 5-6. he record discussed in the Niger ambush report specifically discloses that the PSP supersedes previous guidance regarding the use ofdirect action by U.S. forces, and it thereore is responsive to the ACLU's request. An interpretation that suggests otherwise would require a purposeul distortion ofthe report's plain meaning. The information in the report is as specific as, 10 See DOD Authorization for Appropriations for Fiscal Year 2018 and the Future Years [sic] Defense Program: Hearing before the . Comm. on Armed Servs., 115th Cong. 448 (Mar. 9, 2017) (statement of Gen. Thomas D. Waldhauser), https://www.govino.gov/content/pkg/CHRG-115shrg39567/html/CHRG115shrg39567 htm (Question 24). 16 and matches the inormation the ACLU and the Times seek here. he Court now tuns to the final step in the Wilson test. 2. Oicial Disclosure he third actor of the ilson test "acknowledges 'a critical diference between oicial and unoicial disclosures ... . "' Wilson v. CIA, 586 F.3d 171, 186 (2d Cir. 2009) (quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990)). In Wilson, the Second Circuit observed that "the law will not infer oicial disclosure of information classied by the CIA from ( 1) widespread public discussion of a classiied matter; (2) statements made by a person not authorized to speak for the Agency; or (3) release of inonnation by another agency, or even by Congress." 586 F.3d at 186-87 (intenal citations omitted and emphasis added). The Deense Department urges the Court to view this language as dispositive of this matter, arguing that the law should similarly not iner oicial disclosure of inormation classiied by the National Security Council rom release of inormation by the Deense Department. But this interpretation leaves out crucial context, as the acts of ilson make clear. In that case, the CIA's Retirement and Insurance Services Division sent a letter discussing retirement benefits to an employee who had recently resigned. 586 F.3d at 177-78. The employee then disclosed the letter to a member of Congress, id. at 178, who in tum published a redacted form of the letter in the Congressional Record, id. at 180. Later, the employee argued that the CIA's transmission of this letter to her and the subsequent publication of the letter by the member of Congress amounted to an oicial disclosure, thereby allowing her to discuss the information in a book. Id. at 191. The Second Circuit rejected this argument, holding (1) that the letter itself was not a disclosure because it was sent to a ormer employee bound by a conidentiality agreement, and (2) that the ormer employee's own disclosure could not bind the CIA. See id. at 188-91. It urther ound - while determining whether the rationale for continued classiication was still logical and plausible in the ace of public discussion 17 that the letter was not an "oicial" disclosure,noting that "a bureaucratic transmittal rom the CIA's personnel department to a former employee is hardly akin to the CIA director personally reading relevant inormation into the Congressional Record,as took place in Wofv. CIA, [473 F.3d 370,379 (D.C. Cir. 2007)]." Id. at 195. he Wilson panel was determining ( 1) whether the CIA could be orced to acknowledge the act of the ormer employee's engagement with the Agency- a act the Agency had classiied- despite third-party disclosures,and (2) whether the disclosures undermined the continuing rationale or classification. Its analysis did not tum at all on the act that the CIA was the classiying agency. Rather,it tuned on whether the CIA was the disclosing agency and,if not,on whether the disclosure let anything or the CIA to protect. Accordingly, son's prohibition against inerring acknowledgment by one agency due to the disclosure of another is inapplicable here. I I In this case the Court must 11 Furthermore, none of the cases the panel cited in support grapple at all with the identity of the classiying agency: • • Wofv. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007) (noting "the act that infomation exists in some form in the public domain does not necessarily mean that oicial disclosure will not cause harm cognizable under a FOIA exemption" and discussing whether CIA Director's congressional testimony amounted to oicial disclosure by CIA); Ashar v. Dep 't ofState, 702 F.2d 1125, 1130-31 (D.C. Cir. 1983) (observing that "widespread media and public speculation" would not create inerence of oicial disclosure and examining whether disclosures in CIA or State Department cables bound the State Department); Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990) ("he mere fact that the CIA voluntarily • • • transmitted an oicial document to a congressional committee does not mean that the Agency can thereby automatically be forced to release any number of other documents."); Hudson River Sloop Clearwate1; Inc. v. Dep 't ofNavy, 891 F.2d 414, 421-22 (2d Cir. 1989) (holding that a retired rear admiral's statements cannot bind the Navy); Frugone v. CIA, 169 F.3d 772, 774 (D.C. Cir. 1999) (examining whether a statement by the Oice of Personnel Management could bind the CIA and holding "only the CIA can waive its right to assert an exemption to FOIA"); and Earth Pledge Found. v. CIA, 988 F.Supp. 623, 628 (S.D.N.Y. 1996) (observing that conirmation of a CIA installation by a Senate report does not prevent the CIA rom issuing a Glomar response regarding that same inormation), aff'd 128 F.3d 788 (2d Cir. 1997). 18 determine whether the Defense Department's oicial disclosure may be inferred rom the Deense Department's own release of inormation - not that of a third party. 12 Nevertheless the record does not contain enough support or the Court to determine that the disclosure in the Niger ambush report was "oicial." "It is one thing or a reporter or author to speculate or guess that a thing may be so or even, quoting undisclosed sources, to say that it is so; it is quite another thing for one in a position to know of it oicially to say that it is so." Afred A. Knopf, Inc. v. Colby, 509 F.2d 1362, 1370 (4th Cir. 1975) (emphasis added). In a 1975 case, the Fourth Circuit suggested that the determination of whether a disclosure is oicial involves some analysis of whether the oicials in question intended to disclose the inormation. See Knopf, 509 F.2d at 1369 (noting in dicta that instances of "declassiication by oicial public disclosure" came about as a "result of high level executive decisions that disclosure was in the public interest."). The circumstances of the disclosure of this inormation are too attenuated or the Court to deem it "oicial." As Knight observed in her declaration, the mention of the update to the Obama Guidance was an "oblique reerence" limited to one paragraph in a 12 For this reason, many of the cases cited by the parties ofer little guidance to the Court. For example, in Frugone v. CIA, the D.C. Circuit declined to direct the CIA to confam or deny the ormer employment of a Chilean resident simply because the Oice of Personnel Management had indicated his records were held by the CIA. 169 F.3d 772, 773, 775 (D.C. Cir. 1999). Contrary to the Defense Department's assertion, it does not stand or the proposition "that a disclosure made by an agency other than the agency that originally classiied inormation was not an oicial disclosure." Doc. 31 at 17. Rather, it stands only or the proposition "that only the CIA can waive its right to assert an exemption to FOIA." 169 F.3d at 775. Similarly, the Second Circuit found in Florez v. CIA that, although disclosures by the Federal Bureau of Investigation were relevant to whether continued classification was logical and plausible, those disclosures did not operate as waiver under the oicial acknowledgement doctrine. 829 F.3d 178, 183 (2d Cir. 2016). Like Frugone, it does not bear on the relevancy of the classifying agency's identity. Nor does the Court find instnctive Ameziane v. Obama, cited by the ACLU. 699 F.3d 4 88 (D.C. Cir. 2012). In that case, the D.C. Circuit ound that oreign governments might view statements made in a district court's order or by a deense attoney in open court as oicial acknowledgement of info1mation designated coidential by a State Department task orce. Id. at 492. Ameziane, however, was not a case about the FOIA. Rather, it considered the criteria or unsealing unclassiied documents designated confidential by a protective order. Id. at 494-95. The Court does not read it to bear at all on the waiver analysis here. 19 voluminous report that extensively covered a diferent topic- the ambush of U.S. soldiers in Niger. Knight Deel. r 23. Maj. Gen. Cloutier supervised a team of investigators that authored the report, and then he transmitted that report to Gen. Waldhauser in late January 2018. Waldhauser approved the report and added his own comments, none of which addressed the mentioned changes to the Obama Guidance. He next sent the report with his comments to the Secretary of Deense in February 2018, again not acknowledging the changed guidance. Then, sixteen months passed beore a Defense Department spokesperson sent the report to a collection of jounalists in June 2019. The manner in which the Deense Department published this inormation stands in shap contrast to cases in which a court ound that a disclosure was oicial. For example, a disclosure is "oicial" when an agency leader reads inonnation into the Congressional Record, as the CIA director did in Wofv. CIA, 473 F.3d 370, 379 (D.C. Cir. 2007). Accord ilson v. CIA, 586 F.3d 171, 195 (2d Cir. 2009) (identifying the Wof disclosure as "oicial"). At the other end of the spectnm are the facts of Wilson, where the Second Circuit observed that "bureaucratic transmittal rom the CIA's personnel department to a ormer employee" did not amount to an oicial disclosure. Wilson, 586 F.3d at 195. This case has more in common with the latter situation than the ormer or two reasons. First, it shares the circuitous route the inormation took in Wilson, where the inormation was sent to a ormer employee, who then sent it to a member of Congress, who then published it in the Congressional Record. Id. at 177-80. And, second, neither the disclosures by the agency in ilson nor those in this case relect airmative "high level executive decisions that disclosure was in the public interest." Knopf, 509 F.2d at 1369. As determined rom the ace of the report, the purpose of the disclosures in the Niger ambush report was to communicate the findings and recommendations coming rom an investigation into the Niger ambush, not to discuss changes to the direct-action nles created by the Obama Administration. This inding is underscored by the decision 20 of the National Security Council to classiy the status of the Obama Guidance in 2017, which suggests that the high-level executive decisions had been against disclosure, not in avor of disclosure. To be sure, inding that a Deense Department report authored by a major general and approved by the leader of a U.S.combatant command is not "oicial" approaches being a distinction without a diference. But this decision - an admittedly close one comports with the principle behind the oicial doctrine. It is a doctrine of waiver, "a privilege reserved to the agency asserting a Glomar response." Florez v. CIA, 829 F.3d 178, 186 (2d Cir.2016) (emphasis added). To allow an ancillary disclosure such as this one to force the Deense Department to waive an exemption could n uture FOIA suits into a game of "gotcha," allowing the decision of one subset of an organization to lead to the release of inormation potentially harmul to national security. Cf Osen LLC v. US. Cent. Command, 969 F.3d 102, 177 (2d Cir.2020) (Menashi, J., concurring) (predicting that imputing waivers among sub-agencies could "add unnecessary administrative burden" and cautioning against "compound[ing] that burden through judge-made doctrines ...that fail to take account of the legal framework that govens FOIA administration"). Indeed, a similar concen animated the D.C. Circuit in Frugone v. CIA, where it observed that too loosely recognizing a disclosure as oicial could allow one organization without any duty related to national security to "obligate agencies with responsibility in that sphere to reveal classified inormation." 169 F.3d 772, 775 (D.C. Cir.1999). 13 To be fair, the facts causing the Fugone court's concerns involved one agency's actions potentially binding an entirely diferent agency through its disclosures. Although the Court faces only the actions of the Department of Deense in this case, the Depaitment is hardly monolithic and encompasses a wide variey of missions strictly construing the oicial disclosure doctrine is still merited. See Osen, 969 F.3d at 117-18 (Menashi, J., concu-ing) (noting "nineteen components that have their own FOIA programs, including a FOIA appellate authority, and thirteen additional components that have their own FOIA programs and a consolidated appellate authority" in the Deense Department (intenal quotations omitted)). 13 21 he oicial disclosure test as articulated in ilson is "precise and strict." . Y Times v. CIA, 965 F.3d 109, 116 (2d Cir. 2020). Though the Court is presented with a close question by the facts of this case, it finds that the disclosures contained in Finding 2 of the Niger ambush report were not "oicial" and so holds that the Defense Department did not waive its ability to invoke Exemption 1. That is not, however, the end of the Court's inquiry. C. Continued Propriety of Exemption One In Florez v. CIA, the Second Circuit held that information that does not serve to waive an agency's ability to invoke a FOIA exemption can still be relevant for determining whether that invocation remains logical and plausible. 829 F.3d 178, 186 (2d Cir. 2016). In other words, even if a disclosure is not "oicial" under the Wilson test, "such [a] disclosure may well shift the factual groundwork upon which a district court assesses the merits" of a FOIA exemption. Id. he Niger ambush report has indeed shifted that groundwork. Given the report's authorship and import, the Court inds that conirming or denying the existence of updated guidance regarding direct action cannot still "reasonably [] be expected to result in damage to the national security." EO 13526, 75 Reg. 707, § 1.l (a)(4) (Dec. 29, 2009). Much of the Court's conclusion in this regard stems from the unchallenged credibility of the report. It was authored by Maj. Gen. Cloutier and was transmitted to the Secretary of Deense by the commander of U.S. Arica Command, Gen. Waldhauser. One of the report's indings was that actions of U.S. forces conlicted in some respects with both the Obama Guidance and the subsequent updates. One of its recommendations was that U.S. Arica Command should issue guidance that could help brings its operations more in line with "Presidential Policy as it relates to U.S. direct action" again, the subject matter of the guidance and supposed updates at issue here. Waldhauser acknowledged in his message to the Secretary that his orces operated in accordance with presidential guidance and that it was crucial that his commanders understand their 22 decision-making authorities as they operate under that guidance. Although the Court has ound that the Deense Depa1iment did not intend to make an oicial disclosure regarding updates to the Obama Guidance, see supra Pmi III.B.2, the reerence to updated guidance regarding direct action against suspected te1rnrists is a necessmy and explicit part of the repo1i's indings and recommendations. Put simply, the Niger ambush rep011 has credibly and conclusively established that the Obama Guidance has been superseded. No "ncrement of doubt" remains. Wilson, 586 F.3d at 195. 1he Deense Department, through the Knight Declaration, presents two reasons or continued withholding of the status of the Obama Guidance: irst, that a oreign government might be more compelled to respond to an oicial disclosure by the White House- of which the National Security Council is a part- than to this Defense Depa1iment disclosure, and, second, that an adversary may still have lingering doubts over the accuracy of the report without oicial corrimiation through this lawsuit. As with the Deense Depmiment's efo1is to justiy the invocation of Exemption 3, the fast argument against disclosure, which is based on the speculated response by oreign governments, is far too conclus01y. Notably, Knight's unclassiied declaration does not explain why a orein government might find a White House confinnation of updated guidance regarding rules govening militmy operations more w011hy of response than a Deense Depa1iment coninnation of the same infonnation. 14 1he Department's second argument- that confinning or denying the existence of updated guidance despite the repo1i's disclosure could allow adversaries to better inorm their efo1is to avoid U.S. direct action- is similarly unounded. In reality this repoli, sptmed by the ambush and death of our U.S. soldiers and our of their allies, was the result of an oicial investigation that spanned ive countries and involved interviews with 23 143 witnesses. When transmitting the report to the Secretruy of Deense, the commander of U.S. Arica Command speciically pledged to process it "or necessmy declassiication" and FOIA pmvoses. Hogle Deel. ex. 2.1. Nothing in the record suggests that such an extensive militruy investigation, authored and approved by such high-level militmy oicials, concening the rules or high-stakes militmy operations, could leave any doubt in the mind of any reasonable observer regaTding the existence of updated guidance coninned therein. 15 Indeed, neither Knight in the unclassiied p01tions of her declaration 16 nor the Deense Depa1tment in its brieing suggest that the authors of the report were in any way unqualiied to say that the presidential guidance had changed or were at all more unreliable than conirmation through the White House itsel. 17 Even though the Court must accord the Defense Department mid its submissions deerence in matters of national securiy, see Tilner v. NSA, 592 F.3d 60, 76 (2d Cir. 2009), to accept its claim that there is anything let to hide would be to give in to "a iction of deniability that no reasonable person would regard as plausible." ACLU v. CIA, 710 F.3d 422,431 (D.C. Cir. 2013) (Garland, C.J.). IV. CONCLUSION For these reasons, the Comt inds that the Deense Department never properly invoked Exemption 3 and that its invocation of Exemption 1 was rendered illogical and 15 For his reason, the report is a ar c1y from the "compilation of speculation rom non-govenmental sources" published by the National Science Foundation regarding the Glo111ar .,plorer itself. see Militm)' Audit Projectv. Cas v, 656 F.2d 724, 743 (D.C. Cir. 1981) or even the expert opinion of a recently retired rear admiral, see Hudson River Sloop Clemwate,; Inc. 1: Departmellf ofNavy, 891 F.2d 414,421 (2d Cir. 1989). 16 The classified ortion of the Kni ht Declaration does not convince the Comt otherwise. 17 In any event, mling in the plaintifs' favor here would not involve the White House or the National Secll'iy Council at all; it would be the Deense Department confinning or denying the existence of updated guidance. Any ear that the National Security Council could then be forced into making its own disclosures is unounded as it is not subject to the FOIA. See Main St. Legal Ser\'s,, Inc. 1: Nat'! Sec. Council, 811 F.3d 542, 552 (2d Cir. 2016). 24 implausible by the release of the Niger ambush report. Accordingly, the agencies' motion for summary judgment was DENIED, and the cross-motions of both the ACLU and the Times were GRANTED. he instnctions within the Court's Order of September 29, 2020, Doc. 39, remain in efect. Dated: October , 2020 New York, New York EDGARDO RAMOS, U.S.D.J. 25
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