JOSÉ A. CABRANES, Circuit Judge:
Appellant Center for Constitutional Rights ("CCR") seeks disclosure, pursuant to the Freedom of Information Act ("FOIA"), principally by the Department of Defense ("DoD") and the Federal Bureau of Investigation ("FBI" and, jointly with the DoD, the "government") of certain videos and photographs of a high-profile Guantanamo Bay detainee, Mohammed al-Qahtani, who is believed to be the so-called "20th hijacker" in the September 11, 2001 terrorist attacks on the United States.
Accordingly, we affirm the September 12, 2013 judgment of the United States District Court for the Southern District of New York (Naomi Reice Buchwald, Judge) granting summary judgment in favor of defendants.
Mohammed al-Qahtani,
On March 4, 2010, CCR filed FOIA requests with the government seeking disclosure
In response, DoD and FBI identified 62 records responsive to CCR's requests (the "Responsive Records")
The government sought to justify the invocation of Exemption 1 in three public declarations and in one classified declaration.
Declarant Major General Karl R. Horst
The government submitted ex parte an index ("the FBI Index") identifying the contents of the 53 FBI videotapes for the District Court's in camera review. See J.A. 1338-39.
In a September 12, 2013 memorandum and order, the District Court granted summary judgment for the government, approving nondisclosure of the Responsive Records under Exemption 1, on the basis that it was "both logical and plausible that the disclosure of any portion of the [Responsive Records] could reasonably be expected to harm national security." Ctr. for Constitutional Rights v. Dep't of Def., 968 F.Supp.2d 623, 635-36 (S.D.N.Y.2013). In particular, after reviewing in camera the FBI Index describing the videotapes, the
This timely appeal followed.
Exceptions to FOIA's general principle of "broad disclosure of Government records ... have consistently been given a narrow compass." New York Times Co. v. U.S. Dep't of Justice, 756 F.3d 100, 111 (2d Cir.2014) (citation and internal quotation marks omitted). The government bears the burden of demonstrating that an exemption applies to each item of information it seeks to withhold, Nat'l Council of La Raza v. Dep't of Justice, 411 F.3d 350, 356 (2d Cir.2005), and "all doubts as to the applicability of the exemption must be resolved in favor of disclosure," New York Times Co., 756 F.3d at 112 (internal quotation marks omitted).
We review a district court's order granting summary judgment in a FOIA action de novo. Id. An agency may carry its burden by submitting declarations "giving reasonably detailed explanations why any withheld documents fall within an exemption," and such declarations "are accorded a presumption of good faith." Wilner v. Nat'l Sec. Agency, 592 F.3d 60, 69 (2d Cir.2009) (internal quotation marks omitted). When such declarations are "not controverted by either contrary evidence in the record nor by evidence of agency bad faith," summary judgment for the government is warranted. Id. at 73 (internal quotation marks omitted). Notwithstanding the presumption in favor of disclosure, when the claimed exemption implicates national security, "an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible." Id. (internal quotation marks omitted).
At issue here is whether FOIA Exemption 1 is satisfied. This exemption shields from disclosure records that are "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy," and "are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). The parties dispute whether the Responsive Records satisfied the prerequisites for classification under Executive Order 13,526 — specifically, whether the "unauthorized disclosure of the [Responsive Records] reasonably could be expected to result in damage to national security," defined as "harm to the national defense or foreign relations of the United States ... taking into consideration such aspects of the information as the sensitivity, value, utility, and provenance of that information." Exec. Order No. 13,526 §§ 1.1(a)(4), 6.1(1).
The government's central argument on appeal, supported by the Horst Declaration, is that release of the mug-shots and videos of al-Qahtani could logically and plausibly serve as propaganda for extremists and incite anti-American violence, which, in turn, could reasonably be expected to result in damage to national security.
It is of course true that, if invoked reflexively by the government, and accepted unquestioningly by reviewing courts, the "propaganda" justification could shield a broad range of documents of significant public interest, in contravention of FOIA's central purpose. The possibility that a particular justification might be abused, however, does not render it meritless in all circumstances. As Justice Oliver Wendell Holmes recognized long ago, "most of the distinctions of the law are distinctions of degree" and courts, in any given situation, "can defeat an attempt to ... go too far without wholly abolishing [the authority or right at issue]." Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218, 223, 48 S.Ct. 451, 72 L.Ed. 857 (1928) (Holmes, J., dissenting).
We now turn to the circumstances at issue here. We note, as a preliminary matter, that we need not view the Horst Declaration in a vacuum, and may consider the record as a whole in determining whether the justifications set forth in the declaration are logical and plausible in this case. Cf. Gardels v. CIA, 689 F.2d 1100, 1105 (D.C.Cir.1982) ("The test is not whether the court personally agrees in full with the [Agency]'s evaluation of the danger — rather, the issue is whether on the whole record the Agency's judgment objectively survives the test of reasonableness, good faith, specificity, and plausibility in this field of foreign intelligence in which
The record makes clear that al-Qahtani is not just any detainee: The government has publicly stated that al-Qahtani is "the intended 20th Hijacker in the 9/11 attack that killed more than 3,000 innocent people," and "an al Qa[e]da operative with strong ties to senior al Qa[e]da leadership, including Osama Bin Laden." News Release, Dep't of Defense, Guantanamo Provides Valuable Intelligence Information (June 12, 2005) (J.A. 309). Apart from his notable profile, al-Qahtani is unusual because a significant government official has publicly opined that the interrogation methods used on him met the legal definition of torture.
CCR asserts that the government's prior and extensive disclosures regarding al-Qahtani undermine its justifications for withholding the Responsive Records.
We find, moreover, that images of al-Qahtani, alone and interacting with military personnel, particularly when released directly by the FBI and DoD, may prove more effective as propaganda than previously released written records that disclose the same — or even more controversial — information about al-Qahtani's detention.
As in every FOIA action, our holding is limited to the particular facts and circumstances of this case, as set forth above: We do not now hold that every image of a specifically identifiable detainee is exempt from disclosure pursuant to FOIA, nor do we hold that the government is entitled to withhold any documents that may reasonably incite anti-American sentiment.
In sum, we conclude that the record of this case establishes, at a minimum, a reasonable possibility that the government's release of these images of al-Qahtani, in the context of what is already publicly known about him, would be singularly susceptible to use by extremist groups to incite anti-American hostility. That, in turn, could reasonably be expected to damage the national security of the United States. Accordingly, the Responsive Records were properly classified under Executive Order 13,526, and are therefore exempt from disclosure pursuant to FOIA Exemption 1.
For the reasons set out above, we hold that government-released images and videos of one of Guantanamo Bay's most high-profile detainees, who is closely associated with al Qaeda and the 9/11 attacks, and whose interrogation was publicly deemed "torture" by a government official, could logically and plausibly be used by anti-American extremists as propaganda to recruit members and incite violence against American interests at home and abroad, causing damage to the national security. Such threats to national security justify non-disclosure of the Responsive Records pursuant to FOIA Exemption 1.
Accordingly, we
In combination with the government's public disclosures about al-Qahtani's treatment and the leaked interrogation logs, however, even innocuous photographs and videos could readily be used to inspire unrest similar to that caused by the dissemination of the (arguably more controversial) Abu Ghraib photos in 2004, or the alleged mishandling of Korans at Guantanamo in 2005, to which General Horst referred in his declaration.