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Judicial Watch, Inc. v. United States Department of Defense and Central Intelligence Agency

United States Court of Appeals, District of Columbia Circuit

January 25, 2019

Judicial Watch, Inc., Appellant
v.
United States Department of Defense and Central Intelligence Agency, Appellees

          Argued October 9, 2018

          Appeal from the United States District Court for the District of Columbia (No. 1:16-cv-00360)

          Lauren M. Burke argued the cause and filed the briefs for appellant. Paul J. Orfanedes entered an appearance.

          Samantha L. Chaifetz, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief was Mark B. Stern, Attorney.

          Before: Rogers and Srinivasan, Circuit Judges, and Ginsburg, Senior Circuit Judge.

          OPINION

          ROGERS.CIRCUIT JUDGE

         Judicial Watch unsuccessfully requested, pursuant to the Freedom of Information Act ("FOIA"), release of five memoranda that memorialized advice to the President and his top national security advisers when the President was considering whether to order a military strike on Osama bin Laden's compound in Pakistan. On appeal, Judicial Watch challenges the government agencies' invocation of FOIA Exemptions 1, 3, and 5 as allowing the government to operate under secret legal principles when "[t]he purpose of FOIA is to shield the government from operating secretly under the guise of legality." Appellant's Br. 7. For the following reasons, we hold that the memoranda responsive to Judicial Watch's FOIA request are protected from disclosure under the presidential communications privilege in Exemption 5 and affirm.

         I.

         FOIA is a major breakthrough in providing government transparency, see EPA v. Mink, 410 U.S. 73, 79 (1973), "set[ting] forth a policy of broad disclosure of Government documents in order 'to ensure an informed citizenry, vital to the functioning of a democratic society, '" FBI v. Abramson, 456 U.S. 615, 621 (1982) (citations omitted). Congress determined, however, that "legitimate governmental and private interests could be harmed by release of certain types of information and provided nine specific exemptions under which disclosure could be refused." Id. The agencies invoked Exemptions 1, 3, and 5 in denying Judicial Watch's disclosure request.

         Exemption 1 permits agencies to withhold materials "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy" and properly classified pursuant to such an Executive order. 5 U.S.C. § 552(b)(1). Executive Order No. 13, 526 allows agencies to classify material pertaining to specified categories as falling within Exemption 1 if "unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security." Exec. Order No. 13, 526, § 1.4, 75 Fed. Reg. 707, 709 (Dec. 29, 2009). Exemption 3 permits the withholding of material "specifically exempted from disclosure by statute" that "establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3)(A)(ii). Section 102A(i)(1) of the National Security Act of 1947, 50 U.S.C. § 3024(i)(1), authorizes the withholding of materials relating to "intelligence sources and methods." 50 U.S.C. § 403(d)(3); Larson v. Dep't of State, 565 F.3d 857, 865 (D.C. Cir. 2009); see also CIA v. Sims, 471 U.S. 159, 167 (1985). Exemption 5 protects "inter-agency or intra-agency memorandums . . . that would not be available by law to a party other than an agency in litigation with the agency[.]" 5 U.S.C. § 552(b)(5); see NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). It covers the presidential communications privilege, the deliberative process privilege, and the attorney-client privilege. See Loving v. Dep't of Def., 550 F.3d 32, 37 (D.C. Cir. 2008). In accord with the congressional commitment to transparency, FOIA exemptions are to be "narrowly construed," yet not denied "meaningful reach and application." John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989).

         In December 2015, Judicial Watch requested the Department of Defense and the Central Intelligence Agency ("CIA") disclose information related to memoranda regarding the capture or killing of Osama bin Laden in 2011. Earlier, after the raid on Osama bin Laden's compound in Pakistan had been successfully completed, the General Counsel of the CIA stated in prepared remarks at Harvard Law School that "[b]y the time the force was launched, the U.S. Government had determined with confidence that . . . the operation would be conducted in complete accordance with applicable U.S. and international legal restrictions and principles." Stephen W. Preston, Remarks at Harvard Law School (Apr. 10, 2012), https://www.cia.gov/news-information/speeches-testimony/2012-speeches-testimony/cia-general-counsel-harvard.html (Apr. 20, 2012) (quoted in Decl. of Antoinette B. Shiner, Info. Rev. Offr for the Litig'n. Info. Rev. Off, CIA ("Shiner Decl.") ¶ 7 (Aug. 16, 2016)). Ultimately, Judicial Watch refined its requests to five memoranda:

• A memorandum written by Pentagon General Counsel Jeh C. Johnson concerning any violation of Pakistani sovereignty in seeking, capturing, and/or killing Osama bin Laden in 2011.
• A memorandum written by CIA General Counsel Stephen W. Preston regarding when the administration must alert congressional leaders about the raid, capture, and/or killing of Osama bin Laden in 2011.
• A memorandum written by National Security Council Legal Adviser Mary B. DeRosa concerning a Navy SEAL team going into a raid with the intention of killing as a default option during the search, raid, capture ...

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