United States Court of Appeals, District of Columbia Circuit
October 9, 2018
from the United States District Court for the District of
Columbia (No. 1:16-cv-00360)
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.
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
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
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
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),
(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
• 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 ...