17-779
Am. Civil Liberties Union v. U.S. Dep’t of Defense




                       UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT
                                      ______________

                                     August Term 2017

                (Argued: March 13, 2018         Decided: August 21, 2018)

                                     Docket No. 17-779

  AMERICAN CIVIL LIBERTIES UNION, CENTER FOR CONSTITUTIONAL
     RIGHTS, INC., PHYSICIANS FOR HUMAN RIGHTS, VETERANS FOR
                    COMMON SENSE, VETERANS FOR PEACE,

                                                                     Plaintiffs-Appellees,

                                              v.

          UNITED STATES DEPARTMENT OF DEFENSE, its components
DEPARTMENT OF ARMY, DEPARTMENT OF NAVY, DEPARTMENT OF AIR
          FORCE, DEFENSE INTELLIGENCE AGENCY, UNITED STATES
                            DEPARTMENT OF THE ARMY,

                                                                 Defendants-Appellants.*

                                      ______________

Before:
                       JACOBS, LEVAL, and WESLEY, Circuit Judges.
                                      ______________




* The Clerk of the Court is respectfully directed to amend the caption.
Defendants-Appellants United States Department of Defense and its components
Department of Army, Department of Navy, Department of Air Force, Defense
Intelligence Agency, and United States Department of the Army (together, the
“DoD” or the “Government”) appeal from a January 18, 2017 opinion and order of
the United States District Court for the Southern District of New York (Hellerstein,
J.) granting summary judgment to Plaintiffs-Appellees American Civil Liberties
Union, Center for Constitutional Rights, Inc., Physicians for Human Rights,
Veterans for Common Sense, and Veterans for Peace (together, “ACLU”). The
district court first concluded that the Protected National Security Documents Act
of 2009 (“PNSDA”), Department of Homeland Security Appropriations Act, 2010,
Pub. L. No. 111-83, § 565, 123 Stat. 2142 (2009), is an exemption statute within the
meaning of the Freedom of Information Act’s (“FOIA”) Exemption 3 and therefore
de novo review applied to the DoD’s invocation of the exemption to withhold the
photographs at issue. The district court then concluded that the DoD provided
insufficient information for the court to adequately review the Secretary of
Defense’s (the “Secretary”) decision to certify that the DoD’s withholding under
the PNSDA was proper. Lastly, the district court concluded that FOIA Exemption
7(F) does not apply to the photographs at issue in this case. We hold that
irrespective of whether the PNSDA is subject to FOIA, the Secretary’s
certification—the result of an extensive, multi-step review process including
recommendations of several senior U.S. military commanders—and the
information provided by the DoD satisfied the requirements of the PNSDA.
Accordingly, we REVERSE the judgment of the district court and REMAND with
directions to enter judgment for the DoD.

                                    ______________

      DROR LADIN, American Civil Liberties Union Foundation, New York, NY
            (Lawrence S. Lustberg, Avram D. Frey, Gibbons P.C., Newark, NJ, on
            the brief) for Plaintiffs-Appellees.

      BENJAMIN H. TORRANCE, Assistant United States Attorney (Sarah S.
            Normand, Assistant United States Attorney; Chad A. Readler, Acting
            Assistant Attorney General, Douglas N. Letter, Matthew M. Collette,
            Catherine H. Dorsey, Attorneys, Appellate Staff Civil Division,
            Department of Justice, on the brief) for Geoffrey S. Berman, United
                                            1
             States Attorney for the Southern District of New York, for Defendants-
             Appellants.

                                  ______________

WESLEY, Circuit Judge:


      This appeal is the latest installment in lengthy litigation relating to

photographs of detainees taken by U.S. Army personnel at military detention

facilities in Afghanistan and Iraq in the wake of September 11, 2001. The American

Civil Liberties Union and a number of other organizations (together, “ACLU”)

initially sought records—most notably, photographs—related to the treatment of

detainees in U.S. custody via a Freedom of Information Act (“FOIA”) request

submitted on October 7, 2003, to the United States Department of Defense and its

components 1 (together, the “DoD”) and other agencies (together with the DoD, the

“Government”), and filed suit on July 2, 2004, after receiving no response.


      The district court ordered the Government to produce or identify all

responsive documents by October 15, 2004, Am. Civil Liberties Union v. Dep’t of Def.

(ACLU I), 339 F. Supp. 2d 501, 505 (S.D.N.Y. 2004), and ordered release of the



1
 The component departments and agencies are the Department of Army, the Department
of Navy, the Department of Air Force, the Defense Intelligence Agency, and the United
States Department of the Army.
                                         2
photographs with redactions on September 29, 2005, Am. Civil Liberties Union v.

Dep’t of Def. (ACLU II), 389 F. Supp. 2d 547, 570–74 (S.D.N.Y. 2005). 2 In so doing,

the court rejected arguments by the Government that the photographs could be

withheld pursuant to three FOIA exemptions. 3 See ACLU II, 389 F. Supp. 2d at 570–

79. The Government initially appealed but withdrew the appeal when a third

party released the photographs without authorization.


      During the pendency of the appeal, the Government identified additional

photographs potentially responsive to the ACLU’s FOIA request and attempted to

withhold these newly identified photographs under the same three exemptions.

The district court again rejected these arguments, this time without written

opinion, and ordered the release of the responsive photographs. Am. Civil Liberties




2
 While the initial FOIA request sought disclosure of a variety of records, in August 2004
the ACLU created a priority list of documents and the district court ordered disclosure
of the listed documents; included in this priority list were “photographs taken by Joseph
Darby at Abu Ghraib prison” that were previously “provided to the Army’s Criminal
Investigative Division.” ACLU II, 389 F. Supp. 2d at 550–51.
3 These exemptions were: Exemption 6, 5 U.S.C. § 552(b)(6) (“personnel and medical
files”); Exemption 7(C), id. § 552(b)(7)(C) (“records or information compiled for law
enforcement purposes” that “could reasonably be expected to constitute an unwarranted
invasion of personal privacy”); and Exemption 7(F), id. § 552(b)(7)(F) (“records or
information compiled for law enforcement purposes” that “could reasonably be expected
to endanger the life or physical safety of any individual”).
                                           3
Union v. Dep’t of Def. (ACLU III), 04-4151, 2006 WL 1638025, at *1 (S.D.N.Y. June 9,

2006); Am. Civil Liberties Union v. Dep’t of Def. (ACLU IV), 04-4151, 2006 WL

1722574, at *1 (S.D.N.Y. June 21, 2006), vacated sub nom by Dep’t of Def. v. Am. Civil

Liberties Union, 558 U.S. 1042 (2009) (mem.).


       The Government appealed, and this Court affirmed, holding that the FOIA

exemptions did not apply. Am. Civil Liberties Union v. Dep’t of Def. (ACLU V), 543

F.3d 59, 70–71, 83–84, 87, 91 (2d Cir. 2008), vacated sub nom by Dep’t of Def. v. Am.

Civil Liberties Union, 558 U.S. 1042. After this Court’s decision, the Government

initially informed the district court that it was processing the photographs for

release, including additional photographs it also thought responsive to the initial

FOIA request, and it “represented that all photographs would be released by May

28, 2009.” Am. Civil Liberties Union v. Dep’t of Def. (ACLU VII), 229 F. Supp. 3d 193,

199 (S.D.N.Y. 2017). However, the Government reversed its position at the

direction of President Obama following a plea from the Prime Minister of Iraq that

release of the photographs “would fuel insurrection and make it impossible to

have a functioning government.” Id. at 200. The Government filed a petition for a

writ of certiorari. Id. at 199.



                                          4
      Before the Supreme Court took any action regarding the Government’s

petition, Congress passed the Protected National Security Documents Act of 2009

(“PNSDA”), Department of Homeland Security Appropriations Act, 2010, Pub. L.

No. 111-83, § 565, 123 Stat. 2142 (2009). The PNSDA permits the government to

withhold disclosure of any photograph “taken during the period beginning on

September 11, 2001, through January 22, 2009” (the “time period requirement”)

that “relates to the treatment of individuals engaged, captured, or detained after

September 11, 2001, by the Armed Forces of the United States in operations outside

of the United States” (the “subject matter requirement”). PNSDA § 565(c)(1)(B). To

withhold a photograph from disclosure under the PNSDA, the Secretary of

Defense must issue a certification “stating that disclosure of that record would

endanger citizens of the United States, members of the United States Armed

Forces, or employees of the United States Government deployed outside the

United States.” Id. § 565(c)(1)(A). The Secretary’s certification expires after three

years but may be renewed at any time and without limitation. Id. § 565(d)(2)–(3).

The PNSDA also requires the Secretary to timely notify Congress of the issuance

of any certification or renewal. Id. § 565(d)(4).




                                           5
      Following the PNSDA’s passage, Secretary Gates issued a certification on

November 13, 2009 (the “2009 Certification”), stating that “[u]pon the

recommendations of the Chairman of the Joint Chiefs of Staff, the Commander of

U.S. Central Command, and the Commander of Multi-National Forces-Iraq,” he

had determined that disclosure of the photographs would endanger persons

protected under the PNSDA and that the photographs were therefore “exempt

from disclosure.” Joint App. 196. The Supreme Court shortly thereafter granted

the Government’s petition, vacated this Court’s opinion, and remanded in light of

the PNSDA and the 2009 Certification. Dep’t of Def. v. Am. Civil Liberties Union, 558

U.S. 1042.


      On remand to the Southern District of New York (Hellerstein, J.), the ACLU

argued that the PNSDA was a FOIA withholding statute and the court should

review the Secretary’s endangerment determination de novo. 4 In the ACLU’s view,

the 2009 Certification was but a conclusion that failed to justify why “disclosure of

[the] records now would cause harm.” Joint App. 209. The district court disagreed.



4The ACLU acknowledged that it was not contesting whether the photographs fell within
the specified time period or related to the treatment of individuals engaged, captured, or
detained by the armed forces of the U.S. abroad after September 11, 2001. A fuller
discussion of the ACLU’s reasoning for de novo review is found infra.
                                            6
In announcing its decision from the bench on July 20, 2011, the court stated “it [is]

clear to me that Secretary Gates had a rational basis for his certifications and that

I could not second-guess it . . . beyond looking for a rational basis the way [I] did.

I find that rational basis.” Id. at 237. The court acknowledged that the assessment

of the impact of the photographs on the battlefield of Iraq was best left to the

military expertise of the DoD. “I don’t think we have a very good understanding

of what may or may not be dangerous on the battlefield in the crazy conditions

that exist in Iraq at this point in time. And even there, the history of what’s

involved . . . shows to me that the Secretary of Defense has a rational basis . . . .”

Id. at 224. The district court stated that even if “I might disagree with [Secretary

Gates] . . . I cannot say that there is a lack of a rational basis for what [he] has

certified, and if you want me to do a de novo review, I’ve done it, by reason of my

familiarity with the case, and that’s as far as I’ll go.” Id.


      Looking “to the plain language of the statute and its legislative history,” the

district court concluded that “[t]he legislative purpose here was to provide

authorizing legislation to support the President’s determination that these images

should not be disclosed, [and] should be exempt from FOIA.” Id. at 238.



                                            7
       Over a year later, on November 9, 2012, Secretary Panetta issued a

certification renewal (the “2012 Certification”). The ACLU challenged the

sufficiency of that determination. Even though the 2009 and 2012 certifications

were “virtually identical”—the district court’s words, not ours—the district court

concluded that the 2012 Certification “[was] not sufficient to prevent publication

of redacted photographs.” Am. Civil Liberties Union v. Dep’t of Def. (ACLU VI), 40 F.

Supp. 3d 377, 380, 382 (S.D.N.Y. 2014), vacated, 15-1606 (2d Cir. Jan. 6, 2016), ECF

No. 134. Despite the district court’s recognition of the certifications’ marked

similarity, the court concluded that it was not compelled to reach the same result

because “while the entire legislative history of the PNSDA supported the 2009

[C]ertification, the factual basis for the 2012 [C]ertification is uncertain.” Id. at 385. 5

Compare Joint App. 196 (2009 Certification), with id. at 240 (2012 Certification).




5
 The court provided additional detail as to how the facts had changed and permitted a
different reading of the 2012 Certification:

          Three years is a long time in war, the news cycle, and the
          international debate over how to respond to terrorism. [The 2012
          Certification] was issued under different circumstances from the
          2009 [C]ertification of Secretary Gates. On November 9, 2012, the
          United States’ combat mission in Iraq had ended (in December 2011),
          and all (or mostly all) American troops had been withdrawn from
          Iraq. I am aware of no impassioned plea from the Prime Minister of
          Iraq relating to the photographs made at that time. The 2009
                                            8
       The Government argued that the PNSDA insulated the basis for the

Secretary’s determination from judicial review, and that the district court was

bound by its prior decision when it declined to second-guess the Secretary beyond

looking for “a rational basis.” Id. at 384. The court, noting what it viewed as a

change in facts from 2009 to 2012, concluded that its prior decision “[did] not

compel any result in this case.” Id. at 385. Accordingly, the court concluded that

the 2012 Certification was subject to judicial review, and, because the parties

agreed on the applicable standard, it adopted de novo review. Id. While “the text,

structure[,] and legislative history of the statute [we]re unclear,” nothing indicated

that Congress intended the PNSDA to be reviewed differently than other agency

invocations of FOIA exemptions, which are reviewed de novo, or that the PNSDA

was excepted from the “strong presumption that Congress intends judicial




           Certification was based on the recommendation of the U.S.
           Commander responsible for the continuing deployments on active
           battlefields of our forces in Iraq. The 2012 Certification was based on
           the recommendation of the U.S. Commander responsible for the
           deployment of our troops in Afghanistan. Given the passage of time,
           I have no basis for concluding either that the disclosure of
           photographs depicting the abuse or mistreatment of prisoners
           would affect United States military operations at this time, or that it
           would not.
Id. at 384–85.
                                             9
review.” Id. at 387 (quoting Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667,

670 (1986)).


      Additionally, the court read the PNSDA to “require[] that the Secretary of

Defense consider each photograph individually, not collectively.” Id. at 389.

“Considering” each photograph individually did not mean that the Secretary had

to issue a certification for each photograph, but only that “the [G]overnment, to

invoke the PNSDA, must prove that the Secretary of Defense considered each

photograph individually.” Id.


      The district court provided an opportunity for the Government to submit

additional evidence. Id. at 390. In response, the Government submitted a

declaration reviewing the certification process by Associate Deputy General

Counsel Megan Weis in the Department of the Army’s Office of General Counsel. 6

Weis stated that, in deciding what kind of review was appropriate for the 2012

Certification, the Government selected a process that “was similar” to the process




6
 Weis was an Associate Deputy General Counsel in the Department of Defense’s Office
of General Counsel from 2009 to 2014 and in that role managed the review process for the
2012 Certification.
                                          10
used for the 2009 Certification “in light of the Court’s acceptance of [the 2009

Certification] as sufficient.” Joint App. 282.


      This process involved several steps. First, Weis: (1) reviewed all of the

photographs; (2) placed the photographs into three categories based on content,

“includ[ing] the extent of any injury suffered by the detainee, whether U.S. service

members were depicted, and the location of the detainee in the photograph (e.g.,

at point of capture, at a medical facility),” id. at 283; and (3) created representative

samples of five to ten photographs from each category and worked with

leadership in the Department of Defense’s Office of General Counsel (“OGC”) to

ensure the accuracy of the samples. Id. Then the samples were provided to senior

attorneys for the Chairman of the Joint Chiefs of Staff, the Commander of U.S.

Central Command, and the Commander of International Security Assistance

Force/United States Forces-Afghanistan, and Weis “asked each attorney to provide

the sample to his commander” for them to assess whether the 2009 Certification

should be renewed. Id. The commanders each recommended the renewal of the

2009 Certification for all of the photographs. Id. at 283–84. Weis then met with the

General Counsel of the Department of Defense to discuss the recommendations

and again review the samples, and she also gave the General Counsel a draft

                                          11
renewal based on the 2009 Certification, the samples, the commanders’

recommendations, and a CD containing all of the photographs. Id. at 284. The

General Counsel met with the Secretary to discuss the 2012 Certification and the

Secretary signed the 2012 Certification. Id.


       The Government also submitted a second declaration explaining the

potential harms from release of the photographs from Rear Admiral Sinclair M.

Harris, Vice Director of Operations for the Joint Staff at the Pentagon. “The danger

associated with release of these photographs is heightened now, at a time when

numerous groups continue in their efforts to attack U.S. personnel and interests

both abroad and within the continental United States.” Id. at 295. He emphasized

the following:

              The photographs are susceptible to use as propaganda to incite
              a public reaction and could be used as recruiting material to
              attract new members to join enemy forces. This risk is much
              greater with respect to photographs than mere written
              descriptions. . . . Significantly, ISIL 7 has a particular interest in
              using imagery associated with U.S. detention practices as part
              of its propaganda and recruitment efforts.

Id. at 297.



7
 As Rear Admiral Harris explained, ISIL—The Islamic State of Iraq and the Levant—is
an organization that has “called on members to commit attacks in retaliation for the
actions of the United States in Syria and Iraq.” Id. at 295–96.
                                             12
      Despite this additional information, the district court found the submissions

insufficient and ordered release of the photographs. The court concluded that the

Government’s submissions did not meet its burden as to each specific photograph.

Although it was unnecessary for the Secretary to personally review each

photograph, the court required that he, at a minimum, “explain the terms of his

delegation” of the review to subordinates. Id. at 328. The Secretary also “must

demonstrate knowledge of the contents of the individual photographs rather than

mere knowledge of his commanders’ conclusions”; this knowledge could be

obtained “by reviewing the photographs personally or having others describe

their contents to him.” Id. at 328–29. Further, to meet the burden of withholding,

the Secretary needed to “describe the categories of objectionable content contained

in the photographs, identify how many photographs fit into each category, and

specify the type of harm that would result from disclosing such content.” Id. at

329. The Government was given one more chance to supplement its submissions

before judgment would be granted for the ACLU.


      The Government declined, and instead appealed to this Court in May 2015

after the district court issued its order of final judgment. While the appeal was

pending, Secretary Carter issued a new certification (the “2015 Certification”) for

                                        13
many of the photographs, and also determined that 198 photographs could be

released. The 2015 Certification specified that it “pertain[ed] to each photograph”

and that “each of these photographs continue[d] to meet the standard for protected

documents.” Id. at 343. We then remanded the appeal to the district court,

recognizing that the 2015 Certification “ha[d] the potential to obviate many of the

issues cited by the district court in granting relief.” Am. Civil Liberties Union v. Dep’t

of Def., 15-1606 (2d Cir. Jan. 6, 2016), ECF No. 134.


      On remand, the Government submitted a declaration by Associate Deputy

General Counsel Liam Apostol of the OGC detailing the six-month-long process

behind the 2015 Certification. ACLU VII, 229 F. Supp. 3d at 202. This review, as

detailed in the Government’s submission, was even more extensive than for prior

certifications: (1) an attorney from OGC individually examined and categorized

each photograph based on the depictions and the likelihood that release would

cause the harm identified by the PNSDA in order to create “a true representative

sample . . . for the Secretary’s review,” Joint App. 338; (2) commissioned officers

assigned to the office of the Joint Chief, Deputy Director for Special Operations,




                                           14
Counterterrorism and Detainee Operations (“Joint Staff J37”) 8 independently

reviewed the photographs for the same purpose as the initial review; (3) three

different attorneys from OGC and a uniformed attorney attached to the

Department of the Army reviewed the combined results of the first two layers of

review, assessing the likelihood of harm once more for each photograph; (4) the

reviewers from the first three layers of review then coordinated to reach a final

consensus; (5) the OGC developed a representative sample of the remaining

photographs (excluding the 198 determined to be disclosable) to provide a “full

understanding of the nature of . . . all of the photographs,” id.; (6) the Commander

of U.S. Central Command, the Commander of U.S. Africa Command, the Acting

Commander of U.S. Forces, Afghanistan, and the Chairman of the Joint Chiefs of

Staff each reviewed the samples and concluded that disclosure would cause

sufficient harm to justify nondisclosure; (7) the recommendations, the 198

photographs recommended for disclosure, and the samples were provided to the




8 “The officers, based on their years of military service, past and present duties and
responsibilities and military training, collectively have extensive knowledge of the
Armed Forces and of the tactics, techniques and means employed by the enemies of the
United States in Afghanistan, Iraq, and other regions of the Middle East and Africa.” Id.
                                           15
Secretary; and (8) the Secretary certified all but the 198 photographs. Joint App.

338, 341–42.


      Conducting de novo review, the district court found the Government’s

submissions and the 2015 Certification insufficient and granted summary

judgment to the ACLU. ACLU VII, 229 F. Supp. 3d at 212. The court asserted that

it could not conduct “adequate judicial review” because the Government failed to

submit information regarding the category criteria, the sampling methodology,

the types of objectionable content, the quantity of photographs within each

category, and the specific harm from disclosing the different photographs. Id. at

208–09. The court also concluded that the Secretary failed to demonstrate that the

2015 Certification was adequately individualized, and it further found that the

photographs were not exempt under FOIA Exemption 7(F), which applies to

documents that “could reasonably be expected to endanger the life or physical

safety of any individual.” Id. at 212–13 (quoting 5 U.S.C. § 552(b)(7)(F)). The

Government timely appealed.




                                       16
                                     DISCUSSION


       This Court reviews grants of summary judgment in the FOIA context de

novo. Long v. Office of Pers. Mgmt., 692 F.3d 185, 191 (2d Cir. 2012). The parties spend

considerable portions of their briefs on the proper level of judicial review of

withholding decisions under the PNSDA. The district court concluded in its most

recent opinion that the PNSDA falls within FOIA Exemption 3. ACLU VII, 229 F.

Supp. 3d at 204–05. Exemption 3 covers matters “specifically exempted from

disclosure by statute . . . if that statute . . . (i) requires that the matters be withheld

from the public in such a manner as to leave no discretion on the issue; or

(ii) establishes particular criteria for withholding or refers to particular types of

matters to be withheld.” 5 U.S.C. § 552(b)(3).


       Based on this conclusion, the district court explained that de novo review

applied to the Government’s withholding decision, and, although it owed

deference to the executive on national security issues, “[t]he Government must

provide an accounting of how it reached its conclusion, so that the court has ‘an

adequate foundation to review’ whether the Government has satisfied its burden.”

ACLU VII, 229 F. Supp. 3d at 207 (quoting Campbell v. U.S. Dep’t of Justice, 164 F.3d

20, 30 (D.C. Cir. 1998)).
                                            17
      The Government argues that the PNSDA immunizes photographs certified

by the Secretary from FOIA disclosure and litigation. Therefore, once the Secretary

has made the certification, disclosure cannot be ordered and the Government need

only justify its withholding decision under the Administrative Procedure Act’s

“arbitrary and capricious” standard, 5 U.S.C. § 706(2)(A)—not FOIA.


      But even if the PNSDA is subject to FOIA, the Government contends the

PNSDA qualifies as a FOIA Exemption 3 statute. In that event, the Government

asserts, judicial review of a withholding decision under the PNSDA is limited to

whether the Secretary issued a certification, whether the photograph fell within

the PNSDA’s specified time period, and whether the photograph related to the

treatment of the specified persons under the PNSDA. Therefore, in the

Government’s view, the district court’s more exacting de novo review went beyond

even FOIA’s requirements for Exemption 3 statutes.


      Choosing between these positions is difficult, but for our purposes

unnecessary. For even under the de novo review that the ACLU argues is applicable

if the PNSDA falls within FOIA Exemption 3, which at least presents some

possibility of disclosure, the Government provided sufficient information to

justify withholding the photographs under the PNSDA.
                                        18
      FOIA generally “calls for broad disclosure of Government records.” Am.

Civil Liberties Union v. Dep’t of Justice, 681 F.3d 61, 69 (2d Cir. 2012) (quoting Cen.

Intelligence Agency v. Sims, 471 U.S. 159, 166 (1985)). However, “Congress provided

that some records may be withheld from disclosure” under certain exemptions,

including Exemption 3. Id. Agencies withholding documents may use declarations

to satisfy their burden of proving the applicability of claimed exemptions, but

these declarations must provide “reasonably detailed explanations.” Id. (internal

quotation marks omitted); see Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 73 (2d Cir.

2009). “Summary judgment is appropriate where the agency [declarations]

‘describe the justifications for nondisclosure with reasonably specific detail,

demonstrate that the information withheld logically falls within the claimed

exemption, and are not controverted by either contrary evidence in the record [or]

by evidence of agency bad faith.’” Am. Civil Liberties Union, 681 F.3d at 69 (quoting

Wilner, 592 F.3d at 73). Thus, the agency’s justification is sufficient if it appears

logical and plausible. See N.Y. Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100, 119




                                          19
(2d Cir. 2014) (quoting Gardels v. Cent. Intelligence Agency, 689 F.2d 1100, 1105 (D.C.

Cir. 1982)). 9


       Even if de novo review applies, the context within which we conduct that

review is of paramount importance. This Court and others “have consistently

deferred to executive [declarations] predicting harm to the national security, and

have found it unwise to undertake searching judicial review.” Am. Civil Liberties




9
 While this Court in N.Y. Times stated the standard as “logical and plausible,” id., several
courts—including this Court—have cited the standard as “logical or plausible,” see Am.
Civ. Liberties Union, 681 F.3d at 69 (quoting Wilner, 592 F.3d at 73); Wilner, 592 F.3d at 73
(quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)); Larson, 565 F.3d at 862
(quoting Wolf v. Cent. Intelligence Agency, 473 F.3d 370, 374–75 (D.C. Cir. 2007)). In 1979,
the D.C. Circuit accepted a representation by the National Security Agency because, the
court concluded, it was “by no means an illogical or implausible assertion.” Hayden v.
Nat’l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1388 (D.C. Cir. 1979). In 1982, in Gardels,
the D.C. Circuit concluded that the C.I.A.’s position, as described in affidavits and
depositions, “appear[ed] ‘logical’ and ‘plausible.’” 689 F.2d at 1105. Decades later, the
D.C. Circuit, citing Gardels and Hayden, appears to have misstated the law: “Ultimately,
an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’
or ‘plausible.’” Wolf, 473 F.3d at 374–75 (citing Gardels, 689 F.2d at 1105; Hayden, 608 F.2d
at 1388). As noted above, several courts subsequently propagated this standard, but it
simply makes no sense. We cannot fathom a scenario where an agency’s withholding
justification would be logical but implausible—or illogical but plausible—and sufficient.
This conclusion is borne out by the cases themselves. See, e.g., Wilner, 592 F.3d at 75
(“[T]he agency’s affidavits and justification are both logical and plausible.”); Wolf, 473
F.3d at 376–77 (“The [C.I.A.’s submitted] affidavit both logically and plausibly suffices.”).
In concluding that a given agency’s FOIA justification was sufficient because it was “by
no means illogical or implausible,” the D.C. Circuit was not crafting a rule that a
justification is sufficient when the inverse is true. A sufficient justification must be logical
and plausible.
                                              20
Union, 681 F.3d at 76 (quoting Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331

F.3d 918, 927 (D.C. Cir. 2003)). We acknowledged in the past that given “relative

competencies of the executive and judiciary, we believe that it is bad law and bad

policy to ‘second-guess the predictive judgments made by the government’s

intelligence agencies.’” Id. at 70–71 (quoting Wilner, 592 F.3d at 76).

Notwithstanding the above, “concerns of national security and foreign relations

do not warrant abdication of the judicial role.” Holder v. Humanitarian Law Project,

561 U.S. 1, 34 (2010). Deference to the executive’s national security and military

judgments is appropriate only where we have sufficient information to evaluate

whether those judgments were logical and plausible.


      To evaluate the Government’s invocation of the PNSDA, we must examine

the statute itself. The ACLU does not dispute that the photographs satisfy the time

period requirement or the subject matter requirement, but it asserts that the

Government failed to provide sufficient evidence “that disclosure of [the

photographs] would endanger citizens of the United States, members of the

United States Armed Forces, or employees of the United States Government

deployed outside the United States.” PNSDA § 565(c)(1)(A). Despite the assertion

to the contrary, there is sufficient information before us—even when treating the

                                          21
PNSDA as within FOIA Exemption 3—to evaluate whether the Secretary’s

decision to certify the withheld photographs, based on the endangerment of U.S.

lives and personnel abroad, was logical and plausible.


      The district court concluded that the Government failed to meet its burden

because it did not (1) provide “meaningful information” as to how it sorted the

photographs; or (2) “adequately explain[] the relationship between the various

levels of review,” such as how the reviews were “independent” and how the

samples were created, so that the court could discern how the process led to the

2015 Certification. ACLU VII, 229 F. Supp. 3d at 209. Further, while the Secretary

did not need to review each photograph, the district court required the Secretary

to establish the criteria for categorizing and sorting the photographs based on the

likelihood of harm, and to explain the delegation of his duties to the court. Id. at

212. Lastly, the court took issue with the generals’ recommendations because they

were based only on samples. Id. The ACLU additionally argues that the Secretary

must make a certification and finding of harm as to each photograph, and that

because the Secretary based his decision on the recommendations of the

generals—who reviewed only samples that we know little about—the district

court could not possibly review his decision. We disagree.

                                        22
      The Apostol declaration submitted by the Government contained enough

information—in reasonably specific detail—for us to conclude that the Secretary’s

justification for certifying the photographs under the PNSDA was logical and

plausible. The declaration explains the thorough and robust review undertaken

prior to the Secretary’s decision. Attorneys in the OGC, commissioned officers

from Joint Staff J37, and additional OGC attorneys and a uniformed attorney from

the Department of the Army conducted three separate reviews of each

photograph—sorting the photographs based on what they depicted and the

likelihood of endangerment caused by their release—before coordinating to reach

a final consensus. This sorting process sought to create representative samples for

the personal review of the Secretary and several military commanders, but also

necessarily involved judgment by the reviewers as to whether the potential for

harm fell within the PNSDA’s purview. The fact that the reviewers recommended

198 photographs for release tends to confirm that this process occurred. 10




10In making this observation, we do not mean to suggest that the process would have
been inadequate without this verification of the individualized nature of the review. Our
decision is based on our review of the Government’s submission of the process it
employed.
                                           23
       This three-part review involving OGC attorneys and commissioned officers

from Joint Staff J37—with “extensive knowledge” of the U.S. Armed Forces and

the methods of this country’s enemies abroad—would likely have satisfied the

Government’s burden. However, the samples were then additionally provided to

the Commander of U.S. Central Command, the Commander of U.S. Africa

Command, the Acting Commander of U.S. Forces, Afghanistan, and the Chairman

of the Joint Chiefs of Staff, who each opined as to the danger of releasing the

photographs based on the samples they reviewed. 11 A review of their

recommendations to the Secretary further supports the conclusion that the

Secretary’s determination that the PNSDA applies was logical and plausible. 12 The


11
   Secretary Carter made clear in the 2015 Certification that he relied on both the
recommendations and “a review of each photograph by my staff on my behalf.” Joint
App. 343. We are unpersuaded by the ACLU’s argument that the Secretary’s decision
was based only upon the commanders’ recommendations.
12
  General Lloyd J. Austin, Commander of U.S. Central Command, stated that “[t]he
potential adverse impact from the release of the photographs to our engagements and
partnerships is high. . . . I assess that the release of the photographs will inspire extremist
behavior by [Violent Extremist Organizations],” who “will undoubtedly use the
photographs in their propaganda efforts to encourage threats to U.S. service members
and U.S. Government personnel.” Id. at 339. General David M. Rodriguez, Commander
of U.S. Africa Command, assessed that “public release of the [photographs], even if they
were redacted to obscure identifying information, would endanger the lives of U.S.
servicemen, U.S. citizens, and government personnel serving overseas in [Africa],” where
“insecurity increasingly threatens U.S. interests.” Id. at 340. Major General Jeffrey S.
Buchanan, the Acting Commander of U.S. Forces, Afghanistan, concluded that the
designation of the current Afghanistan operation as a “non-combat mission does not
                                                 24
commanders’ recommendations, which were based on decades of military

experience, inform the potential for harm if the photographs were released. Even

though the recommendations were based on review of the samples, the

recommendations supplement the already robust review process OGC conducted,

as described in the Apostol declaration, and the generals’ detailed explanation of

the conditions facing U.S. forces and personnel abroad provides important context

to the Secretary’s decision.


      The district court felt compelled to explore the details of the Secretary’s

decision. The ACLU endorses that view, but we cannot. The Government

provided ample information for us to conclude that the Secretary’s decision to

certify the withheld photographs was logical and plausible, and the information is

reasonably specific to confirm that the withholding decision was supported as to



eliminate the fact that U.S. and Coalition Forces and Civilians operate in a hostile
environment[,] . . . [and] release [of the photographs] could intensify existing and
lingering resentment and exacerbate the conditions that foster insurgent ‘insider threat’
attacks.” Id. at 340. He further opined that “the release of the photographs could erode
the Afghanistan-Pakistan military-to-military relationship and the willingness to
cooperate to prevent ISIL from establishing a credible presence in Afghanistan.” Id. at
341. General Joseph F. Dunford, Chairman of the Joint Chiefs of Staff, “strongly
concur[red] with the[] recommendation[s]” of the other commanders, and concluded that
“disclosure of any of the photographs recommended for recertification would result in a
substantially increased level of danger” to those included in the PNSDA’s purview. Id. at
341 (brackets omitted).
                                           25
each individual photograph. The Government’s submissions bear no tinge of bad

faith, nor are they contradicted by the record. We see no reason to second-guess

the Secretary’s determination.


      The 2015 Certification was made on an individualized basis by OGC

attorneys and uniformed officers with extensive military expertise. Four senior

U.S. military commanders explained that U.S. citizens and personnel abroad still

face significant threats, and after reviewing the photograph samples concluded

that releasing the photographs would endanger the lives of U.S. citizens and

personnel abroad. Courts are not well-suited to evaluate the constantly evolving

military conditions and national security challenges faced by U.S. forces and

personnel. Judges do not abdicate their judicial role by acknowledging their

limitations and deferring to an agency’s logical and plausible justification in the

context of national security; they fulfill it.




                                            26
      Accordingly, we conclude that the Government has satisfied its burden—

even if its decision is subjected to de novo review—and properly withheld the

photographs pursuant to the PNSDA. 13

                                CONCLUSION


      We REVERSE the judgment of the district court and REMAND with

directions to enter judgment for the Government.




13
  Because we conclude that the photographs were properly withheld pursuant to the
PNSDA, we decline to address whether the photographs could separately be withheld
pursuant to FOIA’s Exemption 7(F).
                                        27
JACOBS, Circuit Judge, concurring:


      I subscribe without reservation to the opinion of the Court. But one thought

may usefully be emphasized.


      The Pentagon undertook ramified labors to satisfy the district judge that,

given the PNSDA, the relevant photographs could properly be withheld from

disclosure under FOIA Exemption 3. Our holding is that those labors were

sufficient as a matter of law to justify the nondisclosure; our holding is not that all

(or most, or any) of those labors were required.


      The PNSDA reads as categorical: “Notwithstanding any other provision of

the law to the contrary, no protected document . . . shall be subject to disclosure

under [FOIA] or any proceeding under [FOIA].” PNSDA § 565(b). The statute

defines “protected document” as any photograph (1) taken between September 11,

2001 and January 22, 2009; (2) related to the treatment of individuals engaged,

captured, or detained by the U.S. military abroad; and (3) certified by the Secretary

of Defense to be dangerous to our overseas military and civilian personnel if

viewed by our enemies. Id. § 565(c). It is undisputed that the time-period and

subject-matter requirements have been satisfied here. So, it may possibly be that


                                          1
all the statute requires to protect American lives is for the Secretary of Defense to

issue a certification, and that judicial review may be limited to whether the

certification was authentic. In any event, there may have been no need for the U.S.

military apparatus to mobilize as it did, and for the Secretary of Defense to be

preoccupied as he was.


      This is not an idle point. Another triennial recertification is soon due, and

the Department of Defense may have other priorities at least equally as

compelling.




                                         2
