     10-4290-cv(L), 10-4289-cv(CON), 10-4647-cv(XAP), 10-4668-cv(XAP)
     ACLU v. Dep’t of Justice

 1                          UNITED STATES COURT OF APPEALS
 2
 3                              FOR THE SECOND CIRCUIT
 4
 5
 6
 7                                August Term, 2011
 8
 9     (Argued: March 9, 2012                      Decided: May 21, 2012)
10
11   Docket Nos. 10-4290-cv(L), 10-4289-cv(CON), 10-4647-cv(XAP),
12                          10-4668-cv(XAP)
13
14
15      AMERICAN CIVIL LIBERTIES UNION, CENTER FOR CONSTITUTIONAL RIGHTS,
16    INCORPORATED, PHYSICIANS FOR HUMAN RIGHTS, VETERANS FOR COMMON SENSE,
17                             VETERANS FOR PEACE,
18
19                                 Plaintiffs-Appellees-Cross-Appellants,
20
21                                      –v.–
22
23        DEPARTMENT   OFJUSTICE, and its component Office of Legal
24                      Counsel, CENTRAL INTELLIGENCE AGENCY,
25
26                                 Defendants-Appellants-Cross-Appellees,
27
28     DEPARTMENT OF DEFENSE, and its components Department of Army,
29        Department of Navy, Department of Air Force, Defense
30    Intelligence Agency, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF
31     STATE, DEPARTMENT OF JUSTICE components Civil Rights Division,
32   Criminal Division, Office of Information and Privacy, Office
33       of Intelligence, Policy and Review, Federal Bureau of
34                               Investigation,
35
36                                                                Defendants.
37
38
39
 1   Before:
 2    WESLEY, CARNEY, Circuit Judges, and CEDARBAUM, District Judge.*
 3
 4        Appeal and cross-appeal from a judgment of the United
 5   States District Court for the Southern District of New York
 6   (Hellerstein, J.), granting the parties’ motions for partial
 7   summary judgment with respect to Plaintiffs’ Freedom of
 8   Information Act request for the disclosure of records
 9   concerning the treatment of detainees in United States
10   custody abroad since September 11, 2001. The Government
11   challenges the portion of the judgment requiring it to
12   disclose information in two memoranda pertaining to what the
13   Government considers a highly classified, active
14   intelligence method. Plaintiffs challenge the judgment
15   insofar as it sustained the Government’s withholding of
16   certain records relating to the use of waterboarding and a
17   photograph of a high-value detainee in custody. We agree
18   with the district court that the materials at issue in
19   Plaintiffs’ cross-appeal are exempt from disclosure. The
20   district court erred, however, in requiring the Government
21   to disclose the classified information redacted from the two
22   memoranda.
23
24        AFFIRMED in part and REVERSED in part.
25
26
27
28             TARA M. LA MORTE, Assistant United States Attorney
29                  (Amy A. Barcelo, Sarah S. Normand, Assistant
30                  United States Attorneys, on the brief), for
31                  Preet Bharara, United States Attorney for the
32                  Southern District of New York, New York, NY;
33                  (Tony West, Assistant Attorney General, Ian
34                  Heath Gershengorn, Deputy Assistant Attorney
35                  General, Douglas N. Letter, Matthew M.
36                  Collette, Attorneys, Civil Division, Appellate
37                  Staff, Department of Justice, Washington,
38                  D.C., on the brief), for Defendants-
39                  Appellants-Cross-Appellees.


          *
           The Honorable Miriam Goldman Cedarbaum, of the United
     States District Court for the Southern District of New York,
     sitting by designation.

                                    2
 1            ALEXANDER A. ABDO (Jameel Jaffer, Judy Rabinovitz,
 2                  American Civil Liberties Union Foundation, New
 3                  York, NY; Lawrence S. Lustberg, Alicia L.
 4                  Bannon, Gibbons, P.C., Newark, NJ; Michael
 5                  Ratner, Gitanjali Gutierrez, Emilou MacClean,
 6                  Shayana Kadidal, Center for Constitutional
 7                  Rights, New York, NY; Beth Haroules, Arthur
 8                  Eisenberg, New York Civil Liberties Union
 9                  Foundation, New York, NY, on the brief), for
10                  Plaintiffs-Appellees-Cross-Appellants.
11
12
13
14   WESLEY, Circuit Judge:

15       The Central Intelligence Agency (“CIA”), the Department

16   of Justice (“DOJ”), and its component Office of Legal

17   Counsel (“OLC”) (collectively the “Government”) appeal from

18   a portion of an October 1, 2010 judgment of the United

19   States District Court for the Southern District of New York

20   (Hellerstein, J.), requiring the Government to disclose,

21   pursuant to the Freedom of Information Act (“FOIA”),

22   information redacted from two memoranda prepared by the OLC.

23   The Government contends that the redactions are justified

24   under FOIA because the information pertains to a highly

25   classified, active intelligence method.   We conclude that

26   the Government may withhold this information under FOIA

27   Exemption 1.   We thus reverse the district court’s judgment

28   insofar as it required disclosure.

29       The American Civil Liberties Union (“ACLU”), Center for

                                   3
 1   Constitutional Rights, Incorporated, Physicians for Human

 2   Rights, Veterans for Common Sense, and Veterans for Peace

 3   (collectively “Plaintiffs”) appeal from the same judgment

 4   insofar as it upheld the Government’s withholding of records

 5   relating to the CIA’s use of the Enhanced Interrogation

 6   Technique (“EIT”) of waterboarding and a photograph of high-

 7   value detainee Abu Zubaydah, taken while he was in CIA

 8   custody abroad.    Plaintiffs contend that the records and

 9   photograph may not be withheld under either FOIA Exemption 1

10   or 3 because the President has declared the practice of

11   waterboarding illegal and the Government has failed to

12   justify adequately its withholding of the photograph.     We

13   disagree and hold that the President’s declaration and

14   prohibition of the future use of waterboarding do not affect

15   the Government’s otherwise valid authority to withhold the

16   records under Exemption 3.   We agree with the district court

17   that both the records and photograph are exempt from

18   disclosure under FOIA Exemption 3 and thus affirm that part

19   of the judgment.

20                              BACKGROUND

21       On October 7, 2003, Plaintiffs submitted a FOIA request

22   to the CIA, DOJ, and other federal agencies, seeking the


                                    4
 1   disclosure of records concerning (1) the treatment of

 2   detainees; (2) the deaths of detainees while in United

 3   States custody; and (3) the rendition, since September 11,

 4   2001, of detainees and other individuals to countries known

 5   to employ torture or illegal interrogation methods.   On

 6   January 31, 2005, Plaintiffs served a FOIA request on the

 7   OLC, incorporating by reference their October 7, 2003

 8   request and enumerating a non-exhaustive list of documents

 9   falling within the scope of Plaintiffs’ request.

10       Within a year of each request, Plaintiffs filed

11   separate complaints seeking to compel the Government to

12   release any responsive documents it had withheld from

13   disclosure.   With respect to the first action, the district

14   court ordered the Government to produce or identify all

15   records responsive to Plaintiffs’ request.   ACLU v. Dep’t of

16   Def., 339 F. Supp. 2d 501, 505 (S.D.N.Y. 2004).    Since that

17   time, the Government has disclosed thousands of documents in

18   response to Plaintiffs’ FOIA requests.

19   I. Facts and Procedural History Relevant to the Government’s
20   Appeal

21       Among the documents disclosed by the Government are

22   four memoranda authored by the OLC between August 1, 2002

23   and May 30, 2005, analyzing legal questions with respect to

                                   5
 1   the application of EITs to detainees held in CIA custody

 2   abroad.   The Government initially withheld these memoranda

 3   in full, but subsequently, on April 16, 2009, released

 4   unclassified versions of the memoranda with limited

 5   redactions.   The classified information at issue in the

 6   Government’s appeal is discussed in two of these memoranda,

 7   dated May 10, 2005 and May 30, 2005, respectively.      The

 8   Government redacted references to the classified

 9   information—along with other information not relevant to

10   this appeal—pursuant to FOIA Exemptions 1 and 3 on the basis

11   that records related to “intelligence methods,”

12   “intelligence activities,” and CIA “functions” are exempt

13   from disclosure.1   The parties filed cross-motions for

14   summary judgment with regard to these redactions from the

15   OLC memoranda.

16        The district court reviewed the unredacted OLC


          1
            Exemption 1 provides for the nondisclosure of matters that
     are “(A) specifically authorized under criteria established by an
     Executive order to be kept secret in the interest of national
     defense or foreign policy and (B) are in fact properly classified
     pursuant to such Executive order.” 5 U.S.C. § 552(b)(1).
     Exemption 3 provides for the nondisclosure of matters that are
     “specifically exempted from disclosure by statute,” provided that
     the statute “requires that the matters be withheld from the
     public in such a manner as to leave no discretion on the issue”
     or “establishes particular criteria for withholding or refers to
     particular types of matters to be withheld.” Id. § 552(b)(3).


                                    6
 1   memoranda in a series of ex parte, in camera sessions.     It

 2   also reviewed several declarations from high-level executive

 3   branch officials supporting the Government’s withholding of

 4   the redacted information.   At the first session, the

 5   district court issued a preliminary ruling that all but one

 6   of the references to the classified information must be

 7   disclosed, without explaining why it treated that sole

 8   reference differently.   With respect to the other

 9   references, the district court held that publicly disclosing

10   that information would reveal not an intelligence method but

11   only a source of the CIA’s authority.   The district court

12   also found that the references are so general in nature that

13   their disclosure would not compromise national security.

14   The district court nevertheless permitted the Government to

15   submit additional declarations justifying its position that

16   the information was exempt from disclosure.

17       During a subsequent in camera session, the district

18   court reaffirmed its preliminary ruling and explained that

19   it viewed the classified information as a “source of

20   authority” for interrogation rather than a “method of

21   interrogation.”   As a compromise, however, the district

22   court offered to allow the Government to replace references


                                   7
 1   to the classified information with alternative language

 2   meant to preserve the meaning of the text.      The district

 3   court acknowledged the national security concerns

 4   potentially raised by the disclosure of some of the

 5   classified information, but nevertheless ordered that the

 6   Government either disclose the information or comply with

 7   the court’s proposed compromise.      The district court also

 8   ordered that references to the classified information in the

 9   transcript of the first ex parte, in camera proceeding be

10   disclosed or otherwise released in accordance with the

11   compromise.   The district court memorialized its oral ruling

12   in a December 29, 2009 order.       The Government now appeals

13   from that order.

14   II. Facts and Procedural History Relevant to Plaintiffs’
15   Cross-Appeal
16
17        Many of the documents released by the Government in

18   response to Plaintiffs’ FOIA requests relate to the use of

19   EITs.    During the course of this litigation, the President

20   prohibited the future use of certain EITs, including

21   waterboarding, formerly authorized for use on high-value

22   detainees.2   On May 7, 2009, the district court ordered the


          2
           On January 22, 2009, the President issued an executive
     order terminating the CIA’s detention and interrogation program

                                     8
 1   Government to compile a list of documents related to the

 2   contents of 92 destroyed videotapes of detainee

 3   interrogations that occurred between April and December 2002

 4   and which would otherwise have been responsive to

 5   Plaintiffs’ FOIA requests.    Pursuant to that order, the CIA

 6   identified 580 documents and selected a sample of 65

 7   documents for the district court to review for potential

 8   release.   Specifically, the sample records comprise:

 9     •    53 cables (operational communications) between CIA
10          headquarters and an interrogation facility;
11     •    3 emails postdating the videotapes’ destruction;
12     •    2 logbooks detailing observations of interrogation
13          sessions;
14     •    1 set of handwritten notes from a meeting between a
15          CIA employee and a CIA attorney;
16     •    2 memoranda containing descriptions of the contents
17          of the videotapes;
18     •    1 set of handwritten notes taken during a review of
19          the videotapes;
20     •    2 records summarizing details of waterboard exposures
21          from the destroyed videotapes; and
22     •    1 photograph of Abu Zubaydah dated October 11, 2002.


     and mandating that individuals in United States custody “not be
     subjected to any interrogation technique or approach, or any
     treatment related to interrogation, that is not authorized by and
     listed in Army Field Manual 2-22.3.” Exec. Order No. 13,491, 74
     Fed. Reg. 4,893, 4,894 (Jan. 22, 2009). Moreover, in an April
     29, 2009 news conference, the President explained the basis for
     his ban on the use of waterboarding: “[W]aterboarding violates
     our ideals and our values. I do believe that it is torture. I
     don’t think that’s just my opinion; that’s the opinion of many
     who’ve examined the topic. And that’s why I put an end to these
     practices.” President Barack Obama, News Conference by the
     President (Apr. 29, 2009), http://www.whitehouse.gov/the-press-
     office/news-conference-president-4292009.

                                    9
 1
 2   The Government withheld these records pursuant to FOIA

 3   Exemptions 1 and 3, and the parties filed cross-motions for

 4   summary judgment with regard to whether the records were

 5   exempt from disclosure.3

 6       The Government defended its withholding of the records

 7   with three declarations of then-CIA Director Leon Panetta.

 8   The declarations explained that the records consist

 9   primarily of communications to CIA headquarters from a

10   covert CIA facility where interrogations were being

11   conducted, and include “sensitive intelligence and

12   operational information concerning interrogations of Abu

13   Zubaydah.”   Panetta Decl. ¶ 5, June 8, 2009.    With respect

14   to Exemption 3, the declarations explained that, if

15   disclosed, the records would “reveal intelligence sources

16   and methods” employed by the CIA, as well as “the

17   organization and functions of the CIA, including the conduct

18   of clandestine intelligence activities to collect

19   intelligence from human sources using interrogation

20   methods.”    Id. ¶¶ 32, 35.   With respect to Exemption 1, the



         3
            The Government also withheld portions of the records
     pursuant to other FOIA Exemptions. Plaintiffs do not challenge
     those withholdings on appeal.

                                     10
 1   declarations asserted that the records were properly

 2   classified pursuant to Executive Order No. 12,958 and that

 3   their disclosure could reasonably be expected to result in

 4   harm to national security.

 5       In response, Plaintiffs argued that the EITs were not

 6   “intelligence methods” within the meaning of the CIA’s

 7   withholding authorities because they had been repudiated,

 8   and, in the case of waterboarding, declared unlawful by the

 9   President.   Plaintiffs also argued that the CIA had failed

10   to provide any explanation for withholding the photograph of

11   Abu Zubaydah under either Exemption 1 or 3.

12       On September 30, 2009, the district court reviewed the

13   photograph and a portion of the sample records in an ex

14   parte, in camera session.    The district court made

15   preliminary rulings upholding the Government’s nondisclosure

16   of all but one document.    That document is not at issue in

17   Plaintiffs’ cross-appeal.    With respect to the photograph of

18   Abu Zubaydah, the Government asserted that it was “actually

19   a CIA photo of a person in custody,” and the court accepted

20   the Government’s position that a photograph of a detainee

21   reveals “a lot more information” than the detainee’s

22   identity.    During the public hearing, the district court


                                    11
 1   rejected Plaintiffs’ argument that the President’s

 2   declaration was a sufficient basis for rejecting the

 3   Government’s position.    The district court explained that it

 4   would “decline to rule on the question of legality or

 5   illegality in the context of a FOIA request.”    J.A. 1105-06.

 6   Rebuffing Plaintiffs’ argument that the photo should be

 7   produced because the Government offered no justification for

 8   its withholding, the district court sustained the

 9   withholding and explained that “the image of a person in a

10   photograph is another aspect of information that is

11   important in intelligence gathering.”    J.A. 1115.

12       The district court memorialized its rulings in an

13   October 13, 2009 order.    In sustaining the withholding of

14   the records under FOIA Exemption 3, the district court

15   concluded that the CIA had satisfied its burden of showing

16   that the release of the records could reasonably be expected

17   to lead to unauthorized disclosure of intelligence sources

18   and methods.   The district court also rejected Plaintiffs’

19   argument that records relating to illegal activities are

20   beyond the scope of Exemption 3.

21       In a July 15, 2010 order, the district court denied

22   Plaintiffs’ motion for reconsideration of its October 2009


                                    12
 1   order.   In doing so, the district court reaffirmed its view

 2   that neither statutory language nor case law supports

 3   Plaintiffs’ contention that the legality of the underlying

 4   intelligence source or method bears upon the validity of an

 5   Exemption 3 withholding.

 6       On October 1, 2010, the district court entered partial

 7   final judgment pursuant to Federal Rule of Civil Procedure

 8   54(b), granting Plaintiffs summary judgment with regard to

 9   the Government’s withholding of the classified information

10   in the two OLC memoranda, and granting the Government

11   summary judgment with regard to the nondisclosure of records

12   related to the contents of the destroyed videotapes and the

13   photograph.   Plaintiffs limit their cross-appeal to those

14   records reflecting the CIA’s use of waterboarding and to the

15   photograph of Abu Zubaydah.

16                              DISCUSSION

17       The Freedom of Information Act “calls for broad

18   disclosure of Government records.”      CIA v. Sims, 471 U.S.

19   159, 166 (1985).   But public disclosure of certain

20   government records may not always be in the public interest.

21   Thus, Congress provided that some records may be withheld

22   from disclosure under any of nine exemptions defined in 5


                                    13
 1   U.S.C. § 552(b).   Id. at 167.

 2       An agency withholding documents responsive to a FOIA

 3   request bears the burden of proving the applicability of

 4   claimed exemptions.   Wilner v. NSA, 592 F.3d 60, 68 (2d Cir.

 5   2009).   “Affidavits or declarations . . . giving reasonably

 6   detailed explanations why any withheld documents fall within

 7   an exemption are sufficient to sustain the agency’s burden.”

 8   Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir.

 9   1994).   We review the adequacy of the agency’s

10   justifications de novo.   Wilner, 592 F.3d at 73.    In the

11   national security context, however, we “must accord

12   substantial weight to an agency’s affidavit concerning the

13   details of the classified status of the disputed record.”

14   Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (internal

15   quotation marks omitted); see also Sims, 471 U.S. at 179.

16   Summary judgment is appropriate where the agency affidavits

17   “describe the justifications for nondisclosure with

18   reasonably specific detail, demonstrate that the information

19   withheld logically falls within the claimed exemption, and

20   are not controverted by either contrary evidence in the

21   record nor by evidence of agency bad faith.”      Wilner, 592

22   F.3d at 73.   Ultimately, an agency may invoke a FOIA


                                      14
 1   exemption if its justification “appears logical or

 2   plausible.”    Id. (internal quotation marks omitted).

 3   I. The Government’s Appeal—The OLC Memoranda

 4        The Government contends that the information redacted

 5   from the OLC memoranda may be withheld from disclosure under

 6   either FOIA Exemption 1 or 3.        In our view, Exemption 1

 7   resolves the matter easily.4    Exemption 1 permits the

 8   Government to withhold information “specifically authorized

 9   under criteria established by an Executive order to be kept

10   secret in the interest of national defense or foreign

11   policy” if that information has been “properly classified

12   pursuant to such Executive order.”        5 U.S.C. § 552(b)(1).

13   The Government contends that the redacted information was

14   properly classified under Executive Order No. 12,958, as

15   amended, which authorized the classification of information

16   concerning “intelligence activities (including special

17   activities), intelligence sources or methods, or

18   cryptology.”   Exec. Order No. 12,958 § 1.5(c), 60 Fed. Reg.

19   19,825 (Apr. 17, 1995), as amended by Exec. Order No.

          4
            Because the FOIA Exemptions are independent of each other,
     we need only discuss why we conclude that the Government may
     invoke FOIA Exemption 1 to justify withholding the redacted
     information in the OLC memoranda. See Wilner, 592 F.3d at 72
     (citing Larson v. Dep’t of State, 565 F.3d 857, 862-63 (D.C. Cir.
     2009)).

                                     15
 1   13,292, 68 Fed. Reg. 15,315 (Mar. 25, 2003) (hereinafter

 2   “Exec. Order No. 12,958”).5    Executive Order No. 12,958 also

 3   required as a condition to classification that an original

 4   classification authority “determine[] that the unauthorized

 5   disclosure of the information reasonably could be expected

 6   to result in damage to the national security” and “is able

 7   to identify or describe the damage.”     Id. § 1.1(a)(4), 68

 8   Fed. Reg. at 15,315.6

 9        The district court held that the exemption was

10   inapplicable because, in its view, the information pertains

11   to a “source of authority” rather than a “method of

12   interrogation.”   J.A. 1174-75.7    On appeal, as it did in the

13   district court, the Government contends that the information

14   pertains to an intelligence method and an intelligence


          5
            Executive Order No. 12,958 and all amendments thereto have
     since been superseded by Executive Order No. 13,526, 75 Fed. Reg.
     707 (Dec. 29, 2009). For purposes of Exemption 1, the propriety
     of a classification decision is considered under the criteria of
     the executive order that applied when the decision was made. See
     Halpern v. FBI, 181 F.3d 279, 289 (2d Cir. 1999).
          6
            The parties do not dispute whether the remaining criteria
     for proper classification have been satisfied. See Exec. Order
     No. 12,958 § 1.1(a), 68 Fed. Reg. at 15,315.
          7
            Addressing only the applicability of Exemption 3, the
     district court concluded that the information does not pertain to
     an “intelligence method” and therefore was not exempt. It made
     no express ruling on whether the information relates to an
     “intelligence activity” under FOIA Exemption 1.

                                    16
 1   activity, and that each category provides a basis for

 2   classification under Executive Order No. 12,958.   In support

 3   of this contention, the Government has submitted

 4   declarations from General James L. Jones, then-Assistant to

 5   the President for National Security and National Security

 6   Advisor; General Michael V. Hayden, then-Director of the

 7   CIA; Leon Panetta, then-Director of the CIA; and Wendy M.

 8   Hilton, Information Review Officer for Detainee-Related

 9   Matters for the CIA.

10       Based on our ex parte and in camera review of the

11   unredacted OLC memoranda and the Government’s classified

12   declarations, we agree with the Government that the redacted

13   information was properly classified because it pertains to

14   an intelligence activity.   Plaintiffs concede that, even if

15   we were to characterize the information as a “source of

16   authority,” “withholding [a] source of authority itself is

17   . . . proper if disclosing it would reveal . . .

18   intelligence sources, methods, or activities.”   Pls.’ Br.

19   40-41.   We give substantial weight to the Government’s

20   declarations, which establish that disclosing the redacted

21   portions of the OLC memoranda would reveal the existence and

22   scope of a highly classified, active intelligence activity.


                                   17
 1   See Doherty v. U.S. Dep’t of Justice, 775 F.2d 49, 52 (2d

 2   Cir. 1985).

 3       We reject any notion that to sustain the Government’s

 4   assertion that the withheld information concerns a protected

 5   “intelligence activity” under Executive Order No. 12,958 is

 6   effectively to exempt the CIA from FOIA’s mandate.    In

 7   response to Plaintiffs’ FOIA requests and related court

 8   orders, the Government has already produced substantial

 9   information about its use of EITs, including almost all of

10   the contents of the OLC memoranda.   With regard to the

11   limited material it has withheld from disclosure, the

12   Government has sustained its burden by “giving reasonably

13   detailed explanations” of how the information pertains to a

14   classified intelligence activity.    Carney, 19 F.3d at 812.

15       On appeal, Plaintiffs do not dispute that the

16   Government has established that public disclosure of the

17   redacted information “reasonably could be expected to result

18   in damage to the national security.”    Exec. Order No. 12,958

19   § 1.1(a)(4), 68 Fed. Reg. at 15,315.    Nor do we.   “[W]e have

20   consistently deferred to executive affidavits predicting

21   harm to the national security, and have found it unwise to

22   undertake searching judicial review.”    Ctr. for Nat’l Sec.


                                  18
 1   Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927 (D.C.

 2   Cir. 2003).   “Recognizing the relative competencies of the

 3   executive and judiciary, we believe that it is bad law and

 4   bad policy to second-guess the predictive judgments made by

 5   the government’s intelligence agencies” regarding whether

 6   disclosure of the information redacted from the OLC

 7   memoranda would pose a threat to national security.    Wilner,

 8   592 F.3d at 76 (internal quotation marks omitted).

 9       The Government’s declarations describe in persuasive

10   detail how revealing the redacted information would cause

11   exceptionally grave harm to national security by (1)

12   “damaging on-going activities and relationships with foreign

13   intelligence liaison partners, which are of utmost

14   importance to the CIA’s overseas intelligence operations,”

15   Hilton Decl. ¶ 9(a), May 7, 2010; (2) “alerting our

16   adversaries of the existence of [the] intelligence method,

17   which would give them the opportunity to alter their conduct

18   to adapt to this new information and make future

19   intelligence operations more dangerous and less effective,”

20   id. ¶ 9(b); and (3) “increasing the risks for all

21   individuals involved in those operations, including CIA

22   officers and assets,” id. ¶ 9(c).   According substantial


                                   19
 1   weight and deference to the CIA’s declarations, see Doherty,

 2   775 F.2d at 52, we conclude that it is both logical and

 3   plausible that the disclosure of the information pertaining

 4   to a CIA intelligence activity would harm national security.

 5       Furthermore, we reject the district court’s suggestion

 6   that certain portions of the redacted information are so

 7   general in relation to previously disclosed activities of

 8   the CIA that their disclosure would not compromise national

 9   security.    It is true that the Government has disclosed

10   significant aspects of the CIA’s discontinued detention and

11   interrogation program, but its declarations explain in great

12   detail how the withheld information pertains to intelligence

13   activities unrelated to the discontinued program.    Hilton

14   Decl. ¶ 6.    And even if the redacted information seems

15   innocuous in the context of what is already known by the

16   public, “[m]inor details of intelligence information may

17   reveal more information than their apparent insignificance

18   suggests because, much like a piece of jigsaw puzzle, each

19   detail may aid in piecing together other bits of information

20   even when the individual piece is not of obvious importance

21   in itself.”    Wilner, 592 F.3d at 73 (alterations and

22   internal quotation marks omitted); see also Sims, 471 U.S.


                                    20
 1   at 178; ACLU v. U.S. Dep’t of Defense, 628 F.3d 612, 625

 2   (D.C. Cir. 2011).   Again, it is both logical and plausible

 3   that disclosure of the redacted information would jeopardize

 4   the CIA’s ability to conduct its intelligence operations and

 5   work with foreign intelligence liaison partners.

 6       Both parties contend that the district court’s

 7   compromise, whereby the Government could avoid public

 8   disclosure of the redacted information by substituting a

 9   purportedly neutral phrase composed by the court, exceeded

10   the court’s authority under FOIA.   We agree.   FOIA does not

11   permit courts to compel an agency to produce anything other

12   than responsive, non-exempt records.   See 5 U.S.C.

13   § 552(a)(4)(B).   If the Government altered or modified the

14   OLC memoranda in accordance with the compromise, the

15   Government would effectively be “creating”

16   documents—something FOIA does not obligate agencies to do.

17   See, e.g., Kissinger v. Reporters Comm. for Freedom of the

18   Press, 445 U.S. 136, 152 (1980); Pierce & Stevens Chem.

19   Corp. v. U.S. Consumer Prod. Safety Comm’n, 585 F.2d 1382,

20   1388 (2d Cir. 1978).   Moreover, given the “relative

21   competencies of the executive and judiciary,” the district

22   court erred in “second-guess[ing]” the executive’s judgment


                                   21
 1   of the harm to national security that would likely result

 2   from disclosure, by crafting substitute text that—in its own

 3   view—would avoid the harms that could result from disclosure

 4   of the information in full.    See Wilner, 592 F.3d at 76.

 5        The district court’s apparent reliance on the

 6   Classified Information Procedures Act (“CIPA”), 18 U.S.C.

 7   app. 3, §§ 1-16, as a basis for the compromise was

 8   erroneous.8   Contrary to the district court’s assertion,

 9   CIPA applies exclusively to criminal cases.     See 18 U.S.C.

10   app. 3, §§ 2-3, 5.   Indeed, CIPA is codified as the third

11   appendix to Title 18 of the U.S. Code, which concerns crimes

12   and criminal procedure, and we have found no case law

13   supporting the district court’s adoption of CIPA in a FOIA

14   context such as this.9

          8
           Although the district court referred to the “CISA,
     Confidential Information Securities Act,” J.A. 1184-85, it
     appears that the court intended to refer to CIPA because there is
     no Confidential Information Securities Act and the court
     described the statute as providing a procedure for the
     introduction of classified information at trial. Id.
          9
            The procedures of CIPA contrast sharply with those of
     FOIA. For example, under CIPA, when the court authorizes a
     defendant to disclose classified information during trial, the
     Government may move for the substitution of a summary of such
     classified information in lieu of the information itself, 18
     U.S.C. app. 3, § 6(c), “to harmonize a defendant’s right to
     obtain and present exculpatory material upon his trial and the
     government’s right to protect classified material in the national
     interest,” United States v. Pappas, 94 F.3d 795, 799 (2d Cir.
     1996) (internal quotation marks omitted). Significantly, the

                                    22
 1         The Government sufficiently explained that the withheld

 2   information pertains to an “intelligence activity” and that

 3   disclosure of the information would likely result in harm to

 4   national security.   The Government’s declarations are not

 5   contradicted by the record, and there is no evidence of bad

 6   faith by the Government in this regard.    Accordingly, the

 7   Government has sustained its burden of proving that the

 8   information redacted from the OLC memoranda is exempt from

 9   disclosure under FOIA Exemption 1.    See Wilner, 592 F.3d at

10   73.   We therefore reverse the district court’s judgment

11   insofar as it required disclosure of the information—either

12   in full or in accordance with the district court’s

13   compromise—in the OLC memoranda and the transcript of the

14   district court’s ex parte, in camera proceeding.

15   II. Materials at Issue in Plaintiffs’ Cross-Appeal

16         The district court agreed with the Government that the

17   records related to the contents of destroyed videotapes of

18   detainee interrogations and a photograph of high-value



     Government retains ultimate control and may prevent a criminal
     defendant from disclosing classified information, with the
     consequence of the court either dismissing the indictment or
     taking another action adverse to the prosecution. See 18 U.S.C.
     app. 3, § 6(e). By contrast, the Government cannot walk away
     from a FOIA case in order to avoid disclosure of classified
     information.

                                   23
 1   detainee Abu Zubaydah in CIA custody may be withheld from

 2   disclosure under FOIA Exemption 3.     Plaintiffs challenge the

 3   withholding of only those records relating to the CIA’s use

 4   of waterboarding and the photograph.

 5        Exemption 3 permits the Government to withhold

 6   information from public disclosure provided that: (1) the

 7   information is “specifically exempted from disclosure by

 8   statute”; and (2) the exemption statute “requires that the

 9   matters be withheld from the public in such a manner as to

10   leave no discretion on the issue” or “establishes particular

11   criteria for withholding or refers to particular types of

12   matters to be withheld.”     5 U.S.C. § 552(b)(3); see Sims,

13   471 U.S. at 167-68.     Here, the Government contends that the

14   records and photograph pertain to an “intelligence method”

15   under section 102A(i)(1) of the National Security Act of

16   1947 (“NSA”) and CIA “functions” under section 6 of the

17   Central Intelligence Act of 1949, which include the

18   collection of intelligence through human sources, see 50

19   U.S.C. § 403-4a(d).10    Plaintiffs do not dispute that these

          10
            Section 102A(i)(1) of the National Security Act of 1947,
     as amended, 50 U.S.C. § 401 et seq., requires the Director of
     National Intelligence to “protect intelligence sources and
     methods from unauthorized disclosure.” 50 U.S.C. § 403-1(i)(1).
     Section 6 of the Central Intelligence Act of 1949, as amended, 50
     U.S.C. § 403 et seq., provides that the CIA shall be exempted

                                     24
 1   statutes qualify as exemption statutes under Exemption 3.

 2   See Larson, 565 F.3d at 865; Baker v. CIA, 580 F.2d 664, 667

 3   (D.C. Cir. 1978).   Thus, our only remaining inquiry is

 4   whether the withheld material relates to an intelligence

 5   method or functions of the CIA.     Larson, 565 F.3d at 865;

 6   Phillippi v. CIA, 546 F.2d 1009, 1015 n.14 (D.C. Cir.

 7   1976).11

 8   A. The Interrogation Records

 9        Plaintiffs contend that the records regarding the use

10   of waterboarding in particular instances do not relate to an

11   “intelligence method” because the President has declared the

12   practice of waterboarding illegal.    Relying on the Supreme

13   Court’s decision in CIA v. Sims, Plaintiffs argue that the

14   CIA may decline to disclose only records relating to those

15   intelligence methods that fall within the CIA’s charter.

16   Plaintiffs argue that because an illegal activity cannot be

17   said to “fall within the Agency’s mandate to conduct foreign


     from “the provisions of any other law which require the
     publication or disclosure” of the “functions” of the Agency.   50
     U.S.C. § 403g.
          11
             Because, as previously discussed, FOIA exemptions are
     independent of each other, we explain only our conclusion that
     the Government may invoke FOIA exemption 3 to justify withholding
     the interrogation records and the photograph. See supra note 4.
     We do not address the possible coverage provided these materials
     by Exemption 1.

                                    25
 1   intelligence,” Sims, 471 U.S. at 169, waterboarding cannot

 2   be an “intelligence method” within the meaning of the CIA’s

 3   withholding authorities.12

 4        We do not agree.    Sims offers no support for

 5   Plaintiffs’ proposed limitation upon the CIA’s ability to

 6   protect information relating to intelligence methods.      On

 7   the contrary, the Sims Court emphasized that the NSA “vested

 8   in the Director of Central Intelligence very broad authority

 9   to protect all sources of intelligence information from

10   disclosure,” and that judicial “narrowing of this authority

11   not only contravenes the express intention of Congress, but

12   also overlooks the practical necessities of modern

13   intelligence gathering—the very reason Congress entrusted

14   this Agency with sweeping power to protect its ‘intelligence

15   sources and methods.’”    Sims, 471 U.S. at 168–69.    According

16   to the Court, the “plain meaning” of “intelligence sources

17   and methods” in this context, “may not be squared with any



          12
            Plaintiffs concede that an illegal act may produce
     information that may be properly withheld under FOIA Exemptions 1
     and 3. Plaintiffs do not seek disclosure of information that may
     otherwise be classified for reasons apart from the fact that it
     would disclose details of the use of waterboarding. To the
     extent the records discuss such information, such as questions
     asked during an interrogation or intelligence gathered from an
     interrogation session, Plaintiffs agree that the information
     should be segregated and may remain classified.

                                    26
 1   limiting definition that goes beyond the requirement that

 2   the information fall within the Agency’s mandate to conduct

 3   foreign intelligence.”   Id. at 169.13

 4       Here, Plaintiffs argue that the provision of the NSA

 5   requiring the Director of National Intelligence to “ensure

 6   compliance with the Constitution and laws of the United

 7   States,” see 50 U.S.C. § 403-1(f)(4), delimits the

 8   Director’s obligation under section 102A(i)(1) to “protect

 9   intelligence sources and methods from unauthorized

10   disclosure,” see 50 U.S.C. § 403-1(i)(1), and the

11   concomitant rights under FOIA to decline to disclose.      The

12   statutory language does not, however, draw any such

13   limitation, and to do so by judicial device would flout

14   Sims’s clear directive against constricting the CIA’s broad

15   authority in this domain.    Again, Sims expressly rejected

16   any limitation on the CIA’s duty to protect information

17   “beyond the requirement that the information fall within the

18   Agency’s mandate to conduct foreign intelligence.”      Sims,

19   471 U.S. at 169.   Plaintiffs’ argument lacks support in

20   either the statute’s text or in the case law interpreting


         13
            The statutory provision at issue in Sims was a materially
     identical precursor to section 102A(i)(1) of the NSA. See Sims,
     471 U.S. at 167–68.

                                    27
 1   that text.

 2       Moreover, we are wary of the practical difficulties

 3   that would likely arise were the category of protectable

 4   intelligence methods circumscribed as Plaintiffs propose.

 5   In FOIA actions in which the government seeks to withhold

 6   information related to an intelligence method, an

 7   information officer and then the court would potentially be

 8   forced to engage in a complex inquiry to determine whether

 9   the government has sufficiently demonstrated the legality of

10   the method to justify withholding.   In this respect, we

11   question how the court and the agency would handle varying

12   assessments of legality.   What becomes of information

13   concerning a method that the President, on advice of

14   counsel, considers legal, but which is later declared

15   unlawful by a federal court or by a subsequent

16   administration?   Relatedly, is the legality of a method to

17   be determined as of the time of the method’s use or may a

18   forward-looking proscription also apply retroactively to

19   prevent reliance on an exemption?    The matter currently

20   before us helps illustrate the point.   Even if we assumed

21   that a President can render an intelligence method “illegal”

22   through the mere issuance of public statements, or, more


                                   28
 1   formally, through adoption of an executive order, and if we

 2   further assumed that President Obama’s Executive Order

 3   coupled with his statements describing waterboarding as

 4   “torture” were sufficient in this regard, we would be left

 5   with the difficult task of determining what retroactive

 6   effect, if any, to assign that designation.      In our view,

 7   such an “illegality” inquiry is clearly beyond the scope and

 8   purpose of FOIA.   See Wilner, 592 F.3d at 77.

 9       Finally, we also note that prior courts faced with

10   similar questions have declined to address the legality of

11   an intelligence method as part of a FOIA analysis.     In ACLU

12   v. U.S. Department of Defense, the District of Columbia

13   Circuit rejected the very argument raised by Plaintiffs

14   here: that an interrogation technique formerly authorized

15   for use on high-value detainees is no longer a protectable

16   “intelligence method” for FOIA purposes if the President

17   bans its future use.   See 628 F.3d at 622.   After noting

18   that Sims “says nothing suggesting that the change in the

19   specific techniques of intelligence gathering by the CIA

20   renders unprotected sources and methods previously used,”

21   the court held that “the President’s prohibition of the

22   future use of certain interrogation techniques . . . does


                                   29
 1   not diminish the government’s otherwise valid authority to

 2   . . . withhold [information] from disclosure under

 3   exemptions 1 and 3.”   Id.

 4       In Wilner v. NSA, our Court considered whether the

 5   government could refuse to confirm or deny the existence of

 6   records obtained under the since-discontinued Terrorist

 7   Surveillance Program (“TSP”).        592 F.3d at 64–65.    The

 8   plaintiffs in Wilner claimed that the government had

 9   illegally obtained information about them through the TSP.

10   They argued that the NSA improperly refused to disclose this

11   information because any such records would have been

12   obtained in violation of the U.S. Constitution.           Id. at 77.

13   In concluding that the government properly withheld the

14   information at issue under FOIA Exemption 3, we declined to

15   reach “the legality of the underlying Terrorist Surveillance

16   Program,” reasoning that this question was “beyond the

17   scope” of the plaintiffs’ FOIA action.        Id. at 77.

18       We recognize that the plaintiffs in Wilner did not make

19   the precise argument advanced here: that the statutory

20   meaning of “intelligence methods” precludes the government

21   from employing that label for a technique that the President

22   has declared to be unlawful and thus outside the CIA’s


                                     30
 1   charter.   But in our view, Wilner’s principle is equally

 2   applicable here—a judicial determination of the legality of

 3   waterboarding is beyond the scope of this FOIA action.      For

 4   the foregoing reasons, we reject Plaintiffs’ argument that

 5   the Government could not withhold information relating to

 6   waterboarding on the grounds that waterboarding is now

 7   “illegal” and therefore beyond the CIA’s mandate.

 8        According substantial weight to the CIA’s declarations,

 9   see Wolf, 473 F.3d at 374, we have no difficulty in

10   concluding that the records in question, which we have

11   reviewed in camera, relate to an intelligence method within

12   the meaning of the NSA, and, accordingly, may be withheld.

13   The parties agree that waterboarding was an interrogation

14   method used by the CIA in connection with its foreign

15   intelligence-gathering activities.     Because the CIA’s

16   declarations are not contradicted by the record or

17   undermined by any allegations of bad faith,14 the Government

18   has sustained its burden of proving that the records

19   relating to the CIA’s use of waterboarding are exempt from


          14
            In addition, Director Panetta confirmed that the records
     were withheld not to suppress evidence of any unlawful conduct
     but rather to protect intelligence sources and methods. We
     accord a “presumption of good faith” to this declaration, Carney,
     19 F.3d at 812.

                                    31
 1   disclosure under FOIA Exemption 3.     See Wilner, 592 F.3d at

 2   73, 76-77.

 3   B. The Photograph of Abu Zubaydah

 4       Plaintiffs contend that the CIA failed to provide any

 5   justification for withholding a photograph of Abu Zubaydah

 6   taken while he was in CIA custody abroad and that the post

 7   hoc explanations offered by the Government’s counsel do not

 8   suffice to justify the withholding.    We disagree.    In a June

 9   8, 2009 unclassified declaration, Director Panetta explained

10   that all of the records he reviewed in connection with his

11   invocation of FOIA Exemptions 1 and 3, including the

12   photograph, are “related to the contents of 92 destroyed

13   videotapes of detainee interrogations that occurred between

14   April and December 2002.”   Panetta Decl. ¶ 3, June 8, 2009.

15   Director Panetta further declared that “miscellaneous

16   documents” in the sample records, including the photograph,

17   “contain[] TOP SECRET operational information concerning the

18   interrogations” of Abu Zubaydah.     Id. ¶ 5.   On appeal, the

19   Government has expanded upon Director Panetta’s

20   justification for withholding by explaining that the

21   photograph necessarily “relates to” an “intelligence source

22   or method” because it records Abu Zubaydah’s condition in


                                   32
 1   the period during which he was interrogated.

 2       We have reviewed the photograph in camera.    Our

 3   examination has been informed by our contemporaneous review

 4   of other sample records.    Like the district court, we

 5   observe that a photograph depicting a person in CIA custody

 6   discloses far more information than the person’s identity.

 7   We agree with the district court that the image at issue

 8   here conveys an “aspect of information that is important to

 9   intelligence gathering,” J.A. 1115, and that this

10   information necessarily “relates to” an “intelligence source

11   or method.”   The Government’s justification for withholding

12   the photograph is thus both “logical and plausible.”      See

13   Wilner, 592 F.3d at 75.    Moreover, Director Panetta’s

14   declaration is entitled to substantial weight, see Wolf, 473

15   F.3d at 374, and this Court must adopt a “deferential

16   posture in FOIA cases regarding the uniquely executive

17   purview of national security,” Wilner, 592 F.3d at 76

18   (internal quotation marks omitted).    Accordingly, we affirm

19   the district court’s conclusion that the Government has

20   adequately justified its withholding of the photograph under

21   FOIA Exemption 3.

22


                                    33
 1                             CONCLUSION

 2       For the foregoing reasons, the judgment of the district

 3   court is hereby AFFIRMED in part and REVERSED in part.    We

 4   affirm the judgment of the district court insofar as it

 5   sustained the Government’s withholding of records relating

 6   to the CIA’s use of waterboarding and the photograph of Abu

 7   Zubaydah.   We reverse that part of the judgment that

 8   requires the Government either to disclose the classified

 9   information in the OLC memoranda and the transcript of the

10   district court’s ex parte, in camera proceeding, or to

11   substitute language proposed by the district court.




                                   34
