                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

 INTERNATIONAL COUNSEL BUREAU
 and PILLSBURY, WINTHROP, SHAW,
 PITTMAN, LLP,

         Plaintiffs,
                v.                                         Civil Action No. 08-1063 (JDB)
 UNITED STATES DEPARTMENT OF
 DEFENSE,

         Defendant.

                                  MEMORANDUM OPINION

        International Counsel Bureau and Pillsbury, Winthrop, Shaw, Pittman, LLP (collectively

"ICB") bring this action against the United States Department of Defense ("Department")

pursuant to the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), seeking records pertaining

to four individuals detained at Guantanamo Bay Naval Base. The Court previously issued two

opinions resolving the parties' cross-motions for summary judgment. See Int'l Counsel Bureau v.

U.S. Dep't of Def., 657 F. Supp. 2d 33 (D.D.C. 2009); Int'l Counsel Bureau v. U.S. Dep't of Def.,

723 F. Supp. 2d 54 (D.D.C. 2010). A third round of summary judgment cross-motions has been

filed. For the reasons detailed below, the Court will grant in part and deny in part both motions.

                                        BACKGROUND

       This Court's previous opinions discuss the background of this case in great length.

Therefore, the Court need not repeat that history here. In its last opinion, the Court ordered the

Department to undertake an additional search of USCENTCOM files using an alternate spelling

of the detainees' names and denied the parties' cross-motions for summary judgment relating to

the disclosure of forty-five videorecordings and one audiotape. See Int'l Counsel Bureau, 723 F.


                                                -1-
Supp. 2d at 67. The Court ordered the Department to provide additional submissions to justify

its claimed withholdings, with an admonition that this would be the Department's "final chance"

to supplement its declarations. Id. at 65. The Department has now provided supplemental

declarations and a revised index pursuant to Vaughn v. Rosen, 484 F.2d 820 ("Vaughn index").

ICB continues to seek portions of the withheld videorecordings, and requests that the Department

conduct another search for four videos of forced cell extractions ("FCE"s) that it claims took

place on August 1, 2007, January 2, 2008, December 23, 2008, and December 25, 2008. Pl.'s

Opp'n & Mot. for Summ. J. ("Pl.'s MSJ") at 2.

                                   STANDARD OF REVIEW

       Summary judgment is appropriate when the pleadings and the evidence demonstrate that

"there is no genuine issue as to any material fact and that the movant is entitled to judgment as a

matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial

responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its

motion by identifying those portions of "the pleadings, the discovery and disclosure materials on

file, and any affidavits" that it believes demonstrate the absence of a genuine issue of material

fact. Fed. R. Civ. P. 56(c); see also Celotex, 477 U.S. at 323.

       FOIA requires federal agencies to release all records responsive to a proper request except

those protected from disclosure by any of nine enumerated exemptions set forth at 5 U.S.C. §

552(b). A district court is authorized "to enjoin [a federal] agency from withholding agency

records or to order the production of any agency records improperly withheld from the

complainant." 5 U.S.C. § 552(a)(4)(B); see also Kissinger v. Reporters Comm. for Freedom of

the Press, 445 U.S. 136, 139 (1980). The agency has the burden of proving that "each document

                                                 -2-
that falls within the class requested either has been produced, is unidentifiable, or is wholly

exempt from the Act's inspection requirements." Goland v. Cent. Intelligence Agency, 607 F.2d

339, 352 (D.C. Cir. 1978) (internal citation and quotation marks omitted); accord Maydak v. U.S.

Dep't of Justice, 218 F.3d 760, 764 (D.C. Cir. 2000). The district court may award summary

judgment to an agency solely on the basis of information provided in affidavits or declarations

that describe "the documents and 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 nor by evidence of agency bad

faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); accord Vaughn v.

Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973).

                                             DISCUSSION

I.      Claimed Exemptions

        In its renewed motion for summary judgment, the Department invokes FOIA's exemption

2 to justify its withholding of the videorecordings in their entirety, and exemptions 1, 3, and 6 as

to portions of the videorecordings.1 It also claims that one audiorecording should be withheld

pursuant to exemption 1. Because ICB does not contest the Department's withholding of the

audiorecording pursuant to exemption 1, the Court will grant the Department summary judgment

as to that recording.

        However, the Court will deny the Department's motion for summary judgment relating to


        1
          FOIA's exemption 1 permits agencies to withhold records that are appropriately classified under
the proper procedures. See 5 U.S.C. § 552(b)(1). Exemption 2 protects from disclosure information
"related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2).
Exemption 3 is for information "specifically exempted from disclosure by statute" subject to certain
requirements. 5 U.S.C. § 552(b)(3). Exemption 6 is for "personnel and medical files and similar files . . .
the disclosure of which would constitute a clearly unwarranted invasion of privacy." 5 U.S.C. §
552(b)(6).

                                                   -3-
withholding the videorecordings in full on the basis of exemption 2. The Supreme Court's

decision in Milner v. U.S. Dep't of the Navy, --- U.S. ----, 131 S. Ct. 1259 (2011), makes clear

that there is no "high 2" exemption as claimed by the Department; rather, exemption 2 is limited

to "records relating to issues of employee relations and human resources." 131 S. Ct. at 1271;

see also Skinner v. U.S. Dep't of Justice, 806 F. Supp. 2d 105, 112 (D.D.C. 2011) ("The

difference between 'High 2' and 'Low 2' exempt information, long recognized by the D.C. Circuit,

is no longer an accepted distinction.") (citing Milner). No argument has been made here that the

videos relate to "issues of employee relations and human resources" nor would such an argument

be viable based on the record currently before the Court. Because the Court will order that a

representative sample of the videorecordings be produced for in camera review, it will also deny

without prejudice both parties' motions for summary judgment as to the issues of segregability

and withholding on the basis of exemptions 1, 3, and 6.

II.    In Camera Review

       FOIA allows but does not require courts to conduct in camera review of information

withheld from disclosure by an agency. 5 U.S.C. § 552(a)(4)(B); Larson v. Dep't of State, 565

F.3d 857, 869-70 (D.C. Cir. 2009). But when an agency's declarations "provide specific

information sufficient to place the documents within the exemption category, and if there is no

evidence in the record of agency bad faith, then summary judgment is appropriate without in

camera review." Am. Civ. Liberties Union v. U.S. Dep't of Def., 628 F.3d 612, 626 (D.C. Cir.

2011) (internal citations and quotations omitted). In camera inspection may be ordered, however,

"on the basis of an uneasiness, [or] on a doubt that [the judge] wants satisfied before he takes

responsibility for a de novo determination." Spirko v. U.S. Postal Serv., 147 F.3d 992, 996 (D.C.

Cir. 1998) (citing Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978) (per curiam)). The

                                                -4-
availability of such review "does not depend on a finding of or even tentative finding of bad

faith." Id. Instead, "the ultimate criterion" for in camera review is "[w]hether the district judge

believes that in camera inspection is needed in order to make a responsible de novo

determination on the claims of exemption." Id.; see also Larson, 565 F.3d at 869 (internal

quotations and citations omitted).

        Here, the Court already allowed the Department a "last chance" to supplement its

declarations and Vaughn indices. See Int'l Counsel Bureau, 723 F. Supp. 2d at 65 ("The . . .

Department is now being given a third opportunity to justify withholding these recordings; the

Court will not offer a fourth."). However, problems remain with respect to the Department's

submissions. These are too numerous to discuss in full but, most significantly, the Court had

ordered the Department to "subdivide the recordings into manageable parts cross-referenced to

the relevant portion of the claimed exemption." Id. Although the Department has attempted to do

so, its characterizations of those sub-parts are inconsistent and confusing.2 In addition, the

Department's Vaughn indices and declarations also provide no illumination as to the actual

lengths of the video, when certain segments begin and end, or how long such subdivided



        2
           For example, the Department initially describes part (b) of the video as the FCE team moving
to where the detainee is located, but claims that this information is not responsive to the FOIA request,
presumably because no images of the detainee are contained therein. Def.'s Mot. for Summ. J. ("Def.'s
MSJ") at 7; Decl. of J. Harbeson (undated) (“Harbeson Decl.”) ¶ 15. However, in a supplemental
declaration, which was intended to provide a "more precise description" meant to "explain [ ]
ambiguities," the Department subsequently characterizes part (b) as showing "when the FCE team began
the extraction of the detainee from his current location," which seems responsive to ICB's request. Supp.
Decl. of J. Harbeson ¶ 8 (Jan. 14, 2011) ("2d Harbeson Decl."). Similarly, the Department initially
described part (d) as "the FCE team departing the area," and asserts that part (d) has "no information
responsive to the FOIA request." Def.'s MSJ at 7; Harbeson Decl. ¶ 15. However, the Department later
described part (d) as "when the FCE team returned the detainee to his cell and secured the cell door." 2d
Harbeson Decl. ¶ 8. The supplemental declaration also subdivides the video further ("Column E"), which
it describes as including "the FCE team's exit procedures from the detainee's immediate area back to an
FCE rallying point," but claims that this segment is also unresponsive to ICB's request.

                                                  -5-
segments run. The Department has submitted several errata correcting previously-submitted

Vaughn indices, along with a number of supplemental declarations. Such corrections and

supplements are encouraged and generally reflect an agency's good-faith attempt to comply with

its FOIA obligations. The problem here, however, is that these attempts by the Department to

“correct” or supplement its prior submissions have resulted in further obfuscation, making it

difficult for the Court to consider the validity of the Department's claimed exemptions and

hampering ICB's ability to respond consistently to the Department's arguments.3

        Nor do the declarations and Vaughn indices allow the Court sufficiently to consider the

Department's claim of non-segregability. The Court previously instructed that the Department to

give a "detailed justification and not just conclusory statements to prove that it has released all

reasonable segregable information." Id. (quoting Kishore v. U.S. Dep't of Justice, 575 F. Supp.

2d 243, 259 (D.D.C. 2009)). The Department now suggests that the videos are not segregable

because "JTF-GTMO personnel move in and out of the camera[] view." 2d Harbeson Decl. ¶¶

20-22. The Department also claims that "pre and post-extraction events" from the FCE videos

cannot be released because they entail "security procedures and reactive measures that cannot be

disclosed" and that releasing this information poses a risk to military personnel. Id. ¶ 21. While

this argument seems more relevant to the propriety of the Department's claimed exemptions, the

Department also raises these points with respect to segregability. A similar assertion is made


        3
            Based on the Department's initial characterizations of the videos and its representation that no
responsive information existed in some portions, ICB stated that it had no objection to the redaction of
parts (a), (b), and (d) from the videos. Pl.'s MSJ at 2. However, because the Department later
represented that images of the detainee were present in at least parts (b) and (d), and potentially in other
portions of the video, the Court construes ICB's subsequent response as a withdrawal of its concessions.
With respect to ICB's arguments regarding inconsistency in the number of photographs, the Court is
assured that the Department has clearly explained the reason for the discrepancy through its declarations.
See 2d Harbeson Decl. ¶¶ 5-6.

                                                    -6-
regarding footage of detainees undergoing medical examinations. The Department states that

medical personnel identities are unshielded, and that "the very medical procedures they employ

are internal procedures" where release would "allow[] the opportunity for the enemy to search for

weaknesses and leave an FCE vulnerable to attack." Id. ¶ 22. None of these statements,

however, account for why images of the detainee -- which are responsive to ICB's request --

could not be reasonably segregated from exempt and non-responsive portions of the videos.

       The Court acknowledges that in camera review should be used sparingly -- particularly

where national security claims are raised. See Hayden v. NSA, 608 F. 2d 1381, 1387 (D.C. Cir.

1979); see also Turner, 587 F.2d at 1195 ("[A] court should not resort to [in camera review]

routinely on the theory that 'it can't hurt.'"). And the Court agrees that substantial weight and

deference is accorded to an agency's assessment of the harm to foreign relations or the threat to

national security that would result from disclosure. See, e.g, Morley v. Cent. Intelligence Agency,

508 F.3d 1108, 1127 (D.C. Cir. 2007). But, as described above, the written submissions

provided by the Department simply do not allow the Court meaningfully to assess whether the

claimed exemptions actually apply. At this juncture, then, given the multiple opportunities the

Department has received to supplement its declarations and Vaughn indices, and the lack of

clarity and consistency that nevertheless persist in those submissions, the Court finds it

appropriate to order in camera review.

       Other courts have taken similar approaches, even when an agency has asserted national

security or law enforcement concerns as the basis for withholding information. For instance, in

El Badrawi v. Department of Homeland Security, the court ordered in camera inspection because

agency submissions "raised more questions than they have answered." 583 F. Supp. 2d 285, 313



                                                 -7-
(D. Conn. 2008). That court reasoned that, "[e]ven where national security implications are

involved, the court must have sufficient information to review the agency's withholdings de

novo." Id.; see also Am. Civil Liberties Union v. U.S. Dep't of Def., 389 F. Supp. 2d 547, 568-

69 (S.D.N.Y. 2005) (describing in camera review of sample of photographs and videos relating

to the treatment of detainees in Guantanamo Bay and Iraq). Given that the information ICB

requests is the images of the detainees on the videorecordings, and the Department's position that

none of the images can be (or should be) released to ICB, the Court finds it necessary to test

those assertions by viewing a representative sampling of the videos themselves. Here, the

ultimate consideration "turns on the contents of the withheld documents, and not the parties'

interpretation of those documents." Spirko, 147 F.3d at 996 (quoting Quinon v. FBI, 86 F.3d

1222, 1228 (D.C. Cir. 1996)).4 Accordingly, the Department shall produce three videos for in

camera review, undertaking all necessary and appropriate security procedures and measures.

These three videos should be representative of the forty-five videorecordings at issue in this case.

III.    Adequacy of Search

        The Department also moves for summary judgment on the adequacy of its search. ICB,

in turn, claims the search was inadequate for two reasons -- the Department's failure to use an

alternate spelling of a detainee's name in its new search for responsive USCENTCOM files, and

the failure to uncover four additional FCE videos ICB believes are in the Department's



        4
           In addition to El Badrawi and American Civil Liberties Union, other courts have also ordered in
camera inspection of videos, especially when the agency's written submissions fail to provide sufficient
justification for withholding. See, e.g., Hertzberg v. Veneman, 273 F. Supp. 2d 67, 90 (D.D.C. 2003)
(ordering in camera inspection of video footage withheld by the Forest Service regarding their reaction to
forest fires because the court could not test the claimed exemptions "solely on the basis of the letters and
declarations"); Prison Legal News v. Exec. Office for U.S. Attorneys, 08-cv-1055, 2009 WL 2982841, at
* 4 (D. Colo., Sept. 16, 2009) (requiring in camera review of videorecordings in order to decide claims of
non-segregability and exemptions).

                                                    -8-
possession. To establish that its search was adequate, the Department "must show beyond

material doubt that it has conducted a search reasonably calculated to uncover all relevant

documents." Morley, 508 F.3d at 1114 (internal quotation marks omitted); see also Weisburg v.

U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (same). The issue "is not whether

there might exist any other documents possibly responsive to the request, but rather whether the

search for those documents was adequate," which depends on the facts of each case. See

Weisburg, 745 F.2d at 1485. The agency must set forth the search terms used and the search

conducted, see Oglesby v. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990), and describe the

structure of the file systems searched, see Church of Scientology v. Internal Revenue Serv., 792

F.2d 146, 150-51 (D.C. Cir. 1986), aff'd, 484 U.S. 9 (1987). In considering the adequacy of the

search conducted, a court can rely on agency declarations but only when they are "relatively

detailed and nonconclusory and . . . submitted in good faith." Morley, 508 F.3d at 1116 (internal

quotation marks omitted) (ellipses in original). Ultimately, if the record "leaves substantial doubt

as to the sufficiency of the search, summary judgment for the agency is not proper." Truitt v.

Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990).

       The Department previously agreed to "undertake an additional search of USCENTCOM's

files using an alternate spelling of the detainees' names." Int'l Counsel Bureau, 723 F. Supp. 2d

at 67. The Department conducted that search and located additional records, although none were

ultimately responsive to ICB's FOIA request. See Def.'s MSJ at 3; Supp. to Sec. Decl. of

Jacqueline J. Scott ¶ 3 ( Oct. 14, 2010). According to ICB, disciplinary records describing FCEs

produced in related litigation indicate that "Abu Khallaad" was an additional name listed for Al

Kandari. ICB suggests that these records originated with the Department, and that the listed alias

had not been part of the recent search. Pl.'s MSJ at 8-9. The Department does not dispute that

                                                -9-
the records listing the name "Abu Khallaad" originated with it, and concedes that a search for the

name "Abu Khallaad" could produce records, although it is not clear whether any such records

would ultimately be responsive to ICB's request. See 2d Harbeson Decl. ¶ 15 ("While a key

search in other electronic databases for 'Abu Khallaad' might yield matching textual information,

no such data retrieval system is in place . . . in regards to FCE videos."). However, the

Department replies that it "does not believe it is likely that use of 'Abu Khallad' as a search term

is likely to locate any additional responsive records" because the ISN designation is "the key

indexing method for FCE videos." Def.'s Reply at 2. This may be true. But, as ICB points out,

its FOIA request was not confined to FCE videos. It asked for "[a]ny recording, including any

image . . . depicting or reflecting . . . any [ ] aspect or activity of any [of the four detainees]."

Am. Compl. ¶ 17.

        Because the Department has not provided a satisfactory response to ICB's contention that

it should have searched for records using an alternate spelling of the name that ICB discovered

from the Department's own records, the Department shall conduct an additional search of

USCENTCOM files with respect to the alias "Abu Khallaad." See, e.g., Canning v. U.S. Dep't of

Justice, 919 F. Supp. 451, 461 (D.D.C. 1994) ("Plaintiff presented evidence that the FBI was

aware of the fact that this individual was known by two names. Given this, it seems clear than an

adequate search should have produced files listed under both names."); Utahamerican Energy

Inc. v. Mine Safety & Health Admin., 725 F. Supp. 2d 78, 84 (D.D.C. 2010) ("As in Canning,

omitting from the search an alternative name by which the subject of the search is known renders

the search inadequate."). Accordingly, the Court will deny without prejudice the Department's

renewed motion for summary judgment on the adequacy of its search based on alternative




                                                   -10-
spellings of detainee names.4

        The Court, however, reaches a different result with respect to ICB's challenge to the

adequacy of the Department's search for FCE videos, and its request that the Department search

for four additional FCE videos from August 1, 2009, January 2, 2008, December 23, 2008, and

December 25, 2008. ICB states that it has reason to believe, based on other records it received

from the Department in related litigation, that recordings of FCEs from those dates exist.5

However, the Department contends that "FCE videos are maintained and can be searched only

through the ISN designation" and that these videos "are organized solely by ISN and not by any

other means." 2d Harbeson Decl. ¶ 14 (emphasis in original). It further provides that any videos

that would have been available via a search based on ISN already would have been produced. Id.

Given these assertions, the Court concludes that the Department is not obligated to conduct a

specific search for the four FCE videos, nor does its failure to uncover those four additional

videos render the original search inadequate. See Iturralde, 315 F.3d at 315 ("The adequacy of a

FOIA search is generally determined not by the fruits of the search, but by the appropriateness of



        4
           This is not an invitation for ICB to challenge the adequacy of the Department's search every
time a new alias or name is unearthed from other documents it subsequently receives. The Court expects
that with the completion of this one remaining search in USCENTCOM files for the name "Abu
Khallaad," the Department will have satisfied the Court's prior instruction to conduct a new search based
on the alternative names for the detainees.
        5
             While the Department suggests that videorecordings of the FCEs may not have been made,
ICB points to the Department's own declarations and the Standard Operating Procedures, which state that
every FCE is required to be filmed. Pl.'s Reply at 7 (citing relevant documents). The requirement that
FCEs be filmed, however, does not render the Department's search inadequate. See Iturralde v.
Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) ("It is long settled that the failure of an
agency to turn up one specific document in its search does not alone render a search inadequate . . .
[a]fter all, particular documents may have been accidentally lost or destroyed, or a reasonable and
thorough search may have missed them."); Rothschild v. Dep't of Energy, 6 F. Supp. 2d 38, 40 (D.D.C.
1998) (Plaintiff identifying two responsive documents "which may be in [the agency's] possession but
were neither turned over to him nor listed in the Vaughn index . . . demonstrates that the government's
search was not perfect. Perfection, however, is not the standard.").

                                                  -11-
the methods used to carry out the search.") (citing and quoting Steinberg v. Dep't of Justice, 23

F.3d 548, 551 (D.C. Cir. 1994)); Defenders of Wildlife v. U.S. Dep't of Interior, 314 F. Supp. 2d

1, 8 (D.D.C. 2004) ("The agency need not 'set forth with meticulous documentation the details of

an epic search for the requested records.'") (quoting Perry v. Block, 864 F.2d 121, 127 (D.C. Cir.

1982)). Given the Department's statements that the videos are organized by ISN, and its prior

declarations describing the search it has already conducted, the Court finds that the search with

respect to the FCE videorecordings was adequate and denies ICB's motion for summary

judgment insofar as ICB requests a new search or attacks the adequacy of the prior search.

                                         CONCLUSION

       The Court grants in part and denies in part the Department's and ICB's motions for

summary judgment on the adequacy of the Department's search. The Court grants in part the

Department's motion for summary judgment on the withholding of the audiorecording in its

entirety. As to the FCE videos, the Court denies the Department's motion for summary judgment

on the basis of exemption 2, and denies both the Department's and ICB's motions for summary

judgment on the issue of segregability and the remaining claimed exemptions. The Department

will be directed to conduct an additional search for responsive documents under the name "Abu

Khallaad" in USCENTCOM files. The Department shall also produce three representative

videotapes for the Court's in camera review by June 11, 2012. A separate order accompanies this

memorandum opinion.

       SO ORDERED.

                                                             /s/ John D. Bates
                                                             JOHN D. BATES
                                                         United States District Judge
Date: May 23, 2012



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