Bloche v. DOD, No. 07-2050, 2020 WL 2496897 (D.D.C. May 14, 2020) (Cont

Bloche v. DOD, No. 07-2050, 2020 WL 2496897 (D.D.C. May 14, 2020) (Contreras, J.)

Re:  Requests for records concerning involvement of medical professionals in designing and implementing interrogation tactics

Disposition:  Granting in part and denying in part defendants' renewed motion for partial summary judgment

• Litigation Considerations, Deliberative Process Privilege:  The court holds that "[f]or the deliberative process privilege to apply, the record in question must 'bear on the formulation or exercise of agency policy-oriented judgment.'"  Regarding the Army, "[u]pon evaluating the justification that applies to the entire document and reviewing the documents in camera, the Court finds that Army has met its burden of establishing that Exemption 5 applies to [two draft appendices to the draft Army Field Manual . . . that "'addresses restricted interrogation approach techniques"']."  The court relates that "Army now further justifies withholding by explaining the documents are drafts that 'pre-date[ ] the issuance of the final policy document.'"  Similarly, "[t]he Court finds that Army has explained in sufficient detail the basis for its claims of [two other documents] given that both documents were prepared for legal purposes and kept confidential, . . . and that both represent draft memoranda about specific policies and 'reflect the give-and-take of the consultative process.'"  Regarding two additional documents, the court finds that the "characterization of these documents as relating to a developing media strategy sufficiently establishes that the deliberative process privilege applies."
  
  Regarding Defense Intelligence Agency (DIA), "the Court finds the updated justification sufficient to justify withholding under Exemption 5."  "The author drafted the document for his or her superiors to provide opinions and assessments regarding observations made during a trip to Guantanamo Bay."  "DIA identified a specific policy this document addressed, mainly 'DoD's interrogation TTPs at Guantanamo Bay.'"  "DIA affirms that the portions of the record withheld under Exemption 5 were 'created for the specific purpose of informing a decision on whether specific steps need to be taken to address the challenges and issues outlined in the Trip Report.'"  The court finds that "[w]hile DIA could certainly offer more detail, the description is 'reasonably detailed' enough to show that the document 'was part of a policy-oriented decisionmaking process,' . . . regarding current challenges and proposed solutions for interrogation procedures at Guantanamo Bay."
   
• Litigation Considerations, Attorney-Client Privilege:  Regarding the Army, the court finds that "Army has adequately justified application of the attorney-client privilege for ["'a draft memorandum prepared by Army's [Judge Advocate General ("TJAG")] at the request of the Army's Office of General Counsel [that] consists of TJAG’s preliminary analysis, opinions, and recommendations regarding legal, policy, and operational issues related to the interrogation of detainees.'"  The court notes that "Army's supporting declaration further states that the memorandum and request for legal analysis 'were made in confidence' and that 'no record indicating that the confidentiality of those communications has been compromised' was found."  The court finds that "the communication was confidential and made 'between an attorney and his client relating to a legal matter for which the client has sought professional advice.'"
   
• Litigation Considerations, Declaration/Vaughn Index:  Regarding the Army, the court holds that "[t]he justification for [one document] still conflates the deliberative process and attorney client privileges, borrowing language from both applicable standards, leaving it unclear which privilege applies to which portions of the record."  "The Court directs Army to submit an updated justification for [this document] at which point it will determine whether the claim of either one or both of the privileges is adequate."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  Regarding the Army, "the Court finds that Army has fulfilled its obligation with respect to segregability for all remaining documents except for [the one document which required an updated justification], for which the Court withholds judgment until Army submits an updated justification."  The court relates that Army "'conducted a line-by-line review of all [ ] records that were the subject of the Army's first motion for partial summary judgment . . . [and] determined that the Army has released all reasonably segregable non-exempt information in the remaining documents.'"
  
  Regarding DIA, the court relates that "DIA's declaration affirms that agency officials conducted a line-by-line review of [the withheld document] to determine whether the document contains reasonably segregable non-exempt information"  "The declaration confirms that the agency 'ha[s] determined that all reasonably segregable non-exempt information has been released to the Plaintiffs.'"  "As such, the Court finds that DIA has met its burden with respect to segregability."
  
  Regarding Joint Task Force Guantanamo, the court holds that "[w]hile the . . . declaration does not speak to a line-by-line review, the detail provided throughout the declaration suggests a complete review of the four documents at issue."  "The Court is thus satisfied that [Joint Task Force Guantanamo] has released all reasonably segregable non-exempt information."
   
• Exemption 1:  Regarding DIA, "[t]he Court finds that the additional details and certification provided by DIA satisfy its burden to establish the applicability of Exemption 1."  "According to DIA, the redacted information 'relates to intelligence activities, intelligence sources or methods, or cryptology,' . . . in addition to 'DOD interrogation tactics, techniques, and procedures . . . , challenges with those [tactics, techniques, and procedures], recommendations for methods and practices to address those challenges, and a recommendation regarding the way ahead' . . . ."  The court relates that "[t]he updated declaration fulfills the Court's directive to 'state[] which portions of [one document] were withheld pursuant' to Exemption 1, . . . and supplies a detailed justification for each of those portions."  "The declaration confirms that the portions withheld pursuant to Exemption 1 meet both the substantive and procedural criteria for classification under E.O. 13,526 and are therefore properly withheld."
   
• Exemption 3:  Regarding DIA, the court finds that "DIA's declaration confirms that much of the information withheld under Exemption 3 pertains to protecting the identities of DIA personnel involved in specific intelligence operations."  "These items fall squarely within the scope of 10 U.S.C. § 424(a)(2), which protects against the disclosure of the identities of agency personnel, and, as such, are appropriately withheld."  The court relates that "DIA also identifies three items in [several additional documents] that relate 'to sensitive functions that fall within the meaning of' 10 U.S.C. § 424."  "The first of these items, . . . which also contains material withheld under Exemption 1, 'consists of classification markings' that DIA uses 'to protect from unauthorized disclosure sensitive functions.'"  "The Court agrees that the markings could reveal DIA policy and thus qualify as a 'function' protected by 10 U.S.C. § 424."  "The markings demonstrate how DIA classifies materials and could show how classification is administratively accomplished."  "Withholding such information thus 'protect[s] the policies by which DIA operates.'"  "The second item, . . . 'relates to sensitive intelligence functions/operations that fall within the meaning of, and are protected from disclosure by, subsection [(a)(1) ] of 10 U.S.C. § 424.'"  The court finds that "[u]nlike with [the first item], the description here offers no detail as to what functions, or types of functions, are at issue."  "This type of conclusory invocation of the legal standard is not sufficient to justify withholding."  "The third item . . . similarly 'relates to sensitive intelligence functions/operations that fall within the meaning of, and are protected by, subsection (c)(1) of 10 U.S.C. § 424.'"  The court finds that "[w]hile portions of [this item's] description do clearly fall within the scope of the exemption statute . . . the initial portion of the description is deficient.  DIA does not explain what type of function or operation would be revealed and the Court has no basis for determining whether the withheld information appropriately falls within the protective scope of the statute."  "However, because the Court finds DIA appropriately invokes Exemption 5 for these same Items, summary judgment in favor of the agency is still appropriate."
   
• Litigation Considerations:  Regarding Joint Task Force Guantanamo, the court relates that "Defendants' filings confirm that [one document about which the court requested clarification] is a duplicate of a document that contains information withheld pursuant to Exemptions 3 and 6 for which Plaintiffs withdrew their challenge in December 2018."  "[One additional document about which the court also requested clarification] is also duplicative of this document."  "Given that Plaintiffs withdrew their challenge to a duplicate version of this document in 2018, and that Plaintiffs do not currently challenge this material, the Court finds that the Exemptions claimed are appropriate."
   
• Exemption 7(E):  Regarding Joint Task Force Guantanamo, the court holds that "[the] new details [regarding circumvention] provided by [Joint Task Force Guantanamo] meet or exceed the justifications provided in other cases where Exemption 7(E) was upheld."  "Rather than guess at how the withheld information might lead to a risk of circumvention of the law, as the Court was reticent to do before, . . . the Court can now more readily appreciate how knowledge of such information could 'decrease the effectiveness of the U.S. Military's interrogation protocols and practices' and 'impede the U.S. military's ability to carry out its national security mission.'"  "Disclosure 'would raise significant security concerns' for guards . . . as it would provide knowledge of guard location, detainee transportation, techniques to induce detainee cooperation, and the internal limits of interrogations."  "In the wrong hands, knowledge of such details could reduce the effectiveness of the procedures or, worse, put personnel in grave danger."