American Civil Liberties Union v. Department of Defense

Background

The American Civil Liberties Union and the American Civil Liberties Union Foundation requested records from federal agencies concerning a January 29, 2017 U.S. military intelligence-gathering raid in al Ghayil, Yemen. The request sought records about the raid’s legal and policy bases, approval process, designation of areas of hostilities, civilian-casualty assessments, and the people killed or injured.

The lawsuit originally involved the Department of Defense, Central Intelligence Agency, Department of Justice, and Department of State. During the litigation, the parties narrowed the dispute. The ACLU ultimately challenged withholdings in 15 records: three Department of State records and 12 Department of Defense records. The parties filed cross-motions for summary judgment under Federal Rule of Civil Procedure 56.

Legal standards

The Freedom of Information Act generally requires federal agencies to disclose requested records unless a statutory exemption applies. The agency bears the burden of showing that an exemption applies and must release reasonably segregable nonexempt information. For classified information under Exemption One, the court gives substantial weight to agency declarations predicting national-security harm, while still requiring the agency’s explanation to be logical and plausible.

The Government also relied on Exemption Five, which protects certain internal agency communications that would ordinarily be unavailable in litigation. The asserted privileges included the deliberative-process privilege and the presidential-communications privilege. The deliberative-process privilege protects predecisional and deliberative material, but not an agency’s binding “working law”—its effective rules, interpretations, or policies. The court may conduct in camera review, meaning private judicial review of the records themselves, when agency declarations do not permit a meaningful assessment of the claimed exemptions.

Rulings on the records

For three identical Department of State emails summarizing a January 6, 2017 Deputies Committee meeting, the court upheld the Department of State’s reliance on Exemption One. Although former White House Press Secretary Sean Spicer had publicly discussed the committee’s recommendation to proceed with the raid and to wait for a “moonless night,” the court found it logical and plausible that the classified email contained more specific operational information intertwined with those subjects. The court therefore concluded that the public statements did not require disclosure of the withheld material.

For two partially overlapping Department of Defense email chains discussing military activities after the raid, the court upheld the Exemption One withholdings. The court found that public statements by Pentagon spokesman Captain Jeff Davis disclosed only general categories of support for the Shabwah Offensive, while the emails contained more specific tactics, strategy, and operational details. The court also upheld withholding a paragraph of legal analysis because the Department of Defense had shown that the analysis was not meaningfully separable from classified operational information.

For a presidential authorization memorandum, the court upheld the remaining Exemption One redactions. The memorandum described the specific operational scope of the President’s approval, including the number of personnel, assets, mission parameters, and approval period. The court found that the information already released from the memorandum did not require disclosure of the more specific information that remained redacted.

For two military orders from the Joint Staff to U.S. Central Command, the court did not grant summary judgment to either side. The ACLU argued that previously published legal and policy statements—including statements about consent by the Yemeni government and targeting standards—could require disclosure of matching information in the orders. The court found that the Government’s declarations did not directly address that argument with enough detail to permit meaningful review. It therefore ordered the Government to provide CENTCOM/027-030 and JS/057-058 for secure in camera review.

For five copies of a Department of Defense operational proposal, the court upheld withholding under the deliberative-process privilege. The ACLU argued that the proposal had become “working law” because it was referenced in other documents, approved by the President, or circulated after the raid was approved. The court rejected those arguments, finding that the proposal was a plan for a particular operation rather than binding law or policy, and that the record did not show actual adoption or incorporation by reference.

For two top-secret operational proposals, the court upheld the Government’s withholding. The ACLU sought only the titles, arguing that they had been publicly revealed elsewhere. Government counsel represented that the titles had not been revealed and remained classified, and the ACLU conceded that summary judgment was appropriate.

Disposition

The court denied the ACLU’s motion for summary judgment except as to CENTCOM/027-030 and JS/057-058, and granted the Government’s motion for summary judgment except as to those two records. The Government was directed to provide those records for secure in camera review by February 13, 2020. Judge Engelmayer directed the Clerk of Court to terminate the pending motions.