Case 1:04-cv-04151-AKH Document 542 Filed 02/13/15 Page 1 of 3
JOHN
J.
GIBBONS
FELLOWSHIP
IN
PUBLIC INTEREST & CONSTITUTIONAL LAW
HONORABLE JOHN J. GIBBONS
LAWRENCE S. LUSTBERG
DIRECTOR
ANA MUÑOZ*
JOSEPH PACE
BENJAMIN YASTER
Gibbons P.C.
One Gateway Center
Newark, NJ 07102-5310
Phone: 973.596.4500
* Admitted to NY Bar Only

February 13, 2015

Honorable Alvin K. Hellerstein
United States District Judge
Daniel Patrick Moynihan United States Courthouse
500 Pearl St.
New York, New York 10007-1312
Re: American Civil Liberties Union, et al. v. Department of Defense, et al,
04-cv-4151
Dear Judge Hellerstein:
Please accept this letter in very brief response to the government’s letter requesting
further clarification from Your Honor regarding “the legal requirements for effecting and
demonstrating a valid certification under the [Protected National Security Documents Act].”
Government’s February 11, 2015 Letter at 1. Although we do not, of course, oppose the notion
of an Order that would clarify the Court’s ruling, we most respectfully do not share the
government’s confusion, and are concerned that, whatever the government’s intentions in this
regard, the effect, at least, of this request will be the very delay to which the Court pointed
during the hearing last week. In our view, Your Honor has provided the parties with a clear
explanation of what the Protected National Security Documents Act (“PNSDA”) requires on
three occasions over the last six months — in the Court’s August 27, 2014 Order, during our
October 17, 2014 status conference, and at last week’s (February 4, 2015) hearing. As set forth
below, in each instance, the Court provided the government with clear, straight-forward
guidance: the PNSDA requires an individualized, photograph-by-photograph determination that
the release of each such photograph would endanger American lives. Absent evidence of such a
determination, the Secretary’s certification is insufficient, and without it, the government cannot
lawfully withhold photographs from the public. No further clarification is necessary or, in our
view, even possible. That said, we here address the concerns raised by the government.
First, the government complains that the Court has confused it with regard to whether one
or multiple certifications are required. Government’s Letter at 1. But whether the Secretary
executes one or multiple certifications is not and never has been the point — or the Court’s
Newark New York Trenton Philadelphia Wilmington

gibbonslaw.com

 Case 1:04-cv-04151-AKH Document 542 Filed 02/13/15 Page 2 of 3

Honorable Alvin K. Hellerstein
February 13, 2015
Page 2

concern. Rather, “what DoD must do to demonstrate compliance with the PNSDA” is entirely
straightforward and does not call for a fourth elucidation from the Court. Government’s Letter at
2. The Court stated it clearly in Your Honor’s August 27 order: “[the 2012 Recertification]
suggests that the Secretary of Defense has reviewed the photographs as a collection, not
individually,” and, thus, “the 2012 Recertification is insufficient to meet the government’s
burden of showing that the photographs were individually considered by the Secretary of
Defense.” ACLU v. DOD, 2014 U.S. Dist. LEXIS 120147, at *32-33 (S.D.N.Y. Aug. 27, 2014).
As Your Honor reiterated on October 21, “what is necessary, is that the submission to me show
an accountability, by the Secretary of Defense, of having considered and having made a finding
with regard to each and every photograph.” October 21 Transcript at 11:13 -16. And as the
Court again explained on February 4, “it’s the obligation of the Secretary of Defense to certify
each picture in terms of its likelihood or not to endanger American lives.” February 4
Transcript at 25:24 - 26:1. The government’s burden, then, is clear: it must review each
photograph and assess whether “that photograph” would endanger American lives. PNSDA §
d(1). And, while the Court has indicated that it would be satisfied with a declaration similar to a
Vaughn index, explaining the “reason” for withholding, see Feb. 4 Tr. at 13:8-15, the point
remains: whether in one certification or multiple documents, the government failed to comply
with the legal requirements of the PNSDA in 2012 and, thus, the Secretary has not lawfully
certified the subject photographs for withholding.
Nor, despite the government’s purported confusion on the issues, has the Court (or for
that matter, the Plaintiffs) taken issue with the Secretary’s delegation of responsibility for
performing certain functions to a subordinate. Government’s Letter at 2. Contrary to the
government’s assertion, the issue in this case has never been the reach of 10 U.S.C. § 113(d). As
Plaintiffs noted in our brief, see Plaintiffs’ Response Brief, Dkt. #533, at 11 n.3, even assuming
that the Secretary could permissibly delegate his obligation to review each of the photos in this
case, he did not do so. That is because, as the Court knows, it is undisputed that the only
subordinate to view every photograph in 2012 was Associate Counsel Weis, and that she only
looked at the photos for the purposes of creating a “representative sample.” Declaration of
Megan Weis at ¶8. Thereafter a number of high level military officer reviewed a sample of the
photographs before concluding that it would pose a danger to Americans abroad to release them
But the officers were not provided with all of the subject photographs and did not review each
one, but only a sample. And neither Ms. Weis, nor anyone else, conducted the individualized
risk assessment mandated by the PNSDA, let alone provided the factual basis for such
assessment and for withholding of each photograph not disclosed, as correctly required by this
Court. That failure will not be cured by an answer to the tangential question of the Secretary’s
power to deputize a junior official to manage the project.
Finally, Plaintiffs cannot help but echo Your Honor’s apt observation of last week that
the “consequence of what the government is doing is a sophisticated ability to obtain a very
substantial delay.” Feb. 4 Tr. at 23:3-4. Despite this reservation, the Court allowed the

 Case 1:04-cv-04151-AKH Document 542 Filed 02/13/15 Page 3 of 3

Honorable Alvin K. Hellerstein
February 13, 2015
Page 3

government yet one more week to “say one of two things,” either that “the secretary does not
want to certify . . . individual photographs,” or that it wanted “time to satisfy [the court’s]
ruling.” Id. at 21:4-7. The government’s response is neither; it has chosen instead to attempt to
reopen a thrice settled issue, with all of the consequences of delay foreseen by the Court, even as
the certification here at issue comes closer to expiration. See Government’s Letter at 2.
Plaintiffs respectfully request that the Court reject the government’s unnecessary and, in light of
the Court’s prior rulings, specious request.
Thank you for Your Honor’s kind consideration of this submission.
Respectfully submitted,
/s/ Lawrence S. Lustberg
Lawrence S. Lustberg
cc:

Tara LaMorte, Assistant U.S. Attorney (via email)
Alexander Abdo, Esq. (via email)
Jameel Jaffer, Esq. (via email)