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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THE NEW YORK TIMES COMPANY
AND CHARLIE SAVAGE,
ECF CASE
Plaintiffs,
v.
THE UNITED STATES DEPARTMENT
OF JUSTICE,

14 CIV. 03777 (JPO)

Defendant.

THE UNITED STATES DEPARTMENT OF JUSTICE’S MEMORANDUM OF LAW IN
FURTHER SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT AND
IN OPPOSITION TO PLAINTIFFS’ CROSS-MOTION FOR PARTIAL SUMMARY
JUDGMENT

PREET BHARARA
United States Attorney for the
Southern District of New York
Attorney for the United States
Department of Justice
86 Chambers Street – 3d Floor
New York, NY 10007
Telephone: (212) 637-2678
Facsimile: (212) 637-2686
E-mail: Jeannette.Vargas@usdoj.gov
E-mail: Tara.Lamorte2@usdoj.gov
Jeannette A. Vargas
Tara M. La Morte
Assistant United States Attorneys
-Of Counsel-

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TABLE OF CONTENTS
PRELIMINARY STATEMENT .....................................................................................................1
ARGUMENT ...................................................................................................................................7
POINT I

Disclosure of the Recommendation Memoranda and Declination Memoranda
Would Reveal Matters Occurring Before the Grand Jury in Contravention of
Federal Rule of Criminal Procedure 6(e) .................................................................8
A. The Subject Matter of the Grand Jury Investigations at Issue Has Never
Been Officially Disclosed or Confirmed ...........................................................3
B. Any Information in the Memoranda Concerning Independent or Parallel
Criminal Investigations Cannot Be Segregated and Released from the
Documents Without Revealing Protected Grand Jury Information ...................4
C. Any Public Interest in Disclosure Is Not a Valid Consideration in
Determining Whether Documents are Properly Withheld Under
Exemption 3 .....................................................................................................12
D. The Recommendation Memoranda Are Exempt as Documents that Outline
the Scope, Direction and Subject Matter of Contemplated Criminal
Investigations That Were Conducted Before a Federal Grand Jury ................12

POINT II

The Government Amply Demonstrated that FOIA Exemptions 1 and 3
Protect Discrete Categories of National Security Information ..............................14
A. Exemption 1 Protects The Withheld Categories of Classified Information ....15
B. Exemption 3 Also Protects The Withheld Categories of Information .............19

POINT III

The Government Properly Invoked
FOIA Exemption 5 to Withhold a Very Limited Amount of Information
in the Durham Memoranda ....................................................................................21

POINT IV

The Government Adequately Justified Invocation of FOIA Exemptions 6 and
7(C) to Protect Identifying Information of Third Parties Contained in Criminal
Investigatory Memoranda ......................................................................................23

CONCLUSION ..............................................................................................................................25

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PRELIMINARY STATEMENT
Defendant the United States Department of Justice (“DOJ” or the “Government”)
respectfully submits this memorandum of law in further support of its motion for partial
summary judgment and in opposition to Plaintiffs’ cross-motion for partial summary judgment.
Much of Plaintiffs’ argument rests upon a single flawed premise—that the identities of
the decedents who were the subjects of the two underlying grand jury investigations are already a
matter of public record. Plaintiffs’ Memorandum of Law in Support of Their Cross-Motion for
Partial Summary Judgment and in Opposition to Defendant’s Motion for Partial Summary
Judgment (“Pl. Br.”) at 3, 8, 19, 22, 29. This is not the case, however. The Government has
never officially disclosed or confirmed the subject matter or the targets of these investigations.
In asking this Court to order the disclosure of prosecutorial memoranda that detail the
subject matter, direction, and scope of two grand jury investigations, that identify the targets of
and witnesses in such investigations, and that even quote extensively from the transcripts of
those grand jury proceedings, Plaintiffs therefore ignore a fundamental principle of our federal
criminal justice system: “The proper functioning of our grand jury system depends upon the
secrecy of the grand jury proceedings.” United States v. Proctor & Gamble, 356 U.S. 677, 681
(1958). This general rule of grand jury secrecy, which is enshrined in Federal Rule of Criminal
Procedure 6(e), applies with particular force where, as here, no indictment has issued as a result
of the investigations and there has otherwise been no official disclosure of the subject matter of
the investigations. Id. at 681 n.6; see also In re American Historical Ass’n, 62 F.Supp.2d 1100,
1103 (S.D.N.Y. 1999) (cornerstone of grand jury secrecy rule is the protection of reputations and
well-being of individuals who are subjects of investigation but are never indicted). The
Government has therefore properly withheld four of the five memoranda in their entirety under

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Exemption 3, as their disclosure would reveal matters occurring before the grand jury in
contravention of Rule 6(e).
Furthermore, the Government has also properly withheld discrete categories of
information from all five memoranda, including foreign liaison services information, the
locations of covert CIA installations, information concerning operational intelligence methods,
and the personally identifying information of investigatory targets, covert and overt CIA
personnel, foreign officials, and human sources. Courts have routinely held that this type of
information is exempt from disclosure under FOIA. It is therefore unsurprising that Plaintiffs
have been unable to adduce any legal authority holding that these categories of information are
not exempt under FOIA. The Government’s claimed exemptions should therefore be upheld.
ARGUMENT
POINT I
DISCLOSURE OF
THE RECOMMENDATION MEMORANDA AND DECLINATION MEMORANDA
WOULD REVEAL MATTERS OCCURRING BEFORE THE GRAND JURY IN
CONTRAVENTION OF FEDERAL RULE OF CRIMINAL PROCEDURE 6(e)
The Durham Declaration logically and plausibly establishes that disclosure of the
Recommendation Memoranda and Declination Memoranda would necessarily reveal secret
aspects of the inner workings of the grand jury, including the targets of the grand jury’s
investigations, the prosecutors’ strategy and focus in conducting these grand jury investigations,
the identity of witnesses called to testify before the grand jury, the substance of witness
testimony before the grand jury, and the content of discussions with grand jurors. Declaration of
John Durham, dated May 13, 2016 (“Durham Decl.”) ¶¶ 10-12. Plaintiffs do not, and cannot,
dispute that each of these categories of information is the type of core grand jury material
protected by Rule 6(e), particularly in a case such as this one, where no indictments issued. See,
2

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e.g., Application of United States for an Order Authorizing Disclosure of Certain Matters
Occurring Before the Regular Friday 7/1/96 Grand Jury, No. 98-MISC-016, 1998 WL 817759
(E.D.N.Y. Jan. 22, 1998) (documents that would reveal “information about the subject of the
grand jury’s investigation” fall within the scope of Rule 6(e)). Accordingly, the four memoranda
have been properly withheld under Exemption 3.
A. The Subject Matter of the Grand Jury Investigations at Issue Has Never
Been Officially Disclosed or Confirmed
Much of Plaintiffs’ opposition to the Government’s withholding of the memoranda is
based upon a faulty factual premise—that “the identities of the two detainees that became the
focal points of Mr. Durham’s investigation” are not secret, but are already a matter of public
record. Pl. Br. at 3. In fact, the “identity of the decedents whose deaths were the subject of the
grand jury proceedings in question, as well as the targets of the grand jury proceedings, have not
been officially disclosed or confirmed.” Durham Decl. ¶ 12.
Although Plaintiffs speculate that the detainees whose deaths were investigated by the
federal grand jury were Gul Rahman and Mandel al-Jamadi, there is absolutely no evidence to
suggest that it was the deaths of these detainees in particular, among the many cases that Durham
reviewed, that resulted in grand jury investigations. Pl. Br. at 3. The Government has not
officially disclosed any information regarding the identity of the decedents, let alone identified
the decedents as Rahman or al-Jamadi. And the evidence cited by the Plaintiffs to support their
assertion that this information is already in the public domain does not even mention the grand
jury investigations at issue. The only source of information cited by Plaintiffs regarding alJamadi’s death is a news article that was written more than six years before John Durham even
opened his investigation. Id. at 3-4 & n.4. Of course, this article does not disclose (much less
officially) the subject matter of a grand jury investigation that would take place many years in
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the future. Plaintiffs also cite to discussion contained in the United States Senate Select
Committee on Intelligence’s Study of the Central Intelligence Agency’s Detention and
Interrogation Program (the “SSCI Report”) regarding the circumstances of Rahman’s death. Id.
at 3 n.1. Yet again, however, there is nothing in the SSCI Report that even alludes to the subject
matter of the grand jury investigations conducted by John Durham, let alone purports to connect
Rahman with those grand jury investigations. Plaintiffs’ unconfirmed and unsubstantiated
conjecture regarding the subject matter of the grand jury’s investigations does not come close to
establishing that Rule 6(e) does not apply to the memoranda. Cf. In re Motions of Dow Jones &
Co., Inc., 142 F.3d 496, 500 (D.C. Cir. 1998) (protections of Rule 6(e) are not waived by public
disclosure occurring through “press reports relying on unnamed sources”).
B. Any Information in the Memoranda Concerning Independent or Parallel
Criminal Investigations Cannot Be Segregated and Released from the
Documents Without Revealing Protected Grand Jury Information
Plaintiffs suggest that information in the memoranda regarding the grand jury’s
investigation can be segregated from any information in the documents that details investigative
steps that federal prosecutors took outside the presence of the grand jury. Even assuming
arguendo that information generated in a parallel federal investigation is contained in the
memoranda, however, Plaintiffs ignore that such information could not be disclosed in the
present context without also revealing confidential matters that occurred before the grand jury,
including the subject matter, targets and witnesses in that grand jury investigation. Durham
Decl. ¶ 13. To the extent that Plaintiffs’ argument relies upon the faulty premise that the subject
matter of the grand jury investigations is not itself secret, that contention is simply wrong as
discussed supra. If Plaintiffs are suggesting instead that the disclosure of information regarding
any parallel investigation is mandated by the caselaw, even though the record establishes that

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such revelations in this context will logically and necessarily divulge confidential matters
occurring before the grand jury, this argument is also demonstrably incorrect.
In support of their argument, Plaintiffs extensively cite a D.C. Circuit case, Senate of
Puerto Rico v. United States Dep’t of Justice, 823 F.2d 574, 582 (D.C.Cir.1987), for the
proposition that the Government must make a showing that disclosure of “every single part” of
the memoranda would elucidate the secret workings of the grand jury. Pl. Br. at 16-18. That
case does not carry the weight that Plaintiffs place upon it, however. In Senate of Puerto Rico,
the D.C. Circuit simply noted that, in response to a FOIA request for “all evidence” pertaining to
a particular investigation, it may have been possible for the Government to release both grand
jury exhibits and non-grand jury evidentiary material in such a way that the recipient of the
information would not have been able to discern which documents had been before the grand
jury. Under those circumstances, the D.C. Circuit held, the agency was required to show that
those evidentiary documents could not have been “revealed in such a manner that [their]
revelation would not elucidate the inner workings of the grand jury.” Id. at 582.
Senate of Puerto Rico presents issues that are markedly different from the case at bar.
The memoranda sought by Plaintiffs in this case are not evidentiary documents that existed
independent of the grand jury process and that were “coincidentally” before the grand jury, such
as corporate documents produced pursuant to a grand jury subpoena. They are documents that
were created by prosecutors in connection with grand jury investigations. The Recommendation
Memoranda, for example, were produced as part of the process of commencing the grand jury
investigation. And the Declination Memoranda directly concern and discuss the contours of
grand jury investigations. Thus, while the production of evidentiary documents without any
identifying marks linking them to a grand jury investigation may not, standing alone, reveal that

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the documents were presented to the grand jury, the production of memoranda that actually
describe in detail the course of federal grand jury investigations is an entirely different matter.
Moreover, unlike in Senate of Puerto Rico, the Government has made the necessary
evidentiary showing of a nexus between disclosure of any part of the memoranda and the
revelation of a protected aspect of the grand jury’s investigation—by demonstrating that
disclosure of substantive information from any of the memoranda would necessarily reveal the
subject matter of the grand jury investigations discussed in those documents. Under Plaintiffs’
approach, the Government would redact from the memoranda any explicit references to grand
jury testimony and the like, but would release those portions of the memoranda discussing
evidence that was not presented to the grand jury, such as summaries of witness interviews that
were conducted by federal investigators outside the presence of the grand jury and the
prosecutor’s analysis of this evidence. Yet it is inarguable that releasing such information from
the memoranda would disclose the subject matter of the overall investigations, the targets of
those investigations, and the witnesses in those investigations. Because the subject matter, the
targets, and the primary witnesses are the same, regardless of whether the investigation is
characterized as conducted by the grand jury or by federal prosecutors, release of this
information for the investigations generally would reveal the same information for the grand jury
investigations. The dichotomy that Plaintiffs attempt to draw between the grand jury
investigations and the investigations conducted by federal prosecutors falls apart in this context,
where the Declination Memoranda summarize the results of the overall investigations, both as it
was conducted in front of the grand jury and otherwise. In this context, to release information
regarding one is to release information regarding the other.

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For this reason, almost all of the cases cited in the Plaintiffs’ brief are inapposite, as they
almost uniformly address the factually distinguishable circumstance in which evidence that
existed independent of any grand jury proceeding, that was gathered independently of the grand
jury process, and that was not presented to the grand jury, was held to fall outside the ambit of
Rule 6(e) because their contents could be disclosed without revealing anything at all about the
grand jury. 1 In S.R. Mercantile Corp. v. Maloney, 909 F.2d 79, 83 (2d Cir. 1990), for example,
the documents at issue, which were seized by the Internal Revenue Service pursuant to a search
warrant, were held not to implicate Rule 6(e) because they “had not been seized pursuant to a
grand jury subpoena and had not been shown to the grand jury.” Id. In United States v. Eastern
Air Lines, Inc., 923 F.2d 241, 244 (2d Cir. 1991), the Second Circuit similarly held that evidence
that was obtained independently of the grand jury, and which had not been presented to the grand
jury, was not protected by Rule 6(e). In so holding, however, the Second Circuit did not create a
bright-line rule that evidence gathered pursuant to a parallel criminal investigation can never be
protected by Rule 6(e), noting instead that there “plainly may be circumstances when evidence
that has not yet been, but will be, presented to the grand jury may properly be kept confidential”
if its disclosure would reveal matters occurring before the grand jury. Id. (citing Martin v.
Consultants & Administrators, Inc., 966 F.2d 1078, 1097 (7th Cir. 1992) (holding that FBI
reports generated independently of a grand jury investigation could nonetheless fall within the
1

The one exception is In re Sealed Case No. 99-3091, 192 F.3d 995, 1003 (D.C. Cir.
1999), which considered whether media reports that indicated that prosecutors wanted to seek an
indictment of President Bill Clinton on perjury and obstruction charges impermissibly revealed
grand jury information. The D.C. Circuit concluded that they did not, even though “it would
ordinarily be a violation of Rule 6(e) to disclose that a grand jury is investigating a particular
person,” only because the target of that investigation, President Clinton, had already made public
the nature of grand jury proceeding during a national television appearance. 192 F.3d at 1004.
In the present case, the subject matter and targets of the grand jury proceeding have not been
made public, as discussed supra, and thus the contents of the memoranda remain protected by
Rule 6(e).
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ambit of Rule 6(e) if they would reveal the identities of the targets of a grand jury investigation
and witnesses)). To the extent there exists any information in the memoranda that concerns
evidence gathered by federal prosecutors independently of the grand jury process, it would
plainly fall within the situation hypothesized by the Second Circuit, whereby the release of such
information would result in the disclosure of matters occurring before the grand jury.
Plaintiffs’ reliance upon cases from other Circuits is similarly unavailing. 2 As in Eastern
Air Lines, the materials at issue in In re Grand Jury Matter (Appeal of Catania), 682 F.2d 61, 64
(3d Cir. 1982), were not memoranda extensively discussing the substance of grand jury
proceedings, but evidence obtained by the FBI independently of the grand jury process, such as
tape recordings of consensually monitored conversations, documents obtained without grand jury
subpoenas, notes from FBI interviews of witnesses that took place outside the presence of the
grand jury, and a prosecution memoranda that summarized only the information gathered during
the FBI criminal investigation, and not evidence generated by the separate grand jury
investigation. Id. Moreover, contrary to the Plaintiffs’ suggestion, Pl. Br. at 14, the Third
Circuit’s Rule 6(e) inquiry did not end with its conclusion that the materials were generated
independently of the grand jury process. The court went on to consider whether this was “a case
where information developed independently of but presented to a grand jury could disclose

2

The Government notes further that several Circuits apply a different standard than the
Second Circuit in determining whether information is covered by Rule 6(e). In the Second
Circuit, the governing test is whether the information at issue “may tend to reveal what
transpired before” the grand jury. Eastern Air Lines, 923 F.2d at 244; cf. In re Grand Jury
Subpoena, 103 F.3d 234, 239 (2d Cir. 1996) (“[W]hen the district court finds that disclosure of
the confidential information might disclose matters occurring before the grand jury, the
information should be protected by Rule 6(e).”). In contrast, the standard applied by the Tenth
Circuit is whether “disclosure is certain to destroy the protections of Rule 6(e).” Anaya v. United
States, 815 F.2d 1373, 1379 (10th Cir. 1987). See also United States v. Dynavac, Inc., 6 F.3d
1407, 1412-14 (9th Cir. 1993) (discussing generally the different approaches courts have taken in
determining whether evidentiary materials constitutes matters occurring before the grand jury).
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would transpired before the grand jury.” Id. The Third Circuit held that, because it was not
possible to tell from the evidence itself, standing alone, whether any of the material was
ultimately presented to a federal grand jury, release of such information would not fall within the
ambit of Rule 6(e) because it would not reveal what occurred before a grand jury.
The Tenth Circuit has taken a similar approach, focusing not only on the source of the
information, but on whether the disclosure “in the particular context” presented “would in fact
reveal what was before the grand jury.” Anaya v. United States, 815 F.2d 1373, 1379 (10th Cir.
1987). In Anaya, the Tenth Circuit concluded that Rule 6(e) did not extend to information
gathered during a parallel criminal investigation that was not presented to the grand jury. In so
ruling, the Tenth Circuit distinguished cases (like this one) in which the evidence at issue had
been presented to the grand jury, as well as cases (also like this one) involving documents that
discussed the “scope, focus and direction” of grand jury investigations. Id.
The cases cited by Plaintiffs thus underscore that the memoranda at issue here are
protected by Rule 6(e). The memoranda do not outline the strategy for investigations that existed
separate from and independent of a grand jury’s investigation. Rather, they describe the “scope,
focus and direction” for investigations that were in fact conducted before a federal grand jury.
Id. Accordingly, the disclosure of any substantive information from these memoranda would
tend to reveal what actually transpired before the grand jury, and thus cannot be reasonably
segregated from the documents. See, e.g., Tigue v. United States Dep’t of Justice, 312 F.3d 70,
82 (2d Cir. 2002) (non-exempt material was too intertwined with exempt material to require
disclosure).
Relying on In re Grand Jury Investigation (Lance v. United States Dep’t of Justice), 610
F.2d 202, 217 (5th Cir. 1980), Plaintiffs additionally argue that a prosecutor’s recommendations

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regarding whether to seek an indictment, or a prosecutor’s opinion as to a potential defendant’s
criminal liability, are not themselves matters occurring before the grand jury, and that those
portions of the memoranda that contain the Durham team’s analysis and opinions therefore
should be segregated and disclosed. Pl. Br. at 15. But the key language in Lance is that such
recommendations and opinions are not protected “provided, of course, [that they do] not reveal
the grand jury information on which [they are] based.” 610 F.2d at 217. In the instant case, Mr.
Durham has established that the memoranda do reveal protected and secret grand jury
information. Indeed, the Declination Memoranda, in assessing whether an indictment should be
sought, include “extensive analyses of the substantial volume of evidence gathered during the
grand jury’s investigation.” Durham Decl. ¶ 11. Thus, under the fact-specific inquiry required
under Rule 6(e), the record amply demonstrates that the disclosure of these memoranda in their
entirety would tend to reveal matters occurring before the grand jury.
Contrary to Plaintiffs’ claim, the Government’s position in this case is consistent with the
position taken in United States v. Skelos, 15 Cr. 317 (KMW). Pl. Br. at 13. At issue in Skelos
was whether the defendants had made a prima facie showing that Government attorneys had
leaked grand jury material to the press. The Government argued, inter alia, that references in the
media to a federal “investigation” into the activities of the defendants were not sufficient,
standing alone, to establish that Government attorneys had disclosed information about matters
occurring before the grand jury, in light of the fact that the Government had also conducted a
wide-ranging investigation independently of the grand jury, which included witness interviews,
materials obtained through search warrants, and wiretap orders. Government’s Memorandum of
Law in Opposition to the Defendants’ Pretrial Motion (“Skelos Br.”), attached as Exhibit A to
the Declaration of David McCraw, dated June 10, 2016, at 72, 78-80. In that case, the

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Government argued that the defendants had not demonstrated a sufficient nexus between
evidence that had not been presented to the grand jury and any secret aspect of the grand jury’s
operations. Id.
In contrast, the memoranda at issue here concern investigations that were in fact
conducted by a federal grand jury and that disclose what actually transpired before a federal
grand jury. The disclosure of such memoranda would necessarily reveal exactly what Rule 6(e)
was intended to protect—the secret workings of the grand jury, including the subject matter of its
investigations, the targets of its investigations, the identity of witnesses who testified before the
grand jury, the substance of their testimony, documents obtained by grand jury subpoena, the
contents of discussions with grand jurors, and the prosecutor’s strategy before the grand jury.
Durham Decl. ¶¶ 11-12. Thus, the nexus between disclosure of documents and revelation of a
secret aspect of the grand jury’s operations that was lacking in Skelos is present in the instant
case. 3

3

Plaintiffs have also noted an apparent contradiction between the Government’s position
in this case and in the Skelos case regarding the protection of documents, such as business
records, obtained by the Government pursuant to grand jury subpoena. See Pl. Br. at 13. Skelos
was a criminal case where the defendants alleged—insufficiently, as the Court found—that the
Government had improperly leaked grand jury information. See United States v. Skelos, 2015
WL 6159326 (S.D.N.Y.). Skelos did not involve the circumstances under which documents
obtained via grand jury subpoena might properly be disclosed by the Government or obtained by
a third party. Although the Government’s memorandum in Skelos noted this Office’s
“conservative approach in . . . limiting disclosure of documents produced to the grand jury,” see
Government’s Skelos Brief at 75 n.25 (attached as Exhibit A to Declaration of David McCraw),
the out-of-circuit cases the Government cited in Skelos take a more liberal approach to the
question. Accordingly, although the question has little relevance in this case because the
Government argues that the Durham memoranda are exempt in their entirety, and not just those
discrete portions describing documents obtained by grand jury subpoena, we believe it useful to
clearly state the Government’s position regarding documents subpoenaed by the grand jury, lest
any misapprehension continue. Specifically, it is the position of this Office that documents
obtained via grand jury subpoena are subject to grand jury secrecy protections. Not every circuit
follows this rule—see, e.g., United States v. Dynavac, Inc., 6 F.3d 1407, 1412-14 (9th Cir. 1993),
discussing four different approaches used by various circuits—but we believe it is consistent
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C. Any Public Interest in Disclosure Is Not a Valid Consideration in
Determining Whether Documents are Properly Withheld Under Exemption 3
Plaintiffs appear to suggest that this Court should order disclosure of Rule 6(e) materials
merely because in their view there would be great deal of public interest in this information. In
particular, Plaintiffs cite to remarks made by former Attorney General Holder discussing his
personal wish that “there were a way” for the public to access these memoranda so that the
public could appreciate the thoroughness of the underlying investigations, although recognizing
that the memoranda are protected as grand jury materials. Pl. Br. at 8. There is no legal support
for the proposition that Exemption 3 can be overcome upon a finding that disclosure is in the
public interest, however. To the contrary, in a FOIA suit the Court is not permitted to balance
the interest in continued secrecy against a particular interest in disclosure. Fund for Const. Gov’t
v. Nat’l Archives & Records Serv., 656 F.2d 856, 868-69 (D.C. Cir. 1981). Moreover, in making
this argument, Plaintiffs ignore the equally important interests that are enshrined in Rule 6(e),
which include protecting the “‘accused who is exonerated from the disclosure of the fact that he
has been under investigation.’” United States v. Proctor & Gamble Co., 356 U.S. 677, 681 n.6
(1958) (citation omitted). These important protections do not disappear each time a particular
criminal investigation touches upon a matter of public importance.
D. The Recommendation Memoranda Are Exempt as Documents that Outline
the Scope, Direction and Subject Matter of Contemplated Criminal
Investigations That Were Conducted Before a Federal Grand Jury
Finally, Plaintiffs direct certain of their arguments to the withholding of the
Recommendation Memoranda in particular. For example, Plaintiffs argue that “the
Recommendation Memoranda concern an investigation, not a grand jury presentment, and

with Second Circuit law and practice. See, e.g., In re Grand Jury Investigation B-15-1, No. 16mc-4, 2016 WL 110002 at *3-*5 (D. Conn. Jan. 8, 2016).
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therefore fall outside the scope of Rule 6(e).” Pl. Br. at 15. But Mr. Durham’s declaration
demonstrates that the Recommendation Memoranda outline prosecutorial strategies for
investigations that were largely conducted before a federal grand jury, and not investigations that
were entirely separate from and independent of the grand jury. Durham Decl. at ¶ 10 (“The two
full criminal investigations that the investigative team subsequently conducted involved
extensive grand jury proceedings.”); cf. In re Grand Jury Subpoena (John Doe No. 4 v. John Doe
No. 1), 103 F.3d 234, 239 (2d Cir. 1996) (government investigation was sufficiently related to
grand jury process that it fell within ambit of Rule 6(e)(5) and (6)). Because the
Recommendation Memoranda would reveal the subject matter, the targets, the potential
witnesses, and the strategy and focus of investigations that were conducted by a federal grand
jury, they fall squarely within the scope of Rule 6(e). Durham Decl. ¶ 12.
Plaintiffs’ further contend that, because the Recommendation Memoranda predate the
commencement of the grand jury investigation, they cannot be protected by Rule 6(e). Pl. Br. at
14. Again, the law is to the contrary. The relevant standard is whether the document in question
“may tend to reveal what transpired before” the grand jury, Eastern Air Lines, Inc., 923 F.2d at
244, regardless of the date of the document’s creation. Documents that outline the intended
subject matters and targets of criminal investigations that will largely be conducted by a federal
grand jury, the potential witnesses in such investigations, and the contemplated focus and
prosecutorial strategy in such investigations, clearly meet this standard.
Plaintiffs have not identified any case in which a memorandum outlining prosecutorial
strategy for a criminal investigation to be conducted before a federal grand jury has been held to
fall outside the ambit of Rule 6(e) simply because it predates the commencement of the grand
jury investigation itself. Indeed, the only case cited by Plaintiffs that addresses the issue of

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timing, In re Grand Jury Investigation (Lance), 610 F.2d at 216, runs counter to their position.
Pl. Br. at 15. In Lance, the Fifth Circuit held: “We construe the secrecy provisions of Rule 6(e)
to apply not only to disclosures of events which have already occurred before the grand jury,
such as a witness’s testimony, but also to disclosures of matters which will occur, such as
statements which reveal the identity of persons who will be called to testify or which report when
the grand jury will return an indictment.” Id. at 216-17; see also In re Motions of Dow Jones &
Co., Inc., 142 F.3d 496, 500 (D.C. Cir. 1998) (“‘[M]atters occurring before the grand jury’ []
includes not only what has occurred and what is occurring, but also what is likely to occur.”).
Nor have Plaintiffs addressed the authorities cited in the Government’s moving brief,
which clearly hold that memoranda seeking authority to commence a grand jury investigation are
protected under Rule 6(e), as are prosecutors’ notes regarding the strategy and tactics to be
employed in a grand jury proceeding. Gov’t Br. at 11 (citing cases); see also Petition of United
States for Disclosure of Grand Jury Matters (Miller Brewing Co.), 518 F. Supp. 163, 166 (E.D.
Wisc. 1981) (agent’s original request for a grand jury investigation, which set forth the results of
prior investigative efforts along with recommendations for the course of the grand jury
investigation, was protected under Rule 6(e)), modified on other grounds, 687 F.2d 1079 (7th
Cir. 1982). Accordingly, Plaintiffs’ argument that the Recommendation Memoranda are not
protected by Rule 6(e) merely because they precede in time the commencement of grand jury
proceedings is without any legal support.
POINT II
THE GOVERNMENT AMPLY DEMONSTRATED THAT FOIA EXEMPTIONS 1 AND
3 PROTECT DISCRETE CATEGORIES OF NATIONAL SECURITY INFORMATION
As described in the Government’s opening brief, the Government invoked FOIA
Exemptions 1 and 3 to withhold six discrete categories of national security information contained
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in the Durham memoranda. See Gov. Br. at 12-22. Plaintiffs do not challenge the Government’s
withholding of three of those categories: (1) dissemination control markings; (2) the identities of
CIA personnel; and (3) the identities of confidential human intelligence sources. See Pl. Br. at
18. The Court should thus grant summary judgment to the Government as to the withholding of
this information.
Contrary to Plaintiffs’ argument, the Government has also demonstrated that the
memoranda’s discussion of (1) details concerning foreign liaison services; (2) the locations of
covert CIA installations and former detention centers located abroad; and (3) descriptions of
specific intelligence methods and tradecraft that are still in operational use, all comfortably fall
within the scope of Exemptions 1 and 3. As discussed below, Plaintiffs’ opposition rests upon a
misstatement of the governing standards, unfounded assumptions, and a selective presentation of
the Government’s supporting declarations.
A. Exemption 1 Protects The Withheld Categories of Classified Information
As an initial matter, Plaintiffs improperly attempt to minimize the substantial deference
owed to the Executive’s protection of national security information. While Plaintiffs
acknowledge that courts must accord “substantial deference” to an agency’s declaration
pertaining to matters of national security, Pl. Br. at 20, they attempt to downplay this obligation
by asserting that courts may and should “second-guess” classification decisions and in so doing
apply a de novo standard of review, id. at 19. Such an approach contravenes the governing law
in this Circuit (and the D.C. Circuit), as set forth in the Government’s opening brief. See
generally Gov. Br. at 13-14 (citing cases, including, e.g., Wilner v. NSA, 592 F.3d 60, 76 (2d Cir.
2009) (“it is bad law and bad policy to second-guess the predictive judgments made by the
government’s intelligence agencies” regarding whether disclosure of information “would pose a

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threat to national security” (quotation marks omitted)); Larson v. Dep’t of State, 565 F.3d 857,
865 (D.C. Cir. 2009) (“The judiciary is in an extremely poor position to second-guess the
predictive judgments made by the government’s intelligence agencies” regarding nationalsecurity questions (quotation marks omitted))). The legislative history cited by Plaintiffs, Pl. Br.
at 19, provides no help either, as that same history also makes clear that courts conducting “de
novo” review in the Exemption 1 context must give “substantial weight” to government
declarations providing “details of the classified status of the disputed record[s].” H.R. Conf.
Rep. No. 93-1380, at 12 (1974). Indeed, Congress expressly recognized that “the Executive
departments responsible for national defense and foreign policy matters” possess “unique
insights into what adverse [national-security] [e]ffects might occur as a result of public
disclosure.” Id.
As to the specific categories of classified information in dispute, Plaintiffs inexplicably
contend that they are unable to determine what the Government seeks to protect as “details
concerning foreign liaison services.” According to Plaintiffs, “it is unclear what precisely the
Government intends to redact: just the source of the information or the information itself? All
information or some discrete categories?” Pl. Br. at 22. But the answers to these questions are
contained in the supporting declaration. As the CIA’s declarant states, the Government is
protecting “the content of . . . communications” between the United States and foreign liaison
services and foreign government officials, “as well as the mere fact of the existence” of our
relationships with them, because “foreign liaison services and foreign government officials
provide sensitive intelligence in the CIA in confidence.” Declaration of Jan M. Payne, dated
April 27, 2016 (“Payne Decl.”) ¶ 10. Moreover, Plaintiffs accept that national security harm can
reasonably be expected to result from the disclosure of certain foreign relationships. Pl. Br. at

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22. Indeed they must—under Executive Order 13,526, section 11.1(d), the unauthorized
disclosure of foreign government information is presumed to cause damage to the national
security, and courts have long recognized the legitimacy of withholding this information. See
Gov. Br. at 16.
Similarly unpersuasive is Plaintiffs’ challenge to the Government’s withholding of the
locations of CIA installations and former detention centers located abroad. Plaintiffs accuse the
Government of “fail[ing] to level about the extent of the redaction proposed,” stating that
detainee Gul Rahman died in Afghanistan and detainee Manadel al-Jamadi in Iraq, and that
officials in Poland and Romania acknowledged the existence of CIA sites in their borders. Pl.
Br. at 22. Even if true, none of this is relevant. The Government has never officially
acknowledged the identity of the detainees who are the subject of the memoranda at issue, so the
locations where Mr. Rahman and Mr. al-Jamadi died are simply not germane to the CIA’s
withholding of the locations of covert facilities identified in the Durham memoranda. And as the
Government noted in its opening brief, while the SSCI Report publicly discusses the treatment of
certain detainees, it maintains redactions of all CIA covert facilities and installations referenced
therein. See Gov. Br. at 17-18. As to what Poland and Romania may or may not have revealed,
governing caselaw establishes that such statements cannot function as an official
acknowledgement of the U.S. Government, or otherwise operate to declassify or waive the CIA’s
protection of this information under Exemption 1. See Mobley v. CIA, 806 F.3d 568, 583-84
(D.C. Cir. 2015) (foreign government cannot waive agency’s ability to protect classified
information under FOIA); Wilson v. CIA, 586 F.3d 171, 186 (2d Cir. 2009); see also New York
Times v. DOJ, 756 F.3d 100, 120 n.19 (2d Cir. 2014) (recognizing that Wilson “remains the law
of this Circuit”). This case is a prime example of why this principle makes sense: as the

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Government’s opening brief explained, an official acknowledgment that the CIA has operated or
is operating in a particular country can reasonably be expected to harm foreign relationships and
prompt the identified country and/or adversaries to take damaging countermeasures—whether or
not such information is known to the public by other means. Gov. Br. at 17. These predictions
of harm are logical and plausible, and Plaintiffs do not challenge them.
Third, Plaintiffs challenge the Government’s withholding of intelligence methods and
tradecraft still in operational use 4 –indeed they purport to be “baffl[ed]” as to why such
information is contained in the Durham memoranda, Pl. Br. at 23—and they fault the
Government for not explaining “why or where exactly information about intelligence sources and
methods comes into play in memoranda discussing torture and homicide,” id. at 21-22 (emphasis
added). But to justify its withholdings, the Government is not required to explain “why” or
“where” intelligence methods are used in connection with the underlying events investigated by
Durham. Rather, as relevant here, to withhold information under Exemption 1, the Government
need only show that the material at issue is properly classified, including that it falls within one
of the categories of classifiable information set forth in Section 1.4 of E.O 13,526, and that its
disclosure could reasonably be expected to result in national security harm. See generally Gov.
Br. at 12-13. The CIA declarant’s assertion that the Durham memoranda contain information
concerning intelligence methods and tradecraft still in operational use is entitled to a
presumption of good faith, which is not undermined by Plaintiffs’ purported bewilderment. 5
Carney v. DOJ, 19 F.3d 807, 812 (2d Cir. 1994).
4

Plaintiffs mount no challenge to the subcategories of operational details withheld by the
CIA consisting of funding amounts associated with a particular program or operation or the
precise dates of particular operations and communications. See Gov. Br. at 18-19.
5

The Government has endeavored to disclose as much information as possible, consistent
with its obligation to protect national security. However, in the event the Court requires
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Overall, Plaintiffs accuse the Government of “tr[ying] to make its case through the usual
generalities about the importance of national security, the need to protect intelligence secrets,
and the wished-for judicial deference in FOIA cases dealing with the war on terrorism.” Pl. Br.
at 18-19. But this overarching accusation is noticeably untethered to any of the specific
arguments Plaintiffs advance, and, as is apparent from the Government’s response above and its
opening brief and declaration, is simply not true. In fact, the Government’s declarant has
described the categories of information at issue quite specifically, to the maximum extent
possible on the public record, and has reasonably explained why the disclosure of such
information is reasonably likely to result in national security harm. Courts have repeatedly
sustained the withholding of similar information see Gov. Br. at 15-19—a fact that Plaintiffs do
not rebut. For all these reasons, the Government is entitled to summary judgment on its
Exemption 1 claims.
B. Exemption 3 Also Protects The Withheld Categories of Information
Plaintiffs fare no better in challenging the Government’s showing that the three disputed
categories of national security information (details concerning foreign liaison services, the
locations of covert CIA installations and detention centers located abroad, and operational
intelligence methods and tradecraft ) all also fall within the purview of the National Security Act,
50 U.S.C. § 3024(i)(1) and/or the CIA Act, 50 U.S.C. § 3507—withholding statutes that
Plaintiffs concede are broad in scope. Pl. Br. at 23.
Plaintiffs simply rehash the arguments made in opposing the Government’s Exemption 1
claim, erroneously claiming that the Government “throws out broad descriptions of topics that
might be protected under the statute[s] . . . but offers no discussion of what kind of information is

additional detail, the Government will prepare submit a classified declaration ex parte, for in
camera review.
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actually in the memoranda and deserving of protection.” Pl. Br. at 24. Again, Plaintiffs’
characterization is belied by the Government’s supporting declaration, which describes the
categories of information at issue in sufficient and reasonable detail. See Payne Decl. ¶¶ 10, 12,
13, 15; see id. ¶¶ 19-20; Gov. Br. at 21-22. As the Government discussed in its opening brief,
numerous courts have found that similarly-described information is properly withheld pursuant
to the National Security Act and/or CIA Act. Gov. Br. at 21-22. That the Exemption 3 analysis
in this case is simple and straightforward does not render the Government’s argument suspect.
Plaintiffs also claim—again—that “the Government leaves the Court guessing as to what
role sources and methods play in memoranda by DOJ prosecutors looking into two homicides.”
Pl. Br. at 24. As discussed in connection with Plaintiffs’ Exemption 1 argument, this is a red
herring. Nothing in the law requires the Government to provide this information in connection
with establishing its Exemption 3 claim, nor does the absence of such information cast any doubt
on the applicability of Exemption 3, the National Security Act or the CIA Act.
Finally, Plaintiffs claim that the Government is “unclear” as to what it is protecting
pursuant to Section 6 of the CIA Act, and cite a case requiring the agency to expressly delineate
the material withheld under the CIA Act, as opposed to the National Security Act. Pl. Br. at 24
n.22. But as the Payne Declaration demonstrates, that is exactly what the Government did. As
to the three categories of national security information in dispute, the Government has invoked
both the National Security Act and CIA Act to protect the details of foreign liaison relationships,
Payne Decl. ¶¶ 19, 20, and the National Security Act to protect the locations of covert CIA
facilities abroad and intelligence methods and tradecraft, id. ¶ 19. See also Gov. Br. at 21-22.
The Government has provided ample information demonstrating that the disputed
categories of national security information comfortably fall within the protection of the National

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Security Act and/or CIA Act. Accordingly, even if such information was not protected pursuant
to Exemption 1, Exemption 3 provides a separate and independent basis for granting the
Government summary judgment.
POINT III
THE GOVERNMENT PROPERLY INVOKED FOIA EXEMPTION 5 TO WITHHOLD
A VERY LIMITED AMOUNT OF INFORMATION IN THE DURHAM MEMORANDA
In its Opinion and Order dated September 30, 2015 (the “September Opinion” or
“Opinion”), the Court held that certain press statements of the Attorney General triggered
application of the express adoption doctrine to five of the Durham memoranda. (Opinion at 1722). The Court recognized, however, that portions of the five memoranda that “do not support—
or even explicitly concern—Durham’s reasoning regarding the sufficiency of the evidence or the
applicable federal law” remain protected as privileged under Exemption 5. (Id. at 21).
Responding to the Court’s direction, the Government identified those portions of the Durham
memoranda that did not pertain to Durham’s reasoning and addressed them in its opening brief
on these motions. See Gov. Br. at 24-25; see also generally Declaration of Christina M. Butler
dated May 13, 2016 (“Butler Decl.”).
Plaintiffs’ claim that the Government has relied on the Court’s so-called “carve-out” to
“sweep large sections of the memoranda from public view,” Pl. Br. at 25, is demonstrably false.
First, of the five memoranda at issue, the Government determined that under the reasoning of the
Court’s Opinion, three of them (the “Declination Memoranda”) would no longer be protected by
Exemption 5. Butler Decl. ¶ 6. 6 Of the remaining two memoranda (the “Recommendation
Memoranda”), the Government asserted that only the Procedural Background sections—only 4

6

The Government respectfully disagrees with the Court’s express adoption reasoning and
reserves the right to seek appellate review of that ruling.
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of 31 pages of Durham’s analysis—and the exhibits could continue to be withheld under the
reasoning of the Court’s Opinion. Id. ¶ 11; Declaration of Douglas Hibbard dated Dec. 9, 2014,
Ex. C. Thus, contrary to what Plaintiffs would have this Court believe, the Government applied
Exemption 5 quite narrowly in light of the Court’s ruling.
Plaintiffs point to the Court’s statement that the Government could continue to withhold
only those portions of the memoranda that “do not support—or even explicitly concern—
Durham’s reasoning,” and interpret that to mean that everything that “supports” Durham’s
reasoning is no longer deserving of Exemption 5 protection. Pl. Br. at 26. Thus, according to
Plaintiffs’ interpretation, “all materials contributing to Mr. Durham’s conclusion about
sufficiency must be disclosed, whether they are factual materials, procedural recitations, or legal
discussions,” including the exhibits to the Recommendation Memoranda and the Procedural
Background sections therein. Pl. Br. at 26.
Plaintiffs’ strained interpretation of the Court’s opinion would lead to absurd results. The
Court’s statement was made in the context of describing what it had held that the Attorney
General expressly adopted through certain press statements. As the Court explained, “DOJ
should not be required to disclose those portions of the memorandum that do not support the
reasoning on which the Attorney General relied.” (Opinion at 21 (emphasis added)). The
Attorney General did not rely on investigations and analysis that pre-dated Durham’s
appointment, which is what the Procedural recitations and exhibits to the Recommendation
Memoranda reflect. Butler Decl. ¶¶ 12, 13-15, 20-21. Instead, per the Court’s September
Opinion, the Attorney General relied on Mr. Durham’s reasoning and analysis, all of which is
contained in the body of his memoranda. Id. ¶ 13.

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If Plaintiffs’ interpretation of the Court’s ruling was correct (and it is not), it would mean
that the Attorney General would have adopted every piece of evidence cited by Durham in his
memoranda, as all of it “supports” Durham’s reasoning. This is plainly not what the Court
intended, and in any event would constitute a dramatic, unprecedented expansion of the express
adoption doctrine.
Accordingly, the Procedural Background sections and the exhibits to the
Recommendation Memoranda were not adopted by the Attorney General and remain properly
protected under Exemption 5. The Court should thus grant summary judgment to the
Government as to these withholdings.
POINT IV
THE GOVERNMENT ADEQUATELY JUSTIFIED INVOCATION OF FOIA
EXEMPTIONS 6 AND 7(C) TO PROTECT IDENTIFYING INFORMATION OF THIRD
PARTIES CONTAINED IN CRIMINAL INVESTIGATORY MEMORANDA
In challenging the Government’s withholding of identifying information of witnesses,
investigatory targets, covert and overt CIA personnel, foreign officials, and human sources 7 from
memoranda concerning criminal investigations into the controversial treatment of detainees,
Plaintiffs argue that the Government did not describe the “role that various categories of people
actually play in the memoranda” or “establish[] more concretely that there has been no waiver of
a person’s privacy interest.” Pl. Br. at 29.
Plaintiffs are attempting to impose burdens on the Government that are not supported by
the case law. First, courts routinely hold that Exemptions 6 and 7(C) generally protect thirdparty identifying information contained in law enforcement files in light of the substantial
7

The Government notes that it has also invoked Exemption 3 to protect the identities of
covert and overt CIA personnel, human sources, and foreign officials. Payne Decl. ¶¶ 19-20.
Plaintiffs did not challenge the applicability of Exemption 3 to the identities of covert and overt
CIA personnel and human sources. See Pl. Br. at 18, 23-24.
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privacy rights at stake and the minimal to non-existent public interest in disclosure. In SafeCard
Services Inc. v. SEC, 926 F.2d 1197, 1205-06 (D.C. Cir. 1991), the D.C. Circuit held that
Exemption 7(C) “categorically” protects private information contained in law enforcement
records unless there is “compelling evidence that the agency denying the FOIA request is
engaged in illegal activity, and access to the names of private individuals appearing in the
agency’s law enforcement files is necessary to confirm or refute that evidence.” Accord Nation
Magazine v. U.S. Customs Serv., 71 F.3d 885, 896 (D.C. Cir 1995); cf. Long v. Office of
Personnel Mgmt., 692 F.3d 185 (2d Cir. 2012) (withholding of names of entire classes of
employees proper notwithstanding lack of individual inquiry). Second, in making a good faith
withholding of third-party identifying information under Exemptions 6 or 7(C), the Government
does not bear the burden of scouring publicly available information to ensure that the privacy
interests it seeks to protect have not been waived. The cases Plaintiffs cite do not stand for that
proposition; rather, they concern instances where a FOIA requester has put forward evidence that
a particular third party made his involvement in a matter public, where the information requested
is inherently public (e.g., court records) 8, or where the agency at issue has brought public
charges against the target of an investigation. See cases cited at Pl. Br. at 28. Nothing analogous
is present here.
In this case, moreover, the privacy interests of the third parties whose identities have been
withheld (witnesses, investigatory targets, covert and overt CIA personnel, foreign officials, and
human sources) are at their apex. See Fitzgibbon v. CIA, 911 F.2d 755, (D.C. Cir. 1990) (“We

8

It should be noted, however, that information contained in court records is not
necessarily stripped of Exemption 7(C) protection. See, e.g., U.S. DOJ v. Reporters Comm. For
Freedom of the Press, 109 S. Ct. 1468 (1989) (upholding withholding of criminal rap sheets
under Exemption 7(C) even though information contained and compiled in rap sheets is publicly
available in various court records).
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have said quite recently that [e]xemption 7(C) takes particular note of the strong interest of
individuals, whether they be suspects, witnesses, or investigators, in not being associated
unwarrantedly with alleged criminal activity.” (internal quotation marks and citation omitted));
see also PETA v. Nat’l Institutes of Health, 745 F.3d 535, 541 (D.C. Cir. 2014) (citing cases).
The association of each of these categories of individuals with high-profile criminal
investigations concerning the CIA’s controversial detention and interrogation program implicates
acute and extraordinarily sensitive privacy interests, regardless of the specific role any particular
individual may have played in the investigations. Indeed, Mr. Durham has confirmed that
revealing the identifying information of those connected with his investigations could subject
those individuals to harassment or embarrassment. Durham Decl. ¶ 15; see also Payne Decl. ¶
22. These strong privacy interests have not been waived. Durham’s investigations did not lead
to the filing of any public charges, and Plaintiffs have failed to point to any public information
linking any particular individual within the relevant categories to Durham’s investigations.
On the other hand, Plaintiffs do not dispute that revealing the identifying information of
these third parties would not shed any additional light on DOJ’s conduct or performance of its
duties. On this point, their brief is silent. Accordingly, summary judgment should be granted to
protect the identifying information of targets, witnesses, foreign officials, overt and covert CIA
personnel, and human sources pursuant to Exemptions 6 and 7(C).
CONCLUSION
For the foregoing reasons, and for the reasons stated in the Government’s moving papers,
DOJ’s motion for partial summary judgment should be granted.
Dated: New York, New York
July 8, 2016

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Respectfully submitted,
PREET BHARARA
United States Attorney for the
Southern District of New York
By:

26

/s/ Jeannette A. Vargas
Jeannette A. Vargas
Tara M. LaMorte
Assistant United States Attorneys
86 Chambers Street
New York, New York 10007
(212) 637-2678/2746 (tel)
Jeannette.Vargas@usdoj.gov
Tara.Lamorte2@usdoj.gov