Case 1:16-cv-06120-RMB Document 37 Filed 05/08/17 Page 1 of 13 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ___________________________________________ X NEW YORK TIMES COMPANY and : CHARLIE SAVAGE, : : Plaintiffs, : : - against : : U.S. DEPARTMENT OF JUSTICE, : : Defendant. : __________________________________________X 16 Civ. 6120 (RMB) REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF PLAINTIFFS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT David E. McCraw, Esq. Ian MacDougall, Esq. The New York Times Company Legal Department 620 Eighth Avenue, 18th Floor New York, NY 10018 phone: (212) 556-4031 fax: (212) 556-4634 mccraw@nytimes.com #61628v1 Case 1:16-cv-06120-RMB Document 37 Filed 05/08/17 Page 2 of 13 TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................................. i TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .................................................................................................... 1 ARGUMENT .................................................................................................................................. 1 I. DOJ HAS NOT CARRIED ITS BURDEN TO SHOW THAT EXEMPTION 5 JUSTIFIES WITHHOLDING THE THREAT ASSESSMENTS IN FULL................ 1 II. DOJ HAS FAILED TO CARRY ITS BURDEN WITH RESPECT TO EXEMPTIONS 1 AND 7.............................................................................................. 8 CONCLUSION ............................................................................................................................. 10 i #61628v1 Case 1:16-cv-06120-RMB Document 37 Filed 05/08/17 Page 3 of 13 TABLE OF AUTHORITIES CASES Brennan Ctr. for Justice v. Dep’t of Justice, 697 F.3d 184 (2d Cir. 2012)........................ 2-6 & n.2 Ferguson v. FBI, 83 F.3d 41 (2d Cir. 1996) ................................................................................... 9 Halpern v. FBI, 181 F.3d 279 (2d Cir. 1999) ................................................................................. 9 Hopkins v. HUD, 929 F.2d 81 (2d Cir. 1991) ................................................................................ 7 Nat’l Council of La Raza v. Dep’t of Justice, 411 F.3d 350 (2d Cir. 2005) .................. 2-4, 6 & n.2 Schwartz v. DEA, No. 13-cv-5004(CBA), 2016 U.S. Dist. LEXIS 3696 (E.D.N.Y. Jan. 8, 2016) ....................................................................................................................................................... 10 Wood v. FBI, 432 F.3d 79 (2d Cir. 2005) ....................................................................................... 6 STATUTES AND REGULATIONS 5 U.S.C. § 552 ........................................................................................................................... 1, 10 ii #61628v1 Case 1:16-cv-06120-RMB Document 37 Filed 05/08/17 Page 4 of 13 PRELIMINARY STATEMENT Plaintiffs The New York Times Company and Charlie Savage (collectively, “The Times”) respectfully submit this reply memorandum of law in further support of their crossmotion for summary judgment on their complaint brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and in opposition to the motion for summary judgment by the Department of Justice (“DOJ”). With respect to FOIA Exemption 5, DOJ persists in its effort to revive the formalistic express-adoption analysis the Second Circuit rejected more than a decade ago—isolating the statements of various government officials, as identified in The Times’s moving brief, and stripping them of context. The reason for DOJ’s approach is simple: Its position crumbles when subjected to the proper, functional analysis. In response to The Times’s other challenges, DOJ continues to rely on insufficient and conclusory declarations. ARGUMENT I. DOJ HAS NOT CARRIED ITS BURDEN TO SHOW THAT EXEMPTION 5 JUSTIFIES WITHHOLDING THE THREAT ASSESSMENTS IN FULL DOJ has failed to demonstrate that the deliberative process privilege permits it to withhold the Threat Assessments in full pursuant to Exemption 5. (See Mem. of Law in Oppo. to Pls.’ Cross-Mot. for Summary Judgment & in Further Supp. of Def.’s Mot. for Summary Judgment (“DOJ Reply Mem.”) at 2-17.) Express Adoption. DOJ puts forward two reasons why it thinks the statements identified by The Times do not demonstrate that the Obama Administration expressly adopted the Threat Assessments: (1) The officials who made these statements lacked the authority to expressly adopt the Threat Assessments (DOJ Reply Mem. at 3-4, 13), and (2) the statements are not sufficiently detailed and specific to demonstrate express adoption (id. at 3-11, 13-15). 1 #61628v1 Case 1:16-cv-06120-RMB Document 37 Filed 05/08/17 Page 5 of 13 In effect, DOJ asks the Court to impose a formalistic rules-based analysis to express adoption. But the Second Circuit has explicitly rejected just such a test and instead has adopted a functional test under which “courts must examine all the relevant facts and circumstances” to determine whether express adoption has taken place. Nat’l Council of La Raza v. Dep’t of Justice, 411 F.3d 350, 357 n.5 (2d Cir. 2005) (emphasis in original). This method of analysis mirrors the functional purpose behind the express-adoption doctrine: The government gets to choose how it justifies its policy decisions to the public, and when it chooses to do so by relying on the reasoning and conclusions of particular documents, the public has a legally protected interest under FOIA in obtaining the basis for the government’s claim. See id. at 357; Brennan Ctr. for Justice v. Dep’t of Justice, 697 F.3d 184, 207 & n.17 (2d Cir. 2012). Let’s be clear about what DOJ is really doing here. In La Raza, it tried to get the Second Circuit to adopt a formalistic approach to the express-adoption doctrine. The Second Circuit rejected that approach and adopted a flexible totality-of-the-circumstances inquiry. La Raza, 411 F.3d at 357 n.5. Now, DOJ is asking this Court to do an end run around La Raza. In arguing that insufficiently high-level officials made many of the statements at issue, DOJ takes too narrow a view of what sorts of officials can be considered in determining whether express adoption has occurred. As the Second Circuit has held, even when officials “do not themselves have the power to adopt or incorporate [a document], their statements serve as evidence of the [government’s] position on the matter,” particularly where there is no evidence that any of their statements “were unauthorized or inaccurate statements of the [government’s] position.” La Raza, 411 F.3d at 357 n.6. Consider the wide range of officials whose statements the Second Circuit has relied on to find express adoption: acting assistant attorneys general and the counsel to the Attorney General on DOJ’s policy as to the scope of state and local 2 #61628v1 Case 1:16-cv-06120-RMB Document 37 Filed 05/08/17 Page 6 of 13 immigration enforcement authority, id. at 354 & n.2, 357-58, and the U.S. Global AIDS Coordinator on two agencies’ policy as to the meaning of a funding provision in an HIV/AIDS and anti-human trafficking statute, Brennan Ctr., 697 F.3d at 204. Here, the Obama Administration officials quoted by The Times were exactly the officials tasked with articulating and defending the Administration’s detainee policy. (Mem. of Law in Oppo. to Def.’s Mot. for Summary Judgment & in Supp. of Pls.’ Cross-Mot. for Summary Judgment (“Times Mem.”) at 14-18; see also Declaration of David E. McCraw (“McCraw Decl.”), Exs. 1-12.) DOJ implicitly concedes this point. The only official it names as insufficient is Matthew Olsen, the executive director of the Task Force. (DOJ Reply Mem. at 4, 6, 13.) The problem for DOJ is that—contrary to its assumption—Olsen delivered his testimony not in his capacity as the head of the Task Force but in his capacity as a senior national security official. 1 And there can be little doubt that the Administration prepared Olsen to articulate its detainee policy in both hearings, given the circumstances: Olsen’s work on the Task Force was a significant issue going into the confirmation hearing (2011 Olsen Testimony at 4, 73, McCraw Decl., Ex. 13), and the title of the second hearing was “Current and Projected National Security Threats to the United States” (2012 Olsen Testimony at I, McCraw Decl., Ex. 14). 2 Cf. La Raza, 411 F.3d at 357 n.6. 1 At the first hearing, he testified as the general counsel of the National Security Agency in support of his nomination to a top counterterrorism post—director of the National Counterterrorism Center (“NCTC”)— and at the second hearing, he testified in his capacity as NCTC director. (2011 Olsen Testimony at 1, McCraw Decl., Ex. 13; 2012 Olsen Testimony at III, McCraw Decl., Ex. 14.) 2 Statements by members of Congress in the record are probative evidence of express adoption. Compare those statements with the Office of Legal Counsel (“OLC”) letter in Brennan Center, 697 F.3d at 204 n.16, 206. There, OLC wrote to Congress to say it had provided “tentative advice” to two agencies. Id. That told the court nothing about whether the agencies had adopted the advice. Nevertheless, the Second Circuit considered the letter, id. at 206, albeit describing it as possessing “limited relevance,” id. at 204 n.16. The congressional statements here, on the other hand (Times Mem. at 8, 17-18; McCraw Decl., Exs. 15-18), were made in response to the Administration’s public stance and so furnish evidence that the 3 #61628v1 Case 1:16-cv-06120-RMB Document 37 Filed 05/08/17 Page 7 of 13 DOJ fares no better with its second argument: that the statements cited by The Times lack detail and specificity. DOJ can make that argument only by improperly isolating and decontextualizing the statements. That, of course, is contrary to the totality approach mandated by the Second Circuit. See Brennan Ctr., 697 F.3d at 204 (“[W]e conclude that these [two] references taken together establish express adoption or incorporation by reference.”); La Raza, 411 F.3d at 357-58 & n.5 (evaluating evidence in total—“examin[ing] all the relevant facts and circumstances”—to find express adoption and noting that officials’ “statements must be understood in context”). More specifically, DOJ’s arguments fail for five reasons. First, when their statements are put in context, it becomes clear that the officials were not “merely describ[ing]” the Threat Assessments, as if in an FAQ or a fact sheet. (See DOJ Reply Mem. at 4; see also id. at 5-9.) The officials made these statements in direct response to criticism of the Obama Administration’s detainee policy in order to justify and defend it. (See Times Mem. at 4-7, 14-16.) Consider, for example, the March 23, 2016, statement from Lee Wolosky. (Times Mem. at 5, 15-16; McCraw Decl., Ex. 1.) It was prepared in response to a hearing whose very title reveals its hostility to the Administration’s detainee policy. See The Administration’s Plan to Close the Guantanamo Bay Detention Facility: At What Foreign Policy and National Security Cost?: Hearing Before the H. Comm. on Foreign Affairs, 114th Cong. I (2016), available at http://bit.ly/2pnQvMA; see also id. at 1-3. Second, DOJ misleadingly claims that many of the cited statements do not refer to the Threat Assessments. (DOJ Reply Mem. at 3, 5, 7, 9, 13-14.) They do, even if not all of them use Administration “made a practice” of relying on the Threat Assessments “to justify and explain” its detainee policy in the face of criticism. See La Raza, 411 F.3d at 358. 4 #61628v1 Case 1:16-cv-06120-RMB Document 37 Filed 05/08/17 Page 8 of 13 the magic words “threat assessment.” (See, e.g., Mar. 23 Wolosky Testimony at 2 & July 7 Wolosky Testimony at 2, McCraw Decl., Exs. 1-2 (“The review task force . . . g[ave] careful consideration to the threat posed by the detainee . . . .”); Holder Testimony at 28, McCraw Decl., Ex. 7 (detainees held without trial determined “to be a danger”); 2011 Olsen Testimony at 91, McCraw Decl., Ex. 13 (“[The 48 detainees held indefinitely] could not be transferred safely.”).) It does not matter that some of the officials also mentioned other parts of the Task Force memoranda. That does not erase their reliance on the Threat Assessments in particular to reassure members of Congress and the public that the Administration’s detainee policy was sound because the Task Force had analyzed the threat evidence and properly classified the detainees. (See Times Mem. at 4-7, 14-18.) Third, the officials’ references to the reasoning and conclusions of the Threat Assessments are no vaguer or more perfunctory than those the Second Circuit has found sufficient to demonstrate express adoption. In Brennan Center, the court relied on two very limited public statements: (1) a footnote in a guidance document that said OLC had concluded that a statutory provision should not apply to domestic organizations because of unspecified “constitutional implications” and (2) a brief reference by the U.S. Global AIDS Coordinator in congressional testimony to OLC having “provided some tentative advice initially that [certain] restrictions should be applied only to foreign organizations.” Brennan Ctr., 697 F.3d at 204. Here, a wide variety of senior Obama Administration officials repeatedly defended the Administration’s detainee policy by pointing to the Task Force’s careful assessments of the threats posed by the detainees. (See Times Mem. at 4-7, 14-18.) It does not matter if, as DOJ’s declarant claims in curiously vague terms, the Guantanamo Review Panel occasionally diverged in some unspecified way from the Task Force’s recommendations. (O’Keefe Decl. ¶ 23.) What 5 #61628v1 Case 1:16-cv-06120-RMB Document 37 Filed 05/08/17 Page 9 of 13 matters is that Obama Administration officials later repeatedly and publicly insisted that the reasoning and conclusions of the Task Force’s Threat Assessments justified its detainee policy. See Brennan Ctr., 697 F.3d at 207 & n.17; La Raza, 411 F.3d at 357-58. Taken together, these statements reveal, in the words of the Second Circuit in La Raza, 411 F.3d at 358, that the Obama Administration “made a practice” of relying on the Threat Assessments “to justify and explain” its detainee policy and to assure Congress and the public that this policy was sound. Fourth, DOJ’s contention that express adoption may only take place at the level of the individual detainee’s Threat Assessment misses the point. (See DOJ Reply Mem. at 2-4, 7). The Obama Administration decided to justify its detainee policy by relying on the Threat Assessments as a set. The Administration could have chosen to defend its policy at the level of an individual detainee’s disposition by reference to his Threat Assessment. It could have chosen to give only nonspecific public assurances. But once it decided to defend detainee policy by public reference to the Threat Assessments collectively, it could no longer keep the reasoning and conclusions it relied on secret under Exemption 5. See Brennan Ctr., 697 F.3d at 207 & n.17; La Raza, 411 F.3d at 357-58. Fifth, this case is unlike those where the Second Circuit has declined to find express adoption. (See DOJ Reply Mem. at 4, 12 n.2, 14-15.) In the two decisions cited by DOJ, a key factor was the absence of any public reference to the document at issue. See Brennan Ctr., 697 F.3d at 192, 205-07 (no public reference to draft memoranda); Wood v. FBI, 432 F.3d 78, 84 (2d Cir. 2005) (neither supervisory prosecutor nor other high-level DOJ officials made public reference to prosecutorial declination memorandum). Here, by contrast, there are numerous public statements by senior Obama Administration officials relying on the Threat Assessments to justify and defend the Administration’s detainee policy. (McCraw Decl., Exs. 1-14.) 6 #61628v1 Case 1:16-cv-06120-RMB Document 37 Filed 05/08/17 Page 10 of 13 Factual Material. DOJ is no more convincing in its claim that it cannot segregate disclosable factual material from analysis in the assessments. First, to evade in camera review, DOJ continues to insist that the Court should take its word that the facts in the Threat Assessments simply cannot be segregated. (DOJ Reply Mem. at 15-16.) To be sure, its declaration provides a “robust explanation” (id. at 16), but what it robustly explains is the volume and types of factual material collected and set out in the Threat Assessments (O’Keefe Decl. ¶¶ 13, 15, 26, 27)—not the extent to which that factual material is intertwined with analysis of it. In truth, the declaration speaks to the latter question in only two places and only in conclusory terms. (See id. ¶ 15 (baldly asserting that evaluation of reliability and credibility of facts is “intertwined” with Task Force’s appraisal of detainee threat), ¶ 32 (Task Force evaluated credibility of facts, finding some facts non-credible).) 3 In short, the declaration’s statements on the relevant issue—intertwinement of fact and analysis—are just as conclusory as the statements rejected in Hopkins v. HUD, 929 F.2d 81, 85-86 & n.3 (2d Cir. 1991). Second, DOJ ignores vital evidence about how the Task Force selected the facts in the assessments. (See DOJ Reply Mem. at 16-17.) Conspicuously absent from DOJ’s reply brief is any response to the instances in which Olsen, the Task Force director, squarely and pointedly refuted the notion that the Task Force chose what facts to include based on policy goals or outcomes. (Times Mem. at 19-20.) What DOJ instead relies on is: (1) an unsworn statement in its reply brief that the fact selection involved “policy-oriented judgment” (DOJ Reply Mem. at 17), and (2) the statements of a declarant with vaguely described secondhand knowledge of the Task Force’s process (O’Keefe Decl. ¶ 2). Unlike the authors of DOJ’s reply brief or DOJ’s 3 Where the declaration states that “[t]he Task Force’s threat assessments do not contain purely factual background material” (O’Keefe Decl. ¶ 32), it is referring not to inextricable intertwinement but to whether the selection of facts reveals a deliberative process. 7 #61628v1 Case 1:16-cv-06120-RMB Document 37 Filed 05/08/17 Page 11 of 13 declarant, Olsen possesses personal, firsthand knowledge of the Task Force’s process. And Olsen, in testimony before Congress, directly contradicted DOJ’s claim—made now in the context of this litigation—that the facts the Task Force chose to include in the Threat Assessment reflect policy-oriented judgment. II. DOJ HAS FAILED TO CARRY ITS BURDEN WITH RESPECT TO EXEMPTIONS 1 AND 7 Exemption 1. DOJ’s response to The Times’s Exemption 1 challenge reduces to this: Trust us. It states, in its reply brief, that it is not invoking Exemption 1 to redact foreign relations information of the sort officially disclosed in various public statements announcing detainee transfers to foreign countries. (DOJ Reply Mem. at 18-20.) Although DOJ cites the declarations it has submitted as proof of this, those declarations refer broadly to foreign relations information and are not nearly as narrowly drawn as DOJ makes them out to be. (Compare id. at 19-20, with Declaration of David M. Hardy (“Hardy Decl.”) ¶ 27 (Mar. 27, 2017) (citing diplomatic and economic, not only intelligence, effects of disclosure); Dep’t of Def. Declaration ¶¶ 20-21 (Mar. 27, 2017) (citing protection of “effective foreign relations,” not only confidential-source or intelligence information).) If what DOJ claims is true, its declarants must say so in sworn declarations to carry its burden. Exemption 7(B). What DOJ calls “nitpicking” is what the law calls holding the government to its burden. (See DOJ Reply Mem. at 20.) Tellingly, DOJ betrays its lack of faith in the sufficiency of the first FBI declaration by submitting a second one to try to make up for the obvious deficiencies in the first. Suddenly, after The Times pointed out the legal insufficiency of the first FBI declaration, what in that declaration was “law enforcement proceedings [that] are ongoing or are reasonably anticipated” has become, in the second FBI 8 #61628v1 Case 1:16-cv-06120-RMB Document 37 Filed 05/08/17 Page 12 of 13 declaration, “ongoing trials or adjudications.” (Compare Hardy Decl. ¶ 38, with Declaration of Michael G. Seidel (“Seidel Decl.”) ¶ 6 (May 1, 2017).) And information that, in the first FBI declaration, “could,” if disclosed, cause cognizable harms, in the second declaration “is more probable than not” to cause those harms. (Compare Hardy Decl. ¶¶ 38-39, with Seidel Decl. ¶ 6.) Given the FBI’s conveniently changing story, The Times asks the Court to require DOJ—at the very least through an in camera, ex parte declaration—to describe the specific proceedings at issue and explain the particular harms disclosure would cause. That the FBI did not do so in its initial in camera, ex parte declaration is telling. (See Hardy Decl. ¶ 12 n.3.) Exemption 7(D). Although the second FBI declaration has provided enough information to justify the redaction of sources that received implied assurances of confidentiality (see Seidel Decl. ¶ 10), it does not do so for sources who received express assurances of confidentiality. The declaration says only that some unnamed “FBI procedures” suggest that evidence of express grants of confidentiality “would reside”—hypothetically—in the source’s file. (Id.) That is exactly the type of generic, speculative “proof” of express confidentiality that the Second Circuit has rejected. Cf. Halpern v. FBI, 181 F.3d 279, 299-300 (2d Cir. 1999) (listing types of evidence that may meet government’s burden); Ferguson v. FBI, 83 F.3d 41, 42-43 (2d Cir. 1996) (declarant averring that assurances of confidentiality, in fact, are set out in redacted documents or in particular source files). Exemption 7(E). In the FBI’s telling, each database query is a unique “law enforcement technique,” as opposed to an application of a known technique, i.e., searching a database. (Seidel Decl. ¶ 15.) What the FBI has failed to explain, at least in its public declarations, is whether the withheld information reveals, for example, types of searches—databases queried, search parameters used, and the like—that are regularly used in counterterrorism cases or whether the 9 #61628v1 Case 1:16-cv-06120-RMB Document 37 Filed 05/08/17 Page 13 of 13 information is merely a search that a particular analyst in a particular case decided to make on his or her own. In fact, the second FBI declaration suggests that what it seeks to withhold is the latter—searches “based on the unique factors of a specific investigation” using “unique search parameters.” (Id.) That, of course, is an application of a technique, not a technique unto itself. See Schwartz v. DEA, No. 13-cv-5004(CBA), 2016 U.S. Dist. LEXIS 3696, at *32-35, *41-68 (E.D.N.Y. Jan. 8, 2016). CONCLUSION For the foregoing reasons, Plaintiffs respectfully asks this Court: (i) to deny DOJ’s motion for summary judgment and to grant Plaintiffs’ cross-motion for summary judgment; (ii) to order DOJ to make public within 20 days, pursuant to 5 U.S.C. § 552, the portions of the Threat Assessments as to which there can be no lawful redactions; (iii) to award the Plaintiffs the costs of this proceeding, including reasonable attorney’s fees, as expressly permitted by FOIA, id. § 552(a)(4)(E); and (iv) to grant such other and further relief as the Court deems just and proper. Dated: New York, NY May 8, 2017 Respectfully submitted, By: _/s/ David E. McCraw David E. McCraw, Esq. Ian MacDougall, Esq. The New York Times Company Legal Department 620 Eighth Avenue, 18th Floor New York, NY 10018 phone: (212) 556-4031 fax: (212) 556-4634 e-mail: mccraw@nytimes.com Attorneys for Plaintiffs 10 #61628v1