Judicial Watch, Inc. v. Department of Defense et al

MOTION for Summary Judgment

D.D.C.August 17, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) JUDICIAL WATCH, INC., ) ) Plaintiff, ) ) v. ) Civil Action No. 1:16-cv-00360 (RBW) ) U.S. DEPARTMENT OF DEFENSE, et al., ) ) Defendants. ) ___________________________________ ) DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Defendants United States Department of Defense and the Central Intelligence Agency hereby move for summary judgment pursuant to Fed. R. Civ. P. 56(b) and Local Rule 7(h) for the reasons stated in the attached memorandum. Dated: August 17, 2016 Respectfully submitted, BENJAMIN C. MIZER Principal Deputy Assistant Attorney General ELIZABETH J. SHAPIRO Deputy Director Federal Programs Branch /s/ Stephen M. Elliott STEPHEN M. ELLIOTT Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W., Room 7318 Washington, D.C. 20530 Tel: (202) 305-8177 Email: stephen.elliott@usdoj.gov Counsel for Defendants Case 1:16-cv-00360-RBW Document 13 Filed 08/17/16 Page 1 of 2 CERTIFICATE OF SERVICE I hereby certify that on August 17, 2016, I electronically transmitted the foregoing to the clerk of court for the United States District Court for the District of Columbia using the CM/ECF filing system. Participants in the case are registered CM/ECF users and will be served by the CM/ECF filing system. /s/ Stephen M. Elliott STEPHEN M. ELLIOTT Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W., Room 7318 Washington, D.C. 20530 Case 1:16-cv-00360-RBW Document 13 Filed 08/17/16 Page 2 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) JUDICIAL WATCH, INC., ) ) Plaintiff, ) ) v. ) Civil Action No. 1:16-cv-00360 (RBW) ) U.S. DEPARTMENT OF DEFENSE, et al., ) ) Defendants. ) ____________________________________) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT BENJAMIN C. MIZER Principal Deputy Assistant Attorney General ELIZABETH J. SHAPIRO Deputy Director Federal Programs Branch STEPHEN M. ELLIOTT Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W., Room 7318 Washington, D.C. 20530 Tel: (202) 305-8177 Email: stephen.elliott@usdoj.gov Counsel for Defendants Case 1:16-cv-00360-RBW Document 13-1 Filed 08/17/16 Page 1 of 24 i TABLE OF CONTENTS PAGE INTRODUCTION ...........................................................................................................................1 BACKGROUND .............................................................................................................................2 ARGUMENT ...................................................................................................................................3 I. STATUTORY STANDARDS .............................................................................................3 A. The Freedom of Information Act .............................................................................3 B. Special Considerations in National Security Cases .................................................5 II. DEFENDANTS CORRECTLY WITHHELD THE MEMORANDA IN FULL PURSUANT TO FOIA EXEMPTION 5 .............................................................................7 A. Defendants Have Properly Withheld Materials Protected by the Presidential Communications Privilege ...................................................................7 B. Defendants Have Properly Withheld Materials Protected by the Attorney-Client Privilege .........................................................................................8 C. Defendants Have Properly Withheld Deliberative Materials ................................10 III. DEFENDANTS PROPERLY WITHELD CLASSIFIED INFORMATION IN THE MEMORANDA PURSUANT TO FOIA EXEMPTIONS 1 AND 3 ..................12 A. The CIA Properly Withheld Classified Information under Exemption 1 ..............12 B. The CIA Properly Withheld Classified Information under Exemption 3 ..............14 IV. THE MEMORANDA DO NOT CONTAIN ANY REASONABLY SEGREGABLE, NON-EXEMPT INFORMATION.........................................................16 CONCLUSION ..............................................................................................................................18 Case 1:16-cv-00360-RBW Document 13-1 Filed 08/17/16 Page 2 of 24 ii TABLE OF AUTHORITIES CASES PAGE(S) Afshar v. Dep’t of State, 702 F.2d 1125 (D.C. Cir. 1983) ................................................................................................. 6 Am. Civil Liberties Union v. Dep’t of Defense, 628 F.3d 612 (D.C. Cir. 2011) ................................................................................................. 15 Ass’n of Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd., 830 F.2d 331 (D.C. Cir. 1987) ................................................................................................... 6 Brinton v. Dep’t of State, 636 F.2d 600 (D.C. Cir. 1980) ................................................................................................. 10 Campbell v. Dep’t of Justice, 164 F.3d 20 (D.C. Cir. 1998) ..................................................................................................... 4 Church of Scientology of Calif. v. IRS, 792 F.2d 153 (D.C. Cir. 1986) ................................................................................................. 16 CIA v. Sims, 471 U.S. 159 (1985) ............................................................................................................. 3, 15 Coastal States Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1980) ................................................................................................. 11 Ctr. for Nat’l Sec. Studies v. Dep’t of Justice, 331 F.3d 918 (D.C. Cir. 2003) ........................................................................................... 4, 5, 6 Cuban v. S.E.C., 744 F. Supp. 2d 60 (D.D.C. 2010) ....................................................................................... 9, 10 Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001) ................................................................................................................. 7, 10 DiBacco v. U.S. Army, 795 F.3d 178 (D.C. Cir. 2015) ................................................................................................... 5 Dillon v. Dep’t of Justice, 102 F. Supp. 3d 272 (D.D.C. 2015) ................................................................................. 5, 6, 13 Dow Jones & Co. v. Dep’t of Justice, 917 F.2d 571 (D.C. Cir. 1990) ................................................................................................. 10 Case 1:16-cv-00360-RBW Document 13-1 Filed 08/17/16 Page 3 of 24 iii Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990) ............................................................................................ 6, 13 Frugone v. CIA, 169 F.3d 772 (D.C. Cir. 1999) ............................................................................................. 6, 14 Gardels v. CIA, 689 F.2d 1100 (D.C. Cir. 1982) ............................................................................................... 15 Gatore v. U.S. Dep’t of Homeland Sec., --- F. Supp. 3d ---- , 2016 WL 1367730 (D.D.C. Apr. 6, 2016)................................................. 5 Giovanetti v. FBI, --- F. Supp. 3d ---- , 2016 WL 1273177 (D.D.C. March 31, 2016) ..................................... 7, 10 Halperin v. CIA, 629 F.2d 144 (D.C. Cir. 1980) ................................................................................................. 15 John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989) ........................................................................................................... 3, 4, 5 Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771 (D.C. Cir. 2002) ................................................................................................. 17 Juarez v. Dep’t of Justice, 518 F.3d 54 (D.C. Cir. 2008) ................................................................................................... 16 Judicial Watch, Inc. v. Dep’t of Defense, 715 F.3d 937 (D.C. Cir. 2013) ................................................................................................. 13 Judicial Watch, Inc. v. FDA, 449 F.3d 141 (D.C. Cir. 2006) ................................................................................................. 11 King v. Dep’t of Justice, 830 F.2d 210 (D.C. Cir. 1987) ......................................................................................... 5, 6, 13 Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980) ................................................................................................................... 4 Larson v. Dep’t of State, 565 F.3d 857 (D.C. Cir. 2009) ............................................................................................. 6, 15 Loving v. Dep’t of Def., 550 F.3d 32 (D.C. Cir. 2008) ............................................................................................... 7, 11 Case 1:16-cv-00360-RBW Document 13-1 Filed 08/17/16 Page 4 of 24 iv McKinley v. Bd. of Governors of Fed. Reserve Sys., 647 F.3d 331 (D.C. Cir. 2011) ................................................................................................. 11 Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242 (D.C. Cir. 1977) ............................................................................................. 9, 16 Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981) ................................................................................................... 5 Minier v. CIA, 88 F.3d 796 (9th Cir. 1996) ........................................................................................................ 4 Morley v. CIA, 508 F.3d 1108 (D.C. Cir. 2007) ............................................................................................... 15 Nat’l Sec. Archive Fund, Inc. v. CIA, 402 F. Supp. 2d 211 (D.D.C. 2005) ......................................................................................... 16 Neufeld v. IRS, 646 F.2d 661 (D.C. Cir. 1981) ................................................................................................. 16 Nixon v. Adm’r of Gen. Servs., 433 U.S. 425 (1997) ................................................................................................................... 7 NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) ....................................................................................................... 7, 10, 12 Oglesby v. Dep’t of the Army, 920 F.2d 57 (D.C. Cir. 1990) ..................................................................................................... 4 Ray v. Turner, 587 F.2d 1187 (D.C. Cir. 1978) ................................................................................................. 6 SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) ............................................................................................. 4, 5 In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997) ............................................................................................... 7, 8 In re Sealed Case, 737 F.2d 94 (D.C. Cir. 1984) ..................................................................................................... 9 Sussman v. U.S. Marshals Serv., 494 F.3d 1106 (D.C. Cir. 2007) ............................................................................................... 17 Case 1:16-cv-00360-RBW Document 13-1 Filed 08/17/16 Page 5 of 24 v Talbot v. CIA, 578 F. Supp. 2d 24 (D.D.C. 2008) ........................................................................................... 15 Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997) ................................................................................................... 8 Taxation With Representation Fund v. IRS, 646 F.2d 666 (D.C. Cir. 1981) ................................................................................................... 7 U.S. v. Nixon, 418 U.S. 683 (1974) ................................................................................................................... 7 United States v. Weber Aircraft Corp., 465 U.S. 792 (1984) ................................................................................................................... 7 STATUTES 5 U.S.C. § 552(a)(4)(B) .............................................................................................................. 4, 5 5 U.S.C. § 552(b) ...................................................................................................................... 4, 16 5 U.S.C. § 552(b)(1) ................................................................................................................. 3, 12 5 U.S.C. § 552(b)(3) ................................................................................................................. 3, 15 5 U.S.C. § 552(b)(5) ................................................................................................................... 3, 7 50 U.S.C. § 401 ............................................................................................................................. 15 50 U.S.C. § 3024(i)(1) .................................................................................................................. 15 EXECUTIVE ORDERS Exec. Order 12,333 ....................................................................................................................... 15 Exec. Order 13,526 ........................................................................................................... 12, 13, 14 LEGISLATIVE MATERIALS H.R. Rep. No. 89-1497, at 6 (1966), reprinted in 1966 U.S.C.C.A.N. 2418, 2423 ....................... 3 Case 1:16-cv-00360-RBW Document 13-1 Filed 08/17/16 Page 6 of 24 INTRODUCTION The Government has carefully reviewed the five memoranda responsive to the narrowed request for materials negotiated between the parties. The Government has determined that the memoranda must be withheld in full to safeguard properly classified and privileged information, the disclosure of which could reasonably be expected to damage national security and chill the flow of candid advice necessary for effective government decision-making. Pursuant to the Freedom of Information Act (“FOIA”), Plaintiff Judicial Watch (“Plaintiff”) requested five memoranda from the Central Intelligence Agency (“CIA”) and the Department of Defense (“DoD”) (collectively, “Defendants”) related to the raid on Osama bin Laden’s compound in Abbottabad, Pakistan. The five classified memoranda conveyed legal analysis and advice from some of the administration’s most senior attorneys on a range of topics that the President and his national security advisors evaluated prior to authorizing the bin Laden operation. As a consequence, the Declaration of Antoinette B. Shiner establishes that Defendants properly withheld the memoranda in full based on FOIA Exempt 5 and the presidential communications, attorney-client, and deliberative process privileges, as well as discreet classified information in the memoranda under FOIA Exemptions 1 and 3. The Declaration of Mark H. Herrington further supports the withholding of the memoranda in their entirety based on FOIA Exemption 5 and the attorney-client and deliberative process privileges. Defendants’ determination in this regard—which is partly based on their expertise in the national security realm—is entitled to substantial deference. Because the supporting declarations establish that the withheld memoranda logically fall within the applicable exemptions, Defendants are entitled to judgment as a matter of law. Case 1:16-cv-00360-RBW Document 13-1 Filed 08/17/16 Page 7 of 24 2 BACKGROUND This action arises from identical FOIA requests Plaintiff submitted to the CIA and DoD on December 11, 2015. See Declaration of Antoinette B. Shiner (“Shiner Decl.”), attached hereto as Ex. A; Declaration of Mark H. Herrington (“Herrington Decl.”), attached hereto as Ex. B; see also Compl. ¶ 6. The requests sought “[a]ny and all documents, records, and/or communications concerning, regarding, or related to memoranda drafted by” various government officials addressing “options, authority, rationale, details, analysis, legal factors, policy concerns, opinions, and conclusions for the search, raid, capture, and/or killing of Osama bin Laden in 2011.” Id. Specifically, Plaintiff stated that the relevant documents included: ⋅ A memorandum written by former Pentagon General Counsel Jeh C. Johnson concerning any violation of Pakistani sovereignty in seeking, capturing, and/or killing Osama bin Laden in 2011; ⋅ A memorandum written by former C.I.A. General Counsel Stephen W. Preston regarding when the administration must alert congressional leaders about the raid, capture, and/or killing of Osama bin Laden in 2011; ⋅ A memorandum written by former National Security Council Legal Adviser Mary B. DeRosa concerning a Navy SEAL team going into a raid with the intention of killing as a default option during the search, raid, capture and/or killing of Osama bin Laden in 2011; ⋅ A memorandum written by former National Security Council Legal Adviser Mary B. DeRosa regarding plans for detaining Osama bin Laden in the event of his capture; ⋅ A memorandum written by former Joint Chiefs of Staff Legal Adviser then-Rear Admiral James W. Crawford III regarding options and/or plans for Osama bin Laden’s burial. See Compl. ¶¶ 6(a)–(e). Plaintiff ultimately agreed to limit its FOIA request to the five purported memoranda listed above. See Dkt. No. 9 at ¶ 4. Case 1:16-cv-00360-RBW Document 13-1 Filed 08/17/16 Page 8 of 24 3 By letter dated June 13, 2016, Defendants informed Plaintiff that they had located and finished processing five responsive memoranda. Defendants also stated that they were withholding the five memoranda in their entirety pursuant to FOIA Exemptions 1, 3, and 5, 5 U.S.C. §§ 552(b)(1), (b)(3), and b(5). ARGUMENT As set forth below and in the attached declarations, Defendants identified five memoranda responsive to Plaintiff’s request, as narrowed by the parties’ agreement. The Shiner and Herrington Declarations demonstrate that the five memoranda are privileged and exempt from disclosure in their totality under FOIA Exemption 5 and the presidential communications, attorney-client, and deliberative process privileges. Moreover, the Shiner Declaration establishes that the five memoranda contain currently and properly classified information, and thus, some of the information within the memoranda is exempt from disclosure under FOIA Exemptions 1 and 3. Defendants are therefore entitled to a grant of summary judgment in their favor. I. STATUTORY STANDARDS A. The Freedom of Information Act The “basic purpose” of FOIA reflects a “general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). “Congress recognized, however, that public disclosure is not always in the public interest.” CIA v. Sims, 471 U.S. 159, 166–67 (1985). Accordingly, in passing FOIA, “Congress sought ‘to reach a workable balance between the right of the public to know and the need of the Government to keep information in confidence to the extent necessary without permitting indiscriminate secrecy.’” John Doe Agency, 493 U.S. at 152 (quoting H.R. Rep. No. 89-1497, at 6 (1966), reprinted in 1966 U.S.C.C.A.N. 2418, 2423). As Case 1:16-cv-00360-RBW Document 13-1 Filed 08/17/16 Page 9 of 24 4 the D.C. Circuit has recognized, “FOIA represents a balance struck by Congress between the public’s right to know and the [G]overnment’s legitimate interest in keeping certain information confidential.” Ctr. for Nat’l Sec. Studies v. Dep’t of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003) (citing John Doe Agency, 493 U.S. at 152). When conducting a search for records responsive to a FOIA request, “the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Reasonableness, not perfection, constitutes the Court’s guiding principle in determining the adequacy of a FOIA search. See, e.g., Campbell v. Dep’t of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998). The courts afford agency search declarations “a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.”1 SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)). FOIA mandates disclosure of government records unless the requested information falls within one of nine enumerated exemptions. See 5 U.S.C. § 552(b). “A district court only has jurisdiction to compel an agency to disclose improperly withheld agency records,” i.e. records that do “not fall within an exemption.” Minier v. CIA, 88 F.3d 796, 803 (9th Cir. 1996); see also 5 U.S.C. § 552(a)(4)(B) (providing the district court with jurisdiction only “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant”); Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980) (“Under 5 U.S.C. § 552(a)(4)(B)[,] federal jurisdiction is dependent upon a 1 Plaintiff cannot challenge the adequacy of Defendants’ search because the Government located the five memoranda that were responsive to the parties’ agreement. Case 1:16-cv-00360-RBW Document 13-1 Filed 08/17/16 Page 10 of 24 5 showing that an agency has (1) ‘improperly’ (2) ‘withheld’ (3) ‘agency records.’”). While narrowly construed, FOIA’s statutory exemptions “are intended to have meaningful reach and application.” John Doe Agency, 493 U.S. at 152; accord DiBacco v.U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015). The courts resolve most FOIA actions on summary judgment. See Gatore v. U.S. Dep’t of Homeland Sec., --- F. Supp. 3d ---- , 2016 WL 1367730, *2 (D.D.C. Apr. 6, 2016). The Government bears the burden of proving that the withheld information falls within the exemptions it invokes. See 5 U.S.C. § 552(a)(4)(B); King v. Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). A court may grant summary judgment to the Government based entirely on an agency’s declarations, provided they articulate “the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); accord Dillon v. Dep’t of Justice, 102 F. Supp. 3d 272, 281–82 (D.D.C. 2015). Such declarations are accorded “a presumption of good faith, which cannot be rebutted by purely speculative claims[.]” SafeCard Servs., Inc., 926 F.2d at 1200. To successfully challenge an agency declaration, “the plaintiff must come forward with ‘specific facts’ demonstrating that there is a genuine issue with respect to whether the agency has improperly withheld extant agency records.” Dillon, 102 F. Supp. 3d at 282. B. Special Considerations in National Security Cases The information sought by Plaintiff directly “implicat[es] national security, a uniquely executive purview.” Ctr. for Nat’l Sec. Studies, 331 F.3d at 926–27. While courts review de novo an agency’s withholding of information pursuant to a FOIA request, “de novo review in Case 1:16-cv-00360-RBW Document 13-1 Filed 08/17/16 Page 11 of 24 6 FOIA cases is not everywhere alike.” Ass’n of Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd., 830 F.2d 331, 336 (D.C. Cir. 1987). Indeed, the courts have specifically recognized the “propriety of deference to the executive in the context of FOIA claims which implicate national security.” Ctr. for Nat’l Sec. Studies, 331 F.3d at 927–28; see Ray v. Turner, 587 F.2d 1187, 1193 (D.C. Cir. 1978) (“[T]he executive ha[s] unique insights into what adverse [e]ffects might occur as a result of public disclosure of a particular classified record.”). For these reasons, the courts have “consistently deferred to executive affidavits predicting harm to the national security, and have found it unwise to undertake searching judicial review.” Ctr. for Nat’l Sec. Studies, 331 F.3d at 927; see Larson v. Dep’t of State, 565 F.3d 857, 865 (D.C. Cir. 2009) (“Today we reaffirm our deferential posture in FOIA cases regarding the ‘uniquely executive purview’ of national security.”); accord Dillon, 102 F. Supp. 3d at 287. Consequently, a reviewing court must afford “substantial weight” to agency declarations “in the national security context.” King, 830 F.2d at 217; see Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990) (holding that the district court erred in “perform[ing] its own calculus as to whether or not harm to the national security or to intelligence sources and methods would result from disclosure”); Frugone v. CIA, 169 F.3d 772, 775 (D.C. Cir. 1999) (because “courts have little expertise in either international diplomacy or counterintelligence operations, we are in no position to dismiss the CIA’s facially reasonable concerns” about the harm that disclosure could cause to national security). FOIA “bars the courts from prying loose from the government even the smallest bit of information that is properly classified or would disclose intelligence sources or methods.” Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983). Case 1:16-cv-00360-RBW Document 13-1 Filed 08/17/16 Page 12 of 24 7 II. DEFENDANTS CORRECTLY WITHHELD THE MEMORANDA IN FULL PURSUANT TO FOIA EXEMPTION 5 Defendants have withheld the five memoranda in full pursuant to FOIA Exemption 5, which shields from mandatory disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5); see Giovanetti v. FBI, --- F. Supp. 3d ---- , 2016 WL 1273177, *3 (D.D.C. March 31, 2016). The Supreme Court has clarified that Exemption 5 exempts “those documents, and only those documents that are normally privileged in the civil discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see also Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). FOIA Exemption 5, therefore, protects from disclosure government records that would be privileged in civil litigation under doctrines such as the presidential communications privilege, attorney-client privilege, and the deliberative process privilege. See, e.g., United States v. Weber Aircraft Corp., 465 U.S. 792, 800 (1984); Taxation With Representation Fund v. IRS, 646 F.2d 666, 676 (D.C. Cir. 1981). A. Defendants Have Properly Withheld Materials Protected by the Presidential Communications Privilege The presidential communications privilege applies specifically to “communications that directly involve the President,” including “communications made by presidential advisers in the course of preparing advice for the President [.]” In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997). In particular, it applies “to communications in performance of a President’s responsibilities, . . . and made in the process of shaping policies and making decisions.” Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 449 (1997). This privilege “preserves the President’s ability to obtain candid and informed opinions from his advisors and to make decisions confidentially.” Loving v. Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir. 2008); see U.S. v. Nixon, 418 U.S. 683, 708 Case 1:16-cv-00360-RBW Document 13-1 Filed 08/17/16 Page 13 of 24 8 (1974) (describing the privilege as a “presumptive privilege for [p]residential communications”). Unlike the deliberative process privilege, the presidential communications privilege “applies to documents in their entirety, and covers final and post-decisional materials as well as pre- deliberative ones.” In re Sealed Case, 121 F.3d at 745. Defendants appropriately withheld the five memoranda in their entirety in accordance with FOIA Exemption 5 and the presidential communications privilege. See Shiner Decl. ¶¶ 8– 9. The most senior legal counsel for the CIA, DoD, and National Security Council authored the five memoranda in the course of providing President Obama analysis and recommendations regarding the raid on Osama bin Laden’s compound. Id. The papers are not “controlling statements of policy” that the agencies involved in national security determinations rely upon in the normal course of their missions. Id. at ¶ 8. Rather, this advice “was briefed to the President and his closest advisors for the purpose of providing an understanding of the legal implications associated with taking certain courses of action.” Id. The disclosure of these memoranda would undermine the President’s ability to obtain “frank and informed opinions” from his senior advisors in the area of counterterrorism and national security. Id at ¶ 9. The President’s need for candid assessments from his national security team is particularly important where, as here, “the President is formulating a decision on a sensitive operation with substantial foreign policy impacts.” Id. Thus, the memoranda are properly withheld in full under the presidential communications privilege. B. Defendants Have Properly Withheld Materials Protected by the Attorney- Client Privilege The attorney-client privilege “protects confidential communications from clients to their attorneys made for the purpose of securing legal advice or services.” Tax Analysts v. IRS, 117 Case 1:16-cv-00360-RBW Document 13-1 Filed 08/17/16 Page 14 of 24 9 F.3d 607, 618 (D.C. Cir. 1997) (citing In re Sealed Case, 737 F.2d 94, 98–99 (D.C. Cir. 1984)). “In the governmental context, the ‘client’ may be the agency and the attorney may be an agency lawyer.” Id; see Cuban v. S.E.C., 744 F. Supp. 2d 60, 78 (D.D.C. 2010) (“In the context of Exemption 5, the [attorney-client] privilege . . . functions to protect communications between government attorneys and client agencies or departments, as evidenced by its inclusion in the FOIA, much as it operates to protect attorney-client communications in the private sector.” ). To invoke the attorney-client privilege, a party must demonstrate that the document it seeks to withhold: (1) involves “confidential communications between an attorney and his client”; and (2) relates to “a legal matter for which the client has sought professional advice.” Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977); accord Cuban, 744 F. Supp. 2d at 78. Defendants have properly asserted attorney-client privilege over the legal memoranda. See Shiner Decl. ¶ 11; Herrington Decl. ¶ 8. The “[t]op national security lawyers” for the CIA, DoD, and National Security Council authored the five memoranda in response to requests for legal advice conveyed by their clients—President Obama and his closest advisors—pertaining to the Osama bin Laden operation. See Shiner Decl. ¶¶ 7, 11; Herrington Decl. ¶ 8. The memoranda analyzed “the potential legal consequences of taking a certain course of action in connection with the operation.” Shiner Decl. ¶ 9. The senior legal counsel intended the information to remain confidential—“the secrecy of the operation, and the legal advice associated with it, was of paramount concern and was closely held within the top ranks of the administration.” Id. at ¶ 8. The Shiner and Herrington Declarations confirm that the CIA and DoD have maintained the confidentiality of these attorney-client communications, even though the United States Government has publicly acknowledged the operation itself. See Shiner Decl. Case 1:16-cv-00360-RBW Document 13-1 Filed 08/17/16 Page 15 of 24 10 ¶¶ 8, 11; Harrington Decl. ¶ 8. Public disclosure of the withheld attorney-client communications “would seriously disrupt” open dialogue between the President and his attorneys, and deny government officials of “the full and candid advice of their counsel.” Herrington Decl. ¶ 8; see Cuban, 744 F. Supp. 2d at 78 (recognizing that the Government “needs the same assurance of confidentiality so it will not be deterred from full and frank communications with its counselors”). Further, revealing such legal advice “would diminish the quality of legal representation provided by government attorneys because clients would be reluctant to freely and accurately communicate factual information, questions, or concerns for fear that those discussions would be publicly disclosed.” Shiner Decl. ¶ 11. Therefore, these communications are properly withheld in full under Exemption 5 and the attorney-client privilege. C. Defendants Have Properly Withheld Deliberative Materials The deliberative process privilege aims to “prevent injury to the quality of agency decisions.” Sears, Roebuck & Co., 421 U.S. at 151. The courts have recognized that this privilege is an “ancient [one] . . . predicated on the recognition that the quality of administrative decision-making would be seriously undermined if agencies were forced to operate in a fishbowl.” Dow Jones & Co. v. Dep’t of Justice, 917 F.2d 571, 573 (D.C. Cir. 1990); accord Klamath Water Users Protective Ass’n, 532 U.S. at 8–9. Thus, the “critical” question for the reviewing court “is whether disclosure of [the] materials would expose an agency’s decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.” Giovanetti, 2016 WL 1273177, at *3. Legal advice in a memorandum, no less than other types of advisory opinions, “fits exactly within the deliberative process rationale for Exemption 5.” Brinton v. Dep’t of State, 636 F.2d 600, 604 (D.C. Cir. 1980). Case 1:16-cv-00360-RBW Document 13-1 Filed 08/17/16 Page 16 of 24 11 The deliberative process privilege and Exemption 5 extends to those documents that are both “predecisional” and “deliberative.” See, e.g., Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006); McKinley v. Bd. of Governors of Fed. Reserve Sys., 647 F.3d 331, 339 (D.C. Cir. 2011). “[A] document [is] predecisional if ‘it was generated before the adoption of an agency policy’ and deliberative if ‘it reflects the give-and-take of the consultative process.’” Judicial Watch, Inc., 449 F.3d at 151 (quoting Coastal States Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). The privilege shields from disclosure “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Loving, 550 F.3d at 38. It logically follows that a memorandum from “a subordinate to a superior official is more likely to be predecisional[.]” Coastal States Gas Corp., 617 F.2d at 868. Defendants properly withheld the five memoranda in accordance with the deliberative process privilege and FOIA Exception 5. See Shiner Decl. ¶¶ 9–10; Herrington Decl. ¶¶ 6–7. The memoranda memorialize the legal advice shared with President Obama and his closest advisors on a range of military, geopolitical, and religious topics before the President authorized the counterterrorism raid on Osama bin Laden’s compound. Id. More specifically, the memoranda address the following legal issues that the President contemplated before approving the mission: (1) the legality of conducting the operation in Pakistan; (2) whether congressional leaders had to be notified about the raid; (3) the rules of engagement for the special operations team conducting the mission; (4) recommendations about detaining bin Laden in the event of capture; and (5) legal issues regarding bin Laden’s burial. See Shiner Decl. ¶ 5; Herrington Decl. ¶ 3. This legal advice represented one integral step in the larger executive branch deliberations on whether to conduct the mission, “i.e. determining legally available options associated with the Case 1:16-cv-00360-RBW Document 13-1 Filed 08/17/16 Page 17 of 24 12 then-proposed raid.” Shiner Decl. ¶ 9. As a consequence, these memoranda fall squarely within the deliberative process privilege because they represent an interim stage of the inter-agency decision-making process prior to the President’s decision to authorize the bin Laden mission. See Shiner Decl. ¶¶ 9–10; Herrington Decl. ¶¶ 6–7. Disclosure of this type of deliberative information would inhibit the frank communications and the free exchange of ideas that the privilege is designed to protect. See Shiner Decl. ¶ 9; Herrington Decl. ¶ 7; see Sears, Roebuck & Co., 421 U.S. at 150–51 (“T]hose who expect public dissemination of their remarks may well temper candor with a concern for appearances . . . to the detriment of the decision making process.”). Further, the memoranda conveyed opinions of only one agency participating in the larger inter-agency deliberations, and therefore, disclosure of the memoranda may “confuse or mislead the public regarding the Government’s final position on the legality of aspects of the bin Laden operation.” See Herrington Decl. ¶ 7. Defendants, therefore, have properly withheld these deliberative materials under FOIA Exception 5. III. DEFENDANTS PROPERLY WITHELD CLASSIFIED INFORMATION IN THE MEMORANDA PURSUANT TO FOIA EXEMPTIONS 1 AND 3 A. The CIA Properly Withheld Classified Information under Exemption 1 FOIA Exemption 1 exempts from disclosure information that is “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy” and “are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). Under Executive Order 13,526, an agency may withhold information that an official with original classification authority has determined to be classified because its “unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security[.]” Exec. Order 13,526 § 1.4, 75 Fed. Reg. 707, 709 (Dec. 29, Case 1:16-cv-00360-RBW Document 13-1 Filed 08/17/16 Page 18 of 24 13 2009). The information must also “pertain[] to” one of the categories of information specified in the Executive Order, including “intelligence activities (including covert action), intelligence sources or methods,” and “foreign relations or foreign activities of the United States.”2 Exec. Order 13,526 §§ 1.4(c), (d); see also Judicial Watch, Inc. v. Dep’t of Defense, 715 F.3d 937, 941 (D.C. Cir. 2013) (“[P]ertains is not a very demanding verb.”). As noted above, when it comes to matters affecting the national security, the courts afford “substantial weight” to an agency’s declarations addressing classified information, King, 830 F.2d at 217, and defer to the expertise of agencies involved in national security and foreign relations. See Fitzgibbon, 911 F.2d at 766; see also Dillon, 102 F. Supp. 3d at 287. The CIA has determined that the five memoranda contain classified information involving two delineated categories set forth in Section 1.4 of Executive Order 13,526.3 See Shiner Decl. ¶ 12. First, the information encompasses “intelligence activities (including covert action), intelligence sources or methods, or cryptology.” Exec. Order 13,526 §1.4(c). Ms. Shiner states that disclosing the information would reveal the sources and methods of underlying intelligence collection. Shiner Decl. ¶ 12. Second, the withheld information pertains to “foreign relations or foreign activities of the United States, including confidential sources.” Exec. Order 13,526 § 1.4(d). The withheld information in the memoranda involves a contemplated U.S. Government operation in Pakistan, and legal analysis attendant to such an operation in a foreign country necessarily implicates foreign activities within the meaning of the Executive Order. See 2 As also required by Executive Order 13,526, Ms. Shiner declares that she is an original classification authority. See Exec. Order 13,526 § 1.1(a); Shiner Decl. ¶ 3. 3 Because the memoranda are properly withheld in full under the attorney-client and presidential communication privileges, all of the information protected by Exemptions 1 and 3 is also exempt from disclosure under Exemption 5. Case 1:16-cv-00360-RBW Document 13-1 Filed 08/17/16 Page 19 of 24 14 Shiner Decl. ¶ 12. Therefore, the Shiner Declaration establishes that the withheld information falls squarely within the boundaries of Section 1.4 of Executive Order 13,526. The Shiner Declaration confirms that the unauthorized disclosure of the withheld information reasonably could be expected to cause damage to the national security of the United States. See Shiner Decl. ¶ 12. Indeed, disclosing the withheld information would “reveal classified intelligence activities, sources and methods associated with counterterrorism operations in a foreign country.” Id. The CIA cannot discuss the withholdings in any greater detail on the public record without risking the disclosure of classified information. Id. Nevertheless, the public declaration is sufficient to meet the CIA’s burden of withholding properly classified information, especially taking into account the deference afforded to the Government in the national security context. See, e.g., Frugone, 169 F.3d at 775 (“Mindful that courts have little expertise in either international diplomacy or counterintelligence operations, we are in no position to dismiss the CIA’s facially reasonable concerns.”). With that said, the CIA stands ready, at the Court’s request, to provide a classified declaration ex parte, in camera to address the withheld information in greater depth. See Shiner Decl. ¶ 12. B. The CIA Properly Withheld Classified Information under Exemption 3 FOIA Exemption 3 exempts from disclosure records that are “specifically exempted from disclosure by [another] statute” if the relevant statute “requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue” or “establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). The CIA’s mandate to withhold information under FOIA Exemption 3 is broader than its authority under FOIA Exemption 1, as it does not have to demonstrate that the disclosure will harm national security. See Sims, 471 U.S. at 167; Gardels v. CIA, 689 F.2d 1100, 1106–07 Case 1:16-cv-00360-RBW Document 13-1 Filed 08/17/16 Page 20 of 24 15 (D.C. Cir. 1982). Instead, “the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within the statute’s coverage. It is particularly important to protect intelligence sources and methods from public disclosure.” Morley v. CIA, 508 F.3d 1108, 1126 (D.C. Cir. 2007). In analyzing the propriety of a withholding taken pursuant to FOIA Exemption 3, the Court need not examine “the detailed factual contents of specific documents” in which withholdings have been taken. Id. The CIA invokes Section 102A(i)(1) of the National Security Act of 1947, as amended (now codified at 50 U.S.C. § 3024(i)(1)) (“NSA”), which requires the Director of National Intelligence to “protect intelligence sources and methods from unauthorized disclosure.”4 It is well-established that Section 102A qualifies as a withholding statute for the purposes of FOIA Exemption 3. See, e.g., Am. Civil Liberties Union v. Dep’t of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011). In fact, the Supreme Court has recognized the “wide-ranging authority” provided by the NSA to protect intelligence sources and methods. Sims, 471 U.S. at 159, 169–70, 177, 180; see Halperin v. CIA, 629 F.2d 144, 147 (D.C. Cir. 1980) (explaining that the only question for the court is whether the agency has shown that responding to a FOIA request “can reasonably be expected to lead to unauthorized disclosure of intelligence sources and methods”). The Shiner Declaration attests that the CIA has properly withheld the classified information under the NSA and FOIA Exemption 3. See Shiner Decl. ¶ 12. For the reasons 4 The courts have recognized that not just the Director of National Intelligence, but also the CIA and other agencies may rely upon the amended NSA to withhold records under FOIA. See, e.g., Larson, 565 F.3d at 862–63, 865; Talbot v. CIA, 578 F. Supp. 2d 24, 28–29 n.3 (D.D.C. 2008). Furthermore, the President specifically preserved the CIA’s ability to invoke the NSA to protect its intelligence sources and methods. See, e.g., Exec. Order No. 12,333, § 1.6(d) (as revised after the NSA was amended) (reprinted in 50 U.S.C. § 401 note) (requiring that the CIA Director “[p]rotect intelligence and intelligence sources, methods, and activities from unauthorized disclosure in accordance with guidance from the [DNI]”). Case 1:16-cv-00360-RBW Document 13-1 Filed 08/17/16 Page 21 of 24 16 discussed above with regard to Exemption 1, all of the classified information withheld by the CIA pertains to intelligence sources and methods protected from disclosure under the NSA. Id. Ms. Shiner explains that the withheld documents cannot be publicly released because it would reveal certain sensitive intelligence sources and methods associated with counterterrorism operations in a foreign country. Id. IV. THE MEMORANDA DO NOT CONTAIN ANY REASONABLY SEGREGABLE, NON-EXEMPT INFORMATION Under FOIA, “any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). Accordingly, “non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions.” Mead Data Cent., Inc., 566 F.2d at 260. An agency has no obligation to segregate non-exempt material that is so “inextricably intertwined” with exempt material that “the excision of exempt information would impose significant costs on the agency and produce an edited document with little informational value.” Neufeld v. IRS, 646 F.2d 661, 666 (D.C. Cir. 1981), abrogated on other grounds by Church of Scientology of Calif. v. IRS, 792 F.2d 153 (D.C. Cir. 1986); see also Nat’l Sec. Archive Fund, Inc. v. CIA, 402 F. Supp. 2d 211, 220–21 (D.D.C. 2005) (same). A court “may rely on government affidavits that show with reasonable specificity why documents withheld pursuant to a valid exemption cannot be further segregated.” Juarez v. Dep’t of Justice, 518 F.3d 54, 61 (D.C. Cir. 2008) (internal citation omitted). “Agencies are entitled to a presumption that they complied with the obligation to disclose reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007). Case 1:16-cv-00360-RBW Document 13-1 Filed 08/17/16 Page 22 of 24 17 As explained in the Shiner and Herrington Declarations, Defendants met their obligation to segregate, if feasible, any non-exempt material. See Shiner Decl. ¶ 13; Herrington Decl. ¶ 9. Defendants conducted a page-by-page and line-by-line review of the materials responsive to Plaintiffs’ requests, as narrowed by the parties’ agreement. Id. Mr. Herrington explains that within the two memoranda addressed in his declaration, “[t]here is no reasonable segregable, non-exempt information, factual or otherwise, contained in either memorandum.” Herrington Decl. ¶ 9. Mr. Herrington confirms that even the arguably non-deliberative facts are inescapable intertwined with the deliberative parts of the memoranda, and regardless, the memoranda remain privileged in their entirety under the attorney-client and presidential communications privileges. Id. Further, Ms. Shiner attests that “no segregable, non-exempt portions of memoranda can be released without potentially compromising privileged information.” Shiner Decl. ¶ 13. And Ms. Shiner likewise confirms that “[t]o the extent there is any factual material, it is part and parcel of the deliberations and cannot be segregated.” Id. at ¶ 10. Indeed, these facts would reveal preliminary opinions before the President’s final decision, “such as the aspects of the operation that the lawyers considered significant.” Id. Defendants, therefore, met their burden and are entitled to summary judgment on this issue. See Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776–77 (D.C. Cir. 2002) (agency showed there was no reasonably segregable non- exempt information where it submitted affidavit showing that agency had conducted line-by-line review of each document withheld in full). Case 1:16-cv-00360-RBW Document 13-1 Filed 08/17/16 Page 23 of 24 18 CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court grant summary judgment in their favor. Dated: August 17, 2016 Respectfully submitted, BENJAMIN C. MIZER Principal Deputy Assistant Attorney General ELIZABETH J. SHAPIRO Deputy Director Federal Programs Branch /s/ Stephen M. Elliott STEPHEN M. ELLIOTT Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20001 Tel: (202) 305-8177 Email: stephen.elliott@usdoj.gov Attorneys for Defendants Case 1:16-cv-00360-RBW Document 13-1 Filed 08/17/16 Page 24 of 24 EXHIBIT A Case 1:16-cv-00360-RBW Document 13-2 Filed 08/17/16 Page 1 of 11 Case 1:16-cv-00360-RBW Document 13-2 Filed 08/17/16 Page 2 of 11 Case 1:16-cv-00360-RBW Document 13-2 Filed 08/17/16 Page 3 of 11 Case 1:16-cv-00360-RBW Document 13-2 Filed 08/17/16 Page 4 of 11 Case 1:16-cv-00360-RBW Document 13-2 Filed 08/17/16 Page 5 of 11 Case 1:16-cv-00360-RBW Document 13-2 Filed 08/17/16 Page 6 of 11 Case 1:16-cv-00360-RBW Document 13-2 Filed 08/17/16 Page 7 of 11 Case 1:16-cv-00360-RBW Document 13-2 Filed 08/17/16 Page 8 of 11 Case 1:16-cv-00360-RBW Document 13-2 Filed 08/17/16 Page 9 of 11 Case 1:16-cv-00360-RBW Document 13-2 Filed 08/17/16 Page 10 of 11 Case 1:16-cv-00360-RBW Document 13-2 Filed 08/17/16 Page 11 of 11 EXHIBIT B Case 1:16-cv-00360-RBW Document 13-3 Filed 08/17/16 Page 1 of 6 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JUDICIAL WATCH, Plaintiff, v. U.S. DEPARTMENT OF DEFENSE, et al., Defendants. ) ) ) ) ) ) Civ.' No. 16-cv-360 ) ) ) ) ~~~~~~~~~~~~~~·) DECLARATION OF MARK H. HERRINGTON Pursuant to 28 U.S.C. § 1746, I, Mark H. Herrington, hereby declare under penalty of perjury that the following is true and correct: 1. I am an Associate Deputy General Counsel in the Office of General Counsel ("OGC'') of the United States Department of Defense ("DoD"). OGC provides legal advice to the Secretary of Defense and other leaders within the DoD. I am responsible for, among other things, overseeing Freedom oflnformation Act ("FOIA") litigation involving DoD. I have held my current position since March 2007. My duties include coordinating searches across DoD to ensure thoroughness, teasonableness, and consistency, and also coordinating productions of responsive documents, including the appropriate redaction of some of those documents. 2. The statements in this declaration are based upon my personal knowledge and upon my review of information available to me in my official capacity. Specifically, I am the OGC counsel currently assigned to this case. Administrative Background 3. On December 11, 2015, Plaintiff filed a FOIA requests with DoD and the Central Intelligence Agency ("CIA") for: Case 1:16-cv-00360-RBW Document 13-3 Filed 08/17/16 Page 2 of 6 Any and all documents, records, and/or communications concerning, regarding, or related to memoranda drafted by Stephen W. Preston, former CJ.A. General Counsel; Mary B. DeRosa, former National Security Council Legal Adviser; Jeh C. Johnson, former Pentagon General Counsel; and then-Rear Admiral James W. Crawford III, former Joint Chiefs of Staff Legal Adviser, regarding options, authority, rationale, details, analysis, legal factors, policy concerns, opinions, and conclusions for the search, raid, capture, and/or killing of Osama bin Laden in 2011. Relevant documents, records, and/or communications include, but are not limited to: a. A memorandum written by former Pentagon General Counsel Jeh C. Johnson concerning any violation of Pakistani sovereignty in seeking, capturing, and/or killing Osama bin Laden in 2011; b. A memorandum written by former CJ.A. General Counsel Stephen W. Preston regarding when the administration must alert congressional leaders about the raid, capture, and/or killing of Osama bin Laden in 2011; \ c. A memorandum written by former National Security Council Legal Adviser Mary B. DeRosa concerning a Navy SEAL team going into a raid with the intention of killing as a default option during the search, raid, capture and/or killing of Osama bin Laden in 2011; d. A memorandum written by former National Security Council Legal Adviser Mary B. DeRosa regarding plans for detaining Osama bin Laden in the event of his capture; e. A memorandum written by former Joint Chiefs of Staff Legal Adviser then-Rear Admiral James W. Crawford III regarding options and/or plans for Osama bin Laden's burial. Plaintiff subsequently limited the scope of its request to the five memoranda specifically mentioned in the request. 4. On June 13, 2016, Defendants, through counsel, informed counsel for Plaintiff that Defendants had located and processed five responsive memoranda, which were withheld in full pursuant to FOIA Exemptions 1, 3, and 5. The applicability of Exemptions 1 and 3 are addressed by the CIA in the Declaration of Antoinette B. Shiner. The Shiner declaration also addresses the applicability of Exemption 5 and details the assertion of the Presidential Communication Privilege for all five of the memoranda. The purpose of this declaration is to provide the basis for the assertions of Exemption 5 to the memorandum authored by the DoD 2 Case 1:16-cv-00360-RBW Document 13-3 Filed 08/17/16 Page 3 of 6 General Counsel, Mr. Jeh Johnson, and the memorandum written by the Joint Chiefs of Staff Legal Advisor, Rear Admiral James W. Crawford, III. FOIA Exemption 5 5. Exemption 5, 5 U.S.C. § 552(b)(5), permits the withholding of "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." Exemption 5 allows an agency to exempt information that is normally privileged in the civil discovery context. As discussed in greater depth below, DoD asserts the deliberative process privilege and the attorney-client privilege over the two memoranda at issue in this declaration. 6. DoD has asserted.the deliberative process privilege over both of the memoranda to protect pre-decisional and deliberative information. The memoranda are pre-decisional because they memorialize analysis and advice provided to the President's closest national security advisors prior to a final decision about whether to approve the bin laden operation. The memoranda are also deliberative, as they represent the opinions, advice, analysis and recommendations conveyed by senior government attorneys during the inter-agency decision- making process. The information was conveyed to the President's national security advisors in an attempt to influence and inform the formation of the President's decision, and is not a recitation of a final policy, position, or decision. 7. Both of these memoranda provide frank and candid opinions of senior government officials, the release of which could chill future deliberations. There is a particular need for confidentiality with respect to the advice provided by lawyers who advise Executive Branch policymakers regarding the legal implications of contemplated policy determinations. By its very nature, such legal advice is pre-decisional and deliberative-part of the exchange of ideas and suggestions that accompanies careful Executive Branch decision-making. The ability 3 Case 1:16-cv-00360-RBW Document 13-3 Filed 08/17/16 Page 4 of 6 to candidly express views is especially critical for legal advisers when articulating and refining their legal advice and analysis. Compelled disclosure of such analysis would seriously inhibit the candor and effectiveness of the advisers engaged in this highly deliberative process, and the quality and integrity of the final result would inevitably suffer. In addition, the memoranda represent only the views of one agency, and thus, their release could confuse or mislead the public regarding the Government's final position on the legality of aspects of the bin Laden operation. 8. Further, DoD has asserted the attorney-client privilege over both memoranda to protect communications between senior government attorneys and the President's national security advisors in connection with a request for legal advice regarding the raid on Osama bin Laden's compound. DoD has maintained the confidentiality of these attorney-client communications, notwithstanding the official acknowledgement of the operation itself. Public disclosure of the attorney-client communications would seriously disrupt open communication between the President and his attorneys, as well as deprive government decision-makers of the full and candid advice of their counsel. Indeed, disclosure of this type of deliberative memorandum would hamper the day-to-day workings of the Executive Branch, as senior attorneys would no longer feel free to convey their recommendations in formal written correspondence. Review for Reasonably Segregable Information 9. I have conducted a page-by-page and line-by-line review of two memoranda at issue in this declaration. I can confirm that there is no reasonably segregable information, factual or otherwise, contained in either memorandum. With regard to the arguably non- deliberative facts in the documents, such information cannot be disclosed because it is inextricably intertwined with the deliberative parts of the memoranda. In any event, the 4 Case 1:16-cv-00360-RBW Document 13-3 Filed 08/17/16 Page 5 of 6 memoranda remain privileged in their entirety under the attorney-client and presidential communications privileges. Moreover, the Shiner Declaration establishes that some of the arguably non-deliberative facts are currently and properly classified and cannot be disclosed. 10. I declare under penalty of perjury of the laws of the United States of America that the foregoing is true and correct to the best of my knowledge and information. Dated this 17th day of August, 2016, in Arlington, VA. ~--· ~ _,.-Mark H. Herrington, Esq.· 5 Case 1:16-cv-00360-RBW Document 13-3 Filed 08/17/16 Page 6 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) JUDICIAL WATCH, INC., ) ) Plaintiff, ) ) v. ) Civil Action No. 1:16-cv-00360 (RBW) ) U.S. DEPARTMENT OF DEFENSE, et al., ) ) Defendants. ) ___________________________________ ) STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE As required by Local Civil Rule 7(h)(1), and in support of the Motion for Summary Judgment, Defendants hereby make the following statement of material facts as to which there is no genuine issue. 1. On December 11, 2015, Plaintiff Judicial Watch (“Plaintiff”) submitted identical Freedom of Information Act (“FOIA”) requests to the Central Intelligence Agency (“CIA”) and the Department of Defense (“DoD”). See Compl. ¶ 6. The requests sought: Any and all documents, records, and/or communications concerning, regarding, or related to memoranda drafted by Stephen W. Preston, former C.I.A. General Counsel; Mary B. DeRosa, former National Security Council Legal Adviser; Jeh C. Johnson, former Pentagon General Counsel; and then-Rear Admiral James W. Crawford III, former Joint Chiefs of Staff Legal Adviser, regarding options, authority, rationale, details, analysis, legal factors, policy concerns, opinions, and conclusions for the search, raid, capture, and/or killing of Osama bin Laden in 2011. Relevant documents, records, and/or communications include, but are not limited to: a. A memorandum written by former Pentagon General Counsel Jeh C. Johnson concerning any violation of Pakistani sovereignty in seeking, capturing, and/or killing Osama bin Laden in 2011; b. A memorandum written by former C.I.A. General Counsel Stephen W. Preston regarding when the administration must alert congressional leaders about the raid, capture, and/or killing of Osama bin Laden in 2011; Case 1:16-cv-00360-RBW Document 13-4 Filed 08/17/16 Page 1 of 3 c. A memorandum written by former National Security Council Legal Adviser Mary B. DeRosa concerning a Navy SEAL team going into a raid with the intention of killing as a default option during the search, raid, capture and/or killing of Osama bin Laden in 2011; d. A memorandum written by former National Security Council Legal Adviser Mary B. DeRosa regarding plans for detaining Osama bin Laden in the event of his capture; e. A memorandum written by former Joint Chiefs of Staff Legal Adviser then-Rear Admiral James W. Crawford III regarding options and/or plans for Osama bin Laden’s burial. See Compl. ¶¶ 6(a)–(e). 2. In their Joint Meet and Confer Statement, the parties informed the Court that “Plaintiff agreed to limit its FOIA request to the five alleged memoranda specifically identified in the FOIA request and in sub-paragraphs 6(a)–(e) of the Complaint.” See Dkt. No. 9 at ¶ 4. 3. By letter dated June 13, 2016, Defendants informed Plaintiff that they had located and finished processing five responsive memoranda. Defendants also stated that they were withholding the five memoranda in their entirety pursuant to FOIA Exemptions 1, 3, and 5, 5 U.S.C. §§ 552(b)(1), (b)(3), and b(5). Dated: August 17, 2016 Respectfully submitted, BENJAMIN C. MIZER Principal Deputy Assistant Attorney General ELIZABETH J. SHAPIRO Deputy Director Federal Programs Branch /s/ Stephen M. Elliott STEPHEN M. ELLIOTT Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20001 Case 1:16-cv-00360-RBW Document 13-4 Filed 08/17/16 Page 2 of 3 Tel: (202) 305-8177 Email: stephen.elliott@usdoj.gov Attorneys for Defendants Case 1:16-cv-00360-RBW Document 13-4 Filed 08/17/16 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) JUDICIAL WATCH, INC., ) ) Plaintiff, ) ) v. ) Civil Action No. 1:16-cv-00360 (RBW) ) U.S. DEPARTMENT OF DEFENSE, et al., ) ) Defendants. ) ___________________________________ ) [PROPOSED] ORDER This matter is before the Court on Defendants’ Motion for Summary Judgment. Upon consideration of the parties’ submissions, it is hereby ORDERED that Defendants’ Motion for Summary Judgment is GRANTED. SIGNED and ENTERED this ___ day of __________, 2016. HON. REGGIE B. WALTON United States District Judge Case 1:16-cv-00360-RBW Document 13-5 Filed 08/17/16 Page 1 of 1