13‐3684‐cv
Center for Constitutional Rights v. Central Intelligence Agency
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2013
No. 13‐3684‐cv
CENTER FOR CONSTITUTIONAL RIGHTS,
Plaintiff‐Appellant,
v.
CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE,
DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION,
DEFENSE INTELLIGENCE AGENCY, UNITED STATES SOUTHERN
COMMAND,
Defendants‐Appellees.*
________
Appeal from the United States District Court
for the Southern District of New York.
No. 12 Civ. 135 (NRB) ― Naomi Reice Buchwald, Judge.
________
ARGUED: JUNE 25, 2014
DECIDED: SEPTEMBER 2, 2014
________
The Clerk of Court is directed to amend the official caption in this case to
*
conform to the listing of the parties above.
2 No. 13‐3684‐cv
Before: CABRANES, CARNEY, and DRONEY, Circuit Judges.
________
Appellant Center for Constitutional Rights seeks disclosure by
the government, pursuant to the Freedom of Information Act
(“FOIA”), of certain videos and photographs of a high‐profile
Guantanamo Bay detainee, Mohammed al‐Qahtani, who is believed
to be the so‐called “20th hijacker” in the September 11, 2001 terrorist
attacks on the United States.
We agree with the United States District Court for the
Southern District of New York (Naomi Reice Buchwald, Judge) that
the government has met its burden of establishing that these images
are exempt from disclosure pursuant to FOIA Exemption 1, which
authorizes non‐disclosure of records that are properly authorized by
Executive order to be kept secret in the interest of “national defense
or foreign policy.” 5 U.S.C. § 552(b)(1). The declarations submitted
by the government establish with adequate specificity that
government release of images depicting al‐Qahtani—one of the most
high‐profile Guantanamo Bay detainees, whose treatment at
Guantanamo has been widely publicized—could logically and
plausibly harm national security because these images are uniquely
susceptible to use by anti‐American extremists as propaganda to
incite violence against United States interests domestically and
abroad.
Accordingly, we AFFIRM the September 12, 2013 judgment of
the District Court.
3 No. 13‐3684‐cv
________
LAWRENCE S. LUSTBERG (Joseph A. Pace, on the
brief), Gibbons P.C., Newark, NJ, for Plaintiff‐
Appellant Center for Constitutional Rights,
TARA M. LA MORTE (Emily E. Daughtry, Benjamin
H. Torrance, on the brief), Assistant United States
Attorneys, for Preet Bharara, United States Attorney
for the Southern District of New York, New York, NY,
for Defendants‐Appellees Central Intelligence Agency et al.
________
JOSÉ A. CABRANES, Circuit Judge:
Appellant Center for Constitutional Rights (“CCR”) seeks
disclosure, pursuant to the Freedom of Information Act (“FOIA”),
principally by the Department of Defense (“DoD”) and the Federal
Bureau of Investigation (“FBI” and, jointly with the DoD, the
“government”) of certain videos and photographs of a high‐profile
Guantanamo Bay detainee, Mohammed al‐Qahtani, who is believed
to be the so‐called “20th hijacker” in the September 11, 2001 terrorist
attacks on the United States.
We hold that the government has met its burden of
establishing that these images are exempt from disclosure pursuant
to FOIA Exemption 1, which authorizes non‐disclosure of records
that are properly authorized by Executive order to be kept secret in
the interest of “national defense or foreign policy.” 5 U.S.C.
§ 552(b)(1). The declarations submitted by the government establish
4 No. 13‐3684‐cv
with adequate specificity that release of images depicting al‐
Qahtani—one of the most high‐profile Guantanamo Bay detainees,
whose treatment at Guantanamo has been widely publicized—could
logically and plausibly harm national security because these images
are uniquely susceptible to use by anti‐American extremists as
propaganda to incite violence against United States interests
domestically and abroad.
Accordingly, we affirm the September 12, 2013 judgment of
the United States District Court for the Southern District of New
York (Naomi Reice Buchwald, Judge) granting summary judgment in
favor of defendants.
BACKGROUND
A. Mohammed al‐Qahtani’s Detention
Mohammed al‐Qahtani,1 a Saudi national, has been held at
Guantanamo Bay from February 13, 2002 to the present day on
suspicion that he had planned to act as the 20th hijacker of the
planes used in the September 11, 2001 (“9/11”) terrorist attacks on
the United States, but was prevented from entering the United States
in August 2001. Al‐Qahtani’s detention first drew public attention in
2005 when a log of his interrogations was purloined and published
in Time Magazine. The government subsequently made official
disclosures regarding: (1) the dates and conditions of al‐Qahtani’s
In certain government press releases, al‐Qahtani’s name has been spelled
1
“Mohamed al Kahtani.” See, e.g., Joint App’x (“J.A.”) 309.
5 No. 13‐3684‐cv
detention; (2) the involvement of the DoD and FBI in his
interrogation; (3) the interrogation tactics used; (4) al‐Qahtani’s
mental, physical, and psychological response to the interrogation;
and (5) al‐Qahtani’s eventual cooperation.2 In a January 2009
interview published in the Washington Post, the DoD’s Convening
Authority for Military Commissions,3 Susan J. Crawford, stated that
al‐Qahtani’s treatment at Guantanamo, in her opinion, “met the
legal definition of torture.” See Bob Woodward, Detainee Tortured,
Says U.S. Official, WASHINGTON POST, A1, Jan. 14, 2009.
B. The FOIA Requests and Responses
On March 4, 2010, CCR filed FOIA requests with the
government seeking disclosure of videos, photographs, and other
audio‐visual recordings of al‐Qahtani at Guantanamo between 2002
and 2005. On January 9, 2012, after the government did not respond
2 In response to the unauthorized disclosure of the classified interrogation log,
the DoD issued a press release on June 12, 2005 stating that al‐Qahtani admitted to, inter
alia, having been sent to the United States by Khalid Sheik Mohammed, the architect of
9/11; having met Osama Bin Laden on several occasions; and having received “terrorist
training” at two al Qaeda camps and been in contact with senior al Qaeda leaders. J.A.
309‐10. According to the government, al‐Qahtani also provided “valuable intelligence
information” regarding the planning of the 9/11 attacks and how Osama Bin Laden
evaded capture. J.A. 310.
Under the Military Commissions Act of 2006, a military commission “may be
3
convened by the Secretary of Defense or by any officer or official of the United States
designated by the Secretary for that purpose.” 10 U.S.C. § 948h. The Convening
Authority is an individual “empowered [by the Secretary of Defense] to convene military
commissions [and] refer charges to trial.” See Organization Overview, OFFICE OF MILITARY
COMMISSIONS ORGANIZATION OVERVIEW, http://www.mc.
mil/ABOUTUS/OrganizationOverview.aspx (last visited July 10, 2014).
6 No. 13‐3684‐cv
to the requests, CCR filed this lawsuit, purportedly with al‐
Qahtani’s consent.4
In response, DoD and FBI identified 62 records responsive to
CCR’s requests (the “Responsive Records”)5: 53 FBI videotapes
depicting al‐Qahtani’s activities in his cell and his interactions with
DoD personnel (the “FBI videos”); one video showing two “forced
cell extractions” of al‐Qahtani (the “FCE video”); two videos
showing “document intelligence debriefings” (the “Debriefing
videos”); and six “mug‐shots” of al‐Qahtani. They claimed the right
to withhold the Responsive Records primarily under FOIA
Exemption 1, which exempts from disclosure records that are
“specifically authorized under criteria established by an Executive
order to be kept secret in the interest of national defense or foreign
Sandra L. Babcock represents CCR in this action, and also represents al‐Qahtani
4
in a habeas proceeding pending in the District Court for the District of Columbia. She
submitted a declaration in this action, dated October 2, 2012, attesting that she had
discussed the FOIA action with al‐Qahtani after its filing and that he “expressed to his
attorneys that he wishes to have all videotapes, photos, and other recordings of him
released.” J.A. 38. However, in April 2012, the habeas action was stayed on the basis of
al‐Qahtani’s “current[] incompeten[ce] and [inability] to assist effectively in [his] case.”
See Minute Order, al‐Qahtani v. Obama, No. 05 Civ. 1971 (D.D.C. Apr. 20, 2012).
5 The CIA submitted a so‐called “Glomar response,” which is a response that
neither confirms nor denies the existence of documents responsive to the request, and is
permissible “where to answer the FOIA inquiry [by confirming or denying the existence
of responsive documents] would cause harm cognizable under a[ ] FOIA exception.”
Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 68 (2d Cir. 2009) (second alteration in original;
internal quotation marks omitted). The CIA’s Glomar response was challenged in the
District Court, but is not challenged on appeal.
7 No. 13‐3684‐cv
policy,” and “are in fact properly classified pursuant to such
Executive order.” 5 U.S.C. § 552(b)(1).6
The government sought to justify the invocation of Exemption
1 in three public declarations and in one classified declaration.7 Each
declaration represented that the Responsive Records were properly
classified under Executive Order 13,526, which pertains, in relevant
part, to: (1) “military plans . . . or operations”; (2) “intelligence
activities (including covert action), intelligence sources or methods,
or cryptology”; and (3) “foreign relations or foreign activities of the
6 The government also argued that some or all of the records were exempt under
FOIA Exemptions 3, 5 U.S.C. § 552(b)(3) (documents specifically exempted from
disclosure by statute); 6, id. § 552(b)(6) (privacy interests in records held by the
government); 7(A), id. § 552(b)(7)(A) (law enforcement records that would reasonably be
expected to interfere with enforcement proceedings); 7(C), id. § 552(b)(7)(C) (privacy
interests in law enforcement records); and Section (j)(2) of the Privacy Act, id. § 552a(j)(2).
Because we resolve the case under Exemption 1, we do not address these additional
exemptions.
The Declaration of Major General Karl R. Horst is described below. The other
7
two public declarants were Rear Admiral David B. Woods and Deputy Assistant
Secretary of Defense William K. Lietzau. Admiral Woods represented that disclosure of
the Responsive Records could damage national security by “chilling” intelligence
collection efforts at Guantanamo and elsewhere, by “mak[ing] it substantially less likely
that the detainee will cooperate and provide information in the future.” J.A. 1284‐85. Mr.
Lietzau represented that the Responsive Records could reasonably be expected to
damage national security by “providing a means for detainees to communicate [through
coded messages] outside of approved channels, including with enemy forces” and by
“damaging U.S. foreign relations by causing international partners to question the U.S.
commitment to its longstanding policy and practice of shielding detainees from public
curiosity, consistent with the Geneva Conventions.” J.A. 1307. Because we do not rely on
these justifications, we need not elaborate upon the content of the declarations.
8 No. 13‐3684‐cv
United States, including confidential sources.” Exec. Order No.
13,526 § 1.4(a), (c), (d), 75 Fed. Reg. 707, 707 (Dec. 29, 2009).
Declarant Major General Karl R. Horst8 asserted that the
disclosure of the Responsive Records could reasonably be expected
to harm national security by “endangering the lives and physical
safety” of U.S. military personnel, diplomats, and aid workers
serving in Afghanistan and elsewhere, and by “aiding in the
recruitment and financing of extremist and insurgent groups”
because “enemy forces in Afghanistan” and elsewhere “have
previously used videos and photographs [particularly of U.S. forces
interacting with detainees] out of context to incite the civilian
population and influence government officials.” J.A. 1299‐1300. As
examples of images that had been used by extremist groups to
recruit new members and incite violence, General Horst cited
images published by the media in 2004 relating to allegations of
abuse of Iraqi detainees in Iraq and media reporting in 2005 of
alleged incidents of mishandling of the Koran at Guantanamo. Id. In
addition, General Horst stated that “[t]he subject of U.S. detainee
operations in Iraq, Afghanistan, and at [Guantanamo] is extremely
sensitive with the host nations and governments whose nationals we
detain.” J.A. 1301. He opined that “release of any portion of the
At the relevant time, General Horst was Chief of Staff of the United States
8
Central Command of the DoD. In that capacity, he was responsible for the Headquarters
of the Combatant Command, which consists of 2,000 military personnel responsible for
providing staff oversight of over 200,000 military personnel deployed in over twenty
countries in the Middle East and Central Asia, including Iraq, Afghanistan, and Pakistan.
J.A. 1295‐96.
9 No. 13‐3684‐cv
[Responsive Records] would facilitate the enemy’s ability to conduct
information operations and could be used to increase anti‐American
sentiment,” particularly because the images could be manipulated to
show greater mistreatment than actually occurred, or change the
chronology of actual events. J.A. 1301‐02.
The government submitted ex parte an index (“the FBI Index”)
identifying the contents of the 53 FBI videotapes for the District
Court’s in camera review. See J.A. 1338‐39.9
C. The District Court’s Decision
In a September 12, 2013 memorandum and order, the District
Court granted summary judgment for the government, approving
nondisclosure of the Responsive Records under Exemption 1, on the
basis that it was “both logical and plausible that the disclosure of
any portion of the [Responsive Records] could reasonably be
expected to harm national security.” Ctr. for Constitutional Rights v.
Dep’t of Def., 968 F. Supp. 2d 623, 635‐36 (S.D.N.Y. 2013). In
particular, after reviewing in camera the FBI Index describing the
9 Plaintiffs did not challenge the adequacy of the government’s review in the
District Court or on appeal. Nor have they challenged the scope of the District Court’s
review of the withheld documents, which entailed an in camera review of the index
submitted ex parte and under seal by the government. Cf. Wilner v. Natʹl Sec. Agency, 592
F.3d 60, 75‐76 (2d Cir. 2009) (“A court should only consider information ex parte and in
camera that the agency is unable to make public if questions remain after the relevant
issues have been identified by the agency’s public affidavits and have been tested by
plaintiffs.”).
10 No. 13‐3684‐cv
videotapes, the District Court found it “logical and plausible that
extremists would utilize images of al‐Qahtani (whether in native or
manipulated formats) to incite anti‐American sentiment, to raise
funds, and/or to recruit other loyalists, as has occurred in the past.”
Id. at 636. The District Court found further that such misuse was
“particularly plausible in this case, which involves a high‐profile
detainee, the treatment of whom the Convening Authority for
Military Commissions . . . determined ‘met the legal definition of
torture.’” Id. The Court then rejected CCR’s argument that the
extensive prior disclosures concerning al‐Qahtani undermined the
government’s justifications. Id.
This timely appeal followed.
DISCUSSION
Exceptions to FOIA’s general principle of “broad disclosure of
Government records . . . have consistently been given a narrow
compass.” New York Times Co. v. U.S. Dep’t of Justice, ‐‐‐ F.3d ‐‐‐‐, No.
13‐422 L, 2014 WL 2838861, at *8 (2d Cir. June 23, 2014) (citation and
internal quotation marks omitted). The government bears the
burden of demonstrating that an exemption applies to each item of
information it seeks to withhold, Nat’l Council of La Raza v. Dep’t of
Justice, 411 F.3d 350, 356 (2d Cir. 2005), and “all doubts as to the
applicability of the exemption must be resolved in favor of
disclosure,” New York Times Co., 2014 WL 2838861, at *8 (internal
quotation marks omitted).
11 No. 13‐3684‐cv
We review a district court’s order granting summary
judgment in a FOIA action de novo. Id. An agency may carry its
burden by submitting declarations “giving reasonably detailed
explanations why any withheld documents fall within an
exemption,” and such declarations “are accorded a presumption of
good faith.” Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 69 (2d Cir. 2009)
(internal quotation marks omitted). When such declarations are “not
controverted by either contrary evidence in the record nor by
evidence of agency bad faith,” summary judgment for the
government is warranted. Id. at 73 (internal quotation marks
omitted). Notwithstanding the presumption in favor of disclosure,
when the claimed exemption implicates national security, “an
agency’s justification for invoking a FOIA exemption is sufficient if
it appears logical or plausible.” Id. (internal quotation marks
omitted).
At issue here is whether FOIA Exemption 1 is satisfied. This
exemption shields from disclosure records that are “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). The parties dispute whether the Responsive
Records satisfied the prerequisites for classification under Executive
Order 13,526—specifically, whether the “unauthorized disclosure of
the [Responsive Records] reasonably could be expected to result in
damage to national security,” defined as “harm to the national
defense or foreign relations of the United States . . . taking into
12 No. 13‐3684‐cv
consideration such aspects of the information as the sensitivity,
value, utility, and provenance of that information.” Exec. Order No.
13,526 §§ 1.1(a)(4), 6.1(1).
The government’s central argument on appeal, supported by
the Horst Declaration, is that release of the mug‐shots and videos of
al‐Qahtani could logically and plausibly serve as propaganda for
extremists and incite anti‐American violence, which, in turn, could
reasonably be expected to result in damage to national security.10
In response, CCR argues that accepting the “propaganda”
justification would “stymie FOIA’s aim[s]” by permitting the
government to “disregard the people’s right to a transparent
government whenever there is a distant risk that someone,
somewhere could respond with violence.” Appellant’s Br. 34. CCR
warns that this justification would, perversely, be most forceful
where the information was most controversial and, accordingly, of
greatest interest to the public. Cf. Ray v. Turner, 587 F.2d 1187, 1209
(D.C. Cir. 1978) (Wright, J., concurring in the remand) (noting that
Congress amended Exemption 1 to prevent the Executive from
classifying information that “is embarrassing or incriminating”
10 On appeal, the government also cites the following as threats to national
security: (1) the compromise of relationships with cooperating detainees; (2) the
possibility that disclosure could be perceived as inconsistent with the Geneva
Convention; and (3) the possibility that release of the images could facilitate sending of
coded messages by detainees. Because we resolve the case on the basis that the mug shots
and videos of al‐Qahtani could incite violence against American interests and be used by
anti‐American extremists as propaganda, we need not address these other purported
threats.
13 No. 13‐3684‐cv
(internal quotation marks omitted)). CCR asserts further that the
over‐breadth of the Horst Declaration exemplifies the danger of the
so‐called “slippery slope” of the government’s argument.
Specifically, instead of explaining how the particular records at issue
here would provoke the United States’ enemies, General Horst
suggests that release of any depiction of any detainee would
endanger national security and, accordingly, should be exempt from
disclosure under FOIA. Appellant’s Br. 33.
It is of course true that, if invoked reflexively by the
government, and accepted unquestioningly by reviewing courts, the
“propaganda” justification could shield a broad range of documents
of significant public interest, in contravention of FOIA’s central
purpose. The possibility that a particular justification might be
abused, however, does not render it meritless in all circumstances.
As Justice Oliver Wendell Holmes recognized long ago, “most of the
distinctions of the law are distinctions of degree” and courts, in any
given situation, “can defeat an attempt to . . . go too far without
wholly abolishing [the authority or right at issue].” Panhandle Oil Co.
v. Mississippi ex rel. Knox, 277 U.S. 218, 223 (1928) (Holmes, J.,
dissenting).11 Whether the government’s justifications for
withholding information in the name of national security go too far
is a question that must be evaluated in the context of the particular
circumstances presented by each case.
11 As Justice Arthur J. Goldberg similarly remarked, “[i]t is of course true that
great consequences can grow from small beginnings, but the measure of . . . adjudication
is the ability and willingness to distinguish between real threat and mere shadow.” Sch.
Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 308 (1963) (Goldberg, J., concurring).
14 No. 13‐3684‐cv
We now turn to the circumstances at issue here. We note, as a
preliminary matter, that we need not view the Horst Declaration in a
vacuum, and may consider the record as a whole in determining
whether the justifications set forth in the declaration are logical and
plausible in this case. Cf. Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir.
1982) (“The test is not whether the court personally agrees in full
with the [Agency]’s evaluation of the danger—rather, the issue is
whether on the whole record the Agency’s judgment objectively
survives the test of reasonableness, good faith, specificity, and
plausibility in this field of foreign intelligence in which the [Agency]
is expert and given by Congress a special role.”).
The record makes clear that al‐Qahtani is not just any
detainee: The government has publicly stated that al‐Qahtani is “the
intended 20th Hijacker in the 9/11 attack that killed more than 3,000
innocent people,” and “an al Qa[e]da operative with strong ties to
senior al Qa[e]da leadership, including Osama Bin Laden.” News
Release, Dep’t of Defense, Guantanamo Provides Valuable Intelligence
Information (June 12, 2005) (J.A. 309). Apart from his notable profile,
al‐Qahtani is unusual because a significant government official has
publicly opined that the interrogation methods used on him met the
legal definition of torture.12
Relevant to our inquiry here is the public nature of these statements and the
12
fact they were made by a high‐ranking DoD officer. Whether the statements are true, and
whether they are supported or refuted by the Responsive Records, is irrelevant for our
purposes. We note, additionally, that our reliance on these statements does not support,
as a general matter, government non‐disclosure of documents which may reveal
wrongdoing. First of all, the Government has already publicly disclosed the alleged
15 No. 13‐3684‐cv
CCR asserts that the government’s prior and extensive
disclosures regarding al‐Qahtani undermine its justifications for
withholding the Responsive Records.13 On the contrary, we conclude
that, inasmuch as these disclosures have heightened al‐Qahtani’s
prominence, here and abroad, they increase the likelihood that
official release of images of al‐Qahtani―even images that do not
depict abuse or mistreatment―could be exploited by extremist
groups as tools to recruit or to incite violence.14
We find, moreover, that images of al‐Qahtani, alone and
interacting with military personnel, particularly when released
directly by the FBI and DoD, may prove more effective as
propaganda than previously released written records that disclose
the same―or even more controversial―information about al‐
wrongdoing and cannot, here, be accused of withholding that information. Moreover, the
parties (the government in its brief in support of summary judgment and CCR at oral
argument) and the District Court agree that the images in question do not depict al‐
Qahtani being tortured. See Ctr. for Constitutional Rights, 968 F. Supp. 2d at 637
(“confirm[ing] [based on review of the FBI Index] the Government’s public
representation that these records do not document any abuse or mistreatment”) (internal
quotation marks omitted).
As a general matter, it is well‐established that “the government’s decision to
13
disclose some information [does not] prevent[] the government from withholding other
information about the same subject.” Am. Civil Liberties Union v. U.S. Dep’t of Def., 628
F.3d 612, 625 (D.C. Cir. 2011).
14 See Note 16, post.
In combination with the government’s public disclosures about al‐Qahtani’s
treatment and the leaked interrogation logs, however, even innocuous photographs and
videos could readily be used to inspire unrest similar to that caused by the dissemination
of the (arguably more controversial) Abu Ghraib photos in 2004, or the alleged
mishandling of Korans at Guantanamo in 2005, to which General Horst referred in his
declaration.
16 No. 13‐3684‐cv
Qahtani’s detention.15 See Judicial Watch, Inc. v. U.S. Dep’t of Def., 715
F.3d 937, 942 (D.C. Cir. 2013) (finding it plausible “that releasing
[seemingly innocuous] images of American military personnel
burying [Osama Bin Laden] could cause exceptionally grave harm”
in the form of “violence and attacks against United States interests”
(internal quotation marks omitted)).
As in every FOIA action, our holding is limited to the
particular facts and circumstances of this case, as set forth above: We
do not now hold that every image of a specifically identifiable
detainee is exempt from disclosure pursuant to FOIA, nor do we
hold that the government is entitled to withhold any documents that
may reasonably incite anti‐American sentiment.
In sum, we conclude that the record of this case establishes, at
a minimum, a reasonable possibility that the government’s release of
these images of al‐Qahtani, in the context of what is already publicly
known about him, would be singularly susceptible to use by
Other than four photographs of detainees―whose identities we do not
15
know―which were apparently released pursuant to FOIA requests, the only images of
specifically identifiable detainees cited by CCR as having been publicly released are
photographs taken by the International Committee of the Red Cross (“ICRC”) with the
permission of the detainee pursuant to well‐established procedures at Guantanamo. See
Appellant’s Br. 38, J.A. 661‐62. According to the ICRC, it releases these photographs only
to the detainee’s family, at which point it cedes control over the dissemination of these
photographs to the family. This type of dissemination is readily distinguishable from
release by the DoD and/or the FBI directly into the public domain of photographs taken
without the permission of the detainee. Moreover, CCR’s assertion that it is implausible
that “the propaganda value of a photograph or video is appreciably greater where the
detainee is identifiable” is forcefully and persuasively refuted by the Horst Declaration
and, in any event, defies common sense.
17 No. 13‐3684‐cv
extremist groups to incite anti‐American hostility. That, in turn,
could reasonably be expected to damage the national security of the
United States. Accordingly, the Responsive Records were properly
classified under Executive Order 13,526, and are therefore exempt
from disclosure pursuant to FOIA Exemption 1.16
CONCLUSION
For the reasons set out above, we hold that government‐
released images and videos of one of Guantanamo Bay’s most high‐
profile detainees, who is closely associated with al Qaeda and the
9/11 attacks, and whose interrogation was publicly deemed
“torture” by a government official, could logically and plausibly be
used by anti‐American extremists as propaganda to recruit members
and incite violence against American interests at home and abroad,
causing damage to the national security. Such threats to national
security justify non‐disclosure of the Responsive Records pursuant
to FOIA Exemption 1.
Accordingly, we AFFIRM the September 12, 2013 judgment of
the District Court.
16 Additional justifications for withholding the Debriefing videos are set forth in
the classified declaration of Mark H. Herrington. We have reviewed this declaration in
camera and, although it is not necessary to the resolution of this appeal, we note that the
classified declaration provides additional valid justifications for withholding the
Debriefing videos.