American Civil Liberties Union v. United States Department of Defense

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 23, 2010 Decided January 18, 2011

No. 09-5386

AMERICAN CIVIL LIBERTIES UNION AND AMERICAN CIVIL
LIBERTIES UNION FOUNDATION,
APPELLANTS

v.

UNITED STATES DEPARTMENT OF DEFENSE AND CENTRAL
INTELLIGENCE AGENCY,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-00437)

Benjamin E. Wizner argued the cause for appellants.
With him on the briefs was Arthur B. Spitzer.

Michael P. Abate, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Ronald C. Machen, U.S. Attorney, and Douglas N. Letter,
Attorney. R. Craig Lawrence, Assistant U.S. Attorney,
entered an appearance.

Before: SENTELLE, Chief Judge, GRIFFITH, Circuit Judge,
and SILBERMAN, Senior Circuit Judge.
 2

Opinion for the Court filed by Chief Judge SENTELLE.

SENTELLE, Chief Judge: Appellants, the American Civil
Liberties Union and the American Civil Liberties Foundation
(jointly “ACLU”), submitted Freedom of Information Act
(“FOIA”) requests to the Department of Defense and the
Central Intelligence Agency (“CIA”) seeking documents
related to fourteen “high value” detainees held at the U.S.
Naval Base in Guantanamo Bay, Cuba. In response, the
government released redacted versions of the requested
documents, from which specific information relating to the
capture, detention, and interrogation of the detainees had been
withheld. The government defended the redactions as
justified by FOIA exemptions 1 and 3, which permit the
government to withhold information related to “intelligence
sources and methods.” We agree with the district court that
the information withheld by the government was exempt from
FOIA disclosure. We also conclude that the district court did
not abuse its discretion by declining to perform in camera
review. For these reasons, we affirm the judgment of the
district court.

I. Background

Since January of 2002, the United States has operated a
detention facility at the United States Naval Base at
Guantanamo Bay, Cuba, for detainees captured in the war on
terror. In a September 2006 speech, President Bush revealed
that fourteen “suspected terrorist leaders and operatives” had
been held and questioned outside of the United States in a
separate program operated by the CIA. Remarks on the War
on Terror, 42 WEEKLY COMP. PRES. DOC. 1569, 1570 (Sept.
6, 2006). In his speech, the President announced that this
program had been discontinued and that the fourteen
detainees were being transferred to Guantanamo Bay. Id. at
 3

1573-74. After their transfer, these so-called “high value”
detainees received hearings before Combatant Status Review
Tribunals (“CSRTs”).

Although the Department of Defense had publicly posted
redacted transcripts of the detainees’ CSRT proceedings, the
ACLU submitted Freedom of Information Act requests to the
Department seeking full CSRT transcripts of the 14 detainees
and all records provided to the CSRTs by or on behalf of the
detainees. In response to the request, the government
identified and released the following:

eight unclassified CSRT transcripts;

six redacted CSRT transcripts;

an unclassified version of a one-page document
submitted by detainee Abu Zubayduh to the CSRT;

an unclassified version of two pages of “Detainee Session
Notes” prepared by the Personal Representative of
detainee Majid Khan and submitted to the CSRT;

a redacted version of a two-page written statement of
detainee Khalid Sheikh Muhammad that was submitted to
the CSRT;

a redacted version of a seven-page written statement of
detainee Hambali that was submitted to the CSRT; and

a redacted version of a one-page written statement of
detainee Bin Lap that was submitted to the CSRT.

From the redacted documents, the CIA withheld all
information relating to the capture, detention, and
interrogation of the “high value” detainees.
 4

The ACLU filed the present action in the district court
challenging the government’s withholdings. The government
stood by its withholdings and filed affidavits in support of its
position. The government principally relied on the affidavit
of Wendy Hilton, the Associate Information Review Officer
of the National Clandestine Service of the CIA, to justify the
redactions as information protected by FOIA exemptions 1
and 3. See 5 U.S.C. § 552(b) (listing nine exemptions from
FOIA disclosure requirements). Exemption 1 provides for the
exemption of records that are:

(A) specifically authorized under criteria established by
an Executive order to be kept secret in the interest of
national defense or foreign policy and (B) are in fact
properly classified pursuant to such Executive order.

5 U.S.C. § 552(b)(1). As applicable to the claimed exemption
in this case, Executive Order 12,958, as amended, sets out
eight categories of information subject to classification,
including “intelligence activities,” “intelligence sources or
methods,” and the “foreign relations or foreign activities of
the United States.” Exec. Order No. 12,958 § 1.4(c)-(d), 60
Fed. Reg. 19,825 (Apr. 17, 1995), as amended by Exec. Order
No. 13,292, 68 Fed. Reg. 15,315 (Mar. 25, 2003) (hereinafter
“Exec. Order No. 12,958”). Exemption 3 provides for the
exemption of records that are “specifically exempted from
disclosure by statute,” thereby incorporating the protections of
other shield statutes. 5 U.S.C. § 552(b)(3).

The government moved for summary judgment to
dispose of the ACLU’s lawsuit. On October 29, 2008, the
district court granted the government’s motion, ruling that the
government had complied with the ACLU’s FOIA request
insofar as it was required to do so, and that it had provided
sufficient support for the claimed exemptions. See A.C.L.U.
v. Dep’t of Defense, 584 F. Supp. 2d 19, 26 (D.D.C. 2008).
 5

The ACLU appealed the district court’s decision to this court,
but before the parties filed their briefs, four events caused the
government to reevaluate its redactions to the requested
documents. First, in January 2009, President Obama issued
three executive orders: Executive Order 13,491 limiting the
use of interrogation techniques to those listed in the Army
Field Manual and ordering the CIA to close any detention
centers it operated; Executive Order 13,492 ordering the
Department of Defense to close the detention facility at
Guantanamo Bay within one year; and Executive Order
13,493 establishing a taskforce to review the lawful options
available to the government with respect to the apprehension,
detention, and disposition of suspected terrorists. See Exec.
Order Nos. 13,491-93, 74 Fed. Reg. 4893-902 (Jan. 22, 2009).
Second, in April 2009, President Obama declassified and
released to the public four legal memoranda issued by the
Department of Justice Office of Legal Counsel (“OLC”) that
discussed the legality of enhanced interrogation techniques.
Third, also in April 2009, the New York Review of Books
published a leaked report from the International Committee of
the Red Cross (“Red Cross”) that contained accounts of the
treatment of the fourteen “high value” detainees while in CIA
custody. Finally, in August 2009, the government released a
declassified version of the CIA Inspector General’s report that
detailed the CIA’s interrogation techniques and discussed
certain aspects of the detainees’ conditions of confinement.

At the government’s request, we remanded the case to the
district court to provide the CIA with the opportunity to
“reprocess” the requested documents in light of the further
developments. The CIA’s additional efforts resulted in the
release of one additional CSRT transcript in its entirety and
the revision of the redactions to the remaining five transcripts
and three detainee written statements. In August 2009, the
government filed a new motion for summary judgment,
relying on a second declaration from Wendy Hilton to support
 6

its claim that the information still redacted after the CIA’s
reprocessing was exempt from release under FOIA
exemptions 1 and 3. The district court granted the
government’s motion, A.C.L.U. v. Dep’t of Defense, 664 F.
Supp. 2d 72, 79 (D.D.C. 2009), and the ACLU appealed.

II. FOIA Exemptions 1 and 3

The Freedom of Information Act “calls for broad
disclosure of Government records.” C.I.A. v. Sims, 471 U.S.
159, 166 (1985). However, Congress has recognized that
“public disclosure is not always in the public interest,” id. at
167, and has therefore provided the nine exemptions listed in
5 U.S.C. § 552(b). As we noted above, the government in this
case supports its redactions on the basis of exemptions 1 and
3. As we further noted above, exemption 1 permits the
government to withhold information “specifically authorized
under criteria established by an Executive order to be kept
secret in the interest of national defense or foreign policy” if
that information has been “properly classified pursuant to
such Executive order.” 5 U.S.C. § 552(b)(1). In this case, the
government argues that the redacted information was properly
classified under Executive Order 12,958, which “prescribes a
uniform system for classifying, safeguarding, and
declassifying national security information.” Exec. Order No.
12,958.1 Specifically, the government asserts that the
information it withheld was classified as “intelligence sources
or methods” pursuant to section 1.4(c) of Executive Order
12,958. See id. § 1.4 (listing the categories of information
authorized to be classified).

1
Executive Order 12,598 and all amendments thereto have since been
superseded by Executive Order 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009).
 7

Exemption 3 permits the government to withhold
information “specifically exempted from disclosure by
statute,” if such statute either “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 government relies on
the National Security Act of 1947 to justify withholding the
redacted information under exemption 3. We have previously
held that the National Security Act, which also authorizes the
Executive to withhold “intelligence sources and methods”
from public disclosure, 50 U.S.C. § 403-1(i)(1), qualifies as
an exemption statute under exemption 3. Larson v. Dep’t of
State, 565 F.3d 857, 865 (D.C. Cir. 2009); Fitzgibbon v.
C.I.A., 911 F.2d 755, 761 (D.C. Cir. 1990).

An agency withholding responsive documents from a
FOIA release bears the burden of proving the applicability of
claimed exemptions. Typically it does so by affidavit. We
review the district court’s decision on the adequacy of the
agency’s showing de novo. Larson, 565 F.3d at 862; Wolf v.
C.I.A., 473 F.3d 370, 374 (D.C. Cir. 2007). Because courts
“lack the expertise necessary to second-guess such agency
opinions in the typical national security FOIA case,”
Krikorian v. Dep’t of State, 984 F.2d 461, 464 (D.C. Cir.
1993), we “must accord substantial weight to an agency’s
affidavit concerning the details of the classified status of the
disputed record.” Wolf, 473 F.3d at 374 (quotations omitted);
Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984); Military
Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). If
an agency’s affidavit describes the justifications for
withholding the information with specific detail, demonstrates
that the information withheld logically falls within the
claimed exemption, and is not contradicted by contrary
evidence in the record or by evidence of the agency’s bad
faith, then summary judgment is warranted on the basis of the
 8

affidavit alone. Larson, 565 F.3d at 862; Wolf, 473 F.3d at
374. Moreover, a reviewing court “must take into account . . .
that any affidavit or other agency statement of threatened
harm to national security will always be speculative to some
extent, in the sense that it describes a potential future harm.”
Wolf, 473 F.3d at 374; Halperin v. C.I.A., 629 F.2d 144, 149
(D.C. Cir. 1980). “Ultimately, an agency’s justification for
invoking a FOIA exemption is sufficient if it appears ‘logical’
or ‘plausible.’” Larson, 565 F.3d at 862 (quoting Wolf, 473
F.3d at 374-75).

The ACLU challenges the CIA’s claim that it was
authorized to withhold the redacted information as
“intelligence sources or methods” either under exemption 1 or
under exemption 3 on several bases.2 It first argues that the
withheld information has already been declassified and is
widely available to the public. Secondly, it contends that the
interrogation techniques and conditions of confinement
described in the requested documents have been prohibited by
the President. Thirdly, it contends that the government lacks
the authority to classify information derived from the
detainee’s personal observations and experiences. In addition,
the ACLU argues that the government cannot withhold the
information under exemption 1 because public release of the
information would not damage national security—one of the
prerequisites for classification under Executive Order 12,958.
See Exec. Order No. 12,958 § 1.1 (listing four conditions that
must be met to permit classification). We consider each of
the ACLU’s arguments in turn.

2
We note that the government need not prevail on both exemptions, but under
the statute may refuse disclosure if the withheld records satisfy one
exemption. See generally 5 U.S.C. § 552(b).
 9

A.

The ACLU first claims that the withheld information is
not exempt from FOIA because it has already been
declassified and is available to the public. The ACLU points
to three sets of declassified and released government
documents that the ACLU believes contain the same
information that the CIA has withheld from the requested
CSRT documents: the OLC memoranda, the CIA Inspector
General’s report, and a CIA “Background Paper” released
with the CIA Inspector General’s report. The ACLU also
argues that a fourth document, the leaked Red Cross report,
although not an official government disclosure, contains the
same information and is available to the public.

In its affidavit, the CIA asserts that despite the
declassification and disclosure of some government
documents, the specific operational details of the capture,
detention, and interrogation of the “high value” detainees
remain classified. Hilton Aff. ¶ 55, Aug. 28, 2009. The
affidavit states that the declassified documents contain
“descriptions of the enhanced interrogation techniques in the
abstract” that are “of a qualitatively different nature than the
conditions of confinement and interrogation techniques as
applied described in the CSRT transcripts and detainee
written statements.” Id. at ¶ 70 (emphasis in original). The
affidavit also asserts that the documents “discuss[] issues of
detainee confinement, rather than specific operational details
of the confinement of any specific detainee,” and that
although the disclosed documents “discuss the legality of
specific proposed intelligence activities, they do not reveal the
level of detail described in the [CSRT] transcripts and
statements.” Id. at ¶¶ 70, 71 (emphasis in original). The CIA
also argues that under our opinion in Fitzgibbon, the leaked
Red Cross report is irrelevant because it does not qualify as an
official and documented disclosure by the government. See
 10

911 F.2d at 765 (requiring, inter alia, “that the information
requested must already have been made public through an
official and documented disclosure” to compel release over an
agency’s otherwise valid exemption claim).

If the government has officially acknowledged
information, a FOIA plaintiff may compel disclosure of that
information even over an agency’s otherwise valid exemption
claim. Wolf, 473 F.3d at 378; Fitzgibbon, 911 F.2d at 765.
For information to qualify as “officially acknowledged,” it
must satisfy three criteria: (1) the information requested must
be as specific as the information previously released; (2) the
information requested must match the information previously
disclosed; and (3) the information requested must already
have been made public through an official and documented
disclosure. Wolf, 473 F.3d at 378; Fitzgibbon, 911 F.2d at
765. As we further explained in Wolf, “[p]rior disclosure of
similar information does not suffice; instead, the specific
information sought by the plaintiff must already be in the
public domain by official disclosure. This insistence on
exactitude recognizes the Government’s vital interest in
information relating to national security and foreign affairs.”
473 F.3d at 378 (citations and quotation omitted).

Review of the government documents cited by the ACLU
supports the CIA’s assertion that there are substantive
differences between the disclosed documents and the
information that has been withheld. The OLC memoranda
contain descriptions of the enhanced interrogation techniques
requested for use on the “high value” detainees, evaluations of
physical and mental pain caused by those techniques,
descriptions of “prototypical interrogations,” and analyses of
the techniques’ potential effects if implemented in
combination. The CIA Inspector General’s report, which is
heavily redacted, contains particular details from various
interrogations, but does not include thorough descriptions of
 11

any specific interrogations. The CIA “Background Paper,”
drafted to provide the Department of Justice with background
information regarding the CIA program and a “generic
description of the process,” contains only general descriptions
of the confinement conditions and interrogation techniques
used by the CIA. Despite the ACLU’s arguments to the
contrary, none of these documents contains a comprehensive
description of the actual capture, detainment, or interrogation
of any specific detainee. The CIA affidavit asserts that there
are substantive differences between the content of the
publically released government documents and the withheld
information. We find nothing in the record that discredits the
agency’s claim. According the agency’s affidavit the
substantial weight it is due regarding the details of the
classified status of the disputed record, see Wolf, 473 F.3d at
374; Miller, 730 F.2d at 776; Military Audit Project, 656 F.2d
at 738, we agree with the district court’s conclusion that the
information withheld by the government “is specific and
particular to each detainee and would reveal far more about
the CIA’s interrogation process than the previously released
records.” A.C.L.U., 664 F. Supp. 2d at 77.

As the ACLU readily admits, the Red Cross report was
not released pursuant to a government declassification
process, but was instead leaked to a journalist. We note at the
outset that the Red Cross report is not a government
document, and we are hard pressed to understand the ACLU’s
contention that the release of a nongovernment document by a
nonofficial source can constitute a disclosure affecting the
applicability of the FOIA exemptions. The distinction
between an official government disclosure and references in
an unofficial document from a nonofficial source is essential
and would be fatal to the ACLU’s argument even without the
other shortcomings discussed with reference to the ACLU’s
other contentions. “[I]n the arena of intelligence and foreign
relations there can be a critical difference between official and
 12

unofficial disclosures.” Fitzgibbon, 911 F.2d at 765. Because
the Red Cross report was not “made public through an official
and documented disclosure,” the information it contains
cannot be considered “officially acknowledged.” See Wolf,
473 F.3d at 378 (requiring that “the information requested
must already have been made public through an official and
documented disclosure” to be officially acknowledged). As
the Fourth Circuit has noted, “[i]t is one thing for a reporter or
author to speculate or guess that a thing may be so or even,
quoting undisclosed sources, to say that it is so; it is quite
another thing for one in a position to know of it officially to
say that it is so.” Alfred A. Knopf, Inc. v. Colby, 509 F.2d
1362, 1370 (4th Cir. 1975). Similarly, a journalist’s version
of what a nongovernmental organization, such as the Red
Cross, reports is hardly the same thing as an official
government acknowledgment.

Neither the official government disclosures of the OLC
memoranda and CIA reports nor the unofficial publication of
the Red Cross report are sufficient to qualify the information
withheld from the CSRT documents as “officially
acknowledged.” Therefore, despite the ACLU’s claim that
the information is already widely available to the public, we
conclude that FOIA exemptions 1 and 3 validly apply.

B.

The ACLU also argues that the redacted information is
not exempt from FOIA because the interrogation techniques
and conditions of confinement withheld from the requested
documents have been prohibited by the President. Relying on
the Supreme Court’s ruling in C.I.A. v. Sims, the ACLU
argues that because the President banned the future use of the
interrogation techniques and confinement conditions formerly
authorized for use on the “high value” detainees, those
techniques and conditions are no longer within the “Agency’s
 13

mandate to conduct foreign intelligence,” and therefore not
protectable “intelligence sources and methods.” See 471 U.S.
at 169-70.

Sims, the only case offered by the ACLU in support of
this proposition, does not remotely support such a claim. The
Sims decision does in fact discuss the breadth of the
protection offered by exemption 3, but says nothing
suggesting that the change in the specific techniques of
intelligence gathering by the CIA renders unprotected sources
and methods previously used. As the Sims Court stated,
“[t]he ‘plain meaning’ of section 102(d)(3) may not be
squared with any limiting definition that goes beyond the
requirement that the information fall within the agency’s
mandate to conduct foreign intelligence.” 471 U.S. at 169. In
short, the Sims decision refutes rather than supports the
ACLU’s claim.

To the extent that the ACLU’s claim rests on the ACLU’s
belief that the enhanced interrogation techniques were illegal,
there is no legal support for the conclusion that illegal
activities cannot produce classified documents. In fact,
history teaches the opposite. Documents concerning
surveillance activities later deemed illegal may still produce
information that may be properly withheld under exemption 1.
See Lesar v. Dep’t of Justice, 636 F.2d 472, 483 (D.C. Cir.
1980) (holding that although the FBI’s surveillance “strayed
beyond the bounds of its initial lawful security aim, that does
not preclude the possibility that the actual surveillance
documents and the Task Force materials that comment upon
those documents may nevertheless contain information of a
sensitive nature, the disclosure of which could compromise
legitimate secrecy needs”). We conclude that the President’s
prohibition of the future use of certain interrogation
techniques and conditions of confinement does not diminish
the government’s otherwise valid authority to classify
 14

information about those techniques and conditions and to
withhold it from disclosure under exemptions 1 and 3.

C.

Next, the ACLU argues that the redacted information
does not qualify as “sources or methods” under FOIA
exemptions 1 and 3 because the government lacks the
authority to classify information derived from the detainees’
personal observations and experiences. The ACLU asserts
that the government’s ability to prevent the public release of
the withheld information is derived solely from its continued
detainment of the “high value” detainees at Guantanamo Bay;
that the only thing preventing the detainees from speaking out
about their personal experiences in CIA custody is their
continued detention with no access to the public. The ACLU
argues that indefinite detention cannot be a permissible
justification for the classification of information.

The ACLU’s argument is irrelevant to the reality that the
information that the CIA wishes to withhold is within the
government’s control. Executive Order 12,958 granted the
CIA the authority to classify information that was “under the
control of the United States Government,” defining control as
“the authority of the agency that originates information, or its
successor in function, to regulate access to the information.”
Exec. Order No. 12,958 §§ 1.1(a)(2), 6.1(s). Neither party
disputes that the Department of Defense and the CIA retain
exclusive authority to regulate access to the requested
documents. The fact that the information originated from
detainees then in the government’s custody has no relevance
to the unquestionable fact that the information so obtained is
in the government’s control. Any documents generated in the
process of interrogation are in the hands of the government
and will remain subject to the government’s authority whether
the detainees are retained, released, or transferred. Not only
 15

may the information within such records constitute
intelligence in and of itself, it certainly may reveal the sources
and methods of the government’s acquisition. Even if the
detainees were to be released, erstwhile detainees might
embellish or outright lie about their experiences, illustrating
the government’s continuing interest in keeping its own
records secret. There is simply no legal support for the
ACLU’s argument that the government lacks the authority to
classify the information withheld from the CSRT documents.

D.

Finally, in addition to arguing that the information
withheld from the requested documents does not qualify for
FOIA exemptions 1 and 3 as “intelligence sources or
methods,” the ACLU also argues the government cannot
withhold the information under exemption 1 because public
release of the information would not damage national
security.3 Quoting an opinion from the United States District
Court for the District of Columbia, the ACLU argues that “if
the information has already been disclosed and is so widely
disseminated that it cannot be made secret again, its
subsequent disclosure will cause no further damage to the
national security.” Washington Post v. U.S. Dep’t of Defense,
766 F. Supp. 1, 9 (D.D.C. 1991) (emphasis omitted). The
ACLU also objects specifically to the government’s assertion,
made in the CIA affidavit, that the redacted information will
harm national security because it could be used as propaganda
by al Qaeda. The ACLU contends that this purpose is
expressly prohibited by the same executive order upon which
the government relies for its authority to classify the
information.

3
We reiterate that the government need prevail on only one exemption; it need
not satisfy both.
 16

As discussed above, the government may only withhold
information under exemption 1 if that information is
“specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national
defense or foreign policy” and if that information is “in fact
properly classified pursuant to such Executive order.” 5
U.S.C. § 552(b)(1). The CIA asserts that the withheld
information was properly classified pursuant to Executive
Order 12,958. Executive Order 12,958, which authorizes the
classification of “intelligence sources or methods,” requires as
a prerequisite to classification that disclosure of the
information to be classified “reasonably could be expected to
result in damage to the national security” and that the
government must be “able to identify or describe the
damage.” Exec. Order No. 12,958 § 1.1(a)(4). Thus, the
“intelligence sources or methods” withheld by the government
are properly classified under Executive Order 12,958, and
therefore exempt from disclosure under exemption 1, only if
the CIA can establish that public disclosure of the withheld
information will harm national security. See 5 U.S.C.
§ 552(a)(4)(B) (placing the burden on the agency to sustain its
action under FOIA).

Because “[t]he assessment of harm to intelligence
sources, methods and operations is entrusted to the Director of
Central Intelligence, not to the courts,” Fitzgibbon, 911 F.2d
at 766, the government’s burden is a light one. “[I]n the
FOIA context, we have consistently deferred to executive
affidavits predicting harm to national security, and have found
it unwise to undertake searching judicial review.” Ctr. for
Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927
(D.C. Cir. 2003). The CIA’s arguments need only be both
“plausible” and “logical” to justify the invocation of a FOIA
exemption in the national security context. See Wolf, 473
F.3d at 374-75.
 17

In this case the CIA identified five reasons why the
disclosure of the withheld information might harm national
security. Specifically, the CIA affidavit asserted that public
release of the information would potentially damage national
security by: (1) revealing the CIA’s needs, priorities, and
capabilities, Hilton Aff. ¶¶ 50-51; (2) degrading the CIA’s
ability to effectively question terrorist detainees, id. at ¶¶ 58-
59; (3) providing terrorists with insight into the CIA’s
interrogation techniques, strategies, and methods, id. at ¶¶ 60-
64; (4) damaging the CIA’s relations with foreign
governments, id. at ¶¶ 65-69; and (5) providing al Qaeda with
material for propaganda, id. at ¶ 72.

Although the ACLU generally disputes the government’s
claim that public release of the withheld information would
damage national security, the ACLU only specifically
challenges the fifth potential harm identified by the CIA. The
ACLU argues that the allegations of detainee abuse that the
CIA has withheld from the CSRT documents would be
effective propaganda for al Qaeda because those allegations
are embarrassing to the United States and possibly violations
of law. Executive Order 12,958, however, expressly prohibits
the classification of information to “conceal violations of law”
or to “prevent embarrassment to a person, organization, or
agency.” Exec. Order No. 12,958 § 1.7(a)(1)-(2).

We need not decide the issues raised by this argument.
The government does not rely on the propaganda justification
alone. The CIA affidavit identified four other potential harms
that the government argues also justify withholding the
information under FOIA exemption 1.

Even ignoring the propaganda justification, the CIA’s
affidavits establish that public disclosure of the withheld
information “reasonably could be expected to result in
damage to the national security.” Exec. Order No. 12,958
 18

§ 1.1(a)(4). The CIA asserts that the public disclosure of the
withheld information may degrade the CIA’s ability to
interrogate detainees, improve al Qaeda’s insight into the
United States’s intelligence activities, and hinder the CIA’s
ability to obtain assistance from foreign nations. These
potential harms all pertain to the CIA’s core mission of
collecting and analyzing intelligence that reveals the plans,
intentions and capabilities of the nation’s enemies. According
substantial weight and deference to the CIA’s affidavit, see
Wolf, 473 F.3d at 374, we conclude that it is both plausible
and logical that the disclosure of information regarding the
capture, detention, and interrogation of detainees would
degrade the CIA’s ability to carry out its mission. Having
concluded that the CIA’s arguments are both “plausible” and
“logical,” and finding no evidence in the record to support the
opposite conclusion, no further investigation is required. See
Larson, 565 F.3d at 865 (“If an agency’s statements
supporting exemption contain reasonable specificity of detail
as to demonstrate that the withheld information logically falls
within the claimed exemption and evidence in the record does
not suggest otherwise, . . . the court should not conduct a
more detailed inquiry to test the agency’s judgment and
expertise or to evaluate whether the court agrees with the
agency’s opinions.”).

Finally, the ALCU’s argument that the information
withheld by the CIA is “so widely disseminated” that it could
not cause harm to national security is foreclosed by our
requirement, discussed above, that information be “officially
acknowledged.” See Wolf, 473 F.3d at 378. The “officially
acknowledged” test recognizes that even if information exists
in some form in the public domain that does not mean that
official disclosure will not cause harm cognizable under a
FOIA exemption. Id. To the extent that the ALCU relies on
the government’s official disclosures in the OLC memoranda
and CIA reports, we have repeatedly rejected the argument
 19

that the government’s decision to disclose some information
prevents the government from withholding other information
about the same subject. See, e.g., Ctr. for Nat’l Sec. Studies,
331 F.3d at 930-31 (rejecting plaintiffs’ argument that the
government’s release of some detainees’ names estopped the
government from withholding the names of other detainees);
Students Against Genocide v. Dep’t of State, 257 F.3d 828,
835 (D.C. Cir. 2001) (“The fact that some ‘information
resides in the public domain does not eliminate the possibility
that further disclosures can cause harm to intelligence sources,
methods and operations.’”) (quoting Fitzgibbon, 911 F.2d at
766)). Because the release of the information withheld by the
CIA “reasonably could be expected to result in damage to the
national security,” we conclude that the information may be
withheld under FOIA exemption 1.

E.

The district court, relying on the CIA affidavit, held that
the redacted information qualified as “intelligence sources or
methods” under exemptions 1 and 3, A.C.L.U., 664 F. Supp.
2d at 76-78, and we agree. The CIA affidavit described, in
general terms but on a document-by-document basis, the
information withheld from each responsive document. Hilton
Aff. ¶¶ 27-34. That information included: information
regarding the capture of detainees; the detainees’ confinement
conditions and locations; questions posed to detainees that
would reveal intelligence interests of the United States;
intelligence information provided by detainees; information
relating to the collection, analysis, and dissemination of
foreign intelligence; and information regarding the foreign
relations and foreign activities of the United States. Id. For
each category of information in each document, the CIA
specified whether the redacted information was classified
pursuant to Executive Order 12,958 or to the authority granted
by the National Security Act of 1947. Id.
 20

In the CIA affidavit, Hilton declared that she had
personally reviewed the redacted information and affirmed
that it was currently and properly classified. Id. at ¶ 48. She
further stated that the redacted information described the
actual, operational implementation of CIA “intelligence
sources and methods” and that the disclosure of the withheld
information would reveal the United States’s intelligence
needs, priorities and capabilities. Id. at ¶¶ 49-51. In addition,
Hilton avowed that disclosure would harm national security
by advising foreign government services and other hostile
organizations of the United States’s intelligence operations,
making future intelligence operations more difficult and more
dangerous. Id. at ¶ 51. Specifically, Hilton stated that release
of the redacted information was reasonably likely to degrade
the CIA’s ability to effectively interrogate terrorist detainees
and to undermine the CIA’s ability to obtain the cooperation
of foreign governments. Id. at ¶ 58.

Based on the strength of the CIA affidavit, we hold that
the government properly invoked FOIA exemptions 1 and 3.
The CIA explained with sufficient detail why the withheld
information qualifies as “intelligence sources or methods” and
adequately described the potential harm to national security
that could result from the information’s public disclosure.
Nothing in the CIA’s affidavit is contradicted by the record
and we find no evidence of bad faith by the government. We
conclude that summary judgment was warranted on the basis
of the CIA’s affidavit alone.

III. In Camera Review

Finally, we consider the ACLU’s argument that the
district court erred by failing to perform in camera review of
the redacted information. This court reviews a district court’s
decision whether to conduct in camera review of FOIA
documents for abuse of discretion. Larson, 565 F.3d at 869;
 21

Juarez v. Dep’t of Justice, 518 F.3d 54, 60 (D.C. Cir. 2008).
Although Congress provided district courts the option to
conduct in camera review under FOIA, the statute does not
compel the exercise of that option. Larson, 565 F.3d at 869
(citing 5 U.S.C. § 552(a)(4)(B)). “Congress intended to
impose no mandates upon the trial court, but instead leave the
decision of whether to conduct in camera inspection to the
broad discretion of the trial judge.” Center for Auto Safety v.
E.P.A., 731 F.2d 16, 20 (D.C. Cir. 1984). “If the agency’s
affidavits ‘provide specific information sufficient to place the
documents within the exemption category, if this information
is not contradicted in the record, and if there is no evidence in
the record of agency bad faith, then summary judgment is
appropriate without in camera review of the documents.’”
Larson, 565 F.3d at 870 (quoting Hayden v. N.S.A., 608 F.2d
1381, 1387 (D.C. Cir. 1979)). “When the agency meets its
burden by means of affidavits, in camera review is neither
necessary nor appropriate.” Hayden, 608 F.2d at 1387. In
camera inspection is particularly a last resort in national
security situations like this case—a court should not resort to
it routinely on the theory that “it can’t hurt.” Larson, 565
F.3d at 870.

The ACLU claims that in camera review of the withheld
information is appropriate in this case because there is
evidence of bad faith by the CIA. See Spirko v. U.S. Postal
Service, 147 F.3d 992, 996 (D.C. Cir. 1998) (stating that “in
camera inspection may be particularly appropriate when . . .
there is evidence of bad faith on the part of the agency”). The
ACLU argues that differences between the government’s first
and second redactions of the CSRT documents establish that
the government acted in bad faith. In the ACLU’s view,
information disclosed during the second FOIA review
demonstrates that the CIA improperly withheld information
during the initial review, proving that the CIA abused its
classification authority and therefore acted in bad faith.
 22

The ACLU’s claim that the government acted in bad faith
is meritless. None of the information originally redacted but
later disclosed after the documents were reprocessed
demonstrates that the CIA improperly withheld information.
The additional disclosures cited by the ACLU all pertain to
methods of interrogation and conditions of confinement used
or allegedly used by the CIA; the same kind of information
that the government still wishes to withhold under exemptions
1 and 3. See, e.g., Brief for the Plaintiffs-Appellant at 41-42,
A.C.L.U. v. Dep’t of Defense, No. 09-5386 (D.C. Cir. Feb. 24,
2010) (citing Abu Zubaydah’s complaints about the injuries
he incurred “after months of suffering and torture,” Al
Nishiri’s allegation that he can no longer walk more than ten
minutes, and Zubaydah’s allegations that he gave false
answers during interrogations). The government’s later
decision to declassify these specific detainee allegations does
not prove that they were originally improperly withheld or
that the government acted in bad faith. To the contrary, we
find that the government demonstrated good faith by
voluntarily reprocessing the documents after the President
declassified the OLC memoranda and the CIA Inspector
General’s report. As in previous FOIA cases, we decline to
penalize a government agency for voluntarily reevaluating
and revising its FOIA withholdings. See Military Audit
Project, 656 F.2d at 753-54 (rejecting the petitioner’s
argument that the government’s admission of error and
release of additional information demonstrated that the agency
was fallible and its affidavits suspect).

We agree with the district court that the CIA affidavit is
sufficiently detailed that in camera review is not necessary
and that there is no evidence of bad faith. See A.C.L.U., 664
F. Supp. 2d at 79. The affidavit sets forth with specificity the
information withheld and the reasons preventing its
disclosure. See Hilton Aff. ¶¶ 26-34. The district court did
 23

not abuse its discretion by granting the government’s motion
for summary judgment without conducting in camera review.

IV. Conclusion

We affirm the district court’s grant of summary judgment
for the Department of Defense and CIA. We agree that the
specific details of the “high value” detainees’ capture,
detention, and interrogation are exempt from FOIA disclosure
under exemptions 1 and 3. The district court acted within its
broad discretion when it declined to perform in camera
review.

So ordered.