The D.C. Circuit Weighs in on Deference in Connection with Disclosures of Security-Related Information

By Robert Chesney
Wednesday, October 20, 2010, 3:45 PM

One of the many headaches associated with the GTMO habeas litigation concerns the process of deciding which items of information used in the litigation should be treated as "protected information" that can be shared only with the detainee's counsel and the court, but not more widely, according to the terms of the common case management order governing most of these proceedings.  To obtain this protection, the government must first seek agreement with the detainee's counsel, or failing that, move the court for an order to this effect.  In the latter scenario, of course, judges face an issue that arises as well in contexts such as the state secrets privilege and invocation of a FOIA exemption: to what extent should the judge give weight to the executive branch's determination that disclosure of information may harm national security or foreign relations?  

Earlier this month, the D.C. Circuit weighed in on this issue in Ameziane v. Obama, a 19-page opinion by Judge Brown (joined by Judges Ginsburg and Griffith).  In brief, Judge Huvelle had refused to grant a government motion for protected status for certain information relating to Djamel Ameziane's habeas claims, objecting that the government had failed to explain in relation to this particular case why disclosure of the information at issue would be harmful (it appears the government's declaration explaining the harm was framed at a higher level of generality) and stating that she did not "understand how [declining the motion would] interfere in anything. . . ." (slip op. at 15).  The panel reversed, explaining:

 
In Bismullah v. Gates, we rejected the government’s assertion of unilateral authority to designate information as "protected" and held "the Government must give the court a basis for withholding . . . from public view" nonclassified information it seeks to protect. 501 F.3d at 188. In Parhat v. Gates, we explained that a valid "basis for withholding" would include, at a minimum, a "specific," "tailored" rationale for protecting a general category of information, and a precise designation of each particular item of information that purportedly "falls within the categor[y] . . . described." 532 F.3d 834, 853 (D.C. Cir. 2008). In other words, the government first must demonstrate what kind of information requires protection and why, and then must show exactly what information in the case at hand it seeks to protect.

 

(slip op. at 11).  The panel concluded that the Parhat standard does not preclude invocation of a justification that is framed as a general category rather than a case-specific instance.  More importantly, perhaps, the panel also concluded that the district judge was bound to defer to the executive branch's judgment once the Parhat standard was satisfied:
    
 
Because the government satisfied Parhat, the district court was required to defer to the government’s assessment of the harm to foreign relations and national security that would result from officially disclosing '''' ''' ''' ''' ''' ''' ''' '''' ''' ''' ''' '''' ''' ''' ''' ''' ''' '''. As we explained in Fitzgibbon, the failure to give deference when it is due is error. 911 F.2d at 755. There, pursuant to a Freedom of Information Act request, the district court ordered the CIA to disclose information about a former CIA station location, over the CIA’s objection that such disclosure would cause harm to national security. Id. at 758–59. We faulted the district court for "essentially perform[ing] its own calculus as to whether or not harm to the national security . . . would result from disclosure" of the information, and held it should have "accord[ed] substantial weight and deference" to the Executive Branch’s "determination of possible harm." Id. at 766. Thus, "declin[ing] to adopt the abuse-of-discretion review that [the plaintiff] urge[d] upon us," we reversed. Id.

...

 
Parhat did not free courts to substitute their own policy judgments for those of the executive. The district court was not entitled to toss the ''' ''' ''' Declaration aside merely because it disagreed with its premise. Deference required acknowledging '''' ''' ''' ''' '''' ''' ''' ''' ''' ''' ''' ''' , not the judiciary, is tasked with undertaking ''' ''' ''' ''' ''' ''' ''' ''' ''' ''' ''' '''' ''' ''' ''' ''' ''' ''' ''' ''' ' '' ''' ''' ''' '''' ''' ''' ''', and that the Executive Branch officials bearing this responsibility possess far greater resources and aptitude than the judiciary for determining what will aid, and what will undermine, their mission. The district court’s inability to "understand" how permitting ''' ''' ''' ''' ''' ''' ''' ''' ''' ''' ''' ''' '''' '''' ''' ''' ''' ''' ''' ''' ''' ''' ''' ''' '''' ''' ''' ''' ''' ''' '''' ''' ''' ''' "will interfere in anything," June 30 Tr. ''' ''' ''', did not license the court to "perform[] its own calculus as to whether or not harm to the national security . . . would result from [the] disclosure," Fitzgibbon, 911 F.2d at 766.

 

The redactions in the opinion make it hard to say with certainty just what was going on here, but it is hard to mess the endorsement of a deference obligation here.

Meanwhile, on a related note, the ACLU has a FOIA action pending against DOJ and other entities seeking production of:

a variety of records relating to the use of unmanned aerial vehicles to conduct targeted killings, including the legal basis for the strikes and any legal limits on who may be targeted; where targeted drone strikes can occur; civilian casualties; which agencies or other non-governmental entities may be involved in conducting targeted killings; how the results of individual drone strikes are assessed after the fact; who may operate and direct targeted killing strikes; and how those involved in operating the program are supervised, overseen or disciplined.

My understanding is that a motion to dismiss the FOIA complaint is pending, though I've not yet located the motion itself (a Washington Legal Foundation amicus brief supporting dismissal is here). Ameziane is not a FOIA case, of course, but it may have an impact here nonetheless in light of the cross-cutting nature of the deference issues involved.

 
My own thoughts on the deference question are a bit complicated (I set them forth in detail here). Suffice to say that I think the argument for deference is strongest with respect to predictive judgments in contrast to historical questions of fact, that the case for deference largely rests on a claim of comparative institutional competence, and that judges should not simply assume that the executive's comparative advantage actually was used in a given instance but instead should require a showing to that effect as a predicate to deference.