ACLU et al. v. Department of Defense (Seeking access to government documents under FOIA)

This case challenges the federal goivernment’s refusal to disclose documents concerning treatment and interrogation of detainiees at U.S. military installations. Through this lawsuit, plaintiffs have obtained more than 100,000 pages of documents. In October 2003, the ACLU, NYCLU and other public interest organizations made a Freedom of Information Act (FOIA) request for all documents concerning the treatment and interrogation of detainees held at military bases in the United States as well as at detention facilities including Bagram Air Base in Afghanistan, Abu Ghraib prison in Iraq, and Guantanamo Naval Base in Cuba. The FOIA request also sought documents regarding the “rendition” of detainees to countries known to use torture. The plaintiffs sought such records for over eight months, but the Department of Defense failed either to expedite any releases or to produce them at all.

In June 2004, the plaintiffs filed a lawsuit against the Department of Defense as well as the CIA and FBI. The lawsuit sought to compel the Bush administration to produce the requested documents. On August 18, 2004, the U.S. District Court ordered the relevant federal agencies to immediately begin processing the FOIA request, with an initial response due by Aug. 23, 2004. The Defense Department continued to withhold records, and the parties returned to court on Sept. 9, 2004. On Oct. 15, 2004, the ACLU and NYCLU received roughly 6,000 pages of documents regarding the abuse of prisoners at Abu Ghraib. Disputes continued regarding the government’s obligations under FOIA. For example, the CIA asserted that it is exempt from the requirements of the Freedom of Information Act. Regarding a dispute over the release of photographs depicting the abuse of prisoners in Iraq and Afghanistan, the ACLU and NYCLU filed a motion for summary judgment asking the court to order the government to release the requested documents in accordance with FOIA.

On Sept. 29, 2005, the district court granted the plaintiffs’ motion. The government appealed to the U.S. Court of Appeals for the Second Circuit. On Sept. 7, 2006, the ACLU and NYCLU briefed the Second Circuit. The brief asked the Second Circuit to uphold the lower court’s decision, arguing that if the court rewarded the government its exemption, it would defeat the entire purpose of the Freedom of Information Act. The Second Circuit upheld the lower court’s ruling on Sept. 22, 2008. The appeals court rejected the government’s attempt to use the FOIA as “an all-purpose damper on global controversy” and recognized the “significant public interest in the disclosure of these photographs” in light of government misconduct. The court also recognized that releasing the photographs is likely to prevent “further abuse of prisoners.” Initially, President Obama said he would abide by the appeals court’s decision and release the photos. He later changed course and his administration petitioned the U.S. Supreme Court to hear the case.

On Nov. 30, 2008, the Supreme Court vacated the appeals court’s ruling. In an unsigned, three-sentence decision, it remanded the case to Second Circuit for further consideration in light of a law Congress passed in October 2009 authorizing the secretary of defense to block the photographs’ release. 

S.D.N.Y., Index No. 04 Civ. 4151 (AKH) (direct)