United States Court of Appeals, District of Columbia Circuit
November 10, 2016
from the United States District Court for the District of
Columbia (No. 1:14-cv-01935)
B. Aldrich argued the cause for appellant. With him on the
briefs was Paul J. Orfanedes.
E. Flentje, Attorney, U.S. Department of Justice, argued the
cause for appellee. With him on the brief were Benjamin C.
Mizer, Principal Deputy Assistant Attorney General, and
Matthew Collette, Attorney.
Before: Henderson and Pillard, Circuit Judges, and Ginsburg,
Senior Circuit Judge.
Pillard, Circuit Judge
Watch, Inc. (Judicial Watch) brought this action against the
United States Department of Defense (DOD or the Department),
alleging that the Department violated its obligations under
the Freedom of Information Act (FOIA), 5 U.S.C. § 552,
when it failed to release copies of documents embodying the
Secretary of Defense's 2014 determination that five
Guantanamo Bay detainees could be transferred to Qatar. The
Department moved for summary judgment. Judicial Watch
acknowledged that the Department had produced one document,
but opposed summary judgment on the ground that it continued
to withhold a second document to which Judicial Watch
believed it was entitled: a memo from Assistant Secretary of
Defense Michael Lumpkin to Secretary of Defense Chuck Hagel.
The Department claimed that it had no obligation to produce
that memo because it was a privileged deliberative document.
The district court agreed and entered judgment in DOD's
favor. Judicial Watch appealed. Because the district court
correctly determined that the memo was privileged, we affirm.
National Defense Authorization Act for Fiscal Year 2014
(NDAA) provides that the Secretary of Defense may transfer a
prisoner held at Guantanamo Bay to the individual's
country of origin, or any other foreign country, if so
directed by a competent tribunal or if the Secretary
"determines" that the prisoner is "no longer a
threat to the national security of the United States."
NDAA, Pub. L. No. 113-66, § 1035(a), 127 Stat. 672, 851
(2013). Otherwise, the Secretary may transfer a Guantanamo
Bay prisoner only if he or she "determines" that:
(1) "actions that have been or are planned to be taken
will substantially mitigate the risk of such individual
engaging or reengaging in any terrorist or other hostile
activity that threatens the United States or United States
persons or interests;" and (2) "the transfer is in
the national security interest of the United States."
Id. at § 1035(b). In making those
determinations, the Secretary must "evaluate and take
into consideration" eight separate factors. Id.
at § 1035(c).
31, 2014, the Secretary of Defense exercised his statutory
authority to transfer five Guantanamo Bay prisoners to Qatar
in exchange for the release of Bowe Bergdahl, an American
soldier who was captured and held in Afghanistan. That same
day, the Secretary sent eight identical classified letters to
eight members of Congress statutorily entitled to notice,
explaining that he had authorized the transfer under NDAA
section 1035(b) because he "determined" that: (1)
the government of Qatar would "substantially
mitigate" the threats posed by the prisoners; and (2)
the transfer was "in the national security interest of
the United States." J.A. 17. Three days later, Judicial
Watch submitted the FOIA request at issue here, asking the
government to produce "any and all records concerning,
regarding, or relating to" the Secretary of
Defense's "determinations" regarding the five
Guantanamo Bay prisoners who were transferred to Qatar.
Id. at 28. In response to DOD's objection that
the request was overbroad, Judicial Watch pared it down to
"any and all Secretary of Defense memos signed on or
before May 31, 2014, that approved the release of the five
Guantanamo Bay detainees exchanged for Sgt. Bowe Bergdahl,
" as well as "copies of any
'determinations' made by the Secretary of
Defense" pursuant to section 1305(a) of the NDAA
"if such determinations [were] . . . separate and apart
from the 'memos' that the Secretary of Defense may
have signed." Id. at 39.
Watch did not receive a timely response to its request. On
November 18, 2014, Judicial Watch filed a complaint in
district court against the Department of Defense alleging
that the Department had failed to comply with its obligations
under FOIA. DOD answered that it was "in the process of
responding to [Judicial Watch's] FOIA request." J.A.
11. The Department provided its final response on April 27,
2015, stating that "[t]he only documents responsive to
[the] request [were the] eight identical classified letters
addressed to members of Congress." J.A. 13. DOD gave
Judicial Watch a copy of one of the eight letters with all
classified information redacted. See 5 U.S.C. §
552 (b) (1) (explaining that FOIA's disclosure
requirements are inapplicable to "properly
Department then moved for summary judgment. In support of its
motion, DOD submitted a declaration from Mark H. Herrington,
an attorney in the Department's Office of General
Counsel, describing the processes that DOD had used to
identify records responsive to Judicial Watch's FOIA
request. Department staff had thoroughly searched DOD records
and concluded that the only "potentially
responsive" material was a packet prepared by Assistant
Secretary of Defense Michael Lumpkin. Id. at 23. The
packet included a "cover memo" from Mr. Lumpkin
to the Secretary of Defense (the Lumpkin Memo) setting forth
Mr. Lumpkin's recommendation regarding the Guantanamo Bay
detainees, and the eight letters to members of Congress,
which Mr. Lumpkin had prepared for the Secretary's
signature. Id. Mr. Herrington attested that the
Secretary did not sign or endorse the Lumpkin Memo, nor send
the memo to Congress. Rather, the Secretary only signed and
sent the accompanying letters. Id.
Herrington averred that DOD staff did not produce the Lumpkin
cover memo because it "did not constitute a signed memo
or other determination by the Secretary of Defense relating
to the detainees" and so was not responsive to Judicial
Watch's request. J.A. 24. Even if the memo were
responsive, Mr. Herrington asserted, it would be exempt from
disclosure as a privileged deliberative document. See
Pub. Citizen, Inc. v. Office of Mgmt. &
Budget, 598 F.3d 865, 874 (D.C. Cir. 2010) (explaining
that FOIA does not require agencies to disclose privileged
district court granted DOD's summary judgment motion.
See Judicial Watch, Inc. v. U.S. Dep't of Def.,
No. 14 Civ. 1935 (ABJ), 2016 WL 410993 (D.D.C. Feb. 2, 2016)
(Judicial Watch I). The court described the Lumpkin
Memo as "responsive to [Judicial Watch's] request,
" id. at *1, but held that it was protected by