Judge Shoots Down 'FOIA Terrorist' Jason Leopold; Says 'Panetta Review' Documents Can Be Withheld In Full

from the whatever-the-CIA-said-about-torturing-folks-is-between-the-CIA-and-the-CIA dept

DC District Court judge James E. Boasberg has ruled the CIA can continue to withhold the "Panetta Review" documents in full, thanks to widely-abused FOIA exemption b(5). (via Unredacted)

District Court Judge James Boasberg ruled against a journalist on Tuesday who had tried to uncover the classified documents — known as the Panetta Review, because they was completed under orders from former agency Director Leon Panetta — under the Freedom of Information Act (FOIA).

The CIA had used “sound” reasoning in keeping the documents secret, Boasberg decided in a 19-page judgment, preventing it from making its way to the public.

The journalist in question is every secretive agency's side-thorn, Jason Leopold, who sued the CIA one day after it passed the response deadline. And now this attempt to pry more torture-related documents out of the CIA's hands has hit a dead end. Judge Boasberg agreed that the overbroad exemptions cited are (unsurprisingly) broad enough to cover the CIA's assertion that the 40 memos comprising the Panetta Review must be withheld in full.

In the end, requiring disclosure of the Reviews would cause the sort of harm that the deliberative-process privilege was designed to prevent – i.e., inhibiting frank and open communications among agency personnel… Had the SRT known that the Reviews could become public, its members would likely have been tempted to highlight only the information that would paint the agency’s prior actions in a positive light and to avoid calling attention to information that could have embarrassed the agency or its officials. Protecting the agency’s withholdings in this case is thus consistent with the purposes of this exemption…

The Court, in sum, concludes that the Reviews are properly withheld under Exemption 5’s deliberative-process privilege. It further agrees that they may be withheld in full. While FOIA requires agencies to release “[a]ny reasonably segregable portion of a record,” 5 U.S.C. § 552(b), it is clear that there are no such portions here. As the agency attests, and as the preceding discussion makes clear, “[t]he entire documents are pre-decisional, deliberative drafts . . . .” Lutz Decl., ¶ 26. Because “the selection of which facts to include [wa]s part and parcel of the deliberative assessment,” no portions can be severed without exposing the deliberative process itself.

Two interesting things to note about the Panetta Review and this particular case.

First, the CIA seems to be bolstering its FOIA exemption b(5) claims by designating documents as "draft" or "deliberative," no matter what their actual purpose is. In its supporting declaration filed in this lawsuit, it deployed circular reasoning declaring drafts and deliberative documents are drafts and deliberative documents because they are clearly marked as such by the CIA.

In a court filing last month as part of a Freedom of Information Act lawsuit, a C.I.A. officer said that the review had been stopped abruptly in 2010, had not covered all of the documents the agency had given to the committee and “had not been formally reviewed or relied upon by the C.I.A.’s senior leadership.”

“Each document is stamped ‘DELIBERATIVE PROCESS PRIVILEGED DOCUMENT’ at the top of every page, and most of the documents are marked ‘DRAFT’ on every page as well,” wrote the C.I.A. officer, Martha M. Lutz.

The CIA's internal document designations seem to bear some resemblance to the NYPD's use of its "SECRET" stamp -- which is deployed arbitrarily and without oversight to declare certain documents out of the reach of Freedom of Information Law (FOIL) requests. If the CIA feels exemption b(5) gives it the best chance to keep documents out of the hands of journalists like Jason Leopold. it can slap these designations on as many papers as possible and mention its predetermination in FOIA lawsuit declarations.

Second, Boasberg's refusal to challenge even a single exemption assertion by the CIA isn't particularly good news, considering his recent appointment to the FISA court. While he has pushed back on government secrecy in the past, he's also been just as likely to grant its wishes. Considering he's replacing FISA Judge Reggie Walton -- one of the few FISA judges to openly question surveillance tactics and hold the NSA accountable for its abuses -- this latest decision seems to indicate his appointment is a downgrade in terms of government accountability.

Filed Under: b(5), b5, cia, foia, james boasberg, jason leopold, panetta review, redactions

New FISA Court Appointees Are A Pro-Government Prosecutor And An Unknown Quantity

from the change:-the-slowest-and-most-unstable-element dept

Back in June of last year, as the Snowden leaks first began rolling out, we covered a Reuters story that helped explain exactly how the FISA court had become so compliant in its relationship with the NSA. Part of the problem was the appointees, selected by Supreme Court Chief Justice John Roberts, which were overwhelmingly Republican.

12 of the current 14 judges are Republicans and most were appointed by Republican presidents. The conservative majority naturally lent itself to George W. Bush's newly-minted, post-9/11 War on Terror. That so little consideration has been given to the American public's concerns is unsurprising, what with a slate of judges composed of prosecutors and enablers of questionable government behavior. The two newest faces, despite both being originally appointed to the bench by Democrat presidents, may do very little to change the overall makeup of the court.

Seattle-based 9th U.S. Circuit Court of Appeals Judge Richard Tallman joined the court of review for a term that started last month. Democratic President Bill Clinton appointed Tallman, a Republican, as a federal appeals court judge in 2000.

A former federal prosecutor, Tallman joined the 9th Circuit as part of a deal between Clinton and Republican senators. Tallman has developed a reputation as a smart, hard working judge who frequently sides with the government in criminal cases, said Rory Little, a Hastings College of the Law professor who regularly argues before the court.

"He certainly does not express suspicion of governmental action very often," Little said.

Tallman's appointment doesn't appear to address the "rubber stamp" problem. As you may remember from another post here at Techdirt, Judge Richard Tallman was one of four judges who dissented from the majority opinion which found that warrantless access to hotel and motel guest records by the LAPD was unconstitutional. His major objection was that the decision presumed the worst about the police department, while he was more inclined to presume the best.

The ordinance does not claim to alter the LAPD's constitutional responsibility to adhere to Fourth Amendment safeguards when making any demand for information," Tallman's dissent states. "We cannot presume that police have violated the Fourth Amendment without any facts with which to make that determination."

The major flaw in Tallman's argument is that the city's ordinance, as written, makes no requirement that the LAPD consider the constitutional implications of accessing the records without warrants. Instead, it merely granted them carte blanche access while simultaneously hitting motel/hotel owners with criminal charges if they challenged the LAPD's access.

Judging from his dissent, Tallman is a perfect fit for the NSA, which prefers its access to information warrantless, on demand and in bulk.

The other appointee, Judge James E. Boasberg, is a bit of a tougher read. On one hand, back in 2012, he shot down Judicial Watch's FOIA request for the Bin Laden death photos, ruling that national security interests outweighed the public interest. On the other hand, he denied the DOJ's attempt to withhold documents related to "Standard Operating Procedure 303," (the government's ability to deactivate wireless networks in case of emergency) which EPIC sought after San Francisco police shut down protestors' cellphone communications.

Boasberg, like many other FISA judges, was previously a prosecutor, but unlike many of the others, also has some experience with First Amendment issues, having spent some time as a civil litigator specializing in defamation law.

Boasberg will fill Judge Reggie Walton's seat, one of the only FISC judges to confront the NSA on its bad habits, sloppy collection techniques and deliberate misrepresentation of its efforts. With his limited track record in related areas, Boasberg could go either way. He's pushed back against the government before, and with some First Amendment trench experience, may be more amenable to considering constitutional implications.

This duo of government-company-man and a relatively unknown quantity isn't exactly the most heartening set of appointees, but if nothing else, it may indicate the Chief Justice John Roberts may be feeling the heat for packing the court with pro-government prosecutors and Republicans.

Filed Under: fisa, fisa court, fisc, james boasberg, john roberts, richard tallman