Judicial Watch, Inc. v. United States Department of Defense and Central Intelligence Agency

Judicial Watch unsuccessfully

requested, pursuant to the Freedom of Information Act

(“FOIA”), release of five memoranda that memorialized advice

to the President and his top national security advisers when the

President was considering whether to order a military strike on

Osama bin Laden’s compound in Pakistan. On appeal, Judicial

Watch challenges the government agencies’ invocation of

FOIA Exemptions 1, 3, and 5 as allowing the government to

operate under secret legal principles when “[t]he purpose of

FOIA is to shield the government from operating secretly under

the guise of legality.” Appellant’s Br. 7. For the following

reasons, we hold that the memoranda responsive to Judicial

Watch’s FOIA request are protected from disclosure under the

presidential communications privilege in Exemption 5 and

affirm.

I.

FOIA is a major breakthrough in providing government

transparency, see EPA v. Mink, 410 U.S. 73, 79 (1973),

“set[ting] forth a policy of broad disclosure of Government

documents in order ‘to ensure an informed citizenry, vital to

the functioning of a democratic society,’” FBI v. Abramson,

456 U.S. 615, 621 (1982) (citations omitted). Congress

determined, however, that “legitimate governmental and

private interests could be harmed by release of certain types of

information and provided nine specific exemptions under

which disclosure could be refused.” Id. The agencies invoked

Exemptions 1, 3, and 5 in denying Judicial Watch’s disclosure

request.

Exemption 1 permits agencies to withhold materials

“specifically authorized under criteria established by an

Executive order to be kept secret in the interest of national

defense or foreign policy” and properly classified pursuant to

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such an Executive order. 5 U.S.C. § 552(b)(1). Executive

Order No. 13,526 allows agencies to classify material

pertaining to specified categories as falling within Exemption

1 if “unauthorized disclosure could reasonably be expected to

cause identifiable or describable damage to the national

security.” Exec. Order No. 13,526, § 1.4, 75 Fed. Reg. 707,

709 (Dec. 29, 2009). Exemption 3 permits the withholding of

material “specifically exempted from disclosure by statute”

that “establishes particular criteria for withholding or refers to

particular types of matters to be withheld.” 5 U.S.C.

§ 552(b)(3)(A)(ii). Section 102A(i)(1) of the National Security

Act of 1947, 50 U.S.C. § 3024(i)(1), authorizes the withholding

of materials relating to “intelligence sources and methods.” 50

U.S.C. § 403(d)(3); Larson v. Dep’t of State, 565 F.3d 857,

865 (D.C. Cir. 2009); see also CIA v. Sims, 471 U.S. 159, 167

(1985). Exemption 5 protects “inter-agency or intra-agency

memorandums . . . that would not be available by law to a party

other than an agency in litigation with the agency[.]” 5 U.S.C.

§ 552(b)(5); see NLRB v. Sears, Roebuck & Co., 421 U.S. 132,

149 (1975). It covers the presidential communications

privilege, the deliberative process privilege, and the attorneyclient

privilege. See Loving v. Dep’t of Def., 550 F.3d 32, 37

(D.C. Cir. 2008). In accord with the congressional

commitment to transparency, FOIA exemptions are to be

“narrowly construed,” yet not denied “meaningful reach and

application.” John Doe Agency v. John Doe Corp., 493 U.S.

146, 152 (1989).

In December 2015, Judicial Watch requested the

Department of Defense and the Central Intelligence Agency

(“CIA”) disclose information related to memoranda regarding

the capture or killing of Osama bin Laden in 2011. Earlier,

after the raid on Osama bin Laden’s compound in Pakistan had

been successfully completed, the General Counsel of the CIA

stated in prepared remarks at Harvard Law School that “[b]y

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the time the force was launched, the U.S. Government had

determined with confidence that . . . the operation would be

conducted in complete accordance with applicable U.S. and

international legal restrictions and principles.” Stephen W.

Preston, Remarks at Harvard Law School (Apr. 10, 2012),

https://www.cia.gov/news-information/speechestestimony/

2012-speeches-testimony/cia-general-counselharvard.

html (Apr. 20, 2012) (quoted in Decl. of Antoinette B.

Shiner, Info. Rev. Off’r for the Litig’n. Info. Rev. Off., CIA

(“Shiner Decl.”) ¶ 7 (Aug. 16, 2016)). Ultimately, Judicial

Watch refined its requests to five memoranda:

 A memorandum written by Pentagon General Counsel

Jeh C. Johnson concerning any violation of Pakistani

sovereignty in seeking, capturing, and/or killing Osama

bin Laden in 2011.

 A memorandum written by CIA General Counsel

Stephen W. Preston regarding when the administration

must alert congressional leaders about the raid, capture,

and/or killing of Osama bin Laden in 2011.

 A memorandum written by National Security Council

Legal Adviser Mary B. DeRosa concerning a Navy

SEAL team going into a raid with the intention of

killing as a default option during the search, raid,

capture and/or killing of Osama bin Laden in 2011.

 A memorandum written by National Security Council

Legal Adviser Mary B. DeRosa regarding plans for

detaining Osama bin Laden in the event of his capture.

 A memorandum written by Joint Chiefs of Staff Legal

Adviser Rear Admiral James W. Crawford III regarding

options and/or plans for Osama bin Laden’s burial.

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After Judicial Watch filed suit in February 2016, the

agencies moved for summary judgment, arguing the five

memoranda were protected in full under the presidential

communications privilege in Exemption 5 because they

contained confidential analyses and recommendations that

were solicited by, and communicated to, the President and his

closest national security advisers. Further, because the

memoranda related to certain courses of action being

contemplated by the President, they argued the memoranda

were also protected by the deliberative process and the

attorney-client privileges in Exemption 5. And because the

memoranda contained classified information and information

protected by the National Security Act, the agencies argued that

their disclosure could reasonably be expected to harm national

security and therefore were protected under Exemptions 1 and

3. The agencies stated that a line-by-line review of the

memoranda indicated no reasonably segregable, non-exempt

portions could be publicly released.

Sworn declarations accompanying the summary judgment

motion explained that “[b]ecause the risks and the potential

consequences associated with conducting a raid . . . were

substantial, the President and his national security team

considered a number of variables and carefully weighed

different options for the operation.” Shiner Decl. ¶ 7. “Top

national security lawyers from the CIA, Department of

Defense, and the National Security Council formed an integral

part of that decision-making process.” Id. Their advice

“served as one consideration, among others, weighed by the

President and his national security advis[e]rs in advance of the

President’s decision to authorize the raid on bin Laden’s

compound.” Id. ¶ 8. That advice was “memorialize[d]” in five

written memoranda. Id. ¶ 7. Although certain details of the

raid have been made public, the parties to this legal advice have

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maintained the confidentiality of these communications. See

id. ¶ 8; Decl. of Mark H. Herrington, Assoc. Dep. Gen.

Counsel, Dep’t of Def. (“Herrington Decl.”) ¶ 8 (Aug. 17,

2016).

The district court granted the motion for summary

judgment, ruling the five memoranda were protected from

disclosure under Exemptions 1, 3, and 5. Judicial Watch, Inc.

v. Dep’t of Defense, 245 F. Supp. 3d 19 (D.D.C. 2017). It

denied Judicial Watch’s motion to alter or amend the judgment

after the government clarified that its declarations did not

address when the memoranda were prepared, ruling that the

presidential communications privilege protected the

memoranda from disclosure regardless of whether the written

memoranda were created before or after briefing.

Judicial Watch appeals. Our review of the grant of

summary judgment is de novo, see Morley v. CIA, 508 F.3d

1108, 1114 (D.C. Cir. 2007), and our review of denial of the

motion to alter or amend judgment pursuant to Federal Rule of

Civil Procedure 59(e) is for abuse of discretion, Ciralsky v.

CIA, 355 F.3d 661, 671 (D.C. Cir. 2004).

II.

The Supreme Court has long recognized that “[a] President

and those who assist him must be free to explore alternatives in

the process of shaping policies and making decisions and to do

so in a way many would be unwilling to express except

privately.” United States v. Nixon, 418 U.S. 683, 708 (1974)

(Nixon I). The Court has conceived of the presidential

communications privilege as “fundamental to the operation of

Government and inextricably rooted in the separation of

powers under the Constitution” because it “relates to the

effective discharge of a President’s powers[.]” Id. at 708, 711.

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The privilege protects “the public interest in candid, objective,

and even blunt or harsh opinions in Presidential

decisionmaking.” Id. at 708. The Court concluded these

considerations “justify[] a presumptive privilege for

Presidential communications.” Id. The scope of the

presidential communications privilege is thus defined in terms

of communications that involve the Office of the President, the

exercise of the President’s responsibilities, and confidential

presidential decisionmaking. Nixon v. Adm’r of Gen. Servs.,

433 U.S. 425, 449 (1977) (Nixon II). The Supreme Court has

reaffirmed that the President’s ability to obtain frank and

informed opinions from his senior advisers is vital to the

President’s effective conduct of his duties. Id. at 448–49.

Bridging the gap since the Nixon cases, this court

examined the history and scope of the privilege in In re Sealed

Case, 121 F.3d 729, 744 (D.C. Cir. 1997). The court concluded

that the presidential communications privilege is properly

invoked with respect to “documents or other materials that

reflect presidential decisionmaking and deliberations and that

the President believes should remain confidential.” Id.

Regarding its breadth, the court observed that the privilege “is

rooted in the need for confidentiality to ensure that presidential

decisionmaking is of the highest caliber,” id. at 750, and yet

must “be construed as narrowly as is consistent with ensuring

that the confidentiality of the President’s decisionmaking

process is adequately protected,” id. at 752. To “best serve[]”

the public interest, the court held that the privilege covered

“communications made by presidential advisers in the course

of preparing advice for the President . . . even when these

communications are not made directly to the President.” Id. at

751–52. “Given the need to provide sufficient elbow room for

advisers to obtain information from all knowledgeable

sources,” the privilege must extend beyond communications

made directly to the President to include communications

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solicited and received by the President’s “immediate White

House advisers” or even certain members of their staffs, but

“should not extend to staff outside the White House in

executive branch agencies.” Id. at 752. Once the privilege

applies, the entirety of the document is protected. See id. at

745.

The court further elaborated on the scope of the privilege

when Judicial Watch requested documents from the Office of

the Pardon Attorney and the Office of the Deputy Attorney

General relating to pardon grants and applications considered

by the President. See Judicial Watch, Inc. v. Dep’t of Justice,

365 F.3d 1108, 1110 & n.2 (D.C. Cir. 2004). Relying on Nixon

I and II and the principles in In re Sealed Case, the court held

that the privilege protected from disclosure pardon documents

“solicited and received” by the President or his immediate

White House advisers but not “all agency documents prepared

in the course of developing the Deputy Attorney General’s

pardon recommendations for the President.” Id. at 1114. In

declining to extend the reach of the privilege, the court

explained that the same confidentiality and candor concerns

calling for application of the president communications

privilege “do not apply as forcefully,” id. at 1115, in view of

the stages of intermediate review of staff pardon

recommendations, some of which never reach the President.

Here, the extraordinary decision confronting the President

in considering whether to order a military strike on Osama bin

Laden’s compound in Pakistan cries out for confidentiality, and

the district court’s application of the presidential

communications privilege rested on consideration of the

appropriate factors, see Judicial Watch, 245 F. Supp. 3d at 28–

30. The decision required the exercise of an informed

judgment by the President as Commander in Chief, U.S.

CONST. art. 2, § 2, on a highly sensitive subject with serious

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direct and collateral consequences for foreign relations that

required a high degree of protection for “the President’s

confidentiality and the candor of his immediate White House

advisers,” Judicial Watch, 365 F.3d at 1123. Declarations filed

with the motion for summary judgment explained that the

President and his immediate advisers solicited and received the

advice of the top national security lawyers from the

Department of Defense, CIA, and National Security Council

relating to a potential military counterterrorism operation. See,

e.g., Shiner Decl. ¶¶ 7–8. The legal advice memorialized in

each memorandum concerned that covert military operation

and was shared only with the President and his closest advisers.

Id. The non-disclosure of that advice thereby protects “the

President’s ability to obtain frank and informed opinions from

his senior advis[e]rs,” an “acute [concern] in the national

security context, particularly in situations . . . where the

President is formulating a decision on a sensitive operation

with substantial foreign policy impacts.” Id. ¶ 9; see

Herrington Decl. ¶ 7. Although the presidential

communications privilege is a qualified privilege, subject to an

adequate showing of need, FOIA requests cannot overcome the

privilege because “the particular purpose for which a FOIA

plaintiff seeks information is not relevant in determining

whether FOIA requires disclosure,” Loving, 550 F.3d at 40

(quoting In re Sealed Case, 121 F.3d at 737 n.5).

Judicial Watch does not contest the government’s

statement that “the memoranda memorialize legal advice that

was briefed to the President and his closest advis[e]rs.” Shiner

Decl. ¶ 8. Neither does it suggest the presidential

communications privilege is inapplicable where there is a

“need to protect military, diplomatic, or sensitive national

security secrets,” Nixon II, 433 U.S. at 447 (internal quotation

marks and citation omitted). Instead Judicial Watch points out

that it neither asked the government to disclose whether the

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memoranda or their contents were communicated to the

President or his senior advisers, nor for any presidential

deliberations or deliberative materials, and “asked only that the

memoranda be produced.” Appellant’s Br. 8. Further, Judicial

Watch observes, the government makes no claim that the

authors of the memoranda briefed the President or his senior

advisers directly, or even that they were the intended recipients

of the memoranda or reviewed the memoranda. Judicial Watch

understands the government only to claim that the memoranda

“memorialize” the analysis and advice briefed, thereby

implying they were prepared after the briefing. This is

significant, Judicial Watch maintains, because of lingering

“unanswered questions,” Appellant’s Br. 10. The district

court’s response to the government’s notice of clarification left

unknown when the briefing took place in relation to

preparation of the memoranda, who gave the briefing, and how

the briefers obtained the analysis and the advice they conveyed

to the President and his senior advisers. As a result, Judicial

Watch concludes, the district court failed to construe the

presidential privilege narrowly. “[A]llow[ing] the President

and Executive Branch to justify its actions without public

oversight . . . would allow [them] to engage in governance by

‘secret law.’” Id. (citation omitted).

Judicial Watch makes no effort to reconcile its position

that the timing of the preparation of the memoranda defeats

application of the presidential communications privilege with

this court’s precedent. In In re Sealed Case, 121 F.3d at 758,

the court held that notes taken to memorialize meetings and

telephone calls involving top White House advisers about the

investigation of the former Secretary of Agriculture were

protected from disclosure by the presidential communications

privilege because the notes reflected those advisers’

communications. In Loving, the court held that the privilege

applies to “documents reflecting presidential decisionmaking

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and deliberations, regardless of whether the documents are

predecisional or not.” 550 F.3d at 37 (internal quotation marks

and citation omitted).

That Judicial Watch claims only to seek the memoranda

and not presidential deliberations or deliberative materials

similarly ignores precedent. The district court properly relied

on the government’s declarations, see Larkin v. Dep’t of State,

565 F.3d 857, 862 (D.C. Cir. 2009), that the requested records

reflected the President’s decisionmaking with regard to the

military strike. Judicial Watch, 245 F. Supp. 3d at 28–29; see

Shiner Decl. ¶¶ 9–10; Herrington Decl. ¶¶ 6–8. The

memoranda Judicial Watch seeks are “documents . . . that

reflect presidential . . . deliberations and that the President

believes should remain confidential.” Judicial Watch, 365

F.3d at 1113 (quoting In re Sealed Case, 121 F.3d at 744).

Disclosure of the memoranda would reveal the President’s

deliberations. See In re Sealed Case, 121 F.3d at 744.

Judicial Watch’s suggestion that “unanswered questions,”

Appellant’s Br. 10, preclude application of the presidential

communications privilege fails for similar reasons. There is no

basis on this record to conclude that application of the privilege

is contrary to the limitations identified in our precedent. See

Judicial Watch, 365 F.3d at 1115; In re Sealed Case, 121 F.3d

at 752. In In re Sealed Case, the court held that notes of

meetings among White House advisers and drafts of press

briefings were protected from disclosure by the privilege, even

though it was undisputed that the President never saw these

documents, id. at 746–47. Nothing in the court’s analysis

implied that additional information would be required about

who took the notes or how the discussions at the meetings were

ultimately communicated to the President. Similarly, here, to

determine the applicability of the presidential communications

privilege, the government’s declarations did not need to be

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more specific about who gave the briefings or how those

conducting the briefings obtained the analysis and advice they

conveyed, or the relationship of the briefer to the authors, the

President, and the President’s senior advisers, or whether and

how the results of the briefings were later conveyed to the

authors of the memoranda. Even assuming such information

would not be privileged, Judicial Watch fails to show why it

would be needed to determine the applicability of the

presidential communications privilege. It sufficed that the

President and his top national security advisers “solicited and

received,” Judicial Watch, 365 F.3d at 1114, the legal advice

memorialized in the five memoranda sought by Judicial Watch.

Finally, Judicial Watch contends that application of the

presidential communications privilege “would allow the

President and Executive Branch to engage in governance by

‘secret law.’” Appellant’s Br. 10 (citation omitted). The

“secret law” doctrine is typically applicable to “opinions and

interpretations which embody the agency’s effective law and

policy,” Sears, Roebuck & Co., 421 U.S. at 153 (internal

quotation marks and citation omitted); see Afshar v. Dep’t of

State, 702 F.2d 1125, 1139–41 (D.C. Cir. 1983). The materials

Judicial Watch seeks do not constitute or establish “law” in the

sense of setting forth a decision that binds subordinates or a

regulated party. Rather, the materials document advice given

up the chain to someone (the President) who then made a

decision. The government’s declaration explains that the

advice contained in the memoranda was not an “authorization

to conduct a given activity, but, rather, one step in the

Executive branch deliberations.” Shiner Decl. ¶ 9. Although

there may be some overlap between the presidential

communications and deliberative process privileges under

Exemption 5, see Judicial Watch, 365 F.3d at 1114–15, to the

extent this “secret law” argument echoes Judicial Watch’s

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arguments against applying the deliberative process privilege,

see Appellant’s Br. 17–19, the court has no need to address it.

Accordingly, because the presidential communications

privilege applies to the totality of the five memoranda that

Judicial Watch requests, and the question of segregability of

non-exempt material is therefore not presented, we affirm the

grant of summary judgment and the denial of the motion to

alter or amend the judgment.

Affirmed