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Center for Constitutional Rights v. Central Intelligence Agency



## In the



# United States Court of Appeals

**For the Second Circuit**

________

A UGUST T ERM 2013

No. 13

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C ENTER FOR C ONSTITUTIONAL R IGHTS

, Plaintiff

‐ Appellant,

v.

C ENTRAL I NTELLIGENCE A GENCY

, D EPARTMENT OF D EFENSE

,

D EPARTMENT OF J USTICE

, F EDERAL B UREAU OF I NVESTIGATION

,

D EFENSE I NTELLIGENCE A GENCY

, U NITED S TATES S OUTHERN

C OMMAND

, Defendants

‐ Appellees. *

________

Appeal from the United States District Court

for the Southern District of New York.

No. 12 Civ. 135 (NRB)

― Naomi Reice Buchwald, Judge

.

________

A RGUED : J UNE 25, 2014

D ECIDED : S EPTEMBER 2, 2014

________

* The Clerk of Court is directed to amend the official caption in this case to

conform to the listing of the parties above.2 No. 13

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Before: C ABRANES

, C ARNEY

, and D RONEY

, Circuit Judges

.

________

Appellant Center for Constitutional Rights seeks disclosure by

the government, pursuant to the Freedom of Information Act

(“FOIA”), of certain videos and photographs of a high

‐ profile

Guantanamo Bay detainee, Mohammed al

‐ Qahtani, who is believed

to be the so

‐ called “20th hijacker” in the September 11, 2001 terrorist

attacks on the United States.

We agree with the United States District Court for the

Southern District of New York (Naomi Reice Buchwald, Judge ) that

the government has met its burden of establishing that these images

are exempt from disclosure pursuant to FOIA Exemption 1, which

authorizes non

‐ disclosure of records that are properly authorized by

Executive order to be kept secret in the interest of “national defense

or foreign policy.” 5 U.S.C. § 552(b)(1). The declarations submitted

by the government establish with adequate specificity that

government release of images depicting al

‐ Qahtani—one of the most

high

‐ profile Guantanamo Bay detainees, whose treatment at

Guantanamo has been widely publicized—could logically and

plausibly harm national security because these images are uniquely

susceptible to use by anti

‐ American extremists as propaganda to

incite violence against United States interests domestically and

abroad.

Accordingly, we AFFIRM the September 12, 2013 judgment of

the District Court.3 No. 13

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________

L AWRENCE S. L USTBERG (Joseph A. Pace, on the

brief ), Gibbons P.C., Newark, NJ, for Plaintiff

‐ Appellant Center for Constitutional Rights

,

T ARA M. L A M ORTE (Emily E. Daughtry, Benjamin

H. Torrance, on the brief ), Assistant United States

Attorneys, for Preet Bharara, United States Attorney

for the Southern District of New York, New York, NY,

for Defendants

‐ Appellees Central Intelligence Agency et al.

________

J OSÉ A. C ABRANES

, Circuit Judge :

Appellant Center for Constitutional Rights (“CCR”) seeks

disclosure, pursuant to the Freedom of Information Act (“FOIA”),

principally by the Department of Defense (“DoD”) and the Federal

Bureau of Investigation (“FBI” and, jointly with the DoD, the

“government”) of certain videos and photographs of a high

‐ profile

Guantanamo Bay detainee, Mohammed al

‐ Qahtani, who is believed

to be the so

‐ called “20th hijacker” in the September 11, 2001 terrorist

attacks on the United States.

We hold that the government has met its burden of

establishing that these images are exempt from disclosure pursuant

to FOIA Exemption 1, which authorizes non

‐ disclosure of records

that are properly authorized by Executive order to be kept secret in

the interest of “national defense or foreign policy.” 5 U.S.C.

§ 552(b)(1). The declarations submitted by the government establish4 No. 13

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with adequate specificity that release of images depicting al

‐

Qahtani—one of the most high

‐ profile Guantanamo Bay detainees,

whose treatment at Guantanamo has been widely publicized—could

logically and plausibly harm national security because these images

are uniquely susceptible to use by anti

‐ American extremists as

propaganda to incite violence against United States interests

domestically and abroad.

Accordingly, we affirm the September 12, 2013 judgment of

the United States District Court for the Southern District of New

York (Naomi Reice Buchwald, Judge ) granting summary judgment in

favor of defendants.

BACKGROUND

A. Mohammed al

‐ Qahtani’s Detention

Mohammed al

‐ Qahtani, 1 a Saudi national, has been held at

Guantanamo Bay from February 13, 2002 to the present day on

suspicion that he had planned to act as the 20th hijacker of the

planes used in the September 11, 2001 (“9/11”) terrorist attacks on

the United States, but was prevented from entering the United States

in August 2001. Al

‐ Qahtani’s detention first drew public attention in

2005 when a log of his interrogations was purloined and published

in Time Magazine. The government subsequently made official

disclosures regarding: (1) the dates and conditions of al

‐ Qahtani’s

1 In certain government press releases, al

‐ Qahtani’s name has been spelled

“Mohamed al Kahtani.” See, e.g.

, Joint App’x (“J.A.”) 309.5 No. 13

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detention; (2) the involvement of the DoD and FBI in his

interrogation; (3) the interrogation tactics used; (4) al

‐ Qahtani’s

mental, physical, and psychological response to the interrogation;

and (5) al

‐ Qahtani’s eventual cooperation. 2 In a January 2009

interview published in the Washington Post, the DoD’s Convening

Authority for Military Commissions, 3 Susan J. Crawford, stated that

al

‐ Qahtani’s treatment at Guantanamo, in her opinion, “met the

legal definition of torture.” See Bob Woodward, Detainee Tortured,

Says U.S. Official

, W ASHINGTON P OST

, A1, Jan. 14, 2009.

B. The FOIA Requests and Responses

On March 4, 2010, CCR filed FOIA requests with the

government seeking disclosure of videos, photographs, and other

audio

‐ visual recordings of al

‐ Qahtani at Guantanamo between 2002

and 2005. On January 9, 2012, after the government did not respond

2 In response to the unauthorized disclosure of the classified interrogation log,

the DoD issued a press release on June 12, 2005 stating that al

‐ Qahtani admitted to, inter

alia

, having been sent to the United States by Khalid Sheik Mohammed, the architect of

9/11; having met Osama Bin Laden on several occasions; and having received “terrorist

training” at two al Qaeda camps and been in contact with senior al Qaeda leaders. J.A.

309

‐ 10. According to the government, al

‐ Qahtani also provided “valuable intelligence

information” regarding the planning of the 9/11 attacks and how Osama Bin Laden

evaded capture. J.A. 310.

3 Under the Military Commissions Act of 2006, a military commission “may be

convened by the Secretary of Defense or by any officer or official of the United States

designated by the Secretary for that purpose.” 10 U.S.C. § 948h. The Convening

Authority is an individual “empowered [by the Secretary of Defense] to convene military

commissions [and] refer charges to trial.” See Organization Overview

, O FFICE OF M ILITARY

C OMMISSIONS O RGANIZATION O VERVIEW

, http://www.mc.

mil/ABOUTUS/OrganizationOverview.aspx (last visited July 10, 2014).6 No. 13

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to the requests, CCR filed this lawsuit, purportedly with al

‐

Qahtani’s consent. 4

In response, DoD and FBI identified 62 records responsive to

CCR’s requests (the “Responsive Records”) 5 : 53 FBI videotapes

depicting al

‐ Qahtani’s activities in his cell and his interactions with

DoD personnel (the “FBI videos”); one video showing two “forced

cell extractions” of al

‐ Qahtani (the “FCE video”); two videos

showing “document intelligence debriefings” (the “Debriefing

videos”); and six “mug

‐ shots” of al

‐ Qahtani. They claimed the right

to withhold the Responsive Records primarily under FOIA

Exemption 1, which exempts from disclosure records that are

“specifically authorized under criteria established by an Executive

order to be kept secret in the interest of national defense or foreign

4 Sandra L. Babcock represents CCR in this action, and also represents al

‐ Qahtani

in a habeas proceeding pending in the District Court for the District of Columbia. She

submitted a declaration in this action, dated October 2, 2012, attesting that she had

discussed the FOIA action with al

‐ Qahtani after its filing and that he “expressed to his

attorneys that he wishes to have all videotapes, photos, and other recordings of him

released.” J.A. 38. However, in April 2012, the habeas action was stayed on the basis of

al

‐ Qahtani’s “current[] incompeten[ce] and [inability] to assist effectively in [his] case.”

See Minute Order, al

‐ Qahtani v. Obama

, No. 05 Civ. 1971 (D.D.C. Apr. 20, 2012).

5 The CIA submitted a so

‐ called “ Glomar response,” which is a response that

neither confirms nor denies the existence of documents responsive to the request, and is

permissible “where to answer the FOIA inquiry [by confirming or denying the existence

of responsive documents] would cause harm cognizable under a[ ] FOIA exception.”

Wilner v. Nat’l Sec. Agency

, 592 F.3d 60, 68 (2d Cir. 2009) (second alteration in original;

internal quotation marks omitted). The CIA’s Glomar response was challenged in the

District Court, but is not challenged on appeal.7 No. 13

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policy,” and “are in fact properly classified pursuant to such

Executive order.” 5 U.S.C. § 552(b)(1). 6

The government sought to justify the invocation of Exemption

1 in three public declarations and in one classified declaration. 7 Each

declaration represented that the Responsive Records were properly

classified under Executive Order 13,526, which pertains, in relevant

part, to: (1) “military plans

. . . or operations”; (2) “intelligence

activities (including covert action), intelligence sources or methods,

or cryptology”; and (3) “foreign relations or foreign activities of the

6 The government also argued that some or all of the records were exempt under

FOIA Exemptions 3, 5 U.S.C. § 552(b)(3) (documents specifically exempted from

disclosure by statute); 6, id. § 552(b)(6) (privacy interests in records held by the

government); 7(A), id. § 552(b)(7)(A) (law enforcement records that would reasonably be

expected to interfere with enforcement proceedings); 7(C), id. § 552(b)(7)(C) (privacy

interests in law enforcement records); and Section (j)(2) of the Privacy Act, id. § 552a(j)(2).

Because we resolve the case under Exemption 1, we do not address these additional

exemptions.

7 The Declaration of Major General Karl R. Horst is described below. The other

two public declarants were Rear Admiral David B. Woods and Deputy Assistant

Secretary of Defense William K. Lietzau. Admiral Woods represented that disclosure of

the Responsive Records could damage national security by “chilling” intelligence

collection efforts at Guantanamo and elsewhere, by “mak[ing] it substantially less likely

that the detainee will cooperate and provide information in the future.” J.A. 1284

‐ 85. Mr.

Lietzau represented that the Responsive Records could reasonably be expected to

damage national security by “providing a means for detainees to communicate [through

coded messages] outside of approved channels, including with enemy forces” and by

“damaging U.S. foreign relations by causing international partners to question the U.S.

commitment to its longstanding policy and practice of shielding detainees from public

curiosity, consistent with the Geneva Conventions.” J.A. 1307. Because we do not rely on

these justifications, we need not elaborate upon the content of the declarations.8 No. 13

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United States, including confidential sources.” Exec. Order No.

13,526 § 1.4(a), (c), (d), 75 Fed. Reg. 707, 707 (Dec. 29, 2009).

Declarant Major General Karl R. Horst 8 asserted that the

disclosure of the Responsive Records could reasonably be expected

to harm national security by “endangering the lives and physical

safety” of U.S. military personnel, diplomats, and aid workers

serving in Afghanistan and elsewhere, and by “aiding in the

recruitment and financing of extremist and insurgent groups”

because “enemy forces in Afghanistan” and elsewhere “have

previously used videos and photographs [particularly of U.S. forces

interacting with detainees] out of context to incite the civilian

population and influence government officials.” J.A. 1299

‐ 1300. As

examples of images that had been used by extremist groups to

recruit new members and incite violence, General Horst cited

images published by the media in 2004 relating to allegations of

abuse of Iraqi detainees in Iraq and media reporting in 2005 of

alleged incidents of mishandling of the Koran at Guantanamo. Id. In

addition, General Horst stated that “[t]he subject of U.S. detainee

operations in Iraq, Afghanistan, and at [Guantanamo] is extremely

sensitive with the host nations and governments whose nationals we

detain.” J.A. 1301. He opined that “release of any portion of the

8 At the relevant time, General Horst was Chief of Staff of the United States

Central Command of the DoD. In that capacity, he was responsible for the Headquarters

of the Combatant Command, which consists of 2,000 military personnel responsible for

providing staff oversight of over 200,000 military personnel deployed in over twenty

countries in the Middle East and Central Asia, including Iraq, Afghanistan, and Pakistan.

J.A. 1295

‐ 96.9 No. 13

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[Responsive Records] would facilitate the enemy’s ability to conduct

information operations and could be used to increase anti

‐ American

sentiment,” particularly because the images could be manipulated to

show greater mistreatment than actually occurred, or change the

chronology of actual events. J.A. 1301

‐ 02.

The government submitted ex parte an index (“the FBI Index”)

identifying the contents of the 53 FBI videotapes for the District

Court’s in camera review. See J.A. 1338

‐ 39. 9

C. The District Court’s Decision

In a September 12, 2013 memorandum and order, the District

Court granted summary judgment for the government, approving

nondisclosure of the Responsive Records under Exemption 1, on the

basis that it was “both logical and plausible that the disclosure of

any portion of the [Responsive Records] could reasonably be

expected to harm national security.” Ctr. for Constitutional Rights v.

Dep’t of Def.

, 968 F. Supp. 2d 623, 635

‐ 36 (S.D.N.Y. 2013). In

particular, after reviewing in camera the FBI Index describing the

9 Plaintiffs did not challenge the adequacy of the government’s review in the

District Court or on appeal. Nor have they challenged the scope of the District Court’s

review of the withheld documents, which entailed an in camera review of the index

submitted ex parte and under seal by the government. Cf. Wilner v. Nat ʹ l Sec. Agency

, 592

F.3d 60, 75

‐ 76 (2d Cir. 2009) (“A court should only consider information ex parte and in

camera that the agency is unable to make public if questions remain after the relevant

issues have been identified by the agency’s public affidavits and have been tested by

plaintiffs.”).10 No. 13

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videotapes, the District Court found it “logical and plausible that

extremists would utilize images of al

‐ Qahtani (whether in native or

manipulated formats) to incite anti

‐ American sentiment, to raise

funds, and/or to recruit other loyalists, as has occurred in the past.”

Id. at 636. The District Court found further that such misuse was

“particularly plausible in this case, which involves a high

‐ profile

detainee, the treatment of whom the Convening Authority for

Military Commissions

. . . determined ‘met the legal definition of

torture.’” Id. The Court then rejected CCR’s argument that the

extensive prior disclosures concerning al

‐ Qahtani undermined the

government’s justifications. Id.

This timely appeal followed.

DISCUSSION

Exceptions to FOIA’s general principle of “broad disclosure of

Government records

. . . have consistently been given a narrow

compass.” New York Times Co. v. U.S. Dep’t of Justice

, ‐‐‐ F.3d

‐‐‐‐ , No.

13

‐ 422 L, 2014 WL 2838861, at *8 (2d Cir. June 23, 2014) (citation and

internal quotation marks omitted). The government bears the

burden of demonstrating that an exemption applies to each item of

information it seeks to withhold, Nat’l Council of La Raza v. Dep’t of

Justice

, 411 F.3d 350, 356 (2d Cir. 2005), and “all doubts as to the

applicability of the exemption must be resolved in favor of

disclosure,” New York Times Co.

, 2014 WL 2838861, at *8 (internal

quotation marks omitted).11 No. 13

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We review a district court’s order granting summary

judgment in a FOIA action de novo

. Id. An agency may carry its

burden by submitting declarations “giving reasonably detailed

explanations why any withheld documents fall within an

exemption,” and such declarations “are accorded a presumption of

good faith.” Wilner v. Nat’l Sec. Agency

, 592 F.3d 60, 69 (2d Cir. 2009)

(internal quotation marks omitted). When such declarations are “not

controverted by either contrary evidence in the record nor by

evidence of agency bad faith,” summary judgment for the

government is warranted. Id. at 73 (internal quotation marks

omitted). Notwithstanding the presumption in favor of disclosure,

when the claimed exemption implicates national security, “an

agency’s justification for invoking a FOIA exemption is sufficient if

it appears logical or plausible.” Id. (internal quotation marks

omitted).

At issue here is whether FOIA Exemption 1 is satisfied. This

exemption shields from disclosure records that are “specifically

authorized under criteria established by an Executive order to be

kept secret in the interest of national defense or foreign policy,” and

“are in fact properly classified pursuant to such Executive order.” 5

U.S.C. § 552(b)(1). The parties dispute whether the Responsive

Records satisfied the prerequisites for classification under Executive

Order 13,526—specifically, whether the “unauthorized disclosure of

the [Responsive Records] reasonably could be expected to result in

damage to national security,” defined as “harm to the national

defense or foreign relations of the United States

. . . taking into12 No. 13

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consideration such aspects of the information as the sensitivity,

value, utility, and provenance of that information.” Exec. Order No.

13,526 §§ 1.1(a)(4), 6.1(1).

The government’s central argument on appeal, supported by

the Horst Declaration, is that release of the mug

‐ shots and videos of

al

‐ Qahtani could logically and plausibly serve as propaganda for

extremists and incite anti

‐ American violence, which, in turn, could

reasonably be expected to result in damage to national security. 10

In response, CCR argues that accepting the “propaganda”

justification would “stymie FOIA’s aim[s]” by permitting the

government to “disregard the people’s right to a transparent

government whenever there is a distant risk that someone,

somewhere could respond with violence.” Appellant’s Br. 34. CCR

warns that this justification would, perversely, be most forceful

where the information was most controversial and, accordingly, of

greatest interest to the public. Cf. Ray v. Turner

, 587 F.2d 1187, 1209

(D.C. Cir. 1978) (Wright, J.

, concurring in the remand) (noting that

Congress amended Exemption 1 to prevent the Executive from

classifying information that “is embarrassing or incriminating”

10 On appeal, the government also cites the following as threats to national

security: (1) the compromise of relationships with cooperating detainees; (2) the

possibility that disclosure could be perceived as inconsistent with the Geneva

Convention; and (3) the possibility that release of the images could facilitate sending of

coded messages by detainees. Because we resolve the case on the basis that the mug shots

and videos of al

‐ Qahtani could incite violence against American interests and be used by

anti

‐ American extremists as propaganda, we need not address these other purported

threats.13 No. 13

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(internal quotation marks omitted)). CCR asserts further that the

over

‐ breadth of the Horst Declaration exemplifies the danger of the

so

‐ called “slippery slope” of the government’s argument.

Specifically, instead of explaining how the particular records at issue

here would provoke the United States’ enemies, General Horst

suggests that release of any depiction of any detainee would

endanger national security and, accordingly, should be exempt from

disclosure under FOIA. Appellant’s Br. 33.

It is of course true that, if invoked reflexively by the

government, and accepted unquestioningly by reviewing courts, the

“propaganda” justification could shield a broad range of documents

of significant public interest, in contravention of FOIA’s central

purpose. The possibility that a particular justification might be

abused, however, does not render it meritless in all circumstances.

As Justice Oliver Wendell Holmes recognized long ago, “most of the

distinctions of the law are distinctions of degree” and courts, in any

given situation, “can defeat an attempt to

. . . go too far without

wholly abolishing [the authority or right at issue].” Panhandle Oil Co.

v. Mississippi ex rel. Knox

, 277 U.S. 218, 223 (1928) (Holmes, J.,

dissenting). 11 Whether the government’s justifications for

withholding information in the name of national security go too far

is a question that must be evaluated in the context of the particular

circumstances presented by each case.

11 As Justice Arthur J. Goldberg similarly remarked, “[i]t is of course true that

great consequences can grow from small beginnings, but the measure of

. . . adjudication

is the ability and willingness to distinguish between real threat and mere shadow.” Sch.

Dist. of Abington Twp. v. Schempp

, 374 U.S. 203, 308 (1963) (Goldberg, J., concurring).14 No. 13

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We now turn to the circumstances at issue here. We note, as a

preliminary matter, that we need not view the Horst Declaration in a

vacuum, and may consider the record as a whole in determining

whether the justifications set forth in the declaration are logical and

plausible in this case

. Cf. Gardels v. CIA

, 689 F.2d 1100, 1105 (D.C. Cir.

1982) (“The test is not whether the court personally agrees in full

with the [Agency]’s evaluation of the danger—rather, the issue is

whether on the whole record the Agency’s judgment objectively

survives the test of reasonableness, good faith, specificity, and

plausibility in this field of foreign intelligence in which the [Agency]

is expert and given by Congress a special role.”).

The record makes clear that al

‐ Qahtani is not just any

detainee: The government has publicly stated that al

‐ Qahtani is “the

intended 20th Hijacker in the 9/11 attack that killed more than 3,000

innocent people,” and “an al Qa[e]da operative with strong ties to

senior al Qa[e]da leadership, including Osama Bin Laden.” News

Release, Dep’t of Defense, Guantanamo Provides Valuable Intelligence

Information (June 12, 2005) (J.A. 309). Apart from his notable profile,

al

‐ Qahtani is unusual because a significant government official has

publicly opined that the interrogation methods used on him met the

legal definition of torture. 12

12 Relevant to our inquiry here is the public nature of these statements and the

fact they were made by a high

‐ ranking DoD officer. Whether the statements are true, and

whether they are supported or refuted by the Responsive Records, is irrelevant for our

purposes. We note, additionally, that our reliance on these statements does not support,

as a general matter, government non

‐ disclosure of documents which may reveal

wrongdoing. First of all, the Government has already publicly disclosed the alleged15 No. 13

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CCR asserts that the government’s prior and extensive

disclosures regarding al

‐ Qahtani undermine its justifications for

withholding the Responsive Records. 13 On the contrary, we conclude

that, inasmuch as these disclosures have heightened al

‐ Qahtani’s

prominence, here and abroad, they increase the likelihood that

official release of images of al

‐ Qahtani

― even images that do not

depict abuse or mistreatment

― could be exploited by extremist

groups as tools to recruit or to incite violence. 14

We find, moreover, that images of al

‐ Qahtani, alone and

interacting with military personnel, particularly when released

directly by the FBI and DoD, may prove more effective as

propaganda than previously released written records that disclose

the same

― or even more controversial

― information about al

‐

wrongdoing and cannot, here, be accused of withholding that information. Moreover, the

parties (the government in its brief in support of summary judgment and CCR at oral

argument) and the District Court agree that the images in question do not depict al

‐

Qahtani being tortured. See Ctr. for Constitutional Rights

, 968 F. Supp. 2d at 637

(“confirm[ing] [based on review of the FBI Index] the Government’s public

representation that these records do not document any abuse or mistreatment”) (internal

quotation marks omitted).

13 As a general matter, it is well

‐ established that “the government’s decision to

disclose some information [does not] prevent[] the government from withholding other

information about the same subject.” Am. Civil Liberties Union v. U.S. Dep’t of Def.

, 628

F.3d 612, 625 (D.C. Cir. 2011).

14 See Note 16, post

.

In combination with the government’s public disclosures about al

‐ Qahtani’s

treatment and the leaked interrogation logs, however, even innocuous photographs and

videos could readily be used to inspire unrest similar to that caused by the dissemination

of the (arguably more controversial) Abu Ghraib photos in 2004, or the alleged

mishandling of Korans at Guantanamo in 2005, to which General Horst referred in his

declaration.16 No. 13

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Qahtani’s detention. 15 See Judicial Watch, Inc. v. U.S. Dep’t of Def

., 715

F.3d 937, 942 (D.C. Cir. 2013) (finding it plausible “that releasing

[seemingly innocuous] images of American military personnel

burying [Osama Bin Laden] could cause exceptionally grave harm”

in the form of “violence and attacks against United States interests”

(internal quotation marks omitted)).

As in every FOIA action, our holding is limited to the

particular facts and circumstances of this case, as set forth above: We

do not now hold that every image of a specifically identifiable

detainee is exempt from disclosure pursuant to FOIA, nor do we

hold that the government is entitled to withhold any documents that

may reasonably incite anti

‐ American sentiment.

In sum, we conclude that the record of this case establishes, at

a minimum, a reasonable possibility that the government’s release of

these images of al

‐ Qahtani, in the context of what is already publicly

known about him, would be singularly susceptible to use by

15 Other than four photographs of detainees

― whose identities we do not

know

― which were apparently released pursuant to FOIA requests, the only images of

specifically identifiable detainees cited by CCR as having been publicly released are

photographs taken by the International Committee of the Red Cross (“ICRC”) with the

permission of the detainee pursuant to well

‐ established procedures at Guantanamo. See

Appellant’s Br. 38, J.A. 661

‐ 62. According to the ICRC, it releases these photographs only

to the detainee’s family, at which point it cedes control over the dissemination of these

photographs to the family. This type of dissemination is readily distinguishable from

release by the DoD and/or the FBI directly into the public domain of photographs taken

without the permission of the detainee. Moreover, CCR’s assertion that it is implausible

that “the propaganda value of a photograph or video is appreciably greater where the

detainee is identifiable” is forcefully and persuasively refuted by the Horst Declaration

and, in any event, defies common sense.17 No. 13

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extremist groups to incite anti

‐ American hostility. That, in turn,

could reasonably be expected to damage the national security of the

United States. Accordingly, the Responsive Records were properly

classified under Executive Order 13,526, and are therefore exempt

from disclosure pursuant to FOIA Exemption 1. 16

CONCLUSION

For the reasons set out above, we hold that government

‐

released images and videos of one of Guantanamo Bay’s most high

‐

profile detainees, who is closely associated with al Qaeda and the

9/11 attacks, and whose interrogation was publicly deemed

“torture” by a government official, could logically and plausibly be

used by anti

‐ American extremists as propaganda to recruit members

and incite violence against American interests at home and abroad,

causing damage to the national security. Such threats to national

security justify non

‐ disclosure of the Responsive Records pursuant

to FOIA Exemption 1.

Accordingly, we AFFIRM the September 12, 2013 judgment of

the District Court.

16 Additional justifications for withholding the Debriefing videos are set forth in

the classified declaration of Mark H. Herrington. We have reviewed this declaration in

camera and, although it is not necessary to the resolution of this appeal, we note that the

classified declaration provides additional valid justifications for withholding the

Debriefing videos.