Reply #9: Latest Info: from Nov 2nd. 2005

[Moochy]

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
AMERICAN CIVIL LIBERTIES UNION, et al., :
: ORDER DENYING
Plaintiffs, : MOTION FOR PARTIAL
: RECONSIDERATION
-against- :
: 04 Civ. 4151 (AKH)
DEPARTMENT OF DEFENSE, et al., :
:
Defendants. :
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ALVIN K. HELLERSTEIN, U.S.D.J.:
The government moves for reconsideration of part of my Opinion and Order of September
29, 2005, that ordering Defendant Central Intelligence Agency (“CIA”) to respond to Item 1 of
plaintiff’s priority list of requested documents. The government’s motion asserts that I overlooked
its argument why the CIA should be permitted neither to admit nor deny that it has possession of the
particular document that Plaintiff requested. I believe, however, that I considered all material
aspects of the government’s argument, and I therefore deny its motion for reconsideration.
On a motion for reconsideration, the movant must demonstrate the existence of a “matter[]
or controlling decision” that the court originally overlooked. See Local Civil Rule 6.3. The movant
must present matters that might be reasonably expected to “‘alter the result before the court.’”
Cioce v. County of Westchester, 128 Fed. Appx. 181, 185 (2d Cir. 2005) (quoting In re BDC 56
LLC, 330 F.3d 111, 123 (2d Cir. 2003)); O’Connor v. Pan Am Corp., 5 Fed. Appx. 48, 52 (2d Cir.
2001) (citing Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)). Reconsideration
should be granted where necessary to correct for “clear error” or to “prevent manifest injustice.”
Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004). A motion for reconsideration is
not an opportunity to reargue that which was previously decided. Shrader, 70 F.3d at 257.
2
Item 1 of Plaintiff’s priority list asked the government to produce a “emorandum from
DOJ to CIA interpreting the Convention Against Torture.” In its motion for reconsideration, the
government argues that the request should be understood in the context of Plaintiff’s original and
broader request, for documents concerning the “treatment of Detainees in United States custody,”
the “Death of Detainees in United States custody,” and the “rendition of Detainees and other
individuals” to countries known to employ torture. The implication, according to the government,
is that an admission by the CIA as to the existence of the DOJ memorandum necessarily discloses
that the CIA was engaged in questioning “Detainees,” for otherwise why would it have received a
memorandum from DOJ interpreting the Convention; that such a memorandum would express legal
opinions, for otherwise why would DOJ be issuing such a memorandum; and that such a
memorandum containing legal opinions presumably would disclose what methods of interrogation
would be lawful, and would not be lawful, if they were to be applied by CIA interrogators.
Conversely, if the CIA were to deny that it possessed such a memorandum, it would thereby deny
that it was involved in questioning Detainees. From this set of alternative speculative hypotheses,
the government argues that a substantive answer by the CIA would disclose its “intelligence sources
and methods” in covert and clandestine activities in violation of the National Security Act of 1947,
50 U.S.C. § 403-3(c)(7).
I considered these arguments of the government in preparing my Opinion and Order of
September 29, 2005, and I did not accept them. I addressed the government’s arguments at pages
23 and 24, and 25 through 28 of my Opinion and Order, following a lengthy discussion of
applicable cases and of the arguments made by the government in those cases. I referenced the
representations and arguments in the several declarations by Marilyn A. Dorn, including her Fifth
Declaration, which the government again proffers under seal and Top Secret classification. There is
nothing new or different in the government’s papers in support of its motion for reconsideration.
3
The Convention Against Torture is part of our law. See United Nations Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty
Doc. No. 100-20, 1465 U.N.T.S. 85; 18 U.S.C. §§ 2340, 2340A (2000); see also 8 C.F.R. §§
208.18, 1208.18 (2005). It was ratified by its national signatories and implemented into U.S. law in
order to “make more effective the struggle against torture and other cruel, inhuman, or degrading
treatment or punishment throughout the world.” Richard P. Shafer, Annotation, Construction and
Application of United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment, or Punishment, 184 ALR Fed. 385 (2005). The Convention requires that each state take
measures to prevent acts of torture in its jurisdiction and prohibits any state from expelling a person
to another state where there are grounds for believing that s/he would be subjected to torture. Id.
Clearly any member of the U.S. government involved in interrogations would need to know
and understand the Convention’s terms, including official administrative interpretations of those
terms. The Office of the Attorney General of the DOJ is empowered to furnish advice and opinions
on legal matters to government agencies, 28 C.F.R. § 0.5 (2005), and has issued public memoranda
interpreting the Convention Against Torture, see, e.g., Daniel Levin, Assistant Attorney General,
Office of Legal Counsel, Dep’t of Justice, Legal Standards Applicable Under 18 U.S.C. §§ 2340-
2340A, Dec. 30, 2004, available at http://www.usdoj.gov/olc/18usc23402340a2.htm .
The fact that such a memorandum might be addressed to the CIA tells us nothing of the
“intelligence sources and methods” utilized by the CIA, if and to the extent that it might be involved
in questioning persons detained in Iraq and Afghanistan or anywhere else. Indeed, the press has
reported frequently about CIA involvement in the interrogation of Detainees, and confirming or
denying the existence of a legal memorandum interpreting the Convention Against Torture adds
nothing to, and detracts nothing from, the public understanding. Nor does it tell us anything about
whether or not the CIA is engaged in covert or clandestine activities.
4
I further observe, as applied in the following paragraph, that the National Security Act
recognizes CIA engagement in covert activities, providing for their authorization by the President,
50 U.S.C. § 413b(a), and for their report by the CIA to congressional intelligence committees, id. §
413b(b). The Act further specifies that “acquir intelligence” is not a “covert” activity. Id. §
413b(e)(1).
The Dorn Declarations, without describing the DOJ memorandum or making any
representation as to its alleged existence – a memorandum which I have not seen, nor do I know to
exist – argue that a substantive answer by the CIA, or even a claim of exemption, would disclose
“covert or clandestine activities and interests,” Fourth Dorn Declaration at 10, thereby breaching a
security classification. But these speculations are not grounded in the memorandum, or whether or
not such a memorandum exists. The DOJ, lacking authority to authorize the CIA to engage in such
activities, would not address such a topic in a memorandum interpreting a convention. Nothing
implicit in the documents gives rise to the speculations contained in the Dorn Declarations. If the
concerns expressed in the Dorn Declarations are real, they arise not from the terms of plaintiff’s
request, but from the contents of the particular documents that presumably might be located, and
such concerns can be addressed by in camera proceedings and appropriate exemptions under FOIA,
exactly the way such concerns are customarily addressed.
As I held in my Opinion and Order of September 29, 2005, the CIA, no less than any other
governmental agency, is not exempted from responding to a FOIA request, unless it shows that an
answer will give away a classified secret. See also Am. Civil Liberties Union v. Dep’t of Def., 351
F.Supp. 2d 265 (S.D.N.Y. 2005) (Opinion and Order of February 2, 2005, modified, April 18,
2005). In its motion for partial reconsideration, the government essentially seeks to reargue that
which I decided. See Shrader, 70 F.3d at 257. Accordingly, the motion is denied.

on November 15th, the DOD lawyers notified that they were filing an appeal to the 2nd circuit.

and from daily kos : http://www.dailykos.com/story/2005/10/26/14471/096

My Two Cents (none / 1)

Warning: Although I work at a law firm, I am not myself a lawyer. Having said that, based on my experience with cases being appealed to the Second Circuit, unless the ACLU is able to convincingly make an argument that the matter needs to be heard on an expedited basis, it would take some time indeed.

Assuming no extensions to the appellate schedule, the government's brief would likely be due about two months after the notice of appeal, the ACLU's brief 30 days after that, and the government reply 14 days later. Oral argument before a three-judge panel could be held as soon as two weeks later, and a decision could be rendered at any time after that.

Realistically, however, there would probably be one or more extensions to the schedule for more comprehensive briefing, a significant gap between the end of briefing and oral argument, and another long gap before the decision. A grand total of a year or more wouldn't be at all surprising.

Given the chaos currently enveloping the Administration, I'm not sure it would be a bad thing at all from our standpoint to leave this out there until close to Election Day 2006. If the Second Circuit were to uphold Judge Hellerstein's ruling, it's a sure bet that the government would appeal further (both to the Second Circuit en banc -- essentially the entire court, rather than just the panel -- and to the Supreme Court). Final resolution might easily take another year or two; compare with how long it took the FOIA lawsuit regarding the Cheney energy task force materials.
by The Maven