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    • ACLU et al. v. Department of Defense (Seeking Access to Government Documents under FOIA)

    Case Status

    Open

    Case Description

    (S.D.N.Y., Index No. 04 Civ. 4151 (AKH)) (direct).

    This case involves a claim of access to government documents under the federal Freedom of Information Act.

    In October 2003, the ACLU, NYCLU and other public interest organizations made a Freedom of Information Act (FOIA) request for all documents concerning the treatment and interrogation of detainees held at military bases in the United States as well as at detention facilities including Bagram Air Base in Afghanistan, Abu Ghraib prison in Iraq, and Guantanamo Naval Base in Cuba. The FOIA request also sought documents regarding the "rendition" of detainees to countries known to use torture. The plaintiffs sought such records for over eight months, especially as reports of inhumane treatment and torture leaked to the press, but the Department of Defense failed either to expedite any releases or to produce them at all.

    In June 2004, the plaintiffs filed a lawsuit against the Department of Defense as well as the CIA and FBI. The lawsuit sought to compel the Bush Administration to comply with the FOIA and produce the requested documents. On August 18, 2004, the United States District Court ordered the relevant federal agencies to immediately begin processing the FOIA request, with an initial response due by Aug. 23, 2004. The Defense Department continued to withhold records, and the parties returned to court on Sept. 9, 2004. On Oct. 15, 2004, the ACLU and NYCLU received roughly 6,000 pages of documents regarding the abuse of prisoners at Abu Ghraib.

    Disputes continue regarding the Government’s obligations under FOIA. For example, the CIA is asserting that it is exempt from the requirements of the Freedom of Information Law and that dispute remains to be adjudicated.

    Regarding the latest FOIA dispute, the ACLU and NYCLU filed a motion for summary judgment asking the Court to order the government to release the requested documents in accordance with FOIA. On Sept. 29, 2005, the District Court granted the plaintiffs’ motion. The government has appealed to the United States Court of Appeals, Second Circuit.

    On Sept. 7, 2006, the ACLU and NYCLU briefed the Second Circuit. The brief asked the Second Circuit to uphold the District Court’s decision, arguing that if the Court rewarded the government its exemption, it would defeat the entire purpose of the Freedom of Information Act.

    On Sept. 22, 2008, U.S. Court of Appeals upheld the District Court's ruling. The appeals court rejected the government’s attempt to use the FOIA as "an all-purpose damper on global controversy" and recognized the "significant public interest in the disclosure of these photographs" in light of government misconduct. The court also recognized that releasing the photographs is likely to prevent "further abuse of prisoners."

    Attorneys involved in this case include Lawrence Lustberg, Jennifer Ching, Megan Lewis (Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C.); Arthur Eisenberg, Beth Haroules (NYCLU); Jameel Jaffer, Judy Rabinovitz, Amrit Singh (ACLU); Steven Watt, Barbara Olshansky, Jeffrey Fogel (Center for Constitutional Rights).

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