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Judicial Watch Not Entitled to Internal Department of Defense Memo In Bowe Bergdahl Case, D.C. Circuit Court Rules

by Lonnie Burton

On February 7, 2017, a three-judge panel sitting in the U.S. Court of Appeals for the D.C. Circuit affirmed a ruling of the D.C. District Court which found Department of Defense (DOD) officials were not compelled by the Freedom of Information Act MIA) to turn over to Judicial Watch a copy of an internal DOD memo relating to Guantanamo Bay prisoners. The court held the memo in questioned was a privileged "deliberative" document exempt from FOIA disclosure.

On May 31, 2014, Secretary of Defense Chuck Hagel sent five Guantanamo Bay prisoners to Qatar in exchange for the release of Bowe Bergdahl, the American soldier who was captured in Afghanistan and who was suspected of deserting his unit. Three days later, the watchdog group known as Judicial Watch submitted a FOIA request which asked the government to produce "any and all records concerning, regarding, or relating to" Hagel's "determinations" on which five Guantanamo Bay prisoners would be transferred to Qatar.

After DOD officials objected to the "overbroad" nature of this request, Judicial Watch amended its request to include "any and all memos" signed by Bagel which approved which prisoners would be exchanged for Bergdahl. After receiving no response to its amended request, Judicial Watch filed a complaint in district court arguing DOD failed to comply with its obligations under POIA. Eventually DOD responded to the FOIA request with one copy of a classified letter it sent to Congress, but with the classified information redacted.

DOD then moved for summary judgment, and in doing so informed the court and Judicial Watch, for the first time, that the only other "potentially responsive" document was a packet prepared for Hagel by Assistant Secretary Michael Lumpkin. That packet included a "cover memo" attached to the Congressional letter, detailing Lumpkin's recommendations regarding which prisoners should be sent to Qatar. The DOD contended the memo was exempt from FOIA disclosure because it was a "privileged deliberative document" under Pub. Citizen Inc., v. Office of Mgmt. & Budget, 598 F.3d 865 (D.C. Cir. 2010).

The district court agreed with DOD. It held that while the Lumpkin memo was responsive to Judicial Watch's request, it was nonetheless protected by POIA's "deliberative process privilege." Judicial Watch appealed.

"After reviewing the memo in camera, we conclude that the memo is neither a signed memo nor a secretarial determination regarding the detainees," the D.C. Circuit Court held. Thus, the court said that while it did not necessarily agree with the district court's determination that the memo was a responsive document, it was privileged in any event.

The appellate court went on to point out that while Secretary Hagel signed the Congressional letters the memo was attached to, neither he nor Lumpkin signed the memo. "Wetherefore cannot treat the memo as a decisional document subject to disclosure ... [and see] no reason to disturb the district court's judgment that the Lumpkin no was a privileged deliberative document," the court concluded. See Judicial Watch, Inc. v. United States Department of Defense, No. 1:14-cv-01935, (D.C. Cir. 2017).

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Related legal case

Judicial Watch, Inc. v. United States Department of Defense