Vaughn Declaration of David J. Barron re: OLC Remand Documents, ACLU v. DOD, No. 1:04-CV-4151 (S.D.N.Y. September 21, 2009)

 

SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------------------ x

AMERICAN CIVIL LIBERTIES UNION, et al.,

Plaintiffs,

v.

DEPARTMENT OF DEFENSE, et al.,

Defendants.

------------------------------------------------------------ x

AMERICAN CIVIL LIBERTIES UNION, et al.,

Plaintiffs,

v.

DEPARTMENT OF JUSTICE, AND ITS

COMPONENT OFFICE OF LEGAL COUNSEL, :

Defendants.

------------------------------------------------------------ x

I, David J. Barron, declare the following:

ELECTRONICALLY FILED

04 Civ. 4151 (AKH)

DECLARATION OF

DAVID J. BARRON

05 Civ. 9620 (AKH)

1. I am the Acting Assistant Attorney General for the Office of Legal Counsel

("OLC"or "the Office") of the United States Department of Justice (the "Department"), a

position I have held since January 20,2009. In this position, I supervise all OLC operations,

including OLC's response to requests under the Freedom ofInformation Act ("FOIA"), 5 U.S.C.

§ 552. I submit this Vaughn declaration in connection with the remand of this case to the district

court, which was requested by the government in order to permit the reprocessing of the

documents at issue in this case. The statements made herein are based on my personal

knowledge and on information provided to me by OLC attorneys.

Page 1 of 18

PART I

Introduction

2. In January 2009, the President discontinued the interrogation practices that are

addressed in many of the documents at issue in this case. He issued Executive Order 13491 of

January 22,2009, which generally prohibits the use by the United States Government, in any

armed conflict, of any interrogation technique or approach, or treatment related to interrogation,

that is not authorized by and listed in Army Field Manual 2-22.3.

3. On April 16, 2009, the Department released to the public four documents that it

had been withholding in this case and that address interrogation practices that the President has

ordered discontinued. The President made a statement accompanying that release in which he

explained that "after consulting with the Attorney General, the Director of National Intelligence,

and others," he "believe]d] that exceptional circumstances surround these memos and require

their release." See Daily Compo Pres. Docs., 2009 DCPD No. 00263, p. 1 (Apr. 16,2009).

4. At the time of the April 16 release, plaintiffs' appeal ofthe district court's order

denying plaintiffs' summary judgment motion was pending before the U.S. Court of Appeals for

the Second Circuit. The government sought a remand of the case to the district court in order to

permit a review and reprocessing of certain withheld documents in light Executive Order 13491

and the April 16 release. The Court of Appeals remanded the case. On remand, the district court

ordered the government to provide by August 31, 2009 a Vaughn declaration setting forth the

justification for the continued withholding of the 181 documents listed on the original Vaughn

index. The parties agreed to a three-week extension of that deadline, and the court granted an

extension until September 21, 2009.

Page 2 of 18

5. In order to conduct its review and reprocessing of the documents in connection

with the remand of this case, OLC had to search its files for the documents identified on the

original Vaughn index. I was informed that a copy set of the indexed documents was not made

when the documents were compiled in 2005 due to their extreme sensitivity at the time, and the

original documents were not maintained over time as a discrete set within the OLC files after the

initial 2005 search for responsive documents. Instead, the documents were stored in safe drawers

in OLC's Sensitive Compartmented Information Facility ("SCIF"), intermingled with other

documents on related topics in the working files of the Office. Moreover, some of the original

documents have been in the temporary custody of other government offices on several occasions

since the initial search in 2005. The task of recompiling the set was further complicated by the

fact that the document descriptions on the original Vaughn index were very general in nature.

6. Between June and September 2009, OLC, with the assistance of attorneys from

the Office of the United States Attorney for the Southern District ofNew York and the Central

Intelligence Agency ("CIA"), conducted extensive search efforts to locate the documents listed

on the original Vaughn index. These search efforts are described in detail in Part II of this

declaration, below. Through these searches, OLC located and identified 171 documents that

correspond to entries on the original Vaughn index.' OLC based these identifications on the

totality of circumstances, including the document descriptions on the original Vaughn index, the

location in the files in which the documents were found, and the absence of other documents that

might meet the particular document description on the Vaughn index, as well as other factors.

I The Vaughn numbers of the ten remaining entries are: 6,20,47, 77,142,155,172, 175,

177, and 181.

Page 3 of 18

However, many of the identified documents are not certain matches, either due to the lack of

specificity of the document descriptions on the original Vaughn index or because the

determination of a match assumes that an error was made in the original Vaughn index.'

7. OLC has reprocessed the 171 documents that have been located under the revised

FOIA guidelines issued by the Attorney General on March 19,2009. Those guidelipes were

issued in response to a Presidential Memorandum of January 21, 2009, which directed agencies

to administer FOIA with a presumption of openness. The Attorney General's memorandum

instructed agencies to consider information for discretionary release, and to consider partial

disclosures of information where a full disclosure is not possible.

8. Informed by this guidance, the President's statement of April 16,2009 (see

paragraph 3, above), and the legitimate and substantial public interest in the advice provided by

OLC regarding the government's interrogation and detention practices, OLC decided not to assert

5 U.S.C. § 552(b)(5) ("Exemption Five") with respect to 101 of the documents in full and two

documents in part that were listed on the original Vaughn index and that had previously been

withheld.' Of these 103 documents as to which OLC decided not to assert Exemption Five in

full or in part, 43 were documents in which no other agency asserted an exemption under FOIA

over the document in its entirety. On August 24,2009, plaintiffs were provided these 43

2 Discrepancies between the entries on the original Vaughn index and the corresponding

document generally have been noted on the updated Vaughn index.

3 OLC waived or partially waived its previous reliance on Exemption Five with respect to

102 documents (in full or in part), and concluded that it would not assert Exemption Five with

respect to the document identified as Vaughn number 160, because that document does not

reflect any OLC equities.

Page 4 of 18

documents, some of which contained redactions." On that date, OLC also made available to the

public certain of those documents-those representing OLC's final legal advice-by posting

them on the "OLC FOIA Reading Room" website at http://www.usdoj.gov/olc/olc-foia1.htm.

9. OLC continues to assert Exemption Five with respect to 68 of the 171 located

documents in full and two of the documents in part.' Part III of my declaration below identifies

these documents by Vaughn number and provides detailed explanations and justifications for the

withholding of these documents.

PART II

Search for Documents on the Vaughn Index

10. This Part of the declaration describes in greater detail my understanding of the

original search that was conducted for the documents responsive to plaintiffs' FOIA request, as

well as more recent search efforts for the documents listed on the original Vaughn index in

connection with the reprocessing of documents. Having assumed my current position in January

of this year, I have no personal knowledge of the search that OLC conducted in 2005 in response

to plaintiffs' FOIA request or the subsequent processing and handling of documents responsive

to that request during the prior Administration. In order to prepare this declaration in a goodfaith

effort to provide information to the Court, I assigned several OLC attorneys to collect the

4 The release included 42 documents that were identified by number on the OLC Vaughn

index and one document that was erroneously identified as a document not previously identified

on OLe's Vaughn index. That document is a June 18,2004 memorandum from Jack Goldsmith

to John Helgerson. OLC has now confirmed that this document is Vaughn number 37.

5 The documents identified as Vaughn numbers 89 and 174 were released in part on

August 24, 2009. OLC continues to assert Exemption Five with respect to certain redacted

portions of these documents.

Page 5 of 18

information documented here. They have made significant efforts, including conducting a

thorough review of OLC files and speaking with a former OLC attorney still within the

Department of Justice and other persons in the government familiar with the OLC documents at

issue in this case. I am providing the information in this section of the declaration on the basis of

the information they have provided me. If the Court has any questions about the information

provided in this declaration, OLC is prepared to supplement this declaration. Thus, the

information presented in the remainder of this Part is provided based on information and belief.

11. CIA attorneys were initially given access to the OLC Sensitive Compartmented

Information Facility ("SCIF") in 2005 to search for documents responsive to the FOIA request at

issue in this litigation. CIA attorneys conducted this search because no OLC attorneys assigned

at that time to the processing of FOIA requests had the clearances needed to access and review

the documents. CIA attorneys made the original responsiveness determinations and created an

unclassified draft index of the documents setting forth very general descriptions of the

documents, along with the date, classification level, and number of pages of each document.

That preliminary index was filed on May 15, 2006 as an attachment to a declaration by Steven G.

Bradbury, then the Acting Assistant Attorney General for OLC. The review done by the CIA

attorneys in 2005 took place in the OLC SCIF, and at that time the documents did not leave

OLC's custody.

12. At the time of the original search in 2005, neither the CIA nor OLC made a copy

of the documents listed on the index due to concerns about making additional copy sets of these

highly sensitive classified documents. Moreover, the indexed documents were not maintained as

a discrete, segregated set within the OLC SCIF, but were instead returned to the working files of

Page 6 of 18

the Office in safe drawers that also contained other documents not responsive to this litigation.

13. Most of the documents reviewed and indexed by the CIA attorneys were also

responsive to document requests OLC received in connection with government investigations

that have been conducted over the last several years, some of which are still being conducted. In

connection with those investigations, representatives of other government entities have reviewed

documents in the OLC SCIF or have been given temporary custody of sets of documents that

have included certain responsive documents in this matter.

14. In particular, the documents were reviewed on numerous occasions in the OLC

selF by attorneys from the Office of Professional Responsibility of the Department of Justice

("OPR"), which has been conducting an investigation of the legal advice given in connection

with CIA interrogation and detention practices. A collection of documents from the OLC SCIF,

which included responsive documents in this matter, was transported some time during early

2007 to the OPR SCIF for further review by OPR in connection with that office's ongoing

investigation.

15. In 2007, the documents were recalled from OPR by OLC so that they could be

sent to the CIA for processing and for purposes of updating the unclassified Vaughn index

submitted in this matter. The CIA maintained custody of the documents at CIA headquarters for

one or two months in order to update the Vaughn index.

16. The Vaughn index created by the CIA during that time was filed as Exhibit A to

the declaration of Marilyn Dorn (a CIA representative) dated June 7, 2007. That index is an

unclassified index of 181 documents that are described in a very general manner. Approximately

70 of the 181 documents, for instance, are listed as "undated"; some documents are identified

Page 7 of 18

only as "I-page undated handwritten notes," and numerous document descriptions are identical

to one another. For instance, documents 112 through 116 are each identified only as an undated,

I-page "draft memo providing legal advice" classified at the TS level. A classified version of the

Vaughn index was not created, and no copy set of the documents was made due to concerns at

the time about the sensitivity of the documents.

17. The documents were returned from the CIA to the OLC SCIF in July 2007. The

documents returned from the CIA included two three-ring binders that had been assembled

previously by OLC, as well as the remaining documents that the CIA attorneys had organized

into numbered redweld folders while the documents were in the custody of the CIA.

18. Shortly after the return of the documents from the CIA, a set of documents that

included (but was not limited to) the redweld folders and two binders returned from the CIA was

transferred to the custody of OPR for purposes of that office's investigation and review oflegal

advice related to the CIA interrogation and detention program. Although certain of these

documents were recalled to OLC from OPR on several occasions in order to respond to other

FOIA requests and inquiries taking place within the government, the documents generally

remained in the possession of OPR until March 2009.

19. On at least one occasion in late 2007 or early 2008, when the documents were

recalled by OLC from OPR for purposes of another matter, an OLC attorney made significant

efforts to recompile the 181 documents listed on the original Vaughn index based on the

descriptions of the documents on that index. The attorney made tentative identifications of

approximately 150 of the 181 documents and marked the original documents with pencil

numbers corresponding to the Vaughn index in the lower left-hand corner of each of those 150

Page 8 of 18

documents.

20. In March 2009, an OLC attorney under my supervision asked OPR to return the

documents to OLC's custody so that the documents could be searched for purposes of another

FOIA matter, and OPR returned the documents promptly to the OLC SCIF, including the set of

redweld folders and two binders.

21. Over a period of several weeks during June and July 2009, an attorney under my

supervision examined each document in the set returned to OLC from OPR, as well as other

collections of potentially relevant material from the same time period. That attorney attempted to

confirm the earlier tentative Vaughn index assignments made by the previous OLC attorney and

to identify any additional documents that matched the entries on the index. On July 19,2009,

two attorneys from the CIA met with the OLC attorney in the OLC SCIF in order to further

attempt to identify documents on the Vaughn index. During that meeting, all three attorneys

examined each original document in the set returned from OPR, including the collection of

redweld folders and two binders. Based on this review, the attorneys collectively decided, for

purposes of accuracy, to make a few changes to the earlier identifications, and also assigned

Vaughn numbers to approximately 15 more documents, bringing the total number of documents

identified to 165 of the 181 total documents on the original Vaughn index.

22. Between July 20 and July 31,2009, for purposes of another FOIA request, three

OLC attorneys under my supervision searched documents in the OLC SCIF that are stored in the

two safes cleared to store documents classified at the relevant level. In conducting that search,

the attorneys also looked for the 16 documents on the original Vaughn index that had not yet

been identified. This search did not result in the identification of any additional documents on

Page 9 of 18

the Vaughn index.

23. On July 20, 2009, an attorney under my supervision sent an attorney in aPR a list

of the 16 documents that had not been located and asked the aPR attorney to search the aPR

SCIF to determine whether aPR had inadvertently retained any of those documents. On July 27,

2009, the aPR attorney responded that aPR did not have any of the listed documents.

24. In July 2009, an attorney under my supervision also asked a CIA attorney to

search the files in CIA's Office of General Counsel for copies of any of the remaining 16

documents on the Vaughn index. In August 2009, a CIA attorney informed OLC that a search by

the CIA did not yield any of those documents.

25. On August 12,2009, Heather McShain and Sean Lane, two Assistant United

States Attorneys for the Southern District of New York who represent the government in this

matter, met in the OLC SCIF with an OLC attorney under my supervision, as well as a CIA

attorney, to perform another search for the 16 remaining documents on the original Vaughn

index. The search continued on August 17,2009. Although the search focused on the set of

redweld folders and binders and the drawers of the safes in which these items have been stored,

the attorneys also searched all of the other drawers in the two safes cleared to store documents at

the relevant classification level, with the exception of two drawers and a set of documents in the

back of a third drawer that were deemed unlikely to contain relevant documents due to the date

or classification level of the documents in that set.

26. In the course of their efforts on August 12 and August 17,2009, the attorneys

involved in the search identified six documents as potentially matching the descriptions of the

remaining 16 documents on the Vaughn index, bringing the total number of documents located to

Page 10 of 18

27. Between August 18 and August 20,2009, an attorney under my supervision

searched the remainder of the drawers of the two safes cleared to store documents at the relevant

classification level (i. e., the two drawers and portion of a third drawer that were not searched on

August 12 or 17). The attorney also searched documents held in an additional safe that contains

documents at classification levels that are not relevant to the subject matter of this litigation.

28. In the course of these various search efforts between June and August, 2009,

attorneys conducting the searches found additional documents that were not identified on the

original Vaughn index but which appeared to be responsive to the plaintiffs' FOIA request. OLC

concluded that a supplemental search should be conducted in order to identify all responsive

documents in the relevant safe drawers of the OLC SCIF. Accordingly, after plaintiffs agreed to

a three-week extension of the court's original deadline, the government obtained from the court

an extension of time in order to allow for this additional search.

29. During the weeks of August 31, 2009 and September 7, 2009, three OLC

attorneys under my supervision conducted an additional search of the two safes in the OLC SCIF

that are cleared to store documents classified at the relevant level of classification. Those

attorneys were asked to look for documents responsive to plaintiffs' original FOIA request,

regardless of whether the documents were included on the original Vaughn index. Each

document in every drawer of the two relevant safes was viewed by at least one OLC attorney for

6 Ofthe 171 documents, seven documents are documents that concern the Department of

Defense ("DOD"), rather than the CIA, and that therefore were inadvertently included on the

originalOLC Vaughn index. The Vaughn numbers of these documents are: 7, 10, 13, 14,23,25,

and 146. These documents have been referred to DOD for processing.

Page 11 of 18

an initial responsiveness determination. For any responsiveness determination that was not

readily apparent, at least two OLC attorneys viewed or discussed the relevant document. The

attorneys made copies of every document that appeared to be responsive but was not listed on the

original Vaughn index.

30. As a result of those additional search efforts over the past three weeks, OLC has

identified additional documents that appear to be responsive to plaintiffs' FOIA request. Of

these documents, OLC referred 168 to the CIA for processing and 56 to other Executive Branch

entities for processing where those other Executive Branch entities originally generated, or

otherwise have equities in, those documents. Ofthe referred documents, there may well be

duplicates of documents already processed. To the extent the referred documents include new

documents that have not yet been reviewed or processed, OLC anticipates that the government

will file a supplemental Vaughn index (or indices, depending on the outcome of the processing)

in this matter upon the completion of processing.

31. The additional search efforts during the weeks of August 31, 2009 and September

7,2009 did not result in the identification of additional documents listed on the original Vaughn

index, and the number of located documents from that index remains 171. Even within that set

of 171 documents, however, many of the identified documents are uncertain matches, either

because the identification is premised on an assumption that an error was made on the original

Vaughn index with respect to the date, length, or classification level of the document, or because

the original document description was not sufficiently specific (e.g., "l-page undated handwritten

notes") to permit clear confirmation of a match.

Page 12 of 18

PART III

Withholdings Pursuant to Exemption Five

32. Exemption Five ofFOIA exempts from disclosure "inter-agency or intra-agency

memorandums or letters which 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). This provision exempts from disclosure those

documents or information normally privileged in the civil discovery context, including

documents or information protected by the deliberative process and presidential communications

privileges.

33. Based on OLC's review and reprocessing of the documents listed on the Vaughn

index, as indicated in paragraph 8 above, OLC decided not to assert Exemption Five with respect

to 101 documents in full, and two documents in part, that had previously been withheld. On

August 24,2009, the Office made a discretionary release of 43 documents as to which it had

waived Exemption Five and as to which the CIA also no longer claimed any FOIA exemptions.

The documents released by OLC on that date constitute letters, memoranda, and opinions of the

Office conveying final legal advice and analysis or other documents reflecting final advice of the

Office.

34. OLC has determined that other documents corresponding to entries on the original

Vaughn index continue to warrant withholding or partial withholding under Exemption Five.

These documents, identified by their numbers on the original Vaughn index, are: 16,18,31,32,

33,35,39,40,41,46,63,66,68,71,81,82,86, 100, 102, 103, 104, 105, 106, 108, 109, 111,

117,118,119,121,123,124,125,126,127,128,130,131,132, 133, 135, 139, 140, 141, 143,

144,145,147,148,149,150,152,153,154,156,157,158, 161, 162, 165, 167, 168, 169, 171,

Page 13 of 18

173, 176, 178, and 180. OLC is also continuing partially to withhold documents 89 and 174

pursuant to Exemption Five.

Deliberative Process Privilege

35. In contrast with the documents as to which OLC has decided not to assert

Exemption Five, the documents or redacted portions of documents listed in paragraph 34 above

do not constitute final legal advice of the Office. Instead, these documents are: (a) predecisional,

i. e., generated prior to a decision; and (b) deliberative, i. e., reflecting discussions,

proposals, and the "give and take" exchanges that characterize the government's deliberative

process. These documents fall squarely within the deliberative process privilege. They include

draft legal memoranda or opinions; documents memorializing or reflecting pre-decisional

deliberations of the office; informal attorney work product such as attorney notes or comments

generated or used in the preparation of legal advice; communications between OLC and client

agencies reflecting deliberations in connection with the formulation of OLC legal advice; and

communications between presidential advisers reflecting pre-decisional deliberations. The

documents that fall into each of these five categories are identified below.

a. Drafts of, or draft inserts for, OLC memoranda or other documents providing

legal advice: 16,18,33,39,40,41,82,86,102,103,104,143,144,145,149,

153,173,178, and 180.

b. Documents memorializing or summarizing internal, pre-decisional deliberations

of the office: 31, 32, 33, and 89 (partial withholding).

c. Informal attorney work product generated during the preparation of OLC advice,

such as handwritten notes on separate pieces of paper or in the margins of draft

Page 14 of 18

memoranda or other documents providing legal advice: 16, 18, 32, 40, 63, 66, 68,

71,81,82,102,103,104,111,117,118,119,121,123,124, 125, 126, 127, 128,

130,131,132,133,135,139,140,141,143,144,147,148, 150, 152, 153, 154,

156,157, 158, 162, 165, 167, 168, 169, 171, 173, 176, and 180.

d. Communications between OLC and client agencies reflecting pre-decisional

discussion of legal issues pertinent to the preparation of OLC advice and

comments on draft OLC opinions: 35,40,46, 100, 105, 106, 108, 109, and 161.

e. Communications between presidential advisers reflecting pre-decisional

deliberations: 174 (partial withholding).

36. Creating and distributing draft documents is an integral part of OLC's deliberative

and decision-making processes. Through the writing process, OLC attorneys articulate, focus,

and refine their advice and analysis. Drafts do not represent the final position or ultimate views

of OLe. To the contrary, drafts are, by their very nature, pre-decisional and deliberative. They

are part of the exchange of ideas and suggestions that accompanies sound decisionmaking, and

they reflect the preliminary assessments and suggestions of OLC attorneys. OLC attorneys

exchanged the draft documents identified above with each other and with other Executive Branch

attorneys for input, comments, edits, and suggestions. Inevitably, initial drafts of documents

differ substantially from the final versions, as attorneys adjust their analysis in response to input

from their colleagues and other Executive Branch attorneys.

37. The confidentiality of attorney notes and similar informal work product used in

the preparation and formulation oflegal advice is also integral to OLC's deliberative processes.

These documents contain attorneys' informal views and preliminary thoughts and reactions, and

Page 15 of 18

they are integral to the development of OLC's final legal advice. Similarly, attorneys' markings

and marginalia on documents are important aspects of OLC's deliberative processes. Like many

attorneys, OLC lawyers regularly mark, underline, highlight, bracket, and place comments on the

documents they write, review and edit. These markings reflect attorneys' impressions and

evaluations, and the markings highlight sections of documents for future reference.

38. As part of its deliberative process in the preparation oflegal advice for client

agencies, OLC seeks and receives input from client agencies concerning legal theories and

arguments and sometimes will share draft opinions with client agencies. OLC depends upon

these submissions and input by officials of the client agencies who have knowledge or expertise

in the relevant subject matter in order to resolve the legal questions presented for its review. The

confidentiality of these submissions allows OLC to receive candid and fully reasoned and

considered legal arguments from client agencies. Like draft opinions and informal attorney work

product, the confidentiality of these submissions is also integral to the deliberative processes of

the Office, and they are likewise protected by the deliberative process privilege.

39. Compelled disclosure of the documents listed in paragraph 34 would cause

serious harm to the deliberative processes of OLC and the Executive Branch. It is essential to

OLC's mission and the deliberative processes of the Executive Branch that the development of

OLC's considered legal advice not be inhibited by concerns about compelled public disclosure of

pre-decisional matters. Protecting from compelled disclosure the confidentiality of the

documents with respect to which OLC continues to assert Exemption Five is necessary to ensure

that Executive Branch attorneys will examine legal arguments and theories candidly, effectively,

and in writing, and to ensure that Executive Branch officials will seek legal advice from OLC on

Page 16 of 18

sensitive matters.

Presidential Communications Privilege

40. Document 174 was released on August 24,2009 with certain redactions, including

the redaction of a sentence (on page 2 and repeated on page 3 of the document) that summarizes

a pre-decisional deliberative communication between presidential advisers relating to a possible

presidential decision. OLe continues to assert Exemption Five with respect to that redacted

sentence, which is protected by the deliberative process and presidential communications

privileges.

41. The presidential communications privilege protects confidential communications

that relate to possible presidential decisionmaking and that involve the President or his senior

advisers. It is not limited to exchanges directly involving the President; it protects

communications between presidential advisers made in the course of formulating advice or

recommendations for the President. The privilege protects such communications in order to

ensure that the President's advisers may fully explore options and provide appropriate advice to

the President without concerns about compelled disclosure.

Page 17 of 18

I declare under penalty of perjury that the foregoing is true and correct.

Dated: Washington, D.C.

September 21, 2009