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

<p>A Vaughn Declaration from Wendy Hilton, CIA, relating to 171 OLC documents responsive to the ACLU's FOIA requests of October 7, 2003 and May 25, 2004. The government originally withheld 181 OLC documents in full, and Judge Hellerstein upheld those withholdings. The ACLU appealed. On April 16, 2009, while the appeal was pending, the government released 4 OLC interrogation memos to the ACLU in connection with the same FOIA requests. The government then sought remand to reprocess the original 181 OLC documents in light of the release of the 4 memos. &nbsp;David Barron's related delcaration (ACLU-RDI 4993) states that the OLC only found 171 of the original 181 OLC documents. The OLC reprocessed those documents and released approximately 43 of them on August 24, 2009. &nbsp;Hilton's and Barron's declarations explain the redaction and withholding decisions of the 171 OLC documents.</p>

Doc_type: 
Judicial
Doc_date: 
Saturday, September 19, 2009
Doc_rel_date: 
Sunday, September 20, 2009
Doc_text: 

 

SOUTHERN DISTRICT OF NEW YORK

)

AMERICAN CIVIL LIBERTIES UNION,

et al.,

)

)

)

Plaintiffs, )

)

v. ) 04 Civ. 4151 (AKH)

)

DEPARTMENT OF DEFENSE, et al., )

)

Defendants. )

)

)

AMERICAN CIVIL LIBERTIES UNION,

et al.,

)

)

)

Plaintiffs, )

)

v. ) 05 Civ. 9620 (AKH)

)

DEPARTMENT OF JUSTICE, AND ITS )

COMPONENT OFFICE OF LEGAL COUNSEL, )

)

Defendants. )

)

DECLARATION OF WENDY M. HILTON

ASSOCIATE INFORMATION REVIEW OFFICER

NATIONAL CLANDESTINE SERVICE

CENTRAL INTELLIGENCE AGENCY

I. INTRODUCTION

I, WENDY M. HILTON, hereby declare and say:

1. I continue to serve as an Associate Information

Review Officer (AIRO) for the National Clandestine Service

(NCS) of the Central Intelligence Agency (CIA) I was

appointed to this position in March 2007. I have held a

variety of positions in the CIA since I became a staff

officer in 1983.

2. The NCS is the organization within the CIA

responsible for conducting the CIA's foreign intelligence

and counterintelligence activities; conducting special

activities, including covert action; conducting liaison

with foreign intelligence and security services; serving as

the repository for foreign counterintelligence information;

supporting clandestine technical collection; and

coordinating CIA support to other federal departments and

agencies. Specifically, the NCS is responsible for the

conduct of foreign intelligence collection activities

through the clandestine use of human sources.

3. As the AIRO, I am authorized to assess the

current, proper classification of CIA information based on

the classification criteria of Executive Order 12958, as

amended,' and applicable regulations. As part of my

official duties, I ensure that determinations such as the

release or withholding of information related to the CIA

are proper and do not jeopardize CIA interests, personnel,

or facilities, and, on behalf of the Director of National

1 Executive Order 12958 was amended by Executive Order 13292. See Exec.

Order No. 13292, 68 Fed. Reg. 15315 (Mar. 28, 2003). All citations to

Exec. Order No. 12958 are to the Order as amended by Exec. Order No.

13292. See Exec. Order No. 12958, 3 C.F.R. § 333 (1995), reprinted as

amended in 50 U.S.C.A. § 435 note at 204 (West Supp. 2009).

2

Intelligence (DNI) and the Director of the CIA, do not

jeopardize CIA intelligence activities, sources, or

methods. I am able to describe, based on my experience,

the damage to the national security that reasonably could

be expected to result from the unauthorized disclosure of

classified information.

4. As a senior CIA official and under a written

delegation of authority pursuant to section 1.3(c) of

Executive Order 12958, as amended, I hold original

classification authority at the TOP SECRET level. I am

authorized, therefore, to conduct classification reviews

and to make original classification and declassification

decisions.

5. Through the exercise of my official duties, I am

familiar with this civil action. I make the following

statements based upon my personal knowledge and information

made available to me in my official capacity. I also

hereby incorporate my 13 May 2009 and 31 August 2009

declarations, as well as Director Leon Panetta's 8 June

2009 classified and unclassified declarations.

6. On January 22, 2009, President Barack Obama issued

an executive order number 13491, entitled "Ensuring Lawful

Interrogations." That order suspended all interrogation

techniques, to include Enhanced Interrogation Techniques

3

(EITs) previously used as part of the CIA's interrogation

program (program), other than those found in the United

States Army Field Manual 2-22.3 (Army Field Manual).

Subsequently, on 16 April 2009 four Office of Legal Counsel

(OLC) memoranda responsive to Plaintiff's FOIA request were

largely declassified and released in part pursuant to this

case. In light of these developments, the U.S. Government

(USG) requested remand from the Second Circuit Court of

Appeals to this Court of 321 documents which had earlier

been denied-in-full and for which this Court had ruled and

Plaintiffs had appealed. The USG sought remand so the

Agency could re-process the documents at issue to determine

if any additional information could be released in light of

the discontinuation of EITs and the declassification, in

large part, of the OLC memoranda. The remand documents

included 181 documents from the OLC that related to the

CIA's program.

7. The Agency has reevaluated the remand documents at

issue and determined that certain portions of documents

that were previously withheld in their entirety could now

be released. On 24 August 2009 the USG released, among

4

other things, 43 of the 181 previously withheld OLC

documents relating to the CIA's discontinued program. 2

8. The purpose of this declaration and accompanying

Vaughn index (attached and hereby incorporated) is to

describe, to the greatest extent possible on the public

record, the information withheld from the documents at

issue, and the FOIA exemptions upon which the CIA relied to

withhold that information. Part II of this declaration

describes the OLC documents and CIA information at issue;

Part III discusses the applicable FOIA exemptions. 3

II. OLC DOCUMENTS AND THE CIA INFORMATION AT ISSUE

9. The OLC documents at issue are primarily

documents relating to the CIA's requests for, and OLC's

provision of, legal guidance relating to the CIA's now

discontinued interrogation program. These documents

include official communications between the CIA and OLC,

draft documents prepared by OLC, which were sometimes

shared with the CIA for comment, draft CIA documents

provided to OLC for comment as part of the exchange of

information between attorney and client, emails written by

2 The USG also re-processed the CIA Office of the Inspector General

(GIG) 2004 Special Review, Items 29 and 61, and a 137 document sample

from the CIA OIG. Those documents are addressed in my 31 August

Declaration.

3 If the Court desires, the CIA is prepared to supplement this

unclassified declaration with a classified declaration containing

information that the CIA cannot file on the public record

5

OLC attorneys, memoranda and other inter-office

communications, memoranda for the record, presentations,

and handwritten notes.

10. While most of the OLC remand documents at issue

continue to be withheld in full, as no reasonably

segregable non-exempt information can be released, the OLC

has released 43 of the OLC documents in part or in full.

11. As further described below, the documents contain

information relating to the CIA's counterterrorism

operations against al-Qa'ida and affiliated groups. This

highly sensitive information details how the CIA developed

its program, coordinated with various other elements of the

United States Government, targeted and exploited

terrorists, worked with foreign entities, and developed

information for the protection of the United States.

12. The withheld information generally falls into the

following categories:

1. Information relating to intelligence sources,

methods, or collections; operational intelligence

activities; or the foreign relations and foreign

activities of the United States and that, as

described below, is protected from disclosure

under FOIA Exemption (b)(1);

6

2. Information that relates to CIA sources,

methods, functions, or the names of CIA employees

or contractors and that, as described below, is

protected from disclosure under FOIA Exemption

(b) (3);

3. Information relating to predecisional inter- and

intra-agency discussions and deliberations,

attorney-client communications, and attorney

work-product created in anticipation of

litigation that, as described below, is protected

from disclosure under FOIA Exemption (b)(5);

4. Information that relates to personnel and

similar files, the disclosure of which would

constitute a clearly unwarranted invasion of

personal privacy, and that, as described below,

is protected from disclosure under FOIA Exemption

(b)(6).

III. APPLICABLE FOIA EXEMPTIONS

A. Exemption (b) (1)

13. FOIA Exemption (b)(1) provides that FOIA does not

require the production of records that are:

(A) specifically authorized under criteria

established by an Executive order to be kept secret in

the interest of national defense or foreign policy and

7

(B) are in fact properly classified pursuant to

such Executive order.

5 U.S.C. § 552(b)(1).

14. The authority to classify information is derived

from a succession of Executive orders, the most recent of

which is Executive Order 12958. I have reviewed the

documents responsive to Plaintiffs' FOIA request under the

criteria established by Executive Order 12958. I have

determined that the information withheld from these

documents is in fact properly classified pursuant to the

Order.

1. Procedural Requirements

15. Section 6.1(h) of the Executive Order defines

"classified national security information" or "classified

information" as "information that has been determined

pursuant to this order or any predecessor order to require

protection against unauthorized disclosure and is marked to

indicate its classified status when in documentary form."

Section 6.1(y) of the Order defines "national security" as

the "national defense or foreign relations of the United

States."

16. Section 1.1(a) of the Executive Order provides

that information may be originally classified under the

8

terms of this order only if all of the following conditions

are met:

(1) an original classification authority is

classifying the information;

(2) the information is owned by, produced by or

for, or is under the control of the United States

Government;

(3) the information falls within one or more of

the categories of information listed in section 1.4 of

this order; and

(4) the original classification authority

determines that the unauthorized disclosure of the

information reasonably could be expected to result in

damage to the national security, which includes

defense against transnational terrorism, and the

original classification authority is able to identify

or describe the damage.

Exec. Order 12958, § 1.1(a).

17. Original classification authority - Section

1.3(a) of the Executive Order provides that the authority

to classify information originally may be exercised only by

the President and, in the performance of executive duties,

the Vice President; agency heads and officials designated

by the President in the Federal Register; and United States

Government officials delegated this authority pursuant to

section 1.3(c) of the Order. Section 1.3(b) of the

Executive Order provides that original TOP SECRET

classification authority includes the authority to classify

information originally as SECRET and CONFIDENTIAL. Section

9

1.3(c)(2) provides that TOP SECRET original classification

authority may be delegated only by the President; in the

performance of executive duties, the Vice President; or an

agency head or official designated pursuant to section

1.3(a)(2) of the Executive Order.

18. In accordance with section 1.3(a)(2), the

President designated the Director of the CIA as an official

who may classify information originally as TOP SECRET. 4

Under the authority of section 1.3(c)(2), the Director of

the CIA has delegated original TOP SECRET classification

authority to me. With respect to the information described

below in this declaration relating to CIA intelligence

activities, sources, and methods, I have determined that

this information is properly classified TOP SECRET, SECRET,

and/or CONFIDENTIAL by an original classification

authority.

19. U.S. Government information - Information may be

originally classified only if the information is owned by,

produced by or for, or is under the control of the USG.

With respect to the information relating to CIA

4 Order of President, Designation under Executive Order 12958, 70 Fed.

Reg. 21,609 (Apr. 21, 2005), reprinted in 50 U.S.C.A. § 435 note at 205

(West Supp. 2008). This order succeeded the prior Order of President,

Officials Designated to Classify National Security Information, 60 Fed.

Reg. 53,845 (Oct. 13, 1995), reprinted in 50 U.S.C.A. § 435 note at 486

(West 2003), in which the President similarly designated the Director

of the CIA as an official who may classify information originally as

TOP SECRET.

10

intelligence activities, sources, and methods, and foreign

relations and foreign activities, as described herein and

for which FOIA Exemption (b)(1) is asserted in this case,

that information is owned by the USG, was produced by the

USG, and is under the control of the USG.

20. Categories in Section 1.4 of the Executive Order

- With respect to the information relating to CIA

intelligence activities, sources, and methods, and foreign

relations and foreign activities, described herein and for

which FOIA Exemption (b)(1) is asserted in this case, that

information falls within the following classification

categories in the Executive Order: "information

concern[ing] . intelligence activities . [and]

intelligence sources or methods" [§ 1.4(c)]; and "foreign

relations or foreign activities of the United States"

[§ 1.4(d)]. I describe this information and its relation

to the national security below.

21. Damage to the national security - Section 1.2(a)

of the Executive Order provides that information shall be

classified at one of three levels if the unauthorized

disclosure of the information reasonably could be expected

to cause damage to the national security, which includes

defense against transnational terrorism, and the original

classification authority is able to identify or describe

11

the damage. Information shall be classified TOP SECRET if

its unauthorized disclosure reasonably could be expected to

result in exceptionally grave damage to the national

security; SECRET if its unauthorized disclosure reasonably

could be expected to result in serious damage to the

national security; and CONFIDENTIAL if its unauthorized

disclosure reasonably could be expected to result in damage

to the national security.

22. With respect to the information relating to CIA

intelligence activities, sources, and methods, and foreign

relations and foreign activities, described herein and for

which FOIA Exemption (b)(1) is asserted, I have determined

that this information is classified SECRET or TOP SECRET

because it constitutes information the unauthorized

disclosure of which reasonably could be expected to result

in serious or exceptionally grave damage to the national

security, which includes defense against transnational

terrorism. The damage to national security that reasonably

could be expected to result from the unauthorized

disclosure of this classified information is described

below.

23. Proper purpose - With respect to the information

relating to CIA intelligence activities, sources, and

methods, and foreign relations and foreign activities,

12

described herein and for which FOIA Exemption (b) (1) is

asserted, I have determined that this information has not

been classified in order to conceal violations of law,

inefficiency, or administrative error; prevent

embarrassment to a person, organization or agency; restrain

competition; or prevent or delay the release of information

that does not require protection in the interests of

national security.

24. Marking - With respect to the information

relating to CIA intelligence activities, sources, and

methods, and foreign relations and foreign activities,

described herein and for which FOIA Exemption (b)(1) is

asserted in this case, I have reviewed the documents and

have determined that they are properly marked in accordance

with section 1.6 of the Executive Order. Each document

bears on its face the SECRET or TOP SECRET classification

levels defined in section 1.2 of the order; the identity,

by name or personal identifier and position, of the

original classification authority or the name or personal

identifier of the person derivatively classifying the

document in accord with section 2.1 of the order; the

agency and office of origin, if not otherwise evident;

declassification instructions; and a concise reason for

13

classification that, at a minimum, cites the applicable

classification categories of section 1.4. 5

25. Proper classification - With respect to the

information relating to CIA intelligence activities,

sources, and methods, and foreign relations and foreign

activities, described herein, and for which FOIA Exemption

(b)(1) is asserted, I have determined that this information

has been classified in accordance with the substantive and

procedural requirements of Executive Order 12958 and that

this information is currently and properly classified.

2. Substantive Requirements

26. In processing the documents at issue, I have

reviewed the records identified as exempt under Exemption

(b) (1) in this declaration and have determined that they

contain information that is currently and properly

classified. I will describe, to the greatest extent

possible on the public record, the damage to the national

security that reasonably could be expected to result from

the unauthorized disclosure of this information.

27. In general, the documents at issue contain

information that implicates intelligence activities,

5 Some of these documents also contain markings for "Special Access

Programs," also known as "Sensitive Compartmented Information" or

"SCI." Section 4.3 of Executive Order 12958 establishes the legal

requirements for establishing SCI programs. Some of these markings are

themselves classified and were redacted from the documents at issue.

14

sources, and methods, and information relating to the

foreign relations and activities of the United States.

This information is classified, as its unauthorized

disclosure could reasonably be expected to result in

serious or exceptionally grave damage to the national

security. This information is also protected from

disclosure under the National Security Act of 1947 and the

Central Intelligence Agency Act of 1949, as discussed

below. The classified and otherwise protected information

at issue includes information concerning the capture,

detention, confinement, and interrogation of known and

suspected terrorists. The information impacting foreign

relations contained within the documents includes the

locations of CIA intelligence activities overseas and the

assistance provided by certain foreign governments in

furtherance of those activities.

a. Intelligence Activities and Methods

28. I will first provide a general description of

intelligence activities and their classified nature, and

next describe the specific information relating to

intelligence activities included in the documents at issue

that the CIA redacted or withheld in this case.

Intelligence activities refer to the actual implementation

of intelligence sources and methods in the operational

15

context. Intelligence activities are highly sensitive

because their disclosure often would reveal details

regarding specific intelligence collection activities. The

CIA is charged with both foreign intelligence and counterintelligence

collection and analysis responsibilities.

Although it is obviously widely acknowledged that the CIA

is responsible for performing activities in support of this

mission for the United States, the CIA cannot confirm or

deny the existence of any specific intelligence collection

or disclose the target of such intelligence gathering

activities.

29. To disclose the existence (or non-existence) of a

particular intelligence collection activity would reveal

U.S. intelligence needs, priorities, and capabilities to a

foreign intelligence service or hostile organization

seeking to take advantage of any national security

weakness. The damage that would be caused by such an

admission is clear. Foreign government services and

hostile organizations would be advised that their

activities and information had been targeted by the CIA;

future intelligence collection activities would be made

more difficult by such a revelation; and, as a result, the

conduct of such operations would become even more

dangerous.

16

30. Some of the redacted information at issue in this

case concerns two specific intelligence activities: (1)

the capture, detention, and confinement of terrorists; and

(2) the interrogation of terrorists.

(1) Capture, Detention, and Conditions

of Confinement

31. Some of the redacted information at issue in this

case relates to the now discontinued CIA program. As part

of this program, then-President George W. Bush authorized

the CIA to set up terrorist detention facilities outside

the United States. Even though the program has been

discontinued, many of the details of the program remain

classified. However, I will attempt to provide, to the

extent possible on the public record, more detail regarding

these specific intelligence activities of the CIA, and how

these documents relate to classified sources and methods.

32. On September 6, 2006, President Bush delivered a

speech in which he disclosed the existence of the program.

President Bush also disclosed that fourteen individuals

formerly in CIA custody had been transferred to Guantanamo

Bay. 6 Subsequently, the program was discontinued by

President Barack Obama in January 2009 and on 16 April 2009

the USG declassified certain details of the program,

Since President Bush's 6 September 2006 speech, the Government has

disclosed that two additional individuals were transferred to

Guantanamo Bay.

17

including descriptions of the enhanced interrogation

techniques in the abstract.

33. As Director Panetta explained to the Court in his

8 June 2009 unclassified and classified declarations, many

specific details of the program remain classified. These

details include information concerning: Enhanced

Interrogation Techniques (EITs) in application; assistance

of foreign entities; details concerning locations; names of

certain detainees; confinement and capture information;

information that could identify USG employees involved in

counterterrorist operations; and other operational details.

In fact, many of these details constitute TOP SECRET,

Sensitive Compartmented Information (SCI). Documents

responsive to Plaintiffs' FOIA request with these details

have been redacted or withheld in their entirety.

34. I have already described the levels of

classification outlined in Executive Order 12958. In

addition to those levels of classification, Executive Order

12958, section 4.3, provides that specified officials may

create special access programs upon a finding that the

vulnerability of, or threat to, specific information is

exceptional, and the normal criteria for determining

eligibility for access applicable to information classified

at the same level are not deemed sufficient to protect the

18

information from unauthorized disclosure. The DNI is

authorized to establish special access programs relating to

intelligence activities, sources, and methods. These

special access programs relating to intelligence are called

Sensitive Compartmented Information (SCI) programs.

35. Information that is still classified relating to

the former CIA terrorist detention program has been placed

in a TOP SECRET//SCI program to enhance protection from

unauthorized disclosure. The unauthorized disclosure of

the intelligence sources and methods relating to the

program reasonably could be expected to cause exceptionally

grave damage to national security. Specifically, and as is

discussed in greater detail in the previously-referenced

Panetta declarations, as well as the 13 May 2009 Hilton

declaration, disclosure of such information is reasonably

likely to degrade the USG's ability to effectively question

terrorist detainees and elicit information necessary to

protect the American people.

36. While the former program has been discontinued,

it is likely that the USG will continue to be involved in

debriefing terrorists consistent with the law and policies

of the United States. An effective program to obtain

intelligence through questioning terrorists requires the

cooperation of foreign governments and the use of effective

19

elicitation techniques. As Director Panetta described in

his aforementioned declarations, unauthorized disclosure of

the details of the former program would likely undermine

both of these requirements and reasonably could be expected

to result in exceptionally grave damage to the national

security.

(2) Interrogation Methods, and Intelligence Collection

37. The USG is aware that al-Qa'ida and other

terrorists train in counter-interrogation methods. Public

disclosure of the questioning procedures and methods used

by the CIA as part of the discontinued detention program

would allow al-Qa'ida and other terrorists to more

effectively train to resist such elicitation techniques,

which would result in degrading the effectiveness of

intelligence gathering in the future. If detainees in USG

custody are more fully prepared to resist elicitation, it

could prevent the USG from obtaining vital intelligence

that could disrupt future attacks targeting U.S. persons

and property. These elicitation methods are integral to

the USG's intelligence gathering and are therefore

classified TOP SECRET//SCI.

38. Although certain instances of intelligence gained

through interrogation methods have been publicly disclosed

by the USG, the withheld information remains classified.

20

Intelligence information gained through interrogation is

currently used by the USG to conduct counterterrorism

operations and pursue terrorists. If the CIA were to

reveal intelligence information gained through its use of

interrogation methods, the information would no longer be

useful in counterterrorism efforts.

b. Foreign Relations and Foreign Activities

of the United States

39. Among the most critical sources and methods in

the collection of foreign intelligence are the

relationships that the United States maintains with the

intelligence and security services of foreign countries.

Through these intelligence liaison relationships, the CIA

can collect intelligence and provide to national security

and foreign policy officials information that is critical

to informed decision making -- information that the CIA

cannot obtain through other sources and methods.

40. As such, the CIA has determined that unauthorized

disclosure of information which reasonably could be

expected to harm foreign relations or foreign activities of

the United States, is currently and properly classified as

SECRET and/or TOP SECRET pursuant to the criteria of

Executive Order 12958, as its disclosure could reasonably

be expected to cause serious and exceptionally grave damage

21

to the national security of the United States, and is thus

exempt from disclosure pursuant to FOIA Exemption (b)(1).

41. Foreign governments have provided critical

assistance to CIA counterterrorism operations, under the

condition that their assistance is kept secret. As

Director Panetta explained in his 8 June 2009 declarations,

disclosing information concerning the specific assistance

of foreign countries to the CIA's counterterrorism

operations would damage the CIA's relations with these

foreign governments and could cause them to cease

cooperating with the CIA on such matters. Such information

has therefore been withheld from the documents at issue.

If the United States demonstrates that it is unwilling or

unable to stand by its secrecy commitments to foreign

governments, they will be less willing to cooperate with

the United States on counterterrorism activities.

42. While the OLC documents that have been released

in part on remand reveal some information concerning the

program, the releases are circumscribed. The information

released in the OLC documents primarily concerns the

historical genesis of the program, its legal and factual

underpinnings, and limited examples of inter- and intraagency

discussion. Some of the information withheld from

these documents is the same kind of operational information

22

described in the aforementioned Panetta Declarations. For

this reason, despite the recent releases, the withheld

information cannot be disclosed and must remain exempt from

disclosure under FOIA Exemption (b)(1).

B. Exemption (b) (3)

43. FOIA Exemption (b)(3) provides that the FOIA does

not apply to matters that are:

specifically exempted from disclosure by statute

(other than section 552b of this title), provided that

such statute

(A) requires that the matters be withheld

from the public in such a manner as to leave no

discretion on the issue, or

(B) establishes particular criteria for

withholding or refers to particular types of

matters to be withheld . .

5 U.S.C. § 552(b)(3). The CIA has reviewed the documents

responsive to Plaintiffs' FOIA Request and determined that

there are two relevant withholding statutes: the National

Security Act of 1947 and the Central Intelligence Agency

Act of 1949.

44. National Security Act of 1947 - Section

102A(i)(1) of the National Security Act of 1947, as

amended, 50 U.S.C.A. § 403-1(i)(1) (West Supp. 2008),

provides that the DNI shall protect from unauthorized

disclosure intelligence sources and methods. Where

documents at issue contain information that, if disclosed,

23

would reveal intelligence sources and methods, that

information is protected from disclosure by both Exemption

b(1) and Exemption b(3).

45. Central Intelligence Agency Act of 1949 - Section

6 of the Central Intelligence. Agency Act of 1949, as

amended, 50 U.S.C.A. § 403g (West Supp. 2008), provides

that in the interests of the security of the foreign

intelligence activities of the United States and in order

to further implement section 403-1(i) of Title 50, which

provides that the DNI shall be responsible for the

protection of intelligence sources and methods from

unauthorized disclosure, the CIA shall be exempted from the

provisions of any law which requires the publication or

disclosure of the organization, functions, names, official

titles, salaries, or numbers of personnel employed by the

CIA, including, as discussed in my unclassified 13 May 2009

declaration, paid and unpaid contractors and consultants of

the CIA. Among the functions of the CIA are the

collection, analysis, and dissemination of foreign

intelligence. The collection function includes the

clandestine intelligence sources, methods, and activities

by which the CIA collects foreign intelligence from human

sources. In this case, the information withheld from the

documents at issue includes details of critical functions

24

of the CIA and information that could reveal the identities

of CIA personnel engaged in counterterrorist operations.

As described above, each classified category of information

contained in the documents at issue relates primarily to

the CIA's ability to collect counterterrorism intelligence

and perform counterterrorism operations--functions that

reside at the core of the CIA's mission.

46. In contrast to Executive Order 12958, the

National Security Act's statutory requirement to protect

intelligence sources and methods and the CIA Act's

exemptions from disclosure of certain information do not

require the CIA to identify or describe the damage to

national security that reasonably could be expected to

result from their unauthorized disclosure. In any event,

the information relating to intelligence sources and

methods in these documents that is covered by the National

Security Act and the CIA Act is the same as the information

relating to intelligence sources and methods that is

covered by the Executive Order for classified information.

Therefore, the damage to national security that reasonably

could be expected to result from the unauthorized

disclosure of such information relating to intelligence

sources and methods is co-extensive with the damage that

25

reasonably could be expected to result from the

unauthorized disclosure of classified information.

C. Exemption (b) (5)

47. FOIA Exemption (b)(5) provides that FOIA does not

apply to inter-agency or intra-agency memoranda or letters

that would not be available by law to a private party in

litigation with the agency. The documents identified as

exempt under Exemption (b)(5) on the attached Vaughn index

are intra-agency or inter-agency records that contain

information that is protected from disclosure by three

privileges, described below.

48. Attorney work -product - The attorney work product

privilege protects information, mental impressions, legal

analysis, conclusions, and opinions prepared by attorneys

or other representatives of a party in anticipation of

criminal, civil, or administrative proceedings. Documents

for which the work product privilege has been asserted, as

specified in the attached Vaughn index, include written

communications from CIA to OLC seeking legal advice to,

among other things, protect the Agency and Agency personnel

from potential criminal, civil, or administrative

litigation stemming from participation in the program.

This advice was not solicited in the ordinary course of

business. Rather, the requests for advice were solicited

26

in anticipation of future criminal, civil or administrative

proceedings.

49. Similarly certain documents described on the

Vaughn reflect CIA attorneys' analysis, thoughts, opinions,

mental impressions, and/or advice regarding the legal

implications of certain operational aspects of the program.

These documents similarly were prepared, in part, in

anticipation of potential civil, criminal and

administrative proceedings. As subsequent events have

shown, this anticipation was not unwarranted. The records

at issue were created with the expectation that they would

be held in confidence, and they have been held in

confidence. Accordingly, they are properly withheld

pursuant to the attorney work product privilege.

50. Attorney-client - The attorney-client privilege

protects confidential communications between a client and

his attorney relating to a matter for which the client has

sought legal advice. The records described on the attached

Vaughn index for which the CIA has asserted the attorneyclient

privilege contain confidential communications

between CIA staff and the CIA's legal advisors, including

both attorneys within the CIA's Office of General Counsel

and attorneys with DOJ, acting in their capacity as legal

advisors to the CIA. These communications relate to

27

matters for which the attorneys provided legal advice to

the CIA. Some of this legal advice was based upon, and

reflects, confidential facts provided by the CIA to its

attorneys. These documents were prepared by and at the

direction of the CIA or OLC attorneys, with the joint

expectation of the attorneys and CIA or OLC staff that they

would be held in confidence. Moreover, these documents

have been held in confidence.

51. Deliberative process - Exemption (b)(5) has been

construed to incorporate the civil discovery concept that

information or documents of pre-decisional, deliberative

process are exempt from disclosure. The deliberative

process privilege protects the internal deliberations of

the government by exempting from release those

recommendations, analyses and discussions - both factual

and legal - prepared to inform or in anticipation of

decision-making. The integrity of the government's

deliberative process, not just the documents themselves, is

protected by this privilege.

52. Some of the records specified on the attached

Vaughn index are protected by the deliberative process

privilege because they each contain information that

reflects the pre-decisional deliberations of CIA and other

executive branch officials. For example, as described on

28

the attached Vaughn index, these records reflect predecisional

discussions between executive branch officials

regarding possible approaches to take with respect to

outstanding policy issues; candid internal discussions

between CIA and OLC staff regarding legal issues related to

policy; non-final drafts; working papers; briefing papers;

recommendations; legal advice; requests to DOJ for legal

advice and the resulting dialogue between DOJ and CIA; and

recommendations for actions to policymakers. These records

were all solicited, received or generated as part of the

process by which policy is formulated, either by the CIA,

OLC, or by other executive branch officials. Disclosure of

this information would therefore reveal the pre-decisional

deliberations of executive branch officials.

53. The deliberative process privilege also protects

the factual information contained in these documents to the

extent that the particular facts contained in these drafts,

working papers, briefing papers, recommendations, requests

for advice, and other similar documents were identified,

extracted, and highlighted out of other potentially

relevant facts and background materials by the authors, in

the exercise of their judgment. Accordingly, the

disclosure of the facts that were selected for inclusion in

drafts, briefing materials, recommendations, advice or

29

other such documents would themselves tend to reveal the

author's and the agency's deliberative process.

54. Because the officials involved in these predecisional

deliberations expected that their candid

discussions and recommendations regarding sensitive

national security issues would remain confidential, release

of these records would discourage open and frank

discussions among executive branch officials in the future,

thereby threatening the confidence needed to ensure the

candor of future USG deliberations. Such information is

therefore properly exempt from disclosure under Exemption

(b)(5).

D. Exemption (b)(6)

55. FOIA Exemption (b)(6) provides that the FOIA does

not apply to personnel and similar files, the disclosure of

which would constitute a clearly unwarranted invasion of

personal privacy. Information from the documents at issue

that is personally identifying information has been

withheld, as the disclosure of that information would

constitute a clearly unwarranted invasion of personal

privacy. Disclosing information that could identify USG

employees, contractors, and other personnel engaged in

clandestine counterterrorism operations could place those

individuals, and their families and friends, at grave risk

30

from extremists seeking retribution. There is no

legitimate countervailing public benefit that could come

close to outweighing this paramount concern to protect U.S.

Government employees and their associates.

E. Segregability

56. As described previously, the OLC has released

some documents, in whole or in part, in response to

Plaintiffs' FOIA request. With respect to the records

released in part, I conducted a line-by-line review of

these documents to identify and release all reasonably

segregable, non-exempt portions of the documents. Based on

this review, I determined that the information released to

Plaintiffs could be released in segregable form while the

remaining information is exempt from disclosure under FOIA

exemptions (b)(1), (b)(3), b(5), and b(6) as explained

above.

IV. CONCLUSION

57. For the reasons described above, information from

the documents at issue has been withheld in whole or in

part on the basis of FOIA exemptions (b)(1), (b)(3),

(b) (5), and b(6).

* * *

31

I hereby declare under penalty of perjury that the

foregoing is true and correct.

Executed this i day of September, 2009.

Wendy M Hi ton

Associ to Information Review Officer

National Clandestine Service

Central Intelligence Agency

 

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