American Civil Liberties Union v. Department of Defense

The American Civil Liberties Union (ACLU) (plaintiff) filed a Freedom of Information Act request with the Department of Defense (DOD) (defendant), seeking certain information regarding detainees in the United States’ custody. Specifically, the ACLU requested documents relating to the refusal of the Central Intelligence Agency (CIA) to confirm or deny the existence of certain documents and the DOD’s withholding of photographs taken at Abu Ghraib, a United States military prison. The DOD denied production of the documents, citing numerous exemptions under the Freedom of Information Act. Specifically, the DOD provided a Glomar response and would neither confirm nor deny the existence of certain documents. The DOD also asserted that the photographs taken at Abu Ghraib allegedly showing the abuse of detainees were exempt from disclosure under the Freedom of Information Act because they could reasonably be expected to create an unwarranted invasion of personal privacy and could reasonably be expected to endanger the life and physical safety of an individual. The DOD supported its assertion by arguing that the individuals in the photographs could be identified even if the photographs were redacted and that their release could incite violence against the troops stationed in Iraq and Afghanistan. However, no factual basis for these assertions was provided. At trial, a professor at New York University challenged the DOD’s assertion and testified that he did not believe the release of the photographs would incite violence and, to the contrary, might garner additional support for the United States because of the transparency.