Partial victory in FOIA case for Durham torture investigation memos

Late yesterday, Judge J. Paul Oetken of the Southern District of New York handed down an important ruling in a Freedom of Information Act lawsuit the Times and I have been pursuing over memos about the criminal investigation into the C.I.A. torture program. The memos were written by Assistant U.S. Attorney John Durham, who oversaw the investigation, to then-Attorney General Eric Holder. They compiled his investigative findings and his recommendations. No charges were brought as a result of the case.

Durham was originally appointed in 2008 by then-Attorney General Michael Mukasey to look into the C.I.A.’s destruction of videotapes of interrogation sessions, and in 2009 Holder expanded his mandate to investigate whether the abuses of detainees that went beyond techniques the Bush Justice Department had blessed as lawful broke any laws. Durham eventually recommended no charges be brought, and his investigation ended in 2012.

We fought the lawsuit in stages. In September 2015, Judge Oetken delivered a mixed preliminary verdict. He ruled that the government could continue to withhold the the F.B.I.’s “302 reports” summarizing witness interviews and Durham’s reports about the videotape destruction, but said that the government must disclose, at least in part, Durham’s reports about detainee abuses. His reasoning turned on the fact that Holder extensively cited and expressly relied upon the latter in public statements discussing the decision not to bring charges, so the government had waived its right, under an exception to FOIA for predecisional, deliberative, and attorney-client privileged information, to keep it secret.

We then fought another round over other exceptions to FOIA. In his new ruling, Judge Oetken delivered another mixed verdict, delivering a partial victory to the government and a partial victory to us. For example a recommendation memo and parts of the declination memo fall outside the exception for secret grand jury materials, but other exemptions, including for classified information (like countries where black site prisons were located) and material that would raise personal privacy issues (like identities of witnesses and potential targets) go to the government.

Because the exceptions he said did apply to certain materials may be overlapping, it is not clear what portions of the memos the government would make public if it complied with his ruling. However, it would not be surprising if the Justice Department instead appeals to the Second Circuit.

The Times’ lawyer, David McCraw, is handling the FOIA lawsuit.