LEGAL DEPARTMENT National Security Project

November 28, 2012

Department of Defense OSD/JS FOIA Requester Service Center Office of Freedom of Information 1155 Defense Pentagon Washington, DC 20301-1155

U.S. Southern Command AMERICAN CIVIL LIBERTIES UNION FOUNDATION ATTN: SCPA (FOIA) NATIONAL OFFICE 125 BROAD STREET, 9301 NW 33rd St 18TH FL. Doral, FL 33172 NEW YORK, NY 10004-2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG CDR USAMEDCOM

OFFICERS AND DIRECTORS ATTN: FOIA SUSAN N. HERMAN PRESIDENT 2404 Stanley Road

ANTHONY D. ROMERO Fort Sam Houston, TX 78234-6021 EXECUTIVE DIRECTOR

Department of the Army Freedom of Information and Privacy Office 7701 Telegraph Road Casey Building, Suite 144 ATTN: JDRP-RDF Alexandria, VA 22315-3905

Department of the Navy PA/FOIA Policy Branch N09B30 2000 Navy Pentagon Washington, DC 20350-2000

Re: REQUEST UNDER FREEDOM OF INFORMATION ACT / Expedited Processing Requested

To Whom This May Concern:

This letter constitutes a request (“Request”) pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., and the Department of Defense implementing regulations, 32 C.F.R. § 286.1 et seq. The Request is LEGAL DEPARTMENT National Security Project

submitted by the American Civil Liberties Union Foundation and the American Civil Liberties Union (collectively, the “ACLU”).1

I. Requested Records

Requesters seek the release of:

Any autopsy reports, death certificates, or other final reports relating to the deaths of Adnan Farhan Abdul Latif (ISN 156), Hajji Nassim (a.k.a. “Inayatullah”) (ISN 10029), and Awal Gul AMERICAN CIVIL LIBERTIES UNION FOUNDATION (ISN 782). NATIONAL OFFICE 125 BROAD STREET, 18TH FL. With respect to the form of production, see 5 U.S.C. § 552(a)(3)(B), NEW YORK, NY 10004-2400 T/212.549.2500 the ACLU requests that responsive electronic records be provided F/212.549.2651 WWW.ACLU.ORG electronically in their native file format, if possible. Alternatively, the ACLU

OFFICERS AND DIRECTORS requests that the records be provided electronically in a text-searchable, static- SUSAN N. HERMAN PRESIDENT image format (PDF), in the best image quality in the agency’s possession, and

ANTHONY D. ROMERO that the records be provided in separate, bates-stamped files. EXECUTIVE DIRECTOR

II. Application for Expedited Processing

The ACLU requests expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E); 22 C.F.R. § 171.12(b); 28 C.F.R. § 16.5(d); 32 C.F.R. § 286.4(d)(3); and 32 C.F.R. § 1900.34(c). There is a “compelling need” for these records, as defined in the statute and regulations, because the information requested is urgently needed by an organization primarily engaged in disseminating information in order to inform the public about actual or alleged government activity. 5 U.S.C. § 552(a)(6)(E)(v); see also 22 C.F.R. § 171.12(b)(2); 28 C.F.R. § 16.5(d)(1)(ii); 32 C.F.R. § 286.4(d)(3)(ii); 32 C.F.R. § 1900.34(c)(2). In addition, the records sought relate to a “breaking news story of general public interest.” 22 C.F.R. § 171.12(b)(2)(i); 32 C.F.R. § 286.4(d)(3)(ii)(A).

1 The American Civil Liberties Union is a non-profit, 26 U.S.C. § 501(c)(4) membership organization that educates the public about the civil liberties implications of pending and proposed state and federal legislation, provides analysis of pending and proposed legislation, directly lobbies legislators, and mobilizes its members to lobby their legislators. The American Civil Liberties Union Foundation is a separate 26 U.S.C. § 501(c)(3) organization that provides legal representation free of charge to individuals and organizations in civil rights and civil liberties cases, educates the public about civil rights and civil liberties issues across the country, provides analyses of pending and proposed legislation, and mobilizes the American Civil Liberties Union’s members to lobby their legislators. LEGAL DEPARTMENT National Security Project

A. The ACLU is an Organization Primarily Engaged in Disseminating Information in Order to Inform the Public About Actual or Alleged Government Activity

The ACLU is “primarily engaged in disseminating information” within the meaning of the statute and regulations. 5 U.S.C. § 552(a)(6)(E)(v)(II); 22 C.F.R. § 171.12(b)(2); 28 C.F.R. § 16.5(d)(1)(ii); 32 C.F.R. § 286.4(d)(3)(ii); 32 C.F.R. § 1900.34(c)(2). See ACLU v. Dep’t of Justice, 321 F. Supp. 2d 24, 30 n.5 (D.D.C. 2004) (finding that a non-profit, public- interest group that “gathers information of potential interest to a segment of AMERICAN CIVIL LIBERTIES UNION FOUNDATION the public, uses its editorial skills to turn the raw material into a distinct work, NATIONAL OFFICE 125 BROAD STREET, and distributes that work to an audience” is “primarily engaged in 18TH FL. disseminating information” (internal citation omitted)); see also Leadership NEW YORK, NY 10004-2400 T/212.549.2500 Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 260 (D.D.C. F/212.549.2651 WWW.ACLU.ORG 2005) (finding Leadership Conference—whose mission is “to serve as the site

OFFICERS AND DIRECTORS of record for relevant and up-to-the-minute civil rights news and information” SUSAN N. HERMAN PRESIDENT and to “disseminate[] information regarding civil rights and voting rights to

ANTHONY D. ROMERO educate the public [and] promote effective civil rights laws”—to be “primarily EXECUTIVE DIRECTOR engaged in the dissemination of information”).

Dissemination of information about actual or alleged government activity is a critical and substantial component of the ACLU’s mission and work. The ACLU disseminates this information to educate the public and promote the protection of civil liberties. The ACLU’s regular means of disseminating and editorializing information obtained through FOIA requests include: a paper newsletter distributed to approximately 450,000 people; a bi- weekly electronic newsletter distributed to approximately 300,000 subscribers; published reports, books, pamphlets, and fact sheets; a widely read blog; heavily visited websites, including an accountability microsite, http://www.aclu.org/accountability; and a video series.

The ACLU also regularly issues press releases to call attention to documents obtained through FOIA requests, as well as other breaking news.2

2 See, e.g., Press Release, American Civil Liberties Union, Documents Show FBI Monitored Bay Area Occupy Movement (Sept. 14, 2012), available at http://www.aclu.org/node/36742; Press Release, American Civil Liberties Union, FOIA Documents Show FBI Using “Mosque Outreach” for Intelligence Gathering (Mar. 27, 2012), available at http://www.aclu.org/national- security/foia-documents-show-fbi-using-mosque-outreach-intelligence-gathering; Press Release, American Civil Liberties Union, FOIA Documents Show FBI Illegally Collecting Intelligence Under Guise of “Community Outreach” (Dec. 1, 2011), available at http://www.aclu.org/national-security/foia-documents-show-fbi-illegally-collecting-intelligence- LEGAL DEPARTMENT National Security Project

ACLU attorneys are frequently interviewed for news stories about documents released through ACLU FOIA requests.3

The ACLU website specifically includes features on information about actual or alleged government activity obtained through FOIA.4 For example, the ACLU maintains an online “ Database,” a compilation of over 100,000 FOIA documents that allows researchers and the public to conduct sophisticated searches of FOIA documents relating to government policies on rendition, detention, and interrogation.5 The ACLU also maintains a “Torture FOIA” webpage containing commentary about the ACLU’s FOIA request, AMERICAN CIVIL LIBERTIES 6 UNION FOUNDATION press releases, and analysis of the FOIA documents. (That webpage also notes NATIONAL OFFICE 125 BROAD STREET, that the ACLU, in collaboration with Columbia University Press, has published 18TH FL. NEW YORK, NY 10004-2400 T/212.549.2500 F/212.549.2651 under-guise-community; Press Release, American Civil Liberties Union, FOIA Documents from WWW.ACLU.ORG FBI Show Unconstitutional Racial Profiling (Oct. 20, 2011), available at

OFFICERS AND DIRECTORS http://www.aclu.org/national-security/foia-documents-fbi-show-unconstitutional-racial-profiling; SUSAN N. HERMAN Press Release, American Civil Liberties Union, Documents Obtained by ACLU Show Sexual PRESIDENT Abuse of Immigration Detainees is Widespread National Problem (Oct. 19, 2011), available at ANTHONY D. ROMERO EXECUTIVE DIRECTOR http://www.aclu.org/immigrants-rights-prisoners-rights-prisoners-rights/documents-obtained- aclu-show-sexual-abuse; Press Release, American Civil Liberties Union, New Evidence of

Abuse at Bagram Underscores Need for Full Disclosure About Prison, Says ACLU (June 24, 2009), available at http://www.aclu.org/national-security/new-evidence-abuse-bagram- underscores-need-full-disclosure-about-prison-says-aclu. 3 See, e.g., Carrie Johnson, Delay in Releasing CIA Report Is Sought; Justice Dept. Wants More Time to Review IG’s Findings on Detainee Treatment, Wash. Post, June 20, 2009 (quoting ACLU staff attorney Amrit Singh); Peter Finn & Julie Tate, CIA Mistaken on ‘High-Value’ Detainee, Document Shows, Wash. Post, June 16, 2009 (quoting ACLU staff attorney Ben Wizner); Scott Shane, Lawsuits Force Disclosures by C.I.A., N.Y. Times, June 10, 2009 (quoting ACLU National Security Project director Jameel Jaffer); Joby Warrick, Like FBI, CIA Has Used Secret ‘Letters,’ Wash. Post, Jan. 25,2008 (quoting ACLU staff attorney Melissa Goodman). 4 See, e.g., http://www.aclu.org/national-security/predator-drone-foia; http://www.aclu.org/national-security/anwar-al-awlaki-foia-request; http://www.aclu.org/torturefoia; http://www.aclu.org/olcmemos; http://www.aclu.org/mappingthefbi; http://www.aclu.org/national-security/bagram-foia; http://www.aclu.org/safefree/torture/csrtfoia.html; http://www.aclu.org/natsec/foia/search.html; http://www.aclu.org/safefree/nsaspying/30022res20060207.html; http://www.aclu.org/patriotfoia; http://www.aclu.org/spyfiles; http://www.aclu.org/safefree/nationalsecurityletters/32140res20071011.html; and http://www.aclu.org/exclusion. 5 http://www.torturedatabase.org/. 6 http://www.aclu.org/torturefoia/. LEGAL DEPARTMENT National Security Project

a book about the documents obtained through FOIA. See Jameel Jaffer & Amrit Singh, Administration of Torture: A Documentary Record from Washington to Abu Ghraib and Beyond (Columbia Univ. Press 2007)). Similarly, the ACLU’s webpage about the Office of Legal Counsel (“OLC”) torture memos it obtained through FOIA contains commentary and analysis of the memos; an original, comprehensive chart summarizing the memos; links to web features created by ProPublica (an independent, non-profit, investigative- journalism organization) based on the ACLU’s information gathering, research, and analysis; and ACLU videos about the memos.7 In addition to websites, the ACLU has produced an in-depth television series on civil liberties, which has AMERICAN CIVIL LIBERTIES UNION FOUNDATION included analysis and explanation of information the ACLU has obtained NATIONAL OFFICE 125 BROAD STREET, through FOIA. 18TH FL. NEW YORK, NY 10004-2400 T/212.549.2500 The ACLU plans to analyze and disseminate to the public the F/212.549.2651 WWW.ACLU.ORG information gathered through this Request. The records requested are not

OFFICERS AND DIRECTORS sought for commercial use, and the Requesters plan to disseminate the SUSAN N. HERMAN 8 PRESIDENT information disclosed as a result of this Request to the public at no cost.

ANTHONY D. ROMERO EXECUTIVE DIRECTOR B. The Records Sought Are Urgently Needed to Inform the Public About Actual or Alleged Government Activity.

These records are urgently needed to inform the public about actual or alleged government activity; moreover, the records sought relate to a breaking news story of general public interest. Specifically, the records sought relate to the deaths of Adnan Farhan Abdul Latif, Inayatullah, and Awal Gul. See 22 C.F.R. § 171.12(b)(2)(i); 32 C.F.R. § 286.4(d)(3)(ii)(A); 28 C.F.R. § 16.5(d)(1)(ii); 32 C.F.R. § 1900.34(c)(2).

The causes of Latif’s, Inayatullah’s, and Gul’s deaths have been the subject of widespread public and media attention, especially because of the increased public scrutiny on the Guantánamo facilities. See, e.g., Editorial, Death at Guantánamo Bay, N.Y. Times, Sep. 15, 2012, available at http://www.nytimes.com/2012/09/16/opinion/sunday/death-at-guantanamo- bay.html. In February 2011, reports surfaced that Gul had died, allegedly while

7 http://www.aclu.org/safefree/general/olc_memos.html. 8 In addition to the national ACLU offices, there are 53 ACLU affiliate and national chapter offices located throughout the and Puerto Rico. These offices further disseminate ACLU material to local residents, schools, and organizations through a variety of means, including their own websites, publications, and newsletters. Further, the ACLU makes archived materials available at the American Civil Liberties Union Archives at Princeton University Library. LEGAL DEPARTMENT National Security Project

exercising. See, e.g., Guantánamo Bay Terror Suspect ‘Dies After Exercising,’ BBC News, Feb. 3, 2011, available at http://www.bbc.co.uk/news/world-us- canada-12361834. In May 2011, news outlets began releasing details of Inayatullah’s apparent suicide during detention. Inayatullah’s attorneys informed the media of their client’s unstable psychiatric state while in custody. See, e.g., Reuters, Afghan Detainee is Found Dead at Guantánamo, N.Y. Times, May 18, 2011, available at http://www.nytimes.com/2011/05/19/us/19guantanamo; Margot Williams, Detainee Dies at Guantánamo, NPR (May 19, 2011), http://www.npr.org/blogs/thetwo-way/2011/05/19/136467764/detainee-dies- AMERICAN CIVIL LIBERTIES UNION FOUNDATION at-guantanamo; Carol Rosenberg, US Returns Captive’s Remains to NATIONAL OFFICE 125 BROAD STREET, , Miami Herald, May 22, 2011, available at 18TH FL. http://www.miamiherald.com/2011/05/22/2229411/us-returns-remains-of- NEW YORK, NY 10004-2400 T/212.549.2500 guantanamo.html. Over one year later, news of Latif’s death continues to spark F/212.549.2651 WWW.ACLU.ORG public debate over the treatment of detainees held at Guantánamo Bay. See,

OFFICERS AND DIRECTORS e.g., Michael Isikoff, Dead Gitmo Detainee was Cleared for Release in 2009, SUSAN N. HERMAN PRESIDENT NBC News, Sep. 11, 2011, available at

ANTHONY D. ROMERO http://worldnews.nbcnews.com/_news/2012/09/11/13808173-dead-gitmo- EXECUTIVE DIRECTOR detainee-was-cleared-for-release-in-2009; Carol Rosenberg, Dead Guantánamo Detainee Won, Then Lost Court-Ordered Release, The Miami Herald, Sep. 11, 2012, available at http://www.miamiherald.com/2012/09/11/2996888/dead-guantanamo- detainee-won-then.html; Murtaza Hussain, Chronicle of a Death Foretold, Al- Jazeera (Sep. 22, 2012), http://www.aljazeera.com/indepth/opinion/2012/09/201291872137626701.htm l; Julie Tate, Guantánamo Detainee Found Dead Had Recently Gone on Hunger Strike, Wash. Post, Sep. 11, 2012, available at http://www.washingtonpost.com/world/national-security/guantanamo- detainee-found-dead-had-recently-gone-on-hunger- strike/2012/09/11/689a660c-fc2d-11e1-8adc-499661afe377_story.html.

There also has been sustained public interest about whether there are inconsistencies in the U.S. government’s official accounts of these deaths. For example, some news reports have noted that the autopsy’s reported conclusions may conflict with previous statements by U.S. and Yemeni officials. See, e.g., Jason Leopold, Latif Autopsy Report Calls Gitmo Death a Suicide: Questions Remain, Truthout (Nov. 26, 2012), http://truth- out.org/news/item/12967-latif-autopsy-report-calls-gitmo-death-a-suicide- mystery-endures. For the same reason, the records sought also relate to a “matter of widespread and exceptional media interest in which there exist LEGAL DEPARTMENT National Security Project

possible questions about the government’s integrity which affect public confidence.” 28 C.F.R. § 16.5(d)(1)(iv); see also 32 C.F.R. § 1900.34(c)(2) (providing for expedited processing when “the information is relevant to a subject of public urgency concerning an actual or alleged Federal government activity”).

Moreover, these records are urgently needed by the public to understand the implications of indefinite detention, an issue that has been the subject of a reinvigorated debate in recent months. See, e.g., Editorial, Close Guantánamo Prison, N.Y. Times, Nov. 25, 2012, available at AMERICAN CIVIL LIBERTIES UNION FOUNDATION http://www.nytimes.com/2012/11/26/opinion/close-guantanamo-prison.html; NATIONAL OFFICE 125 BROAD STREET, Dana Liebelson, Obama Promised (Again) That He’d Close Gitmo. So Can 18TH FL. He?, Mother Jones (Nov. 13, 2012), NEW YORK, NY 10004-2400 T/212.549.2500 http://www.motherjones.com/politics/2012/11/why-obama-still-wont-close- F/212.549.2651 WWW.ACLU.ORG guantanamo-even-if-he-wants; Joseph Straw, Obama reiterates call to close

OFFICERS AND DIRECTORS Guantánamo prison, N.Y. Daily News, Oct. 18, 2012, available at SUSAN N. HERMAN PRESIDENT http://articles.nydailynews.com/2012-10-18/news/34562049_1_prison-

ANTHONY D. ROMERO purchase-guantanamo-prison-thomson-correctional-center; Room for Debate: EXECUTIVE DIRECTOR Time to End Military Tribunals?, N.Y. Times (Nov. 18, 2012), http://www.nytimes.com/roomfordebate/2012/11/18/should-obama-close- guantanamo-and-end-military-tribunals. Several media articles have raised questions about whether the policy of indefinite detention itself may have played a role in the deaths of Guantánamo detainees. See, e.g., , Another Guantánamo prisoner death highlights Democrats’ hypocrisy policy, Guardian (Sept. 11, 2012), http://www.guardian.co.uk/commentisfree/2012/sep/11/guantanamo-prisoner- death-democrats; Cora Currier, Timeline: A Guantánamo Death Foretold, ProPublica (Sept. 25, 2012), http://www.propublica.org/special/timeline-a- guantanamo-death-foretold; Baher Azmy, Op-Ed., The Face of Indefinite Detention, N.Y. Times, Sept. 14, 2012, available at http://www.nytimes.com/2012/09/14/opinion/life-and-death-at-guantanamo- bay.html. Media reports on Latif’s death have also focused on the absence of a prosecution or charge against him, another controversial hallmark of Guantánamo detentions. Jane Sutton, Yemeni prisoner who died at Guantánamo was once ordered freed, Reuters, Sept. 11, 2012, available at http://www.reuters.com/article/2012/09/11/us-usa-guantanamo-death- idUSBRE88A17920120911.

LEGAL DEPARTMENT National Security Project

For all of the above reasons, the requested documents are urgently needed to inform the public about government activity and also relate to breaking news stories of general public interest.

III. Application for Waiver or Limitation of Fees

A. Release of Records is in the Public Interest

First, the ACLU requests a waiver of search, review, and duplication fees on the grounds that disclosure of the requested records is in the public AMERICAN CIVIL LIBERTIES UNION FOUNDATION interest because it is likely to contribute significantly to public understanding of NATIONAL OFFICE 125 BROAD STREET, the operations or activities of the government and is not primarily in the 18TH FL. requester’s commercial interest. 5 U.S.C. § 552(a)(4)(A)(iii); see also 22 NEW YORK, NY 10004-2400 T/212.549.2500 C.F.R. § 171.17(a); 28 C.F.R. § 16.11(k)(1); 32 C.F.R. § 286.28(d); 32 C.F.R. F/212.549.2651 WWW.ACLU.ORG § 1900.13(b)(2).

OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIDENT Numerous news accounts reflect the considerable public interest in the

ANTHONY D. ROMERO records the ACLU seeks. See cited articles, supra Part II. Given the ongoing EXECUTIVE DIRECTOR and widespread media attention surrounding this issue, the records sought in the instant Request will significantly contribute to public understanding of the government’s operations and activities. See C.F.R. § 286.28(d); 32 C.F.R. § 1900.13(b)(2)(ii). Moreover, disclosure is not in the ACLU’s commercial interest. Any information obtained by the ACLU as a result of this FOIA request will be available to the public at no cost. Thus, a fee waiver would fulfill Congress’ legislative intent in amending FOIA. See Judicial Watch Inc. v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003) (“Congress amended FOIA to ensure that it be ‘liberally construed in favor of waivers for noncommercial requesters.’” (citation omitted)); OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, § 2 (Dec. 31, 2007) (finding that “disclosure, not secrecy, is the dominant objective of the Act”).

Indeed, the release of documents pursuant to past ACLU requests for autopsy reports, death certificates, and related investigative records has generated a significant reaction from the press and added substantively to the ongoing debate over detainee treatment abroad. To date, the ACLU has received over 150,000 pages of documents in response to such record requests, attracting prolonged and widespread attention from the public and the media. See Scott Shane, A.C.L.U. Lawyers Mine Documents for the Truth, N.Y. Times, Aug. 30, 2009; The Line Between Interrogation and Torture, LEGAL DEPARTMENT National Security Project

NPR Talk of the Nation, Oct. 9, 2007; John Hendren, Autopsies Support Abuse Allegations, L.A. Times, Oct. 25, 2005; Abuse of Iraqis Goes Beyond Abu Ghraib: Documents, ABC News, Mar. 27, 2005; Neil A. Lewis & Douglas Jehl, New Documents Show Prison Abuse in Afghanistan and Iraq, N.Y. Times, Feb. 18, 2005; R. Jeffrey Smith, Army Files Cite Abuse of Afghans, Wash. Post, Feb. 18, 2005; Neil A. Lewis, New Data Hints at Poor Review of Abuse Cases, Dec. 22, 2004; Files show more US abuse in Iraq, BBC News, Dec. 15, 2004.

B. The ACLU Qualifies as a Representative of the News Media AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, Second, the ACLU requests a waiver of search and review fees on the 18TH FL. grounds that the ACLU qualifies as a “representative of the news media” and NEW YORK, NY 10004-2400 T/212.549.2500 that the records are not sought for commercial use. 28 C.F.R. F/212.549.2651 WWW.ACLU.ORG § 16.11(c)(1)-(2), (d)(1). Accordingly, fees associated with the processing of

OFFICERS AND DIRECTORS the Request should be “limited to reasonable standard charges for document SUSAN N. HERMAN PRESIDENT duplication.” 5 U.S.C. § 552(a)(4)(A)(ii)(II); 32 C.F.R.

ANTHONY D. ROMERO § 286.28(e)(7); see also 28 C.F.R. § 16.11(d) (search and review fees shall not EXECUTIVE DIRECTOR be charged to “representatives of the news media”).

The ACLU meets the statutory and regulatory definitions of a “representative of the news media” because it is an “entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” 5 U.S.C. § 552(a)(4)(A)(ii)(III); see also Nat’l Sec. Archive v. Dep’t of Def., 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf. ACLU v. Dep’t of Justice, 321 F. Supp. 2d at 30 n.5 (finding the non-profit public interest group to be “primarily engaged in disseminating information”).

The ACLU is a “representative of the news media” for the same reasons it is “primarily engaged in the dissemination of information.” See Elec. Privacy Info. Ctr. v. Dep’t of Def., 241 F. Supp. 2d 5, 10-15 (D.D.C. 2003) (finding non-profit public interest group that disseminated an electronic newsletter and published books was a “representative of the media” for purposes of FOIA).9 The ACLU disseminates information through many

9 On account of these factors, fees associated with responding to FOIA requests are regularly waived for the ACLU. For example, in June 2011, the National Security Division of the Department of Justice granted a fee waiver to the ACLU with respect to a request for documents relating to the interpretation and implementation of a section of the USA PATRIOT Act. In October 2010, the Department of the Navy granted a fee waiver to the ACLU with respect to a request for documents regarding the deaths of detainees in U.S. custody. In January 2009, the LEGAL DEPARTMENT National Security Project

channels, including its websites, blogs, press releases, books, reports, newsletters, news briefings, fact sheets, educational brochures, pamphlets, television series, and public speaking engagements. See supra, part II. As Senator Leahy said during a debate about FOIA’s fee-waiving provisions: “[A]ny person or organization which regularly publishes or disseminates information to the public . . . should qualify for waivers as a ‘representative of the news media.’” 132 Cong. Rec. S14292 (daily ed. Sept. 30, 1986). Indeed, an ACLU affiliate recently was held to be a “representative of the news media.” ACLU of Wash. v. Dep’t of Justice, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011). AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, ***** 18TH FL. NEW YORK, NY 10004-2400 T/212.549.2500 Pursuant to applicable statutes and regulations, the ACLU expects a F/212.549.2651 WWW.ACLU.ORG determination regarding expedited processing within 10 days. See 5 U.S.C. §

OFFICERS AND DIRECTORS 552(a)(6)(E)(ii)(I); 22 C.F.R. § 171.12(b); 28 C.F.R. § 16.5(d)(4); 32 C.F.R. § SUSAN N. HERMAN PRESIDENT 286.4(d)(3); 32 C.F.R. § 1900.21(d).

ANTHONY D. ROMERO EXECUTIVE DIRECTOR If the Request is denied in whole or in part, the ACLU asks that you justify all deletions by reference to specific exemptions to FOIA. The ACLU expects the release of all segregable portions of otherwise exempt material. The ACLU reserves the right to appeal a decision to withhold any information or deny a waiver of fees.

Thank you for your prompt attention to this matter. Please furnish the applicable records to:

CIA granted a fee waiver with respect to the same request. In March 2009, the State Department granted a fee waiver to the ACLU with regard to a FOIA request submitted in December 2008. The Department of Justice granted a fee waiver to the ACLU with regard to the same FOIA request. In November 2006, the Department of Health and Human Services granted a fee waiver to the ACLU for a FOIA request. In May 2005, the United States Department of Commerce granted a fee waiver to the ACLU with respect to its request for information regarding the radio- frequency identification chips in United States passports. In March 2005, the Department of State granted a fee waiver to the ACLU with regard to a request submitted that month regarding the use of immigration laws to exclude prominent non-citizen scholars and intellectuals from the country because of their political views, statements, or associations. In addition, the Department of Defense did not charge the ACLU fees associated with FOIA requests submitted by the ACLU in April 2007, June 2006, February 2006, and October 2003. The Department of Justice did not charge the ACLU fees associated with FOIA requests submitted by the ACLU in November 2007, December 2005, and December 2004. Three separate agencies—the Federal Bureau of Investigation, the Office of Intelligence Policy and Review, and the Office of Information and Privacy in the Department of Justice—did not charge the ACLU fees associated with a FOIA request submitted by the ACLU in August 2002. LEGAL DEPARTMENT National Security Project

Alexander A. Abdo American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004

I affirm that the information provided supporting the request for expedited processing is true and correct to the best of my knowledge and belief.

AMERICAN CIVIL LIBERTIES UNION FOUNDATION Sincerely, NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 10004-2400 T/212.549.2500 F/212.549.2651 WWW.ACLU.ORG

OFFICERS AND DIRECTORS SUSAN N. HERMAN Alexander A. Abdo PRESIDENT American Civil Liberties Union Foundation ANTHONY D. ROMERO EXECUTIVE DIRECTOR 125 Broad Street, 18th Floor

New York, NY 10004 Tel: (212) 549-2517

AMERICAN CIVIL LIBERTIES UNION FOUNDATION