On April 22, 2013, the United States District Court, Northern District of California (Hon. Phyllis J. Hamilton) granted summary judgment against the Pentagon in an important Freedom of Information Act case seeking access to the names of those who train and teach at the Western Hemisphere Institute of Security Cooperation (WHINSEC), a U.S. military training school for Latin American soldiers that has long been subject to public criticism for its connection to gross human rights abuses throughout the Americas.
The school, called the U.S. Army School of the Americas (SOA) until 2000, was originally established by the U.S. Army in 1946 as the Latin American Training Center and is presently housed at Fort Benning, Georgia. It trains military leaders from countries throughout the Western Hemisphere in combat and various counter-insurgency techniques.
From 1994 to 2004, SOA/WHINSEC routinely released the names, courses, ranks, countries of origin, and dates attended for every soldier and instructor at WHINSEC upon request under the Freedom of Information Act, originally releasing attendee data going back to 1946.
SOA Watch is a non-profit advocacy organization that seeks to close SOA/WHINSEC through nonviolent protests, as well as media and legislative work. The organization compiled data and used other publicly available information, such as U.S. State Department reports, to help bring to light hundreds of cases where SOA alumni have been implicated in human rights abuses, including the formation of death squads. Eleven Latin American military dictators, including Manuel Noriega of Panama, Hugo Banzer of Bolivia and General Rios Montt of Guatemala, attended the school. Through the prior disclosures, it has also come to light that SOA graduates participated in the 2002 coup in Venezuela, and the 2009 coup in Honduras, and continue to be involved in campaigns in Columbia, Honduras and Mexico.
Members of Congress have utilized the SOA Watch database, containing over 60,000 names covering the period from 1946-2004, to make decisions about the school and other foreign policies. The data has been relevant to the analysis of whether and to what effect the government is vetting individual officers and noncommissioned officers prior to admitting them to SOA/WHINSEC. Congress also has used the data to monitor military units for human rights certification in accordance with the 1994 Foreign Operations Appropriations Act, which requires that U.S. assistance be denied to military units if the Secretary of State has credible evidence of human rights abuses by that unit, and successive amendments to the Defense Appropriations Act, extending the same restrictions to training assistance to foreign military.1
In 2000, after unsuccessful efforts by the U.S. Congress to limit SOA's funding and, separately, close the school, SOA was replaced by WHINSEC, also at Ft. Benning. The bill creating WHINSEC established a 14-member board tasked with inquiring into WHINSEC's curriculum, instruction, physical equipment, fiscal affairs, and academic methods. The board also must report to the Secretary of Defense as to whether the curriculum complies with U.S. laws and regulations, is consistent with U.S. policy goals towards Latin America and the Caribbean, and adheres to U.S. doctrine.2
Following the creation of WHINSEC, the DOD continued to release the names and military unit information to SOA Watch. Many members of Congress expressed their view to SOA Watch that until a student at WHINSEC could be tied to human rights violations, they were inclined to support the new school. In response, a San Francisco research group of SOA Watch took the names of WHINSEC graduates and instructors previously disclosed by DOD and matched those names with human rights reports prepared by the State Department and other groups. The group's findings, which documented five cases where individuals were allowed to attend WHINSEC despite existing human rights records, were presented to the office of U.S. Rep. Jim McGovern.
Soon after this report, DOD reversed its longstanding practice of releasing the names of WHINSEC attendees.
On February 6, 2012, Plaintiffs Theresa Cameranesi and Judith Liteky, members of the San Francisco research group of SOA Watch, sued DOD and U.S. Army Training and Doctrine Command, which responded to the FOIA request, in the Northern District of California seeking access to the names, military units, and other attendee information of the students and instructors of WHINSEC from 2005-2010.
On cross-motions for summary judgment, DOD claimed that the information it previously routinely disclosed under FOIA was exempt under FOIA Exemption 6, governing "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."3 It also claimed that a 2009 amendment to the Defense Authorization bill requiring disclosure of the names of students and teachers at WHINSEC for fiscal year 2009 and 2010, but which allowed the Secretary of Defense to waive the requirement if "determined to be in the national interest," qualified as an exempting statute under FOIA Exemption 3.4 Exemption 3 permits an agency to withhold matters that are "specifically exempted from disclosure by [a] statute" other than FOIA itself.5
In granting summary judgment in favor of Plaintiffs, United States District Court Judge Phyllis J. Hamilton ruled that under Exemption 6, DOD had not made a sufficient showing that "the privacy interests advanced were substantial, and had not shown through admissible evidence that the release of the information would constitute a clearly unwarranted invasion of privacy, in light of the strong public interest in access to this information as shown on the record before the court."6 In so ruling, the Court rejected DOD's argument, citing Defense Intelligence Agency assessments, that disclosure of names and military units risks exposing students and instructors to "violence and harassment."7 In addition to the intelligence assessments, DOD cited incidents of harassment of security personnel in Mexico and Columbia, unconnected to SOA/WHINSEC, after being exposed in the media; a survey of participating nations showing most either opposed disclosure or wished to reserve the right to make that decision; stigma associated with the former school; and a federal regulation and post-9-11 memorandum issued by the Secretary of State stating that DOD components shall ordinarily withhold lists of names and other personally identifying information of U.S. military or civilian personnel working for any component within DOD, among other evidence.8
In ruling that DOD had failed to establish a substantial privacy interest, the Court noted "that there is no evidence that any student or instructor at WHINSEC was promised that his/her participation in the program would be kept confidential; the fact that prior to 2004, the DOD routinely provided this same type of information in response to FOIA requests, without objection; the fact that § 1083 of the National Defense Authorization Act of 2010 provided for disclosure of the names of WHINSEC students and instructors in FY 2009 and 2010; and the fact that the identities of faculty and students at WHINSEC is not routinely kept secret or confidential by WHINSEC…"9 The Court also characterized DOD's evidence of harm as "largely speculative" given that no examples of harm to anyone from the DOD's prior disclosures was presented.10
On the other hand, the Court noted the substantial public interest in the names and military unit information sought: "[P]laintiffs have shown that there has been extensive media coverage, editorials, and scholarly works that have flowed from the prior public disclosure of the names, military units, and other information about SOA and WHINSEC personnel."11 Plaintiffs had placed before the Court 14 declarations illustrating how human rights activists, historians, educators, authors, congressional aides and Congress itself used and relied on the information compiled by SOA Watch from DOD's prior disclosures.
Addressing the Exemption 3 claim, the Court held that "DOD is not entitled to withhold the requested information … because the 'national interest' criteria for withholding under § 1083 of the National Defense Authorization Act of 2010 is insufficiently particular to qualify § 1083 as a withholding statute under that exemption."12 As noted by the Court, DOD had not specified the "national interest" that warranted waiving the requirement set forth under Section 1083 that names be disclosed for fiscal year 2009 and 2010. Instead, the DOD asserted that "the particular criteria have been met because the Secretary of Defense exercised his waiver authority over the requested information on June 16, 2010."13
A statute qualifies as a withholding statute under Exemption 3, the Court explained, where "Congress ha[s] itself made the basic decision, and ha[s] left to the administrator only the task of implementation."14 Here, Section 1083 purports "to give Secretary of Defense unbounded discretion to disclose or withhold the names of WHINSEC attendees for FY 2009 and 2010 in the 'national interest,' but provides no guidance whatsoever for the exercise of that discretion."15
While final judgment in the case has yet to be entered, on June 20, 2013, DOD filed a notice of appeal in the United States Court of Appeals for the 9th Circuit from the District Court's order.
Davis Wright Tremaine LLP partner Duffy Carolan and associate Jeff Glasser co-counseled on the case with Kent Spriggs of Spriggs Law Firm in Tallahassee, Florida.
Plaintiff Theresa Cameranesi is a member of the SOA Watch Council. She is also a member of the SOA Watch Legislative Working Group and is active in advocating for Congressional investigation of the human rights records of graduates of SOA and WHINSEC. As part of the SOA Watch San Francisco research group, she and Plaintiff Judith Liteky identified students and instructors at WHINSEC who were admitted for training even though they had been charged with human rights violations.
Plaintiff Judith Liteky has been active with SOA Watch since its founding by Rev. Fr. Roy Bourgeois in 1990 in response to the 1989 massacre in San Salvador at the University of Central America of six Jesuit priests, their housekeeper and her daughter. Nineteen of the Salvadorian military officers cited for this atrocity were alumni of the U.S. Army School of the Americas.
1 See Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1998, Pub. L. No. 105-118, § 570, 111 Stat. 2386, 2429 (1997); Dep't of Defense and Full-Year Continuing Appropriations Act, 2011, Pub. L. No. 112-10, § 8085, 125 Stat. 38, 71 (2011). These amendments are known as the Leahy Amendments, after U.S. Sen. Patrick Leahy (D-Vt.), who first introduced them in response to the growing public outcry about human rights abuses of SOA graduates.
2 See National Defense Authorization Act for Fiscal Year 2001, P.L. 106-398, § 911, 114 Stat. 165, 200 HR 4205, codified at 10 U.S.C. § 2166.
3 5 U.S.C. § 552(b)(6).
4 P.L. 111-84, § 1083, 123 Stat. 2190, 2009 HR 2647 (2009)
5 5 U.S.C. § 552(b)(3).
6 Order at 26.
7 Id. at 19.
8 Id. at 20-21.
9 Id. at 23.
11 Id. at 25.
12 Id. at 25-26.
13 Id. at 10.
14 Id. at 13 (citing American Jewish Congress v. Kreps, 574 F.2d 624, 630 (D.C. Cir. 1978)).
15 Id. at 12-13.