American Civil Liberties, Union v. Department of Justice , 808 F. Supp. 2d 280 ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
AMERICAN CIVIL LIBERTIES, )
UNION, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 10-0436 (RMC)
)
DEPARTMENT OF JUSTICE, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Alarmed at the reported use of unmanned drones to kill selected human targets in
Pakistan, Afghanistan, and elsewhere, the American Civil Liberties Union and the American Civil
Liberties Union Foundation submitted identical broad requests under the Freedom of Information
Act (“FOIA”), 5 U.S.C. § 552, to the Central Intelligence Agency, the Department of Defense, the
Department of State, the Department of Justice, and DOJ’s Office of Legal Counsel for records
documenting the alleged practice. When the CIA refused to admit or deny that it had any relevant
records, and therefore denied the FOIA request, Plaintiffs sued and cited public comments by Leon
E. Panetta, former CIA Director, to support their argument that CIA use of drones has been officially
acknowledged and that a program of drone strikes is not an intelligence activity, source or method
protectable from disclosure under FOIA Exemptions 1 and 3. Plaintiffs read the FOIA exemption
for intelligence gathering too narrowly and Mr. Panetta’s comments too broadly. Whether or not the
CIA has any relevant records, that fact is exempt from disclosure under FOIA. Summary judgment
will be granted to the CIA.
I. FACTS
Plaintiffs ACLU and ACLU Foundation followed the customary path before bringing
this dispute to court. The background facts are uncontested and are taken from the declaration of
Mary Ellen Cole, Information Review Officer for the CIA. See CIA’s Mot. for Summ. J. [Dkt. # 15]
(“CIA Mem.”), Ex. 1 (Declaration of Mary Ellen Cole (“Cole Decl.”)). In a letter to the CIA’s
Information and Privacy Coordinator on January 13, 2010 (incorrectly dated as January 13, 2009),
Plaintiffs submitted a FOIA request seeking “records pertaining to the use of unmanned aerial
vehicles (‘UAVs’)—commonly referred to as ‘drones’ and including the MQ-1 Predator and MQ-9
Reaper—by the CIA and the Armed Forces for the purpose of killing targeted individuals.” Cole
Decl., Ex. A (Jan. 13, 2010 FOIA Request) (“FOIA Request”) at 2. In particular, Plaintiffs were
seeking “information about the legal basis in domestic, foreign, and international law for the use of
drones to conduct targeted killings.” Id.By letter dated March 9, 2010, the CIA issued a final response to Plaintiffs’ request,
stating that “the CIA can neither confirm nor deny the existence or nonexistence of records
responsive to your request.” Id., Ex. B (Mar. 9, 2010 CIA Response). The CIA explained that the
“fact of the existence or nonexistence of requested records is currently and properly classified and
is intelligence sources and methods information that is protected from disclosure by section 6 of the
CIA Act of 1949, as amended.” Id. The CIA cited FOIA Exemptions 1 and 3 as the basis for its
response. Id. Plaintiffs appealed this denial on April 22, 2010. Before the appeal was decided,
Plaintiffs filed an amended complaint on June 1, 2010, adding the CIA as defendant.1 The CIA
1
Plaintiffs’ January 13, 2010 FOIA request was simultaneously submitted to the U.S.
Department of Defense, Department of Justice, DOJ’s Office of Legal Counsel, Department of State,
and CIA. Plaintiffs’ original complaint brought suit against the Departments of Defense, Justice, and
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thereafter closed the administrative appeal file.
Plaintiffs seek information on “drone strikes;” a term used by Plaintiffs (and the Court
for the sake of consistency) to mean the “targeted killing” of a human with a drone. Paraphrasing
the ten categories of information listed in the FOIA request, Plaintiffs seek records pertaining to:
1. The “legal basis in domestic, foreign and international law upon which unmanned
aerial vehicles” can be used to execute targeted killings, including who may be
targeted with this weapon system, where and why;
2. ....
3. The “selection of human targets for drone strikes and any limits on who may be
targeted by a drone strike;”
4. “[C]ivilian casualties in drone strikes,” including measures to limit civilian
casualties;
5. The “assessment or evaluation of individual drone strikes after the fact,” including
how the number and identities of victims are determined;
6. “[G]eographical or territorial limits on the use of UAVs to kill targeted individuals;”
7. The “number of drone strikes that have been executed for the purpose of killing
human targets, the location of each such strike, and the agency of the government or
branch of the military that undertook each such strike;”
8. The “number, identity, status, and affiliation of individuals killed in drone strikes;”
9. “[W]ho may pilot UAVs, who may cause weapons to be fired from UAVs, or who
may otherwise be involved in the operation of UAVs for the purpose of executing
targeted killings,” including records pertaining to the involvement of CIA personnel,
government contractors, or other non-military personnel, and;
10. The “training, supervision, oversight, or discipline of UAV operators and others
involved in the decision to execute a targeted killing using a drone.”
Cole Decl., Ex. A (Jan. 13, 2010 FOIA Request) at 5–8 (emphasis omitted). In briefing, Plaintiffs
State; the amended complaint added the CIA as co-defendant. See Am. Compl. [Dkt. # 11]. In this
Opinion, the Court addresses only Plaintiffs’ FOIA request for CIA records.
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abandoned their request of the CIA for information on category 2 and subcategory 1(B) as listed in
the FOIA request, both of which concern records on the understanding, cooperation or involvement
of foreign governments in drone strikes. See Pls.’ Opp’n & Cross-Mot. for Summ. J. [Dkts. ## 20,
21] (“Pls.’ Opp’n”) at 3.
II. LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be
granted “if the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgement as a matter of law.” FED . R. CIV . P. 56(a); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted against a party who
“after adequate time for discovery and upon motion . . . fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a
motion for summary judgment, the court must draw all justifiable inferences in the nonmoving
party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255. A
nonmoving party; however, must establish more than “the mere existence of a scintilla of evidence”
in support of its position. Id. at 252.
Federal district courts have original jurisdiction over civil actions arising under
federal statutes. See 28 U.S.C. § 1331. As Plaintiffs bring suit under FOIA, this Court has original
jurisdiction. FOIA cases are typically and appropriately decided on motions for summary judgment.
See, e.g., Rushford v. Civiletti, 485 F. Supp. 477, 481 n.13 (D.D.C. 1980); Reliant Energy Power
Generation, Inc. v. FERC, 520 F. Supp. 2d 194, 200 (D.D.C. 2007).
Jurisdiction in a FOIA case is dependent upon a showing that an agency has
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(1) improperly (2) withheld (3) agency records. U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136,
142 (1989); United We Stand America, Inc. v. IRS, 359 F.3d 595, 598 (D.C. Cir. 2004). The agency
bears the burden to demonstrate – not the requester to disprove – that it has not improperly withheld
agency records. Tax Analysts, 492 U.S. at 142 n.3. This is consistent with the purpose of FOIA
which was “enacted to facilitate public access to Government documents,” U.S. Dep’t of State v.
Ray, 502 U.S. 164, 173 (1991), in order “to pierce the veil of administrative secrecy and to open
agency action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976).
“Consistently with this purpose, as well as the plain language of the Act, the strong presumption in
favor of disclosure places the burden on the agency to justify the withholding of any requested
documents.” Ray, 502 U.S. at 173.
An agency may meet its burden solely on the basis of information provided in agency
declarations that describe “the documents and the justifications for nondisclosure with reasonably
specific detail, demonstrate that the information withheld logically falls within the claimed
exemption, and are not controverted by either contrary evidence in the record nor by evidence of
agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).
“[C]onclusory affidavits that merely recite statutory standards, or are overly vague or sweeping will
not, standing alone, carry the government’s burden.” Larson v. Dep’t of State, 565 F.3d 857, 864
(D.C. Cir. 2009). “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient
if it appears logical or plausible.” Id. at 862 (internal quotation marks omitted). Further, the “court
owes substantial weight to detailed agency explanations in the national security context.” King v.
U.S. Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). A “defendant in a FOIA action is entitled
to summary judgment if the defendant proves that it has fully discharged its obligations under the
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Act.” Reliant Energy, 520 F. Supp. 2d at 200.
The exemptions under FOIA “cover not only the content of protected government
records but also the fact of their existence or nonexistence, if that fact itself properly falls within the
exemption.” Larson, 565 F.3d at 861. Thus, an agency may refuse to confirm or deny the existence
of responsive records – an answer commonly known as a Glomar response – when “to answer the
FOIA inquiry would cause harm cognizable under an FOIA exception.” Gardels v. CIA, 689 F.2d
1100, 1103 (D.C. Cir. 1982); see also Larson, 565 F.3d at 861. A Glomar response takes its name
from the Hughes Glomar Explorer, an oceanic research vessel at issue in the case that first authorized
the government to refuse to confirm or deny the existence of records responsive to a FOIA request.
See generally Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976).
III. ANALYSIS
Neither side disputes the customary principles that govern FOIA requests to the CIA.
In this matter, the CIA has invoked FOIA Exemptions 1 and 3 to justify its Glomar response. The
CIA “invoked the Glomar response in this case because confirming or denying the existence or
nonexistence of CIA records responsive to Plaintiffs’ FOIA request would reveal classified
information that is protected from disclosure by statute. . . . [S]uch a response would implicate
information concerning clandestine intelligence activities, intelligence sources and methods, and
U.S. foreign relations and foreign activities.” Cole Decl. ¶ 12; see also ¶ 15 (“[T]he CIA asserted
a Glomar response to Plaintiffs’ request because the existence or nonexistence of CIA records
responsive to this request is a currently and properly classified fact, the disclosure of which
reasonably could be expected to cause damage to the national security. What is classified is not just
individual records themselves on a document-by-document basis, but also the mere fact of whether
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or not the CIA possesses responsive records that pertain to drone strikes.”).
A. Exemption 3
FOIA Exemption 3 authorizes the withholding of agency records on subject-matters
specifically exempted from disclosure by a non-FOIA statute, provided that such statute “(i) requires
that the matters be withheld from the public in such a manner as to leave no discretion on the issue;
or (ii) establishes particular criteria for withholding or refers to particular types of matters to be
withheld.” 5 U.S.C. § 552(b)(3). To properly invoke Exemption 3, the CIA “need only show that
the statute claimed is one of exemption as contemplated by Exemption 3 and that the withheld
material falls within the statute.” Larson, 565 F.3d at 865.
The CIA first points to the Central Intelligence Agency Act of 1949, as amended, 50
U.S.C. § 403-4 et seq. (“CIA Act”), which exempts the CIA from “any . . . law which require[s] the
publication or disclosure of the organization, functions, names, official titles, salaries, or numbers
of personnel employed by the Agency.” 50 U.S.C. § 403g. Secondly, the CIA proffers the National
Security Act of 1947, as amended, 50 U.S.C. § 401 et seq. (the “NSA”), which mandates that the
“Director of National Intelligence shall protect intelligence sources and methods from unauthorized
disclosure.” 50 U.S.C. § 403-1(i)(1). It is well-established that both statutory provisions cited by
the CIA qualify as withholding statutes for purposes of Exemption 3. See, e.g., ACLU v. U.S. Dep’t
of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011); Halperin v. CIA, 629 F.2d 144, 147 (D.C. Cir.
1980); Majed Subh v. CIA, 760 F. Supp. 2d 66, 70 (D.D.C. 2011).
1. Whether Drone Strikes Relate to “Functions” of CIA Personnel Under the
CIA Act?
The CIA claims it properly relies upon § 403g of the CIA Act to protect information
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relating to the “functions” of its personnel; that is, “information relating to its core functions – which
plainly include clandestine intelligence activities, intelligence sources and methods and foreign
liaison relationships.” Cole Decl. ¶ 41. Plaintiffs counter that the CIA presents an overbroad reading
of CIA “functions” under the statute. To be sure, the D.C. Circuit has recognized that § 403g is not
without limits: it does not sanction the CIA to “refuse to provide any information at all about
anything it does” under the guise that such information pertains to personnel “functions.” Phillippi,
546 F.2d at 1015 n.14. The provision is designed primarily to shield the CIA from having to divulge
“information about its internal structure.” Id. Accordingly, § 403g of the CIA Act offers a limited
sanctuary from the CIA’s FOIA obligations because “[o]nly the specific information on the CIA’s
personnel and internal structure that is listed in the statute will obtain protection from disclosure.”
Baker v. CIA, 580 F.2d 664, 670 (D.C. Cir. 1978).
The CIA’s Information Review Officer responds that the CIA is “charged with
carrying out a number of important functions on behalf of the United States, which include, among
other activities, collecting and analyzing foreign intelligence and counterintelligence.” Cole Decl.
¶ 13. “A defining characteristic of the CIA’s intelligence activities is that they are typically carried
out through clandestine means, and therefore they must remain secret in order to be effective.” Id.“In the context of FOIA, this means that the CIA must carefully evaluate whether its response to a
particular FOIA request could jeopardize the clandestine nature of its intelligence activities or
otherwise reveal previously undisclosed information about its sources, capabilities, authorities,
interests, strengths, weaknesses, resources, etc.” Id.“Hypothetically, if the CIA were to respond to this request by admitting that it
possessed responsive records, it would indicate that the CIA was involved in drone strikes or at least
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had an intelligence interest in drone strikes – perhaps by providing supporting intelligence, as an
example.” Id. ¶ 19. “In either case, such a response would reveal a specific clandestine intelligence
activity or interest of the CIA, and it would provide confirmation that the CIA had the capability and
resources to be involved in these specific activities.” Id. On the other hand, by revealing it had no
responsive records, that fact “would indicate that the CIA had no involvement or interest in drone
strikes.” Id. ¶ 21. “Such a response would reveal sensitive information about the CIA’s capabilities,
interests, and resources that is protected from disclosure.” Id.
The fact of the existence or nonexistence of responsive information falls within the
ambit of § 403g because whether the CIA cooperates with, is interested in, or actually directs drone
strikes pertains to (possible) functions of CIA personnel. See Riquelme v. CIA, 453 F. Supp. 2d 103,
111 (D.D.C. 2006) (accepting CIA’s argument that FOIA request seeking information relating to
CIA agents’ “activities, assistance, participation, involvement, and contacts” speaks to the
“functions” of CIA agents, protected from disclosure under § 403g). Plaintiffs’ FOIA request – sent
to multiple agencies – is clearly designed, at least in part, to determine which agencies, and its
personnel, are involved in drone strikes and in what capacities. See FOIA Request at 4 (“Reports
also suggest that in addition to Air Force and Special Forces personnel, non-military personnel
including CIA agents are making targeting decisions, piloting drones, and firing missiles . . . [i]t
appears, therefore, that lethal force is being exercised by individuals who are not in the military chain
of command.”); id. at 5 (“It is unclear who may be targeted by a drone strike, how targets are selected
. . . and who is making operational decisions about particular strikes.”); id. at 6 (seeking records
regarding “whether drones can be used by the CIA . . . in order to execute targeted killings”); id. at
7 (requesting records “pertaining to the assessment or evaluation of individual drone strikes after the
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fact,” including how the performance of those operating and involved in drone strikes is assessed);
id. at 8 (seeking records “pertaining to the involvement of CIA personnel” in drone strikes and the
piloting and operation of drones).
The CIA affidavit, which is entitled to “substantial weight,” see Frugone v. CIA, 169
F.3d 772, 775 (D.C. Cir. 1999), asserts that disclosing the existence or nonexistence of responsive
records could reveal the functions of CIA personnel, including their involvement or noninvolvement
in drone strikes and any related intelligence interest in drone strikes. See Cole Decl. ¶¶ 19–21, 41.
It could reveal functions of CIA personnel if, for instance, the CIA possessed records responsive to
the target selection categories of the request, but not the post-strike analysis and evaluation
categories, or if the CIA possessed records relevant to these categories but not to information on the
training, supervision, oversight or discipline of drone operators. And if the CIA possessed no
records responsive to these categories, it could reveal that CIA personnel were not performing any
of these potential functions related to drone strikes.
The CIA declaration offers “reasonable specificity of detail rather than merely
conclusory statements” and has not been “called into question by contradictory evidence in the
record or by evidence of agency bad faith.” Halperin, 629 F.2d at 148. “If the agency’s statements
meet this standard, the court is not to conduct a detailed inquiry to decide whether it agrees with the
agency’s opinions; to do so would violate the principle of affording substantial weight to the expert
opinion of the agency.” Id. In the end, the CIA is justifiably concerned that revealing the existence
or nonexistence of records sought on the various topics sought by Plaintiffs could alone reveal
information on the CIA’s internal structure and its capabilities and potential interests and
involvement in/operation of the drone program. Although the matter is not entirely free from doubt,
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the Court is satisfied that the CIA has properly invoked § 403g of the CIA Act to withhold this fact
under Exemption 3.
2. Whether Drone Strikes Relate to “Intelligence Sources or Methods” Under
NSA?
Whatever the ambit of § 403g of the CIA Act, the CIA correctly contends that its
Glomar response is justified because the information sought by Plaintiffs relates to “intelligence
sources and methods,” protected from disclosure under the NSA. 50 U.S.C. § 403-1(i)(1).2 Again,
Plaintiffs challenge the information withheld as not properly falling within the coverage offered by
the cited statute, here § 403-1(i)(1). Plaintiffs believe that CIA’s Glomar response must be rejected
because a program that targets certain persons for death or incapacitation cannot be deemed a means
of collecting intelligence, so that neither a source nor a method of intelligence gathering is implicated
by the fact of whether CIA has responsive records. Instead, Plaintiffs argue that they simply seek
basic information about the “scope, limits, oversight, and legal basis of this killing program.” Pls.’
Opp’n at 18. Plaintiffs attempt to cabin the realm of protectable “intelligence sources and methods”
to a concept of “foreign intelligence” analogous to “securing all possible data pertaining to foreign
governments or the national defense and security of the United States.” CIA v. Sims, 471 U.S. 159,
170 (1985) (internal quotation marks omitted).
Sims explained that through the statutory predecessor to § 403-1(i)(1) of the NSA,
Congress vested the Director of Central Intelligence3 with “very broad authority to protect all sources
2
Although § 403-1(i)(1) of the NSA provides that the “Director of National Intelligence
shall protect intelligence sources and methods from unauthorized disclosure,” the CIA may rely upon
this statutory provision to withhold records under FOIA. See, e.g., Larson, 565 F.3d at 865.
3
Per § 403-1(i)(1), the “Director of National Intelligence shall protect intelligence sources
and methods from unauthorized disclosure.” The statutory precursors to § 403-1(i)(1), i.e., 50
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of intelligence information from disclosure” and “broad power to protect the secrecy and integrity
of the intelligence process.” 471 U.S. at 168–70. In focusing more on the definition of intelligence
“sources” than “methods,” the Supreme Court rejected the D.C. Circuit’s definition of “intelligence
sources” which was limited to sources requiring confidentiality as a condition of providing
information. Id. at 168. The Supreme Court explained:
The plain meaning of the statutory language, as well as the legislative
history of the National Security Act, however, indicates that Congress
vested in the Director of Central Intelligence very broad authority to
protect all sources of intelligence information from disclosure. The
Court of Appeals’ narrowing of this authority not only contravenes
the express intention of Congress, but also overlooks the practical
necessities of modern intelligence gathering – the very reason
Congress entrusted this Agency with sweeping power to protect its
“intelligence sources and methods.”
. . . . Section 102(d)(3) [of the NSA] specifically authorizes the
Director of Central Intelligence to protect “intelligence sources and
methods” from disclosure. Plainly the broad sweep of this statutory
language comports with the nature of the Agency’s unique
responsibilities. To keep informed of other nations’ activities bearing
on our national security the Agency must rely on a host of sources.
At the same time, the Director must have the authority to shield those
Agency activities and sources from any disclosures that would
unnecessarily compromise the Agency’s efforts.
Id. at 169–70.
Accordingly, the Supreme Court held the “‘plain meaning’ of § 102(d)(3) [codified
at § 403-1(i)(1)] may not be squared with any limiting definition that goes beyond the requirement
U.S.C. § 403-3(c)(7) and 50 U.S.C. § 403(d)(3), had previously entrusted the identical responsibility
to the Director of Central Intelligence. Pursuant to the Intelligence Reform and Terrorism Prevention
Act of 2004, Pub. L. No. 108-458, the newly-created Director of National Intelligence assumed the
duties previously delegated to the Director of Central Intelligence, a position which then ceased to
exist. See, e.g., Wolf v. CIA, 473 F.3d 370, 377 n.6 (D.C. Cir. 2007); Majed Subh, 760 F. Supp. 2d
at 70 n.4. The CIA is now headed by the Director of the Central Intelligence Agency, who reports
to the Director of National Intelligence.
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that the information fall within the Agency’s mandate to conduct foreign intelligence.” Sims, 471
U.S. at 169. “Congress simply and pointedly protected all sources of intelligence that provide, or
are engaged to provide, information the Agency needs to perform its statutory duties with respect
to foreign intelligence.” Id. at 169–70. Against a congressional backdrop “highlighting the
requirements of effective intelligence operations,” id. at 172, the Court noted that Congress
authorized the CIA to protect intelligence sources and methods to ensure “the most effective
accomplishment of the intelligence mission related to the national security.” Id. (internal quotation
omitted).
At first blush, there is force to Plaintiffs’ argument that a “targeted-killing program
is not an intelligence program” in the most strict and traditional sense, the argument bolstered by the
principle that FOIA exemptions are to be narrowly construed. See Public Citizen, Inc. v. Rubber
Mfrs. Ass’n, 533 F.3d 810, 813 (D.C. Cir. 2008). Nonetheless, Plaintiffs seek too narrow a reading
of the authority conferred by the NSA to protect “intelligence sources and methods.” The “Supreme
Court has recognized the broad sweep of ‘intelligence sources’ warranting protection in the interest
of national security.” Wolf v. CIA, 473 F.3d 370, 375 (D.C. Cir. 2007); see also Fitzgibbon v. CIA,
911 F.2d 755, 760–63 (D.C. Cir. 1990). Moreover, the Sims Court warned that limiting definitions
of the NSA’s reach had “ignored[d] the realities of intelligence work, which often involves
seemingly innocuous sources as well as unsuspecting individuals who provide valuable intelligence
information.” Fitzgibbon, 911 F.2d at 760 (quoting Sims, 471 U.S. at 176). “Relying on this broad
statutory authority, and mindful of ‘the practical necessities of modern intelligence gathering,’ [Sims,
471 U.S. at 169], the Supreme Court held that the proper reading of the statute is that ‘an intelligence
source provides, or is engaged to provide, information the Agency needs to fulfill its statutory
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obligations.’” Fitzgibbon, 911 F.2d at 761 (quoting Sims, 471 U.S. at 177).
The Court has no reason to second-guess the CIA as to which programs that may or
may not be of interest implicate the gathering of intelligence, see Wolf, 473 F.3d at 377 (“The
Supreme Court gives even greater deference to CIA assertions of harm to intelligence sources and
methods under the National Security Act.”). The CIA need only “demonstrate[] that the information
withheld logically falls within the claimed exemption.” ACLU, 628 F.3d at 619; see also Fitzgibbon,
911 F.2d at 762 (explaining that in determining whether the material withheld “relates to intelligence
sources and methods . . . we accord substantial weight and due consideration to the CIA’s
affidavits”).
Ms. Cole declares that, “[i]ntelligence sources and methods are the basic practices
and procedures used by the CIA to accomplish its mission. They can include human assets, foreign
liaison relationships, sophisticated technological devices, collection activities, cover mechanisms,
and other sensitive intelligence tools.” Cole Decl. ¶ 33. Knowing whether the CIA lacks or
maintains records responsive to Plaintiffs’ FOIA request “would reveal a specific clandestine
intelligence activity or interest of the CIA, and it would provide confirmation that the CIA had the
capability and resources to be involved in these specific activities.” Id. ¶ 19. Responding to
Plaintiffs’ request, the CIA argues, would reveal whether the CIA maintains an intelligence interest
in, cooperates with, or directly operates a program of drone strikes. See id. ¶¶ 32–35, 40.
The CIA further explains that it “must do more than prevent explicit references to an
intelligence source or method; it must also prevent indirect references to such a source or method.”
Id. ¶ 35. By reviewing officially disclosed information about CIA capabilities, hostile groups “have
the capacity and ability to gather information from myriad sources, analyze it, and deduce means and
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methods from disparate details to defeat the CIA’s collection efforts.” Id. “Thus, even seemingly
innocuous, indirect references to an intelligence source or method could have significant adverse
effects when juxtaposed with other publicly-available data.” Id.
“Because ‘the purpose of national security exemptions to the FOIA is to protect
intelligence sources before they are compromised and harmed, not after,’ Halperin, 629 F.2d at 149,
‘the Director of Central Intelligence may protect all intelligence sources, regardless of their
provenance.’” Wolf, 473 F.3d at 377 (quoting Fitzgibbon v. CIA, 911 F.2d 755, 762 (D.C. Cir.
1990)). Taking into account the deference owed the CIA’s declaration in the FOIA context, the
Court finds the CIA’s justification for its concerns about unauthorized disclosure of intelligence
sources or methods to be both “logical” and “plausible.” ACLU, 628 F.3d at 619 (quoting Larson,
565 F.3d at 862).
Lastly, Plaintiffs’ argument that a program of drone strikes cannot form the basis of,
or involve, intelligence sources or methods also ignores the scope of the CIA’s specific authority to
engage in activities beyond “traditional” intelligence gathering (however defined), such as
intelligence activities and operations, covert operations, and foreign relations activities. Executive
Order 12333, as amended, includes within the CIA’s mandate the requirement that it, inter alia,
“[c]ollect . . ., analyze, produce, and disseminate foreign intelligence and counterintelligence;”
“[c]onduct counterintelligence activities;” “[c]onduct covert action activities approved by the
President;” “[c]onduct foreign intelligence liaison relationships;” and “[p]erform such other
functions and duties related to intelligence as the Director [of the Central Intelligence Agency] may
direct.” See United States Intelligence Activities, Executive Order No. 12333, 46 Fed. Reg. 59941(Dec. 4, 1981), as amended by Further Amendments to Executive Order 12333, Executive Order No.
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13470, 73 Fed. Reg. 45325, § 1.7(a) (July 30, 2008); see also 50 U.S.C. § 403-4a(d) (authorizing the
Director of the Central Intelligence Agency to, inter alia, “collect intelligence through human
sources and by other appropriate means” and “perform such other functions and duties related to
intelligence affecting the national security as the President or the Director of National Intelligence
may direct”); id. § 403-4a(f) (directing the Director of the CIA to “coordinate the relationships
between elements of the intelligence community and the intelligence or security services of foreign
governments or international organizations on all matters involving intelligence related to the
national security or involving intelligence acquired through clandestine means”).
The Supreme Court noted that the authority granted under the NSA “may not be
squared with any limiting definition that goes beyond the requirement that the information fall within
the Agency’s mandate to conduct foreign intelligence.” ACLU, 628 F.3d at 622 (quoting Sims, 471
U.S. at 169); see also Sims, 471 U.S. at 169–70 (“Congress simply and pointedly protected all
sources of intelligence that provide, or are engaged to provide, information the Agency needs to
perform its statutory duties with respect to foreign intelligence.”). It would surprise no one that the
CIA may be authorized to engage in more than gathering facts around the world; the NSA’s grant
of protection to “intelligence sources and methods” cannot be so limited. See, e.g, Riquelme, 453
F. Supp. 2d at 108–11 (finding agency’s Glomar response proper under Exemption 1 and 3 relating
to “clandestine activities” including whether CIA engaged in activities related to the ascension of
a general to power in a particular nation or participated in training of officers in the School of the
Americas).
Confirming the existence or nonexistence of pertinent agency records on drone strikes
could reasonably be expected to lead to the unauthorized disclosure of intelligence sources and/or
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methods. See Halperin, 629 F.2d at 147.4 The CIA has properly classified this fact under
§ 403-1(i)(1) of the NSA, as protected by FOIA Exemption 3.
B. Has the Agency Acknowledged the Existence of Records?
Plaintiffs next contend that former CIA Director Leon J. Panetta has officially
admitted that some or all of the requested records exist so that they are no longer FOIA exempt.
When “information has been ‘officially acknowledged,’ its disclosure may be compelled even over
an agency’s otherwise valid exemption claim.” Fitzgibbon, 911 F.2d at 765. To be officially
acknowledged: “(1) the information requested must be as specific as the information previously
released; (2) the information requested must match the information previously disclosed; and (3) the
information requested must already have been made public through an official and documented
disclosure.” ACLU, 628 F.3d at 620–21. Moreover, as the D.C. Circuit “further explained in Wolf,
‘[p]rior disclosure of similar information does not suffice; instead, the specific information sought
by the plaintiff must already be in the public domain by official disclosure. This insistence on
exactitude recognizes the Government’s vital interest in information relating to national security and
foreign affairs.’” Id. at 621 (quoting Wolf, 473 F.3d at 378). Ultimately, the “fact that information
exists in some form in the public domain does not necessarily mean that official disclosure will not
4
Plaintiffs further argue that the fact that some documents may need to be redacted does not
justify a blanket Glomar response, Pls.’ Opp’n at 18–19, which may be correct in most cases. The
CIA responds that if it had to admit the existence of responsive records, and thereby be obligated to
provide a Vaughn index – indicating the number and nature of withheld records – such disclosure
alone would reveal the depth and breadth of the CIA’s possible involvement in the drone program.
Cole Decl. ¶ 20. “If, for instance, the CIA possessed 10,000 responsive records, that might indicate
a significant CIA involvement or interest in drone strikes whereas 10 responsive records might
indicate minimal involvement or interest.” Id. “Similarly, disclosing the dates of the responsive
records would provide a timeline of the CIA’s activities that could provide a roadmap to when and
where the CIA is operating or not operating.” Id.-17-
cause harm cognizable under a FOIA exemption.” Wolf, 473 F.3d at 378. Plaintiffs bear the burden
of demonstrating that the information they seek has been officially acknowledged. See id.This question is somewhat muddled by the CIA’s stated reason for its Glomar
response, which is essentially that to respond to the FOIA request would reveal whether or not the
CIA was involved or interested in drone strike operations, in any capacity. See Cole Decl. ¶¶ 19, 22.
Plaintiffs seize on this rationale and contend that it is no longer operative because of the following
statements by then-Director Panetta which arguably acknowledged CIA involvement in drone strikes.
For instance, on May 18, 2009, Director Panetta spoke before the Pacific Council on
International Policy, and during a question and answer session, the following exchange with Director
Panetta occurred:
Q. [Audience Member] You mentioned that you believe the strategy
in Pakistan is working – the President’s strategy in Pakistan in the
tribal regions, which is the drone – the remote drone strikes. You’ve
seen the figures recently from David Kilcullen and others that the
strikes have killed 14 midlevel operatives and 700 civilians in
collateral damage. And his assessment as a counterinsurgency expert
is it’s creating more anti-Americanism than it is disrupting al-Qaeda
networks. . . . .
A. [Panetta] . . . On the first issue, obviously because these are covert
and secret operations I can’t go into particulars. I think it does suffice
to say that these operations have been very effective because they
have been very precise in terms of the targeting and it involved a
minimum of collateral damage. I know that some of the – sometimes
the criticisms kind of sweep into other areas from either plane attacks
or attacks from F-16s and others that go into these areas, which do
involve a tremendous amount of collateral damage. And sometimes
I’ve found in discussing this that all of this is kind of mixed together.
But I can assure you that in terms of that particular area, it is very
precise and it is very limited in terms of collateral damage and, very
frankly, it’s the only game in town in terms of confronting and trying
to disrupt the al-Qaeda leadership. . . . .
-18-
Pls.’ Opp’n, Ex. B (Leon Panetta Remarks at the Pacific Council on International Policy (May 18,
2009)) at 9–10.
Contrary to Plaintiffs’ argument, these comments by Director Panetta did not
officially disclose the CIA’s involvement in the drone strike program. Responding to the
questioner’s perception of the drone strikes as the “President’s strategy in Pakistan,” Director Panetta
spoke generally of his knowledge of “covert and secret operations” in Pakistan and his assessment
that those operations had been precise with minimal collateral damage. Even if Director Panetta
were speaking squarely on the issue of drone strikes, he never acknowledged the CIA’s involvement
in such program. That Director Panetta acknowledged that such a program exists and he had some
knowledge of it, or that he was able to assess its success, is simply not tantamount to a specific
acknowledgment of the CIA’s involvement in such program, nor does it waive the CIA’s ability to
properly invoke Glomar. See, e.g., Wilner v. NSA, 592 F.3d 60, 70 (2d Cir. 2009) (“[A]n agency may
invoke the Glomar doctrine in response to a FOIA request regarding a publicly revealed matter.”)5;
5
In Wilner, the Second Circuit reviewed a FOIA request for records obtained under the
Terrorist Surveillance Program (“TSP”), a clandestine program initiated after September 11, 2001,
in which the National Security Agency intercepted international communications of people with
known links to terrorist organizations without warrants or oversight by the Foreign Intelligence
Surveillance Court. 592 F.3d at 65–66. Plaintiffs’ FOIA requests sought information from the
Government on whether it had intercepted any of their communications, to which the Government
provided a Glomar response. Id. at 64. Plaintiffs argued the Glomar response was improper because
the Government had officially disclosed the existence of the TSP. The Circuit noted that the
existence of the TSP had been officially acknowledged by President George W. Bush and former
CIA Director Michael Hayden, but that the “specific methods used, targets of surveillance, and
information obtained through the program have not been disclosed.” Id. at 69–70.
The Second Circuit explained, “Here, although the public is aware that the TSP exists, the
government has found it necessary to keep undisclosed the details of the program’s operations and
scope–the subject of plaintiffs’ FOIA request in this case. The fact that the public is aware of the
program’s existence does not mean that the public is entitled to have information regarding the
operation of the program, its targets, the information it has yielded, or other highly sensitive national
-19-
Students Against Genocide v. Dep’t of State, 50 F. Supp. 2d 20, 25 (D.D.C. 1995) (“[T]here is
certainly no ‘cat out of the bag’ philosophy underlying FOIA so that any public discussion of
protected information dissipates the protection which would otherwise shield the information
sought.”); Phillippi v. CIA, 655 F.2d 1325, 1331 (D.C. Cir. 1981) (“There may be much left to hide,
and if there is not, that itself may be worth hiding.”).
Plaintiffs also quote selected statements from an interview Director Panetta gave to
the Washington Post, which was printed on March 17, 2010. The Court quotes a few paragraphs:
Relentless attacks against al-Qaida in the Pakistan tribal region
appear to have driven Osama bin Laden and other top leaders deeper
into hiding, leaving the organization rudderless and less capable of
planning sophisticated operations, CIA Director Leon Panetta said
Wednesday.
....
Panetta credited an increasingly aggressive campaign against al-Qaida
and its Taliban allies, including more frequent strikes and better
coordination with Pakistan, in a near-acknowledgment of the CIA’s
war against extremists in Pakistan. He called it “the most aggressive
operation that CIA has been involved in in our history.”
“Those operations are seriously disrupting al-Qaida,” Panetta said.
“It’s pretty clear from all the intelligence we are getting that they are
having a very difficult time putting together any kind of command
and control, that they are scrambling. And that we really do have
them on the run.”
security information that the government has continued to classify. Indeed, the fact that the TSP’s
existence has been made public reinforces the government’s continuing stance that it is necessary
to keep confidential the details of the program’s operations and scope.” Id. at 70. The Circuit
upheld the Glomar response and held that “an agency may issue a Glomar response to FOIA requests
seeking information obtained under a ‘publicly acknowledged’ intelligence program such as the
Terrorist Surveillance Program at least when the existence of such information has not already been
publicly disclosed.” Id. at 77. Similarly, even if Director Panetta had confirmed that the drone
program exists, the statements offered by Plaintiffs did not specifically acknowledge that the CIA
is involved directly or indicate whether the CIA has responsive records.
-20-
The comments came as a senior U.S. intelligence official revealed
new details of a March 8 killing of a top al-Qaida commander in the
militant stronghold of Miram Shah in North Waziristan, in Pakistan’s
autonomous tribal region. The al-Qaida official died in what local
news reports described as a missile strike by an unmanned aerial
vehicle. The CIA formally declines to acknowledge U.S.
participation in such attacks inside Pakistan territory.
Pls.’ Opp’n, Ex C (Mar. 17, 2010 Article “Al-Qaida Crippled as Leaders Stay in Hiding, CIA Chief
Says) at 1.
The Post story focused on relentless attacks targeting al-Qaida in Pakistan, and
appeared to speak to the joint efforts of the military and non-military agencies of the U.S.
Government (and perhaps even its allies) in the efforts against terrorism there. Director Panetta
merely admitted that the CIA’s operations in Pakistan, left undefined, were the most aggressive ever
undertaken by the CIA. While the story cited “more frequent strikes” as one example of the
aggressive campaign waged in Pakistan, the reference is just as easily read to describe part of a larger
campaign in Pakistan, in which the CIA played an undefined role. Furthermore, the article specified
that the CIA formally declined to acknowledge U.S. participation in the use of unmanned aerial
vehicles in Pakistan; it would be contradictory under the circumstances to read Director Panetta’s
reference to the CIA operations as a specific reference to drone strikes.
Plaintiffs argue that Director Panetta had gone “so far as to acknowledge the targets
of particular strikes.” Pls.’ Opp’n at 12. In a Wall Street Journal article on the March 8, 2010 drone
strike killing of Hussein al-Yemeni, Director Panetta commented, “We now believe that al-Yemeni,
who was one of the top 20 [al Qaeda leaders], was one of those who was hit.” Director Panetta was
also quoted as saying, “He is somebody who we believe was one of those who was involved in
providing explosives for the Khost attack.” Id., Ex D (Mar. 18, 2010 Article “Drone Kills Suspect
-21-
in CIA Suicide Bombing”) at 1. The article continued:
Killing Mr. al-Yemeni was very important to the CIA because of his
status in al Qaeda and his involvement in the Khost attack, Mr.
Panetta said. Mr Panetta didn’t speak directly to the circumstances
of the death; the CIA doesn’t discuss covert action.
“Anytime we get a high value target that is in the top leadership of al
Qaeda, it seriously disrupts their operations,” Mr. Panetta said. “No.
1 that we are not going to hesitate to go after them wherever they try
to hide, and No. 2 that we are continuing to target their leadership.”
Id. at 2.
Similarly, in speaking with ABC News, Mr. Panetta echoed the comment, stating in
response to a question about the possible whereabouts of Osama bin Laden:
But having said that, the more we continue to disrupt Al Qaida’s
operations, and we are engaged in the most aggressive operations in
the history of the CIA in that part of the world, and the result is that
we are disrupting their leadership. We’ve taken down more than half
of their Taliban leadership, of their Al Qaida leadership. We just
took down number three in their leadership a few weeks ago.
Id., Ex. E (June 27, 2010 Transcript of This Week “Jake Tapper Interviews CIA Director Leon
Panetta”) at 4.
Plaintiffs argue that these comments, together with other news stories, bar the CIA
from relying on a generalized Glomar response here; that the “fact underlying the CIA’s Glomar
response is identical to the fact officially acknowledged: that the CIA is involved in drone strikes.”
Pls.’ Opp’n at 15. Interesting as it is, Plaintiffs’ argument misperceives the applicable legal standard.
Whereas Director Panetta spoke generally, Plaintiffs fail to cite any official disclosure containing
the exact information sought by Plaintiffs. Director Panetta’s comments lacked a specific reference
to any particular CIA action except that the CIA was involved in undefined, aggressive operations
-22-
in Pakistan. In all the statements cited by Plaintiffs, Director Panetta’s references to “we” or “our”
could have just as easily referred to the joint efforts of all U.S. military and civilian resources
dedicated in Afghanistan and Pakistan. The gist of the stories was that the U.S. had al-Qaida on the
run and was disrupting its networks. Further, two of the statements cited by Plaintiffs stated
specifically that the CIA did not officially speak to covert actions.
Ultimately, Plaintiffs attempt to impose an exactitude lacking in Director Panetta’s
generalized statements. “We have noted, however, that ‘while the logic of FOIA postulates that an
exemption can serve no purpose once information … becomes public, we must be confident that the
information sought is truly public and that the requester receive no more than what is publicly
available before we find a waiver.’” Students Against Genocide v. Dep’t of State, 257 F.3d 828, 836
(D.C. Cir. 2001) (quoting Cottone v. Reno, 193 F.3d 550, 555 (D.C. Cir. 1999)).
Here, Plaintiffs seek exactly what is not publicly available – an official CIA
acknowledgment of the fact that it is or is not involved in the drone strike program. See Public
Citizen v. Dep’t of State, 11 F.3d 198, 201 (D.C. Cir. 1993) (“FOIA plaintiffs cannot simply show
that similar information has been released, but must establish that a specific fact already has been
placed in the public domain.”). Even were the public to believe this to be a foregone conclusion, the
statements cited by Plaintiffs demonstrate that the CIA has carefully and specifically refused to
acknowledge any role or interest in such program. To the contrary of demonstrating public
disclosure, the tenor, deliberate ambiguity, and explicit disclaimers of involvement in targeted
attacks in the statements cited by Plaintiffs further illustrate this point. See Wolf, 473 F.3d at 378(“The insistence on exactitude recognizes ‘the Government’s vital interest in information relating
to national security and foreign affairs.’”) (quoting Public Citizen v. Dep’t of State, 11 F.3d 198, 203
-23-
(D.C. Cir. 1993)).
Even less can it be said that Director Panetta officially confirmed the existence of CIA
records on drone strikes – which the CIA argues is the relevant inquiry here. See Def.’s Opp’n at
14. “In the Glomar context, then, if the prior disclosure establishes the existence (or not) of records
responsive to the FOIA request, the prior disclosure necessarily matches both the information at
issue–the existence of records–and the specific request for that information.” Wolf, 473 F.3d at 379;
see also Wilner, 592 F.3d at 70 (“An agency only loses its ability to provide a Glomar response when
the existence or nonexistence of the particular records covered by the Glomar response has been
officially and publicly disclosed.”). Certainly none of the comments by former Director Panetta on
which Plaintiffs rely constituted an explicit admission “that a specific record exists.” Wilner, 592
F.3d at 70.
Plaintiffs submitted ten detailed requests for records, covering the gamut from the
“legal basis” for drone strikes; the selection of human targets; civilian casualties; post-strike
assessments; limits to the use of drones; the agency of government or branch of the military
involved; the supervision, oversight, discipline, or training of drone operators and those involved in
targeting decisions, and more. There is nothing in the various statements submitted by Plaintiffs
which speaks to any records on these points; only by inference from former Director Panetta’s
statements might one conclude that the CIA might have some kind(s) of documentation somewhere.
Thus, even if former Director Panetta could be understood colloquially to have suggested some sort
of CIA involvement in drone strikes, he neither referenced specific records nor referenced records
that go to the exact requests posed by Plaintiffs.
Lastly, despite speculation or overt factual assertions of the CIA’s involvement in
-24-
drone strikes rampant in the various articles cited in Plaintiffs’ briefs, the statements of journalists,
“experts,” or even unofficial or unidentified sources (even were they CIA personnel) are not
“official” disclosures by the CIA. See Frugone v. CIA, 169 F.3d 772, 774 (D.C. Cir. 1999); ACLU,
628 F.3d at 621 (explaining that a leaked report, not released pursuant to a government
declassification process, could not be considered officially acknowledged). Ultimately, “[i]t is one
thing for a reporter or author to speculate or guess that a thing may be so or even, quoting
undisclosed sources, to say that it is so; it is quite another thing for one in a position to know of it
officially to say that it is so.” ACLU, 628 F.3d at 621–22 (quoting Alfred A. Knopf, Inc. v. Colby,
509 F.2d 1362, 1370 (4th Cir. 1975)).
Plaintiffs fail to demonstrate that the CIA has officially acknowledged either the
CIA’s involvement in a drone strike program or the existence or nonexistence of pertinent agency
records. Plaintiffs’ arguments to the contrary, the CIA has not waived its ability to issue a broad
Glomar response.
C. FOIA Exemption 1
FOIA Exemption 1 also authorizes the CIA’s Glomar response. Exemption 3 and 1
are independent exemptions; the “[p]roper invocation of, and affidavit support for, either Exemption,
standing alone, may justify the CIA’s Glomar response.” Wolf, 473 F.3d at 375; see also Gardels,
689 F.2d at 1106. Although the Court need not consider the CIA’s invocation of Exemption 1 to
affirm its Glomar response, already found proper under Exemption 3, see Larson, 565 F.3d at862–63, the Court nonetheless considers the CIA’s reliance on Exemption 1 and finds it proper.
Exemption 1 of FOIA protects matters that are “(A) specifically authorized under
criteria established by an Executive order to be kept secret in the interest of national defense or
-25-
foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C.
§ 552(b)(1); see also Larson, 565 F.3d at 861. Executive Order 13526 governs the classification of
national security information. See Classified National Security Information, Executive Order No.
13526, 75 Fed. Reg. 707 (Dec. 29, 2009) (“E.O. 13526”). Information can be properly classified
under Executive Order 13526 if four requirements are met: (1) an original classification authority
classifies the information; (2) the United States Government owns, produces, or controls the
information; (3) the information falls within one or more of eight protected categories listed in
section 1.4 of the Executive Order; and (4) the original classification authority determines that the
unauthorized disclosure of the information reasonably could be expected to result in a specified level
of damage to the national security, and the original classification authority is able to identify or
describe the damage. Id. § 1.1(a). Executive Order 13526 expressly authorizes an agency to “refuse
to confirm or deny the existence or nonexistence of requested records whenever the fact of their
existence or nonexistence is itself classified under this order or its predecessors.” Id. § 3.6(a).
Mary Ellen Cole, the Information Review Officer for the CIA’s National Clandestine
Service, holds original classification authority and has determined that “the existence or
nonexistence of [responsive] records is a currently and properly classified fact” under the control of
the U.S. Government. Cole Decl. ¶¶ 3, 5, 30. Ms. Cole explains that this fact is protected from
disclosure by § 1.4(c) and (d) of the Executive Order, which permits the classification of information
concerning “intelligence activities (including covert action), intelligence sources or methods, or
cryptology,” and “foreign relations or foreign activities of the United States, including confidential
sources,” respectively. Cole Decl. ¶ 30 (quoting E.O. 13526 § 1.4(c), (d)). Ms. Cole explains with
sufficient detail that the unauthorized disclosure of the existence or nonexistence of records
-26-
reasonably could be expected to result in specific and identifiable damage to the national security.
Through Ms. Cole’s Affidavit, the CIA has sufficiently demonstrated that disclosure
of records sought by Plaintiffs would cause damage to national security by providing insight into the
CIA’s intelligence activities, sources and methods, which are properly classifiable under § 1.4(c) of
Executive Order 13526. The Court has already determined that the records sought pertain to
“intelligence sources and methods” under the NSA; such analysis applies here as well. See infra Part
III(A)(2); Military Audit Project, 656 F.2d at 736 n.39. Information on drone strikes is even easier
to fit within the purview of intelligence activities. As the CIA states cogently, “Clandestine
intelligence techniques, capabilities, or devices are valuable only so long as they remain unknown
and unsuspected. Once an intelligence source or method (or the fact of its use in a certain situation)
is discovered, its continued successful use by the CIA is seriously jeopardized.” Cole Decl. ¶ 34.
The fact of whether or not the CIA has responsive records would reveal whether the CIA has an
interest in, or can employ, drone technology. Id. ¶ 17. “That fact could be extremely valuable to the
targets of CIA intelligence efforts, who could carry out their activities with the knowledge that the
CIA would be unable to monitor their activities using that particular technology.” Id.
Independently, the CIA also demonstrates that the fact of whether or not the CIA maintains
responsive records also implicates “foreign relations or foreign activities of the United States,
including confidential sources.” E.O. 13526 § 1.4(d). Because the CIA’s operations are conducted
almost exclusively outside the United States, they inherently involve foreign activities. See Cole
Decl. ¶ 36. “Although it is generally known that the CIA conducts clandestine intelligence
operations, identifying an interest in a particular matter or publicly disclosing a particular intelligence
activity could cause the affected or interested foreign government to respond in ways that would
-27-
damage U.S. national interests.” Id. ¶ 37. The CIA argues that to acknowledge officially whether
it has responsive records could be construed by foreign governments as an affirmation that the CIA
has operated undetected in their borders, or has taken intelligence operations against its citizens or
residents, which could adversely affect U.S. relations with such nations. See id.; cf. Afshar v. Dep’t
of State, 702 F.2d 1125, 1130–31 (D.C. Cir. 1983) (“Also, even if a fact – such as the existence of
such a liaison – is the subject of widespread media and public speculation, its official
acknowledgment by an authoritative source might well be new information that could cause damage
to the national security. Unofficial leaks and public surmise can often be ignored by foreign
governments that might perceive themselves to be harmed by disclosure of their cooperation with
the CIA, but official acknowledgment may force a government to retaliate.”).
The information sought by Plaintiffs directly “implicat[es] national security, a
uniquely executive purview.” Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 926–27 (D.C. Cir.
2003); see also Larson, 565 F.3d at 865 (“Today we reaffirm our deferential posture in FOIA cases
regarding the ‘uniquely executive purview’ of national security.”). Since the United States is at war
in Afghanistan against a guerrilla enemy disassociated from any nation or state, it surprises no one
that U.S. information concerning its enemies comes predominately from the intelligence community
and is classified and closely guarded to protect sources, covert actions and operations, U.S. agents,
related intelligence activities and methods, and any workings with foreign governments and foreign
agencies. While Plaintiffs may hold a general knowledge of the existence and use of drones, that
knowledge does not mean that the underlying intelligence efforts that reveal and guide weapons to
targets are somehow unprotected under FOIA and open to any requester.
In reviewing the CIA’s basis for anticipating harm from a non-Glomar response, the
-28-
“test is not whether the court personally agrees in full with the CIA’s evaluation of the danger –
rather, the issue is whether on the whole record the Agency’s judgment objectively survives the test
of reasonableness, good faith, specificity, and plausibility in this field of foreign intelligence in
which the CIA is expert and given by Congress a special role.” Gardels, 689 F.2d at 1105. The fact
that the public may already speak freely of the existence of drones, or speculate openly that such a
program may be directed in part or in whole by the CIA, does not emasculate the CIA’s warnings
of harm were it forced to acknowledge officially the existence or nonexistence of requested records.
Plaintiffs counter that because information on the program is “already in the public domain in whole
or in part,” i.e., “it is no secret that the CIA uses drones to target and kill individuals,” that “no
additional harm could reasonably be expected to flow from the CIA’s confirmation that it possesses
records responsive to Plaintiffs’ FOIA request.” See Pls.’ Opp’n at 20, 22–23. However, the D.C.
Circuit has foreclosed this argument: “that the information withheld by the CIA is ‘so widely
disseminated’ that it could not cause harm to national security is foreclosed by our
requirement . . . that information be ‘officially acknowledged.’” ACLU, 628 F.3d at 625. “The
‘officially acknowledged’ test recognizes that even if information exists in some form in the public
domain that does not mean that official disclosure will not cause harm cognizable under a FOIA
exemption.” Id.6 As explained above, the CIA has never officially acknowledged its involvement
in the drone program publicly.
6
Plaintiffs’ additional authority, consisting of statements by John A. Rizzo, acting general
counsel at the CIA until his retirement in 2009, does not do more: unauthorized disclosure of
classified facts does not officially disclose those facts. See Afshar, 702 F.2d at 1133–34 (noting that
books by former CIA agents, even where the books had been pre-screened and approved by the CIA,
did not constitute official and documented disclosures for purposes of waiving an exemption);
Wilson v. CIA, 586 F.3d 171, 189 (2d Cir. 2009) (“A former employee’s public disclosure of
classified information cannot be deemed an ‘official’ act of the [Central Intelligence] Agency.”).
-29-
More to the point, leaving hostile groups guessing as to the CIA’s possible interest
or involvement in, or control over, drone strikes could itself be of eminent benefit. See Military
Audit Project, 656 F.2d at 743-45 (noting that, despite widespread speculation, the lack of an
authoritative acknowledgment of a covert project’s actual purpose could itself prove beneficial by
leaving foreign agencies with “lingering doubts whether some other purpose motivated the project”);
Frugone, 169 F.3d at 775 (acknowledging CIA’s asserted benefit of Glomar response that by
denying it had records on a subject it “would lessen the burden facing a foreign intelligence agency
attempting to track the CIA’s covert activities abroad”). The CIA has met its burden of showing that
the release of any acknowledgment of responsive records could damage national security; FOIA
“bars the courts from prying loose from the government even the smallest bit of information that is
properly classified or would disclose intelligence sources or methods.” Afshar, 702 F.2d at 1130.7
Courts “have consistently deferred to executive affidavits predicting harm to the
national security, and have found it unwise to undertake searching judicial review.” Ctr. for Nat’l
Sec. Studies, 331 F.3d at 927. The Court finds that the CIA has adequately justified its Glomar
response under FOIA Exemption 1. Accordingly, the CIA is independently entitled to summary
judgment under Exemption 1.
7
The CIA also offers to supplement its unclassified declaration with a classified declaration
containing additional information were the Court to find its affidavit insufficient. The D.C. Circuit
has cautioned courts against performing in camera review of redacted information when an agency
meets its burden by affidavit. ACLU, 628 F.3d at 626. “In camera inspection is particularly a last
resort in national security situations like this case—a court should not resort to it routinely on the
theory that ‘it can’t hurt.’” Id. (quoting Larson, 565 F.3d at 870). The Court finds that it would be
neither necessary nor appropriate to take the CIA up on its offer where, as here, it has provided
specific information that the information withheld properly falls within the exemptions cited, that
this information is not contradicted in the record, and there is no evidence of agency bad faith. See
id.-30-
IV. CONCLUSION
In short, the CIA has convinced the Court that FOIA Exemptions 1 and 3 apply to any
records it might possibly have that are sought by Plaintiffs and that its Glomar response was
appropriate. The CIA’s motion for summary judgment [Dkt. # 15] will be granted, and Plaintiffs’
motion for partial summary judgment [Dkt. # 21] will be denied. A memorializing Order
accompanies this Memorandum Opinion.
Date: September 9, 2011 /s/
ROSEMARY M. COLLYER
United States District Judge
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