Bassiouni, Mahmoud C v. CIA

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2258
MAHMOUD CHERIF BASSIOUNI,
Plaintiff-Appellant,
v.
CENTRAL INTELLIGENCE AGENCY,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 02 C 4049—Charles R. Norgle, Sr., Judge.
____________
ARGUED OCTOBER 26, 2004—DECIDED DECEMBER 8, 2004
____________
Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. Professor M. Cherif
Bassiouni, a member of DePaul Law School’s faculty since
1964, is the head of DePaul’s International Human Rights
Law Institute and a frequent participant in human-rights
activities sponsored by the United States, the European
Union, and the United Nations. In 1983 Bassiouni asked
the Central Intelligence Agency for copies of all documents
that mention him. The agency replied that it had some but
would not reveal any details. In 1999 Bassiouni tried again,
invoking both the Freedom of Information Act and the
Privacy Act. Again the agency replied that it has documents
2 No. 04-2258
bearing his name. Some of these, the CIA stated, had come
from the State Department, to which it dispatched copies.
The State Department’s catalog and partial disclosure of
those copies satisfies Bassiouni. But he is dissatisfied with
the CIA’s refusal to hand over or even describe documents
it generated internally or received from sources other than
the State Department. The district court concluded that the
CIA is entitled to keep mum. 2004 U.S. Dist. LEXIS 5290
(N.D. Ill. Mar. 30, 2004).
Both the FOIA and the Privacy Act contain exceptions for
classified information. 5 U.S.C. §552(b)(1) (FOIA); 5 U.S.C.
§552a(k) (Privacy Act). (Exemption 3, see §552(b)(3), like-
wise covers properly classified documents in light of the
National Security Act, 50 U.S.C. §403, see CIA v. Sims, 471
U.S. 159 (1985), but we need not discuss it given exemption
1.) The Privacy Act also allows the CIA to exempt by
regulation records in its possession. See 5 U.S.C. §552a(j)(1).
The agency has used this authority, see 32 C.F.R. §1901.62,
which leads Bassiouni to direct his fire against the CIA’s
invocation of exemptions to the FOIA. The agency does not
contend that the contents of all documents mentioning
Bassiouni are classified; it could hardly do so, given not
only its refusal to identify which documents it holds but
also the certainty that its files contain many U.N. reports,
newspaper clippings, and other non-classified materials.
Instead the agency maintains that providing a list of the
documents that mention Bassiouni, and claiming document-
by-document exemptions for those whose contents are
classified, would reveal details about intelligence-gathering
methods. These methods are classified independently of the
information in materials the CIA collects. See Executive
Order 12958 §1.5(c), (d), 60 Fed. Reg. 19825, 19827 (April 20,
1995). (Since this suit began, E.O. 12958 has been superseded
by Executive Order 13292, 68 Fed. Reg. 15315 (Mar. 28,
2003), but the substantive criteria pertinent to Bassiouni’s
situation are unchanged. See 68 Fed. Reg. 15317.)
No. 04-2258 3
It is easy to appreciate the basis of this concern. A list of
documents could show clusters of dates that reveal when
the agency acquired the information. Knowing which docu-
ments entered the files, and when, could permit an astute
inference how the information came to the CIA’s attention—
and, in the intelligence business, “how” often means “from
whom.” A Vaughn index (named after Vaughn v. Rosen, 484
F.2d 820 (D.C. Cir. 1973)) thus could blow an agent’s cover.
Painstaking analysis of the patterns reflected in the agen-
cy’s holdings might reveal that the person named in the
request is himself a source of information. That would not
be worrisome if people could request information only about
themselves; Bassiouni knows whether he has ever been
on the CIA’s payroll (or has provided unpaid assistance).
But any member of the public may invoke the FOIA, and
the agency must disregard the requester’s identity. See
Department of Justice v. Reporters Committee for Freedom
of the Press, 489 U.S 749, 771 (1989); NLRB v. Sears,
Roebuck & Co., 421 U.S 132, 149 (1975). Thus any informa-
tion available to Bassiouni is available to North Korea’s
secret police and Iran’s counterintelligence service too. These
and other hostile entities would be greatly interested in
learning who is assisting the CIA. Even allies could be un-
pleasantly surprised by information that discloses espion-
age operations. And when the dates, numbers, and general
subjects of documents (the information required in a Vaughn
index) would not help anyone learn who supplied the infor-
mation, it could help them learn how the CIA is deploying
its resources and what subjects it is investigating; that
knowledge could be useful to both nations and terrorists.
Because lists of documents could assist foreign intelli-
gence services—whose powers of inference and deduction
rise with their own stock of information, which helps them
to identify patterns that professors, newspaper reporters,
and judges may miss—the CIA refuses to reveal its hold-
ings. It does this even when disclosure could be innocuous.
4 No. 04-2258
There are two risks in disclosing when the request is harm-
less (as Bassiouni’s may well be) and keeping silent when
the CIA sees a danger. The first risk is that whoever makes
the decision on behalf of the CIA may miss some clue that
foreign intelligence services would catch, and thus inadver-
tently reveal secrets. The second risk is that people would
draw an inference from disparate treatment: if, for example,
the CIA opens its files most of the time and asserts the
state-secrets privilege only when the information concerns
a subject under investigation or one of its agents, then the
very fact of asserting the exemption reveals that the
request has identified a classified subject or source. When
a pattern of responses itself reveals classified information,
the only way to keep secrets is to maintain silence uni-
formly. And this is what the CIA has done. Today the
agency’s silence is called a “Glomar response,” taking its
name from the Hughes Glomar Explorer, a ship built (we
now know) to recover a sunken Soviet submarine, but dis-
guised as a private vessel for mining manganese nodules
from the ocean floor. See Phillippi v. CIA, 546 F.2d 1009
(D.C. Cir. 1976). Every appellate court to address the issue
has held that the FOIA permits the CIA to make a “Glomar
response” when it fears that inferences from Vaughn indexes
or selective disclosure could reveal classified sources or
methods of obtaining foreign intelligence. See, e.g., Frugone
v. CIA, 169 F.3d 772 (D.C. Cir. 1999); Minier v. CIA, 88 F.3d
796 (9th Cir. 1996).
Bassiouni does not take issue with these decisions. In-
stead he contends that the CIA waived its right to make a
Glomar response when it revealed that its files contain at
least one document bearing his name. Instead of responding
to the 1999 request with stony silence, the CIA conceded
again that it had some responsive documents and made what
it calls a “no number, no list” response, which amounts to
the same thing: the requester gets no details. How this can
be a “waiver” we do not grasp. See Sims, 471 U.S. at 180;
No. 04-2258 5
Stein v. Department of Justice, 662 F.2d 1245, 1259 (7th
Cir. 1981). The risk to intelligence sources and methods
comes from the details that would appear in a Vaughn in-
dex; it is these details—both the documents that appear in
a list and the documents that the CIA might have gathered
but did not—that permit crafty observers to infer what the
CIA is investigating, what it has overlooked, and how (and
from whom) it gleans information. Bassiouni does not
contend that the statement “we have some responsive docu-
ments” let the cat out of the bag. Both the first response
and the second response leave to the imagination whether
there is a cat to let out. The public is as much in the dark
about the agency’s sources and methods as it ever was. And
Bassiouni is better off under a system that permits the CIA
to reveal some things (such as the documents routed to the
State Department) without revealing everything; if even a
smidgen of disclosure required the CIA to open its files,
there would be no smidgens. See Public Citizen v. Depart-
ment of State, 11 F.3d 198, 203 (D.C. Cir. 1993).
Perhaps it would be best to jettison the distinction between
a “Glomar response” (refusing to acknowledge whether the
CIA has even one responsive document) and a “no number,
no list response” (acknowledging that the CIA has at least
one responsive document but refusing to elaborate). Neither
name has any magic; the statute and the executive order in
combination, not the CIA’s nomenclature, are dispositive.
Because it is the details that could tip the agency’s hand,
they are what matter. From now on, a “Bassiouni response”
could cover both situations, which are legally identical.
Indeed, unless the CIA is willing to concede that its records
system is like a roach motel—papers go in, but they don’t
come out—disclosure that the agency had some documents
identifying a person in Year t does not imply that it still has
them in Year t + n. The agency therefore could have made
a flat Glomar response to Bassiouni’s 1999 request. This
shows that the Glomar response and the no number, no list
6 No. 04-2258
response are functionally identical and implies that the
verbal distinction should be eliminated, lest it confuse or
mislead requesters and judges into thinking that something
depends on the turn of phrase.
Bassiouni advances a distinct argument under subsection
(e)(7) of the Privacy Act, which says that an agency must
“maintain no record describing how any individual exercises
rights guaranteed by the First Amendment unless expressly
authorized by statute or by the individual about whom the
record is maintained or unless pertinent to and within the
scope of an authorized law enforcement activity”. 5 U.S.C.
§552a(e)(7). He contends that between 1970 and 1975 the
FBI investigated his political beliefs (including his criticism
of American foreign policy) and shared with the CIA the
results of this investigation. The CIA does not doubt that
Bassiouni has made a sufficient preliminary showing that
the FBI gathered information about Bassiouni’s politics and
has not replied that its maintenance of these records (if
indeed it is maintaining them, which it will not confirm or
deny) is authorized by any of the “unless” clauses in
subsection (e)(7). It does not follow, however, that Bassiouni
is entitled to a Vaughn index. Exemption 1 would not mean
much if all anyone had to do, to see the full list of the CIA’s
holdings, was allege that the agency had some documents
showing how he “exercises rights guaranteed by the First
Amendment”. Almost anyone whose activities come to the
CIA’s attention could make such an assertion.
Subsection (e)(7) says that the agency may not maintain
records unless it meets certain conditions. It does not say
that the agency must disclose records to the subject when
that step would reveal classified intelligence sources and
methods. See 5 U.S.C. §552a(g)(2), (4); Irons v. Bell, 596
F.2d 468, 470 (1st Cir. 1979). Bassiouni could have asked
the district judge to order the CIA to reveal in camera what
records (if any) it received from the FBI about Bassiouni
between 1970 and 1975 (and has clung to for 30 years), and
No. 04-2258 7
either purge them from its files or give a statutory justifica-
tion for keeping them. Yet Bassiouni has never made such a
request—not of the CIA, not in the district court, and not in
this court. He wants disclosure rather than erasure, and
disclosure is the one thing that he cannot have.
AFFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-8-04