All Party Parliamentry Group on Extraordinary Rendition v. U.S. Department of Defense

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA F I L E D
SEP 2 9 2015
-_ Clerk, US. District and
t
ALL PARTY PARLIAMENTARY GROUP BankFUPtCY CW 5
ON EXTRAORDINARY RENDITION e_t aL,
Plaintiffs,
v. Civil Action No. 092375 (PLF)
US. DEPARTMENT OF DEFENSE gt aL,
Defendants.
OPINION AND ORDER
Plaintiffs, an elected member ofthe UK. Parliament, a parliamentary group, and
an American attorney, brought this suit pursuant to the Freedom of Information Act (“FOIA”)
against various government agencies, including the United States Department of Defense.
Plaintiffs have requested documents related to (I) the United States” extraordinary rendition
program, and (2) intelligence operations concerning certain terrorist suspects held by the United
States. The National Security Agency (“NSA”), a separate agency within the Department of
Defense, and the plaintiffs have cross-moved for summary judgment. After careful consideration
of the parties’ papers, the attached declarations and exhibits, the relevant legal authorities, and
the oral arguments presented by counsel on August 18, 2015, the Court will grant the NSA’s
motion for partial summary judgment and deny the plaintiffs“ cross-motion.'
' The papers reviewed in connection with the pending motions include the
following: plaintiffs’ complaint (“Compl.") [Dkt No. I]; defendants’ motion for partial summary
judgment as to the NSA (“Def Mot”) [DkL N0. 7'4]; declaration of David J. Sherman in support
of defendants’ motion for partial summary/judgment (“Sherman Decl.") let. No. 74—1];
defendants” statement Ofmaterial facts as to which there is no genuine issue (“Def Statement”)
1. BACKGROUND
Plaintiffs seek records responsive to 43 FOIA requests submitted to defendants.
Roughly halfofplaintiffs’ requests, Nos, 1—18,-21—34, 41 (in part), and 43 (collectively “Group 1
Requests”), concern the United States” extraordinary rendition program. Comp]. Ex. A (FOlA
Request) at 7~l 1. Specifically, plaintiffs seeks records relating to communications between the
United States and foreign governments about extraordinary rendition and secret detention, names
ofdetainees, information about where detainees were held and transported, details about the
detention of Khalid Sheikh Mohammed, Abu Zubaydah, and Abd al~Rahim ai Nashiri, and
intelligence information gathered from the interrogation of these individuals. id.
The remaining half ofplaintiffs’ requests, Nos. 19-20, 35—40, 41 (in part), and 42
(collectively “Group 2 Requests”), relate to documents regarding certain terrorist suspects
detained by the United States. Compl. liix. A (FOlA Request) at 7—11. Specifically, the requests
seek documents concerning communications between the U.K., the United States, or any foreign
government about Abu Qatacia between September 2001 and November 1, 2002, Abu Qatada’s
locations during that period, names of individuals detained by other countries, intelligence
gathered about specific terrorist plots and the sources for this intelligence, and the sources of
intelligence used to arrest and detain Khalid Sheikh Mohammed, Abu Zubaydah, and Abd
aleahim al—Nashiri. id.
[:Dkt. No. 74]; plaintiffs’ opposition to defendants’ motion for summary judgment and
cross-motion for partiai surnmaryjudgment (“PL Opp. and Mot”) [Did N0. 75:]; declaratiOn of
Adam R. Feeney in support oi’plaintiffs’ opposition and cross—motion (“Feeney Decl.”) [Dirt
No. 75-1]; plaintiffs‘ statement of genuine issues of material fact (“‘l’l. Statement”) ['Dkt. No.
7546}; defendants’ reply in support of their motion for partial summary judgment and
opposition to plaintiffs’ crosswmotion (“Deti Reply and Opp”) [Dirt No. 78]; and plaintiffs’
reply in support of their cross~motion for partial summary judgment (“PL Reply”) [Dkt No. 80].
2
FURTHER ORDERED Ihatjudgment is entered for defendant Department of
Defense, as to the National Security Agency oniy.
SO ORDERIZSD.
PAUL 1,. FRiIEEIxT/IIQ
DATE: U nited States District Judge
‘1 I RR\ \3’
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11. LEGAL STANDARD
“FOIA cases typically and apprOpriately are decided on motions for summary
judgment.” Defenders of Wildlifeuuy,m[ulu.§. Border Patrol, 623 F. Supp. 2d 83, 87 (13.110 2009);
see alfi Sack v, [1.S,er’t of Defense, 6 1:9. Supp. 3d 78, 85 (D.D.C. 2013). The Court grants
summary judgment if the movant shows that there is no genuine dispute as to any material fact
and that it is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). In a FOIA action to
compel production of agency records, the agency “is entitled to summary judgment if no material
facts are in dispute and if it demonstrates ‘that each document that falls within the class
requested either has been produced . . . or is wholly exempt from the [FOiA’sl inspection
requiret‘rtents.m Students AgiiflsLGenocide v. U.S_,___I_)_g}_’_1_Qf_§I§l§, 257 1'“. 3d 828, 833 (D.C. Cir.
2001) (quoting; (iolgmdwy,_§lfi, 607 l"‘.2d 339, 352 (DC. Cir. 1978)).
To establish that its search for responsive records was adequate, an agency must
Show that it made a “good faith effort to conduct a search for the requested records, using
methods which can be reasonably expected to produce the information requested." Ogiesby V.
US. Dep’t ofthe Army, 920 F.2d 57. 68 (BC. Cir. 1990); also Ancient Coin Collectors
Guild v. U.S. Dep’t of State, 641 F.3d 504, 514(1).C. Cir. 201 1) (quoting Valencia~1..ucena v.
US. Coast Guard, 180 17.3d 321, 325 (DC. Cir. 1999) (noting an agency’s FOiA obligations are
fulfilled “ifit can demonstrate beyond material doubt that its search was ‘reasonabiy calculated
to uncover all relevant documents”). A search need not be exhaustive, Saldana v. 13131, 715
F. Supp. 2d 24, 26 (1111C. 2010), and an agency's failure to find a particular document does not
undermine the determination that the search was adequate. _\t\1i_l_bur v. CIA, 355 F.3d 675, 678
(DC. Cir. 2004); 'Natioanag'azine, Wash. Bureau v. US. Customs Serv., 71 F.3d 885, 892 11.7
(DC. Cir. 1995). The adequacy of a search therefore is not determined by its results, but by the
method ofthe search itseit‘, Weisberg v. US. Defitofimstiee. 745 F.2d 1476, 1485
(DC. Cir. 1984); also Saldana v. PE}, 715 I". Supp. 2d 21125-26, and a court is guided in this
determination by principles oi‘rcasonableness. Qgi_;c_.31M_J_.S_.ngp’t ol’theALmy, 920 1-".2d
at 68.
An agency can satisfy its burden with supporting affidavits or declarations if they
are “relatively detailed and non-conclusory,” SafeCard Servs.. Inc. v. SEC, 926 F.2d 1 197, 1200
(DC. Cir. 1991), and 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 yymgggey. 656 F.2d 724. 738 (DC. Cir.
1981); see Ancient Coin Collectofifiuild v. US. Dep’t of State. 641 F.3d at 514; Sack v. US.
Dep’t of Defense, 6 F. Supp. 3d at 85. Such affidavits or declarations are accorded “a
presumption of good faith, which cannot be rebutted by purely speculative claims about the
existence and discoverability of other documents.” Lasko v._l_1.§_.__t)ep’t of Justice, 684 F. Supp.
2d 120, 127 (D.D.C. 2010) (quoting SafeCard S_e_i;vs., Inc. vymSl'rlC, 926 F.2d at 1200).
Ill. DISCUSSION
The NSA asserts that it is entitled to summary judgment because (i) no search is
required for the Group 1 Requests because the NSA is unlikely to possess responsive documents;
and (2) the Group 2 Requests seek material protected by Exemptions 1 and 3 ofth F 01A and
the NSA therefore need neither confirm nor deny the existence of responsive records. Def. Mot.
at 10—17.
A. Group 1 Requests
The role ofthe NSA is to “lic‘lollect (including through clandestine means),
process, analyze, produce, and disseminate signals intelligence information and data for foreign
intelligence and counterintelligence purposes to support national and departmental missions.”
Exec. Order No. 13,470, Further Amendments to Exec. Order No. l2,333, 73 Fed. Reg. 45,325,
45,334 (July 30, 2008); also Sherman Dec]. 1! S (“NSA’s cryptologic duties have two primary
missions: (l) to collect, process, analyze, produce and disseminate signals intelligence (SlGINT)
information for foreign intelligence and counterintelligence purposes to provide support for
national and departmental requirements and for the conduct of military operations; and (2) to
conduct information assurance activities”). The Group 1 Requests, however, relate only to
human intelligence activities. See Compl. Ex. A (FOIA Request) at 7—1 1. The NSA thus argues
that, because its function is limited solely to signals intelligence, it is unlikely to possess any
documents responsive to the Group 1 Requests and is not required to search its records. See
Sherman Decl. 1] 6 (“The collection of fill MINT m that is, intelligence derived from human
sources as opposed to signals falls outside ofNSA’s authorities”); Def. Mot. at l0—12.2 The
Court agrees and concludes that a search for the decuments requested would be futile; the NSA
has satisfied its burden to conduct an adequate search. Reyes v. EPA, 991 1'3. Supp. 2d 20,
27' (D.D.C. 2014) (“Where . . . the Government’s declarations establish that a search would be
futile . . . the reasonable search required by FOIA may be no search at all.") (quoting Amnesty
2 Signals intelligence is “the interception and decoding of foreign electronic
communications,” while human intelligence concerns “the collection ofintelligence information
from human sources.” MICHAEL. A. 'l‘URNuR, l’iIS'l'ORlCAL DIC’I‘lONARY 01? UNITED S'rA'i‘es
INTELLIGENCE 234 (2d ed. 2014).
lnt’l USA v. CIA, 2008 WL 2519908, at *11 (S.D.N.Y. 2008)); Judicial Watch Inc. v. US.
Dep’t of I-Iomelandwfiueucg, 857 F. Supp. 2d 129, 145 (DEC. 2012) (“the FOIA does not obligate
agencies to undertake fishing expeditions in offices that are not reasonably iikeiy to possess
responsive records”). Summary judgment therefore is appropriate as to the Group 1 Requests.
Plaintiffs argue that the NSA’s functions are much broader than it lets on. Pl.
Opp. and Mot. at 14—16. Plaintiffs speculate that, because the NSA is a “key player in the war on
terror,” the NSA must be receiving human intelligence information from other intelligence
agencies that is responsive to plaintiffs’ Group 1 Requests. Id. at 15—16. Although plaintiffs”
claims may be plausible, the NSA’s declaration, filed under pain ofperjury, is accorded a
presumption of good faith and “cannot be rebutted by purely speculative claims about the
existence and discoverability of other documents.” Lasko v. Dept. ofJustice, 684 F. Supp.
2d at 127 (D.D.C. 2010) (quoting SafeCagd Servs., Inc. v. SEC, 926 F.2d at 1200).
B. Group 2 Requests
As to the Group 2 Requests, the NSA asserts that it can neither confirm nor deny
the existence of responsive material because the requests fall within FOIA Exemptions 1 and 3.
5 U.S.C. § 552(b)(1) and (3); Def. Mot. at 12-17. This response is commonly referred to as a
“QIomar response.“ 131111111in v. CIA, 546 F.2d 1009, 1010~1 1 (DC. Cir. 1976) (addressing
the CIA’s refusal to confirm or deny whether it had documents concerning its relationship with
the Hughes Glomar Expiorer. which was a ‘large vessel publicly listed as a [privately owned]
research ship?) An agency’s response is proper if confirming or denying the existence
of responsive records “would itself‘eause harm cognizabic under an FOIA exception.m Am.
Civil Liberties Union v. 710 F.3d 422, 426 (DC. Cir. 2013) (quoting $330131. U.S. Deg’t of
6
Justice, 642 F.3d 1 161. 1 178 (DC. Cir. 201 1)). A lemar response is valid, and an agency
therefore is entitled to summary judgment. “if the fact of the existence or nonexistence ofageney
records falls within a FOIA exemption.“ lj?_e_o_p_le for the liithicajfljufreagnent of Animals _y__.
National Institutes of_l;l_e_al_th. 745 F.3d 535. 540 (11C. Cir. 2014) (quoting Wolfv. CM. 473 F.3d
370, 374 (DC. 0122007)).
An agency may not rely on a gamer; response. however, if the plaintiff
demonstrates that the fact ofthe existence, or nonexistence, ofthe soughtuafter records has been
“officially acknowledged," Am. Qjflllfiberties gluon v. 710 F.3d at 426—27, or is in the
public domain. Marirmmglgfl. 685 F.3d 1076. 1081 (DC. Cir. 20i2). Thus, a plaintiff‘“can
overcome a gigging]; response by showing that the agency has already disclosed the fact of the
existence (or nonexistence) of responsive records, since that is the purportedly exempt
information that a glomar response is designed to protect.” A331. Civil Liberties Upi_on v. CIA.
710 F.3d at 427.
Under [Exemption 1, the disclosure provisions of the FOIA do not apply to matters
that are “(A) specifically authorized under criteria established by an Executive order to be kept
secret in the interest of national defense or foreign policy and (13) are in fact properly classified
pursuant to such Executive order.” 5 U .S.C. § 552(b)(1). As the court of appeals has noted, “the
text of Exemption 1 itself suggests that little proof or explanation is required beyond a plausible
assertion that information is properly ciassiiied.” MoMLlA, 508 F.3d 1 108, 1 124 (DC.
Cir. 2007). In its declaration. the NSA explains that acknowiedging the existence or
nonexistence ol‘doeuments responsive to the Group 2 Requests would disclose information
(1) that is currently and properly classified pursuant to i'ixeeutive Order 13,526 “NS/X
capabilities, activities and intelligence priorities” ------~ and (2) that “reasonably could be expected
to cause exceptionally grave damage to the national security.” Sherman Decl. 1124; see also id.
ihl 25~27, 37.3 The NSA therefore has carried its burden to show that FOIA Exemption 1
applies. See Larson v. Dep’tgjfimtmamte, 565 F.3d 857. 863 (DC. Cir. 2009); gigajsggenter for
Nat’l Sec. StudiesuvLUS. Dep’tflfllttfljgg, 331 F.3d 918, 927 (D.C. Cir. 2003) (courts “accord
substantial weight to an agency’s affidavit concerning the details of the classified status of the
disputed record because the Executive departments responsible for national defense and foreign
policy matters have unique insights into what adverse [eiit’l’ects might occur as a result ofa
particular classified record”) (quoting McGehee v. Casey, 718 F.2d 1137, 1 I48 (DC. Cir.
1983)).
The NSA also is entitled to summary judgment under F 01A Exemption 3.
Exemptiou 3 protects matters “specifically exempted from disclosure by statute,” provided that
such statute leaves no discretion on disclosure or “establishes particular criteria for withholding
or refers to particular types of‘ matters to be withheld.” 5 U.S.C. § 552(b)(3). Under that
exemption, the NSA “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 v.
Dep’t of State, 565 F.3d at 865 (citing 91 1 F.2d 755, 761-62 (DC. Cir.
1990)). The statute claimed by the NSA plainly qualities: 50 U.S.C. § 3605(a) provides that no
3 Executive Order 13,526 “prescribes a uniform system for classifying,
safeguarding, and declassifying national security intbrmation” and recognizes that “throughout
our history, the national defense has required that certain information be maintained in
confidence in order to protect our citizens, our democratic institutions, our homeland security,
and our interactions with foreign nations.” Exec. Order 13,526, 75 Fed. Reg. 707 (Dec. 29,
2009).
law “shall be construed to require the disclosure of the organization or any function of the
National Security Agency, or any information with respect to the activities thereof.” See Larson
v. US. Dep’t of Statg, 565 F.3d at 868 (“[Section 3605] qualifies as an Exemption 3 statute”);
gig 50 U.S.C. § 3024(i)(l) (the Director of National Intelligence, the head of the Intelligence
Community, is required to “protect intelligence sources and methods from unauthorized
disclosure”); 18 U.S.C. § 798(a)(3) (making it a crime to “knowingly and willfully” furnish or
publish “any classified inlbrmation . . . concerning the communication intelligence activities of
the United States”). Because the Group 2 Requests seek records relating to the NSA’s functions
and activities, the NSA‘S Glomar response also is valid under Exemption 3 and the agency is
entitled to summary judgment.
Plaintiffs counter that the requests “will not reveal anything not already known"
because “American newspapers have published reams of material about NSA documents leaked
by the now notorious Edward Snowden, a former NSA contractor.” Pl. Opp. and Mot. at 2,
17—21. These leaks, plaintiffs argue, led to numerous Foreign Intelligence Surveillance Court
orders and decisions being declassified, which reveal NSA signals intelligence functions and
activities. id. at 7. Under the precedents of the DC. Circuit, in order to succeed on this
argument, plaintiffs must show that the information requested already was “made public through
an official and documented disclosure,“ that “the information requested [is] as specific as the
information previously released," and that “the information requested 1] matchles] the
information previously disclosed.” lgitagi'ibbtin v. CIA, 9i 1 F.2d at 765; MIN. CIA, 473
F.3d at 378—79 (“a plaintiff asserting a claim of prior disclosure must bear the initial burden of
pointing to specific infm‘mation in the public domain that appears to duplicate that being
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withheld”). Leaked information and documents, like those identified by plaintiffs, do not
constitute official acknowledgment. See Judieigljb/gttch, Incgy, Dep’t QfJLustice, 898 F. Supp. 2d
93, 108 (D.D.C. 2012) (“Obviously, to qualify as an official acknowledgement, the
acknowledgement must be ‘oflicial,’ 119., authorized or approved by the agency in possession of
the information being acknowledged”). Moreover, the declassified documents identified by
plaintiffs are limited, describe the NSA’S activities in general terms, and do not concern the
specific activities, investigations, and detentions detailed in plaintiffs’ FOIA requests. P1. Opp.
and Mot. at 6-12; id. lix. K (Redacted PISA Court Orders and Decisions). Plaintiffs thus have
failed to meet the substantial burden the law places upon them. Migfilitizen v. Dep’t of
S__t_a_t§_, 11 F.3d 198, 203 (DC. Cir. 1993) (describing the prior disclosure test as “a high hurdle for
a FOIA plaintiff to clear”).
1V. CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that defendants’ motion for pattial summary judgment as to the
National Security Agency [DkL No. 74] is GRANTED; it is
FUR'l‘l-IER ORDERED that plaintiffs’ cross—motion for partial summary
judgment [Dkt. Ne. 76] is DENIED; and it is
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