Jaber v. DOD, No. 16-00742, 2018 WL 692917 (D.D.C. Feb. 1, 2018) (McFadden, J.)
Re: Request for records concerning 2012 drone strike in Yemen
Disposition: Granting defendants' motion for summary judgment; denying plaintiff's motion for partial summary judgment
- Exemptions 1 & 3, Glomar: The court holds that "Defendants' Glomar response is . . . justified by Exemption 1." The court finds that "Defendants correctly invoke Exemption 1, for information properly classified pursuant to executive order in the interest of national defense or foreign policy." Additionally, "[t]he existence or non-existence of records covered by the Glomar response has been classified." "Original classification authorities at DOD, State, and Treasury have determined that the disclosure of information that would tend to confirm one way or the other any role that the United States may have played in the alleged drone strike would risk revealing the existence or nonexistence of intelligence relationships with foreign liaisons and would risk revealing information about the United States’s foreign relations and foreign activities." "They have also determined that disclosure of this information 'could reasonably be expected to cause identifiable or describable damage to the national security' by jeopardizing the continued usefulness of intelligence sources, prompting countries to rethink their acquiescence to American counter-terrorism missions within their borders, weakening or even ending American relationships with foreign partners who rely on their cooperation being kept in strict confidence, and triggering political consequences for foreign liaisons who might be suspected of involvement with drone strikes."
"Even if this were not the case, the Defendants' Glomar response would be justified on the alternative ground that Defendants have properly invoked Exemption 3, for information that is statutorily exempt from disclosure." "The National Security Act requires the Director of National Intelligence to 'protect intelligence sources and methods from unauthorized disclosure.'" "As discussed above, the disclosure of information that tends to confirm one way or the other any American role in the alleged drone strike would risk revealing the existence or nonexistence of intelligence relationships with foreign liaisons and could lead to the unauthorized disclosure of intelligence sources."
Responding to plaintiff's argument, the court finds that "a news article's allegation that a foreign government claimed that the U.S. government was responsible for a drone strike falls well short of creating a genuine dispute of material fact as to whether an official and public acknowledgment by the United States that it was involved in the drone strike could harm national security."
- Litigation Considerations, Adequacy of Search: The court holds that "Defendants' affidavits demonstrate that they conducted reasonable searches for information not implicated by their Glomar response." The court relates that DOD states that it "identified [the] offices reasonably likely to possess responsive records," "used [certain] names to search classified and unclassified systems for relevant emails, paper files, or electronic files," and "aver[ed] that [it] 'has conducted searches of all offices reasonably likely to possess records responsive to certain portions of Plaintiffs' requests that do not implicate the Glomar response, and released the reasonably segregable portions thereof.'" The court relates that State, DOJ, and Treasury make similar statements.