Leopold v. CIA, No. 17-2176, 2019 WL 1429521 (D.D.C. Mar. 29, 2019) (Contreras, J.)

Friday, March 29, 2019

Leopold v. CIA, No. 17-2176, 2019 WL 1429521 (D.D.C. Mar. 29, 2019) (Contreras, J.)

Re:  Request for records concerning alleged covert CIA program to arm Syrian rebels

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

  • Exemptions 1 & 3, Glomar:  First, "the Court finds that the agency's Glomar response was properly supported by FOIA Exemption 1."  "Without taking a position as to whether disclosure would reveal the existence of a U.S. covert action program, the Court readily finds that it would reveal information about the CIA that 'would impair the effectiveness of [the] CIA's intelligence operations.'"  "'Because "[t]he assessment of harm to intelligence sources, methods and operations is entrusted to the Director of Central Intelligence, not to the courts,"' the government's burden here 'is a light one.'"  "And [defendant's] declaration logically and plausibly suggests that disclosure here would harm the effectiveness of the CIA's intelligence efforts – and by extension the national security of the United States."  "The Court need go no further."

    Second, "[t]he Court finds that rationale plausible, and thus holds that the agency's Glomar response was also adequately supported by FOIA Exemption 3."  "Here, the CIA argues that the National Security Act is an exemption statute that bars disclosure of the information sought to be withheld because it protects from disclosure 'intelligence sources and methods.'"  "The CIA represents that '[t]he fact of whether or not the CIA is, or has, exercised covert action authorities constitutes a protected "intelligence source or method."'"

    Additionally, "[t]he Court . . . finds that the information sought to be withheld by the CIA's Glomar response has not already been publicly acknowledged."  "First, the Court finds that the [President's] tweet alone is not sufficiently precise to constitute an official acknowledgment of a CIA program of payments to Syrian rebels."  "In the tweet, the President stated: '[t]he Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad.'"  The court finds that "[plaintiff] does not explain how the tweet reveals the existence of a CIA program of payments to Syrian rebels – nor can it."  "Even taking into account the context behind the tweet and assuming it referred to the Washington Post article, the President's characterization of the facts in the article as 'fabricated' negates any inference that can be drawn from it as to the source of the payments."  "Perhaps recognizing the issue, [plaintiff] also argues in its motion that additional statements made contemporaneously with the tweet support the notion that the CIA, and no other agency, was in charge of the alleged covert program."  "[Plaintiff] notes that 'the only other agency that could plausibly be making payments to Syrian rebels fighting Assad is the Department of Defense.'"  "And it points to . . . statements at the Aspen Security Forum as a public denial that the program was run by the Department of Defense by 'an authorized Department of Defense official.'"  "Even setting aside the D.C. Circuit's admonition that courts should 'not deem "official" a disclosure made by someone other than the agency from which the information is being sought,' . . . the Court cannot read that much into [the] statements."
  • Litigation Considerations, Adequacy of Search:  "The Court finds that [defendant's] declaration provides the required reasonably detailed description of the search conducted, and demonstrates that the search was reasonably calculated to uncover the documents sought."  The court relates that, "[h]ere, the CIA represents that, pursuant to its agreement with [plaintiff], it ran its search for records 'from 24 July 2017, the date of the tweet, forward and searched the e-mail accounts of every employee serving in the five offices [the parties identified] during this period.'"  "The CIA used the search terms 'Trump,' 'Twitter,' 'Tweet,' 'Syria,' and 'President' in different combinations, and also ran a search for the full text of the July 24, 2017 tweet."  "The agency then conducted a 'page-by-page, line-by-line review' of the two records found before disclosing them."
  • Exemption 3:  Looking to "the CIA Act of 1949, 50 U.S.C. § 3507, [which] allows the agency to protect from disclosure 'information that would reveal the CIA's organization, functions, and the names of CIA employees[,]'" "the Court finds plausible the agency's assertion that revealing the agency information sought to be withheld would constitute a 'disclosure of the organization, functions, [or] names . . . of personnel employed by the Agency . . . .'"
  • Exemption 6:  The court relates that "the CIA asserts that 'revealing this information could subject these individuals to harassment or unwanted contact from third parties,' and that there is 'no countervailing, cognizable public interest in its release.'"  "[Plaintiff] does not identify any countervailing public interest that would outweigh the reporters' privacy interests, and the Court finds the justification for the Exemption 6 redactions plausible."
Adequacy of Search
District Court
Exemption 1
Exemption 3
Exemption 6
Litigation Considerations
Updated April 11, 2019