Leopold v. CIA, No. 19-978, 2019 WL 5814026 (D.D.C. Nov. 7, 2019) (Contreras, J.)

Leopold v. CIA, No. 19-978, 2019 WL 5814026 (D.D.C. Nov. 7, 2019) (Contreras, J.)

Re:  Requests for records concerning payments used to arm Syrian rebels

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

• Exemptions 1 & 3, Glomar:  The court holds that "[b]ecause the President's tweet makes it implausible for any reasonable person to truly doubt the existence of at least some CIA records that are responsive to at least some of the nine categories of documents that [plaintiff] requested, [plaintiff] has managed to overcome the Agency's Glomar response and the Agency has failed to meet its burden in this case."  The court relates "the President tweeted from his Twitter account, @realDonaldTrump, that '[t]he Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad.'"  The court also relates that in an earlier, related case, "generally, [plaintiff] sought records of CIA payments to Syrian rebel groups, and this Court granted summary judgment to the Agency, largely because even though the President's tweet had revealed the existence of payments to rebel groups, it had not revealed that the CIA, specifically, had made them."  "The key difference this time around is that Buzzfeed has made its requests broader."  "Now, instead of asking for records of CIA payments, they simply seek records of 'payments,' without suggesting that the payments came from the CIA."  The court relates that, in addition to Exemption 1, "[t]he government relies on the National Security Act of 1947 as the relevant withholding statute under Exemption 3," in order to invoke its Glomar response.  The court finds that, "at the absolute least, the tweet revealed that President Trump knew something about payments being made by someone to Syrian rebels."  The court further notes that, "[t]he CIA argues that 'if it were to acknowledge the existence of responsive records in the CIA's possession' this 'necessarily would reveal that the Agency had some involvement in any acknowledged payments to rebel groups.'"  "This argument fails to appreciate the change in the scope of [plaintiff's] request since [the earlier, related case]."  "Now that the Plaintiffs are seeking records concerning 'payments,' not 'CIA payments,' acknowledging the existence of records responsive to the 2018 request would not reveal anything about whether the CIA had any role in those payments."  "Acknowledging the existence of records responsive to these reworded requests would reveal only that the CIA had an intelligence interest in payments from someone – not even necessarily the U.S. government – to Syrian rebel groups."  "In addition, the CIA seems to ignore the three entirely new requests made by [plaintiff] in 2018, which are quite broad indeed."  "They request, for example, '[r]ecords pertaining to payments to Syrian rebels fighting Assad' and 'records mentioning or referring to any program to arm or train anti-Assad rebels in Syria.'"  "The President's tweet officially acknowledged that the federal government had some sort of intelligence awareness of some type of payments."  "An across-the-board Glomar response is therefore not 'plausible' or 'logical.'"
   
  The court rejects defendant's attempt to distinguish a 2013 case, ACLU v. CIA, where the Court of Appeals for the District of Columbia Circuit had found that official acknowledgment of the CIA's interest in drone strikes occurred when several high-level government officials "suggested that 'the nation's intelligence capabilities' played a role in targeted drone strikes."  The court acknowledged that the ACLU case "present[ed] a somewhat more robust history of disclosure than is present in this case," but found that "nothing in ACLU suggests that a single disclosure would have been insufficient."  "The official disclosure exception does not require multiple overlapping disclosures."  The court found that "'the CIA ask[s] the courts to stretch [the Glomar] doctrine too far – to give their imprimatur to a fiction of deniability that no reasonable person would regard as plausible.'"  Going further, the court found that "[a]fter [the] tweet – and likely before it as well – it seems wildly unlikely that, in the eight and a half years since the Syrian civil war began, the Central Intelligence Agency has done no intelligence-gathering that produced a single record even pertaining to payments Syrian rebels are receiving from somewhere, or a single record even mentioning or referring to any program to arm or train anti-Assad rebels."