Leopold v. CIA, No. 20-5002, 2021 WL 446152 (D.C. Cir. Feb. 9, 2020) (Randolph, J.)
Leopold v. CIA, No. 20-5002, 2021 WL 446152 (D.C. Cir. Feb. 9, 2020) (Randolph, J.)
Re: Request for records concerning payments used to arm Syrian rebels
Disposition: Reversing district court's grant of requester's motion for summary judgment and denial of government's motion for summary judgment
- Litigation Considerations, Jurisdiction: The Court of Appeals for the District of Columbia Circuit first addresses jurisdiction and finds that while "[t]here is no doubt that orders requiring 'the disclosure of documents' are appealable injunctions[,]" "[the requester] claims the order here is different because the district court did not require the Agency to disclose any documents." "This misses the point." "What matters for jurisdictional purposes under 28 U.S.C. § 1292(a)(1) is whether the district court has issued an injunction, not whether the injunction requires documents to be disclosed." The court finds that "[t]he appeal from ["[a]n order denying a Glomar response and requiring the agency to reveal whether it holds particular records"] is by no means 'premature.'" "If the order goes into effect and forces the agency to reveal whether it possessed the records, any later agency appeal would be fruitless."
- Exemption 1, Glomar: "[The Court of Appeals for the District of Columbia Circuit] hold[s] that President Trump's tweet was not an official acknowledgment of the existence (or not) of Agency records." The court analyzes "the impact of President Trump's 'tweet' on July 24, 2017, stating: 'The Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad..... .'" The court asks "[d]id President Trump's tweet officially acknowledge the existence of a program?" "Perhaps." "Or perhaps not." "And therein lies a problem." "The President's tweet is subject to several plausible interpretations." The court finds that "[a]ssuming arguendo that the President ended a program, it is not clear whose program the President ended." Further, the court finds that "[e]ven if the President's tweet revealed some program, it did not reveal the existence of Agency records about that alleged program."
The court addresses another D.C. Circuit case concerning an Exemption 1 Glomar, ACLU v. CIA, 710 F.3d 422, 426 (D.C. Cir. 2013), and finds that "ACLU concerned whether the Agency could maintain a Glomar response about the Agency's interest in drone strikes following three official acknowledgments." "There, President Obama had 'himself publicly acknowledged that the United States uses drone strikes against al Qaeda . . . on a live internet video forum.'" "President Obama's counterterrorism advisor went further, stating that “in deciding whether to carry out a strike, we draw on the full range of our intelligence capabilities and may ask the intelligence community to collect additional intelligence[.]'" "The disclosures continued." "The Director of the CIA stated in public remarks that 'I can assure you that in terms of that particular area, it is very precise and it is very limited in terms of collateral damage[.]'" "As we noted then, '[i]t is hard to see how the CIA Director could have made his Agency's knowledge of – and therefore "interest’ in – drone strikes any clearer.'" "'[T]hose statements are tantamount to an acknowledgment that the [Agency] has documents on the subject.'" "Based on the totality of these collective acknowledgments, we held that it was 'neither logical nor plausible' for the Agency to deny an interest in drone strikes."
The court finds that "[t]he case before us is not comparable." "'[T]he pertinent official statements in ACLU were far more precise, thorough, and numerous than those found here.'" "As we have discussed above, it is not clear what, if anything, this short, informal post disclosed." "The tweet never mentions the Agency at all, let alone its intelligence interest in, or capabilities to gather intelligence about, payments to Syrian rebels." "Whereas ACLU relied on specific statements revealing the Agency's interest, the district court here simply assumed that '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 [to] Syrian rebels[.]'" "To establish official acknowledgment our precedents require certainty, not assumptions of this sort."