Smith v. CIA, No. 15-01431, 2019 WL 3934917 (D.D.C. Aug. 20, 2019) (Chutkan, J.)

Smith v. CIA, No. 15-01431, 2019 WL 3934917 (D.D.C. Aug. 20, 2019) (Chutkan, J.)

Re:  Request for intelligence budget, specifically, line items supporting Israel from 1990 through 2015

Disposition:  Granting defendant's motion for summary judgment

• Exemptions 1 & 3, Glomar:  First, "in light of the additional information submitted by the CIA in the supplemental declaration and the findings set forth above, the court hereby vacates its March 30, 2017 Order requiring the CIA to process the records in the usual manner required by FOIA, inform [plaintiff] of the number of records, and either release the records or justify its withholding pursuant to FOIA's exemptions."  "The court also finds that President Obama did not officially acknowledge that the CIA possessed a budget line item for intelligence assistance to Israel because the CIA does not possess the intelligence budget line items of other agencies."  The court relates that "[i]n [an] address, President Obama stated that, 'partly due to American military and intelligence assistance, which my administration has provided at unprecedented levels, Israel can defend itself against any conventional danger.'"  "Based on the information available to the court at the time, President Obama's statement implied that the United States provided aid to Israel, which requires financial support and thus would be reflected in an intelligence budget."  The court finds that now, "[defendant's] supplemental declaration is sufficiently detailed, as it demonstrates that [defendant] consulted with the CIA's CFO – the most logical person at the CIA to provide insight into the agency's finances – and confirmed that the CIA does not retain, obtain, or access the budgetary information of other intelligence agencies."  "Thus, the CIA's Glomar response was proper."
  
  Second, regarding the use of Exemption 1 to support the Glomar response, the court relates that "[it] found that the affiant failed to elaborate on how compliance with the plaintiff's request could negatively affect the agency's 'functions or faculty for intelligence operations.'"  The court now finds that "[i]n this case, the detail of the supplemental declaration and the accompanying justifications provided are within the ambit of what the D.C. Circuit considers sufficient to support the claimed exemption in the Glomar context."  "The supplemental declaration . . . identifies four ways in which acknowledging the existence or nonexistence of line-item budget information would damage national security."  "First, line-item budget information reveals an agency's priorities and its ability to address those priorities."  "Revealing this information could reveal the agency's vulnerabilities and strengths to those who seek to exploit either."  "Second, revealing whether the CIA has the line items at issue could reveal the nature of the intelligence support provided by the United States to Israel because the CIA specializes in human intelligence."  "Third, confirming the existence of such information could damage relationships between the United States and foreign governments, hindering the CIA's collaboration with those governments."  "These relationships constitute intelligence sources and methods, and depend on secrecy."  "Fourth, revealing budget line items piece-by-piece could eventually create an entire United States aid to foreign powers blueprint that is valuable to adversaries."
  
  Third, regarding the use of Exemption 3 to support the Glomar response, the court finds that "because the [National Security Act of 1947] is a proper exemption statute under Exemption 3, and the line item for United States aid to Israel is included in the expansive ambit of information that can reasonably lead to an unauthorized disclosure of sources and methods, the CIA properly invoked Exemption 3."
  
  Finally, the court rejects plaintiff's two arguments.  Frist, the court relates that "[plaintiff] seeks to use past CIA actions, as well as unconfirmed reports and theories about CIA activities – none of which are connected to aid given to Israel – to taint the declarations submitted in this case."  "But the fact that the CIA may have engaged in misconduct in the past does not, without more, show that it acted in bad faith in preparing these declarations."  Second, the court rejects "[plaintiff's] theory under the [Arms Export Control Act ("AECA")] . . . [that] [i]t is public knowledge that Israel has a nuclear weapons program[;] [t]herefore, any United States aid to Israel is either economic or military assistance and thus illegal under the AECA."  The court finds that "[plaintiff] offers no support for his assertion that the aid offered by United States intelligence agencies is of the type considered by the AECA, let alone 'all' of the aid offered to Israel by the CIA or other agencies."