Turse v. DOD, No. 22-2970, 2025 WL 588203 (D.D.C. Feb. 24, 2025) (Mehta, J.)

Turse v. DOD, No. 22-2970, 2025 WL 588203 (D.D.C. Feb. 24, 2025) (Mehta, J.)

Re:  Request for records concerning review of April 1, 2018 incident in Buur, Somalia

Disposition:  Granting defendants’ motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

• Exemption 1:  “[T]he court holds that Defendants properly invoked Exemption 1.”  “Defendants rely on Executive Order 13,526.”      “Defendants’ declarants and their accompanying Vaughn indices explain the reasons for classifying and withholding information from the [Report of Investigation], the associated Exhibit, and the Power Point Slide.”  “The ROI and Slide are both classified at the level of ‘SECRET//NOFORN,’ with the latter classification meaning that ‘the document is not to be distributed to foreign governments, foreign nationals, or foreign organizations.’”  “The ROI and Slide contain information relating to ‘specific units, assigned teams, objectives, missions; details as to how the mission was to be implemented, how it was implemented, what operational protocols were to be followed and specific parameters of the mission to be accomplished, i.e., Tactics, Techniques, and Procedures (TTPs).’”  “The six-page Exhibit, classified as ‘SECRET//REL TO USA//FVEY,’ ‘includes operational details such as the mission, tasks, approval level for different operational activities, rules of engagement, caveats placed on approved operational activities, coordination procedures for different operational activities, and command and control mechanisms for the conduct of military operations.’”  “It also includes ‘intelligence activities, sources, and methods incident to the conduct of military operations,’ a description of ‘certain activities intended to take place in foreign countries,’ and ‘operational associations and methods for Special Operations Forces (SOF) planning and conduct of operations.’”  “Both declarants also explain how disclosure of this information potentially would harm national security.”  “Disclosure ‘would affect how SOF conducts future operations, lessen the effectiveness on intelligence gathering and give the enemy insight into the vulnerabilities of SOF’; ‘[t]he enemy would be able to circumvent SOF TTPs and protocols for conducting future military operations’; and the ‘enemy would also be able to ascertain SOF vulnerabilities and exploit those vulnerabilities in future operations.’”  “Furthermore, because the withheld information contains details about military operations, ‘[t]errorist organizations, violent extremist organizations, or hostile foreign governments could use the information to better plan attacks or evade justice.’”      “Disclosure would ‘jeopardize ongoing special operations by potentially giving enemy forces information that would allow them to avoid or counter the operational activity in question’ and ‘would allow them to better target U.S. forces for attack.’”      “Defendants have adequately justified their withholdings under Exemption 1.”  “Their declarants’ representations ‘have more than plausibly explained why’ the withheld information is classified and have offered ‘credible reasons for classifying this information, including that unauthorized disclosure would damage national security[.]’”
  
  “Plaintiff argues that classifying the information at issue was not justified – and therefore the improperly withheld – because it was done for a prohibited purpose under Executive Order 13,526.”  “Specifically, Plaintiff contends that the Executive Order bars classification to ‘conceal violations of law, inefficiency, or administrative error’ or to ‘prevent embarrassment to a person, organization, or agency.’” “Plaintiff concedes that he must provide more than mere ‘conjecture’ to overcome the presumption that the government has properly applied the classification rules.”  “So, he points to a series of news articles and public statements, which he claims establish the following facts:  (1) the civilian victims – a mother and child – ‘were easily visually distinguishable from an adult man’; (2) they were killed by a second drone strike as they ran from a pickup truck hit by the initial strike; (3) the drone operators were inexperienced and under time pressure; and (4) the U.S. military failed to acknowledge the civilian deaths for a year.”  “These facts, according to Plaintiff, ‘provide a solid basis – not foundationless conjecture – that the government has withheld information because it would reveal violations of international or domestic law, error, or information that would cause embarrassment to the military.’”  “The court is unpersuaded.”  “Exemption 1 cannot be defeated simply by surpassing the low bar of offering more than ‘conjecture.’”  “To prevail, a party must present evidence either contradicting the propriety of the classification or evidence of bad faith in making the withholdings.”  “That is a tough hill to climb.”  “Agency declarations asserting Exemption 1 ‘enjoy “a presumption of good faith [that] cannot be rebutted by purely speculative claims” of agency malfeasance.’”  “‘This presumption applies with special force in the national security context, where [the court must] give substantial weight to an agency’s affidavit and will not second-guess its conclusions even when they are speculative to some extent.’” “Plaintiff here has not overcome the good faith presumption afforded Defendants’ declarants.”  “He has done no more than offer links to media stories that raise questions about a drone strike that killed two civilians.”  “In fact, one of the articles, Civilian Harm, written by Plaintiff himself, relies extensively on declassified information contained within the records released to Plaintiff via FOIA.”  “That Defendants have disclosed facts causing Plaintiff to question the legality of the drone strike, if anything, supports the good faith of the declarants, not the inference that they are improperly classifying information or are acting in bad faith.”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing:  The court relates that “Plaintiff contends that Defendants have not carried their burden under the FOIA Improvement Act.”  “But [the court finds that] they have.”  “Defendants’ declarants both explained how disclosure would have adverse national security consequences.”  “Plaintiff offers no evidence that would call into doubt the good faith presumption afforded these predictions of potential ha[r]m.”
   
• Litigation Considerations, In Camera Inspection:  The court relates that “Plaintiff invites the court to review the withheld information in camera.”  “The court declines to do so.”