N.Y. Times Co. v. Cent. Intelligence Agency
N.Y. Times Co. v. Cent. Intelligence Agency
Opinion of the Court
Plaintiffs, the New York Times Company and Matthew Rosenberg, bring this action challenging Defendant Central Intelligence Agency's Glomar response to Plaintiffs' request pursuant to the Freedom of Information Act,
BACKGROUND
On July 24, 2017, President Donald Trump, using his Twitter handle @realdonaldtrump, "tweeted": "The Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad." Decl. of David E. McCraw ("McGraw Decl."), Ex. 3, July 24, 2017 Tweet. Though the President's tweet does not reference any particular article published by the Post, the paper ran an article on July 19, 2017 reporting that "President Trump has decided to end the CIA's covert program to arm and train moderate Syrian rebels battling the government of Bashar al-Assad, a move long sought by Russia, according to U.S. officials." Greg Jaffe & Adam Entous, Trump ends covert CIA program to arm anti-Assad rebels in Syria, a move sought by Moscow , Wash. Post, July 19, 2017, https://wapo.st/2IB0Pi2.
The following day, President Trump appeared to reference the Post article again during an interview with the Wall Street Journal. In response to a question regarding President Trump's disappointment with the Justice Department and Attorney General Jeff Sessions, President Trump responded:
Number one, they should go after the leakers in intelligence.... I'm talking about intelligence leaks. I'm talking like the story about Syria that was in The New York Times the other day. I'm-which by the way, was a decision made by people, not me. But, you know, they wrote it 100-it was in the-... It was *524in The Washington Post. That was not something that I was involved in, other than they did come and they suggested. It turns out it's-a lot of al-Qaeda we're giving these weapons to. You know, they didn't write the truthful story, which they never do. So all of those things are very important. But, no, I'm very disappointed in the fact that the Justice Department has not gone after the leakers. And they're the ones that have the great power to go after the leakers, you understand. So-and I'm very disappointed in Jeff Sessions.
McGraw Decl., Ex. 4, at 5, "Excerpts: Donald Trump's Interview with the Wall Street Journal," Wall St. J., July 25, 2017, ECF No. 14.
Prior to President Trump's tweet and statements, the alleged covert program was also referenced by General Raymond "Tony" Thomas, U.S. Special Operations Commander, during a talk at the 2017 Aspen Security Forum in response to a question from Catherine Herridge, Chief Intelligence Correspondent for the Fox News Channel:
Ms. Herridge: It's now out in the public reporting that these anti-Assad rebels are very unhappy that this covert program to arm them has been rolled up. Is it your assessment that this was done to create favor with Russia, or that it was not an effective program?
General Thomas: Absolutely-absolutely not in my-at least from what I know about that program and the decision to end it. Absolutely not a sop to the Russians. It was I think based on assessment of the nature of the program, what we're trying to accomplish, the viability of it going forward, and a tough, tough decision. I mean we're all reading the editorials now of are we leaving people at the altar, you know, people have we manned and equipped, but they're-it is so much more complex than even I can describe, and again that's not necessarily an organization that I've been affiliated with, but a sister-a parallel activity that was-that had a tough, you know, some would argue impossible mission based on the approach we took. It might have been scoped too narrowly or not empowered sufficiently. I don't know enough about it to criticize it in that direction, but it had a tough [row] to [hoe].
McCraw Decl., Ex. 5, Excerpts from General Tony Thomas's Statements at the 2017 Aspen Security Forum, July 21, 2017, ECF No. 12.
On July 25, 2017, the Times submitted a FOIA request to the CIA seeking "[a]ll records and documents, including Inspector General reports, related to the program to which President Trump referred in a July 24, 2017 post on Twitter in which he stated: 'The Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad.' " Compl. 2, ECF No. 1. On August 22, 2017, after 20 business days had elapsed without a response from the CIA, Plaintiffs filed the instant action requesting that the Court, inter alia , declare that the documents sought by the FOIA request are public and must be disclosed, and to order the CIA to provide said documents.
STANDARD OF REVIEW
Actions brought under FOIA are typically resolved by summary judgment. See Bloomberg L.P. v. Bd. of Governors of Fed. Reserve Sys. ,
"To prevail on motion for summary judgment in a FOIA case, the defending agency has the burden of showing that [1] its search was adequate and [2] that any withheld documents fall within an exemption to the FOIA." Carney v. U.S. Dep't of Justice ,
Agency affidavits, however, must describe with reasonable specificity the nature of the documents at issue and the justification for nondisclosure-conclusory assertions are insufficient. Bloomberg ,
In sum, the district court can award summary judgment on the basis of agency affidavits, Carney ,
ANALYSIS
Plaintiffs' cross-motion raises three threshold issues that must be resolved prior to determining whether the CIA's Glomar response pursuant to FOIA Exemptions 1 and 3 can stand. First, whether President Trump's tweet and public statements declassified the existence of a covert CIA program, and therefore overcome FOIA Exemptions 1 and 3. Second, whether the President's tweet and public statements were an official acknowledgement pursuant to Wilson v. C.I.A. ,
I. Plaintiff's Motion for Summary Judgment
a. Presidential Declassification
Plaintiff asserts that "legal effect of the President's public statements about the arms program was to declassify the existence of the program as well as its termination, and, in so doing, take those facts outside of Exemptions 1 and 3." Pls.' Mem. Supp. Mot. Summ. J. 10, ECF No. 13. Given the facts here, however, Plaintiff's position is untenable.
It is undisputed that the President, as the head of the Executive Branch, has broad declassification authority. See generally, Dep't of Navy v. Egan ,
Presently, Executive Order 13526 ("EO 13526") governs the declassification of "Top Secret," "Secret," and "Confidential" information.
Here, President Trump did not make an unequivocal statement, or any statement for that matter, indicating he was declassifying information. This should end the inquiry, but Plaintiffs argue that the plain meaning of President Trump's tweet and his statements to the Journal are sufficient to verify existence of a covert CIA program, and therefore President Trump's statements declassified the existence of the program. Yet, even when viewing the facts in a light most favorable to Plaintiffs, this argument is unsupported.
Based on the text of EO 13526, classification, and correspondingly declassification, is an official designation afforded to information by a classification authority.
Accordingly, the Court holds that (1) absent an unequivocal statement of declassification from the President or exceptional circumstances that are not present here, the Court will not infer whether the President's statements have the legal effect of declassifying information; and (2) President Trump's public statements in this case do not rise to the level of an unequivocal statement of declassification. At best, President Trump's statements could be treated as an official acknowledgement of an alleged covert CIA program, but Plaintiffs argument on this front also fails.
b. Official Acknowledgement
Plaintiffs assert that even if President Trump's statements do not declassify the existence of the alleged covert CIA program, his statements officially acknowledge the existence of the program, thereby waiving the CIA's claims under FOIA Exemptions 1 and 3. President Trump's statements, however, do not meet the requirements under Wilson to be considered an official acknowledgement.
In the Glomar context, "the specific information at issue is not the contents of a particular record, but rather the existence vel non of any records responsive to the FOIA request." Am. Civil Liberties Union v. C.I.A. ,
Under prevailing law, "[c]lassified information ... is deemed to have been officially disclosed only if it (1) "[is] as specific as the information previously released," (2) "match[es] the information previously disclosed," and (3) was "made public through an official and documented disclosure." Wilson ,
Determining if there has been an official acknowledgement of the existence of responsive records requires a fact-intensive inquiry. Both Wolf and ACLU , though not binding on this Court, are instructive. In Wolf , the plaintiff filed a FOIA request with the CIA for records about Colombian politician Jorge Eliecer Gaitan.
*529Director testified before Congress referencing Gaitan and disturbances that followed his assassination.
On the other hand, in ACLU , the plaintiff requested from the CIA "documents about drones ... none of which [were] limited to drones operated by the CIA."
The facts in this case do not resemble Wolf . There is no suggestion that President Trump's tweet or statements to the Journal were sourced directly from the records requested by the Times. Though President Trump's statements need not exactly match the records requested per New York Times Co. , i.e., he does not need to read from the records to publically acknowledge them, there needs to be some evidence that his statements were based on the records requested for there to be an official acknowledgment under the Wolf line of reasoning. But, whether the facts resemble ACLU is a closer question.
In ACLU , the statements of public officials regarding drone strikes were unambiguous and specific. For example, President Obama stated that "a lot of these strikes have been ... going after al Qaeda suspects," and then counterterrorism advisor John Brennan stated that "the United States Government conducts targeted strikes ... sometimes using remotely piloted aircraft ...."
Plaintiffs ask the Court to infer from President Trump's description of the program as "massive, dangerous, and wasteful" that President Trump must be referring to a program that existed. Pls.' Mem. Supp. Mot. Summ. J. 13, ECF No. 13. But, these adjectives could just as easily be the President relaying what he believed to be the Post's "fabricated" characterization the program.
Next, President Trump's statements to the Journal are similarly ambiguous and lack the requisite specificity to be considered *530an official acknowledgment. In his interview with the Journal, President Trump, while discussing his frustration with "intelligence leaks," referenced (1) an article in the Post about Syria; (2) that a decision was made by "people"; (3) that it was something he was not "involved in"; and (4) that the weapons, presumably referenced in the article, were actually being given to al-Qaeda. The CIA argues that reading President Trump's statements here to mean that "weapons intended for Syrian rebels had ended up in the hands of al-Qaeda," as the Times' asserts, requires the Court to impute to the President words that he did not say. Def.'s Reply Supp. Mot. Summ. J. 10, ECF No. 17.
The Court agrees that President Trump's statements did not confirm the existence of a program to arm Syrian rebels; he did not clarify what exactly a decision had to be made about or who made the alleged decision; and he did not clarify why there were weapons being given out, to whom the weapons were given, or the manner in which they were given. Cf. ACLU ,
Even accounting the Times' contention that President Trump's statements officially acknowledge the existence of a covert program to arm and train Syrian rebels, Second Circuit law still permits the CIA to issue a Glomar response. In Wilner , the Second Circuit held that even if a program is officially disclosed in general, Glomar responses may be invoked "with respect to aspects of the program that have not been the subject of such disclosures."
The Plaintiffs' interpretation of the facts may generate a viable argument under the D.C. Circuit's reasoning in ACLU , as in that case even the general acknowledgment that the U.S. engaged in drone strikes by government officials was sufficient for the court to hold there was official acknowledgment that overcame the CIA's Glomar response. Under Wilner , however, Plaintiffs would need to point to more than President Trump's general statements regarding a program to arm and train Syrian rebels; there would need to be official acknowledgment that the CIA operated said program for the Times's request for records from the CIA to be viable under Second Circuit law. As this was not the case here, i.e., the CIA's involvement if any was not officially disclosed, the Court holds that President Trump's statements do not overcome Defendant's Glomar response.
*531c. "Public Disclosure"
Plaintiffs' final basis for summary judgment is that "U.S. Special Operations Commander Tony Thomas independently confirmed the existence of the covert government program[,] ... [which] undermines the plausibility of the CIA's Glomar response." Pls.' Mem. Supp. Summ. J. 15, ECF No. 13. Noting correctly that a Glomar response can only be waived by the agency that issued it, Plaintiffs rely on Florez v. Cent. Intelligence Agency ,
In Florez , the CIA issued a Glomar response in connection with a FOIA request for records related to the FOIA requestor's father, Dr. Armando J. Florez, who "served in several high-level diplomatic roles on behalf of the Republic of Cuba."
Here, General Thomas's statements, like President Trump's statements, lack sufficient specificity to have any bearing on the CIA's Glomar response. Per the holding in Florez , General Thomas's statements are relevant in assessing the credibility of the CIA's Glomar response, but his statements lack the detailed revelations that characterized the disclosures in Florez . For example, General Thomas's statements do not clarify which agencies were involved with the alleged covert program or how the program was operated. Cf. Florez ,
Furthermore, the General's statements are infirm ("[I]t is so much more complex than even I can describe;" "I don't know enough about it to criticize it ...."), suggesting *532a lack of familiarity with the alleged program, and do not confirm that his knowledge of the alleged program stems from responsive records rather than "editorials" or other non-official sources. Accordingly, General Thomas's pontifications regarding the program at issue during a "Security Forum," while not irrelevant, lack the degree of detail that the Second Circuit concluded necessitated a re-evaluation of the CIA's Glomar response in Florez and thus, do not defeat the CIA's Glomar response in this case.
II. Defendant's Motion for Summary Judgment
As noted previously, the CIA's Glomar response must be tethered to a FOIA exemption to be upheld-so long as the agency has proffered one legitimate basis for its Glomar response, summary judgment is warranted. Wilner ,
a. Exemption 1
FOIA Exemption 1 permits an agency to withhold records that are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." U.S.C. § 552(b)(1)(A)-(B). "To withhold records under Exemption 1, the CIA must establish that it complied with proper procedures in classifying materials and that the withheld information falls within the substantive scope" of the relevant Executive Order. Amnesty Int'l USA v. C.I.A. ,
In making its claim under Exemption 1, the CIA relies on EO 13526,
The CIA submitted two declarations by Antoinette B. Shiner, an Information Review Officer for the CIA, in support of its claim under Exemption 1. See Declaration of Antoinette B. Shiner, ECF No. 11 ("Shiner Decl."); Supplemental Declaration of Antoinette B. Shiner, ECF No. 18 ("Shiner Supplemental Decl."). The Court holds that the Shiner's declarations thoroughly demonstrate the information requested falls within Exemption 1 with reasonably specific detail. At the outset, Shiner, who has original classification authority and is authorized to conduct classification reviews, states that confirming the existence of responsive records related to a covert operation to arm Syrian rebels "would confirm the existence and the focus of a sensitive Agency activity that is by definition kept hidden to protect U.S. government policy objectives," while denying their existence would "confirm the absence of specific foreign policy objective ... or the Agency's inability to successfully carry out the purported operational activities ...." Shiner Decl. ¶ 15. Therefore, Shiner concludes, "any substantive response would reveal sensitive information about the CIA's intelligence sources, methods, and activities that is protected from disclosure under Exemption 1." Id. at ¶ 16.
In response to Plaintiffs' criticism that Shiner's Declaration in support of Exemption 1 is conclusory and lacks specificity, Pls.' Mem. Supp. Summ. J. 18, Shiner's Supplemental Declaration explains that disclosing the existence or nonexistence of responsive records would (1) "reveal whether or not the United States Government exercised extraordinary legal authorities to covertly influence the political, economic, and/or military conditions in Syria[;]" (2) "compromise specific foreign policy goal[s] ... or serve as confirmation for U.S. adversaries that there was no such objective[;]" and (3) assuming the CIA had a covert program, "would tend to reveal the Agency's capabilities, intelligence and regional interests, accesses, funding, and relationships or lack thereof," which adversaries "can exploit ... to build a more accurate picture of the CIA's activities ... impair[ing] the effectiveness of [the] CIA's intelligence operations." Shiner Supplemental Decl. ¶ 5. Given the relative high degree of deference an agency is entitled to in this context, the Court finds that the reasons articulated in the Shiner Declarations justify Defendant's Glomar response to Plaintiff pursuant to the FOIA Exemption 1. The same is true of Exemption 3.
b. Exemption 3
Exemption 3 permits agencies to withhold information that is "specifically exempted from disclosure by statute" if the statute "requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue."
Here, the CIA argues that its Glomar response was appropriate pursuant to *534the National Security Act of 1947, which prohibits the unauthorized disclosure of intelligence sources and methods.
CONCLUSION
For the foregoing reasons, Plaintiffs' motion for summary judgment is DENIED ; Defendant's motion for summary judgment is GRANTED .
SO ORDERED.
A Glomar response, which originates from a FOIA case concerning records related to the Hughes Glomar Explorer, is when "an agency ... pursuant to FOIA's statutory exemptions, refuse[s] to confirm or deny the existence of certain records in response to a FOIA request...." Wilner v. Nat'l Sec. Agency ,
This line of reasoning seems to flow logically from the President's ability to rescind the Executive Orders of previous Presidents as well as her own, but the Court need not resolve this issue to reach a decision in this matter. See generally, Hawaii v. Trump ,
Though the Second Circuit has expressed concern regarding the "questionable provenance" of the Wilson test and cautioned against its "rigid application," the Wilson test remains the law of this Circuit. New York Times Co.,
The Court notes that the Post's July 19, 2017 article does not use the adjectives used in President Trump's tweets. See Jaffe & Entous, Trump ends covert CIA program to arm anti-Assad rebels in Syria, a move sought by Moscow , Wash. Post, July 19, 2017, https://wapo.st/2IB0Pi2. The Court, however, is not in a position to assess why the President chose the words he did in his tweet allegedly describing the article.
Wilner 's carve out, that a Glomar response can be upheld even if a program has been generally acknowledged if the FOIA request relates to details of a program that have not been publically disclosed, appears to be in tension with the Second Circuit's holding in New York Times Co. ,
Reference
- Full Case Name
- NEW YORK TIMES COMPANY, Matthew Rosenberg v. CENTRAL INTELLIGENCE AGENCY
- Cited By
- 7 cases
- Status
- Published