In this case under the Freedom of Information Act ("FOIA"),
II. BACKGROUND
A. The Washington Post Article and Subsequent Trump Administration Comments
The facts underlying this case can be summarized in a few paragraphs. On July 19, 2017, the Washington Post published an article describing the Trump administration's termination, a month earlier, of an alleged covert CIA program to arm rebels to the government of Bachar Al-Assad in Syria. Greg Jaffe & Adam Entous, Trump Ends Covert CIA Program to Arm Anti-Assad Rebels in Syria, a Move Sought by Moscow , Washington Post, July 19, 2017, Pls.' Cross Mot. Summ. J. Ex. 1, at 2, ECF No. 16-2 ;
Two days later on July 21, 2017, General Raymond Thomas, the commander of the United States Special Operations Command-the U.S. command overseeing special operations forces of the U.S. Army, Marine Corps, Navy, and Air Force, see
Absolutely-absolutely not in my-at least from what I know about that programand 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 road to hope.
Id.
On July 24, 2017, 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." @realDonaldTrump, Twitter (July 25, 2017, 07:23 PM), https://twitter.com/realdonaldtrump/status/889672374458646528.
Finally, on July 25, 2017, President Trump was interviewed by the Wall Street Journal ("WSJ"). Pls.' SMF ¶ 10; Def.'s Resp. Pl.'s SMF ¶ 10. In the course of discussing intelligence leaks in his administration, President Trump referenced an unnamed Washington Post story about a weapons program in Syria:
Trump: 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 -
WSJ: The Post, I thought. It was in the Washington Post.
Trump: It was in 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-Qaida 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.
Excerpts from President Donald Trump's Interview with the Wall Street Journal, July 25, 2017, Pls.' Cross Mot. Ex. 3, at 9.
B. Procedural History
On September 12, 2017, Buzzfeed submitted a six-part FOIA request to the CIA. Compl. ¶ 10, ECF No. 1. Five of the six subparts in the request were directed at records related to an alleged program of CIA payments to Syrian rebels fighting the Assad government.
Although the CIA acknowledged receipt of Buzzfeed's request on September 14, 2017,
The CIA moved for summary judgment on May 4, 2018, arguing both that its Glomar response to the request was valid and that the limited search for responsive, non-exempt records it conducted in response to part 4 of the request was adequate. Def.'s Mem. Supp. Summ. J. 1-2, ECF No. 14. On June 4, 2018, Buzzfeed filed both an opposition to the motion and its own cross motion for summary judgment. Pls.' Mem. Opp'n, ECF No. 15 ; Pls.' Mem. Supp. Cross Mot. Summ. J., ECF No. 16. On July 11, 2018, the CIA filed its opposition to the cross motion and reply. Def.'s Mem. Opp'n, ECF No. 18 ; Def's Reply, ECF No. 19. And Buzzfeed filed its reply on August 6, 2018. Pls.' Reply, ECF No. 20. The cross motions are now ripe for review.
III. LEGAL STANDARD
The Freedom of Information Act "sets forth a policy of broad disclosure of Government documents in order 'to ensure an informed citizenry, vital to the functioning of a democratic society.' " FBI v. Abramson ,
To carry its burden, the agency must provide "a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of the withheld document to which they apply." Elec. Privacy Info. Ctr. v. DEA ,
"Even if a nonmovant does not respond to a motion for summary judgment, the court cannot grant the motion as conceded." Hunton & Williams ,
IV. ANALYSIS
The CIA moves for summary judgment as to both the validity of its Glomar response pursuant to FOIA Exemptions 1 and 3 and the adequacy of its limited search for records in response to part 4 of Buzzfeed's request. In its opposition and cross motion, Buzzfeed argues that the CIA's Glomar response is improper because President Trump officially acknowledged the existence of a covert CIA program of payments to Syrian rebels in his July 24, 2017 tweet. Buzzfeed does not otherwise challenge the CIA's invocation of FOIA Exemptions 1 and 3, the adequacy of the agency's search, or the redaction of information on the two released e-mails. The Court first reviews whether the July 24, 2017 tweet officially acknowledged the existence of the alleged CIA program, and concludes that it did not. The Court next reviews the CIA's invocation of FOIA Exemption 1 and 3, and finally the agency's limited search for records. Because it finds that the agency properly invoked both exemptions and conducted an adequate search for records, the Court grants the CIA's motion for summary judgment and denies Buzzfeed's cross motion.
A. The July 24, 2017 Tweet Did Not Officially Acknowledge the Alleged CIA Program
The only contested issue in this case is the legal significance the Court should impart to President Trump's July 24, 2017 tweet. According to Buzzfeed, the tweet constituted an official acknowledgment of a CIA program of payments to anti-Assad Syrian rebels mentioned in the Washington Post's July 19, 2017 article, and the CIA can no longer refuse to acknowledge the existence or absence of records concerning the program. The CIA contends that the tweet is too vague and ambiguous to constitute the official acknowledgment of a covert payment program, let alone a program ran by the CIA.
1. What Constitutes "Official Disclosure" in the Glomar Context
Under the "official acknowledgment" line of FOIA cases, "when an agency has officially acknowledged otherwise exempt information through prior disclosure, the agency has waived its right to claim an exemption with respect to that information." Am. Civil Liberties Union v. CIA ("ACLU "),
On first glance, the CIA and Buzzfeed appear to offer conflicting standards for what constitutes "specific information" meeting the plaintiff's burden. The CIA argues that "[t]he D.C. Circuit has narrowly construed the official acknowledgment principle ... and the plaintiff must satisfy three stringent criteria." Def.'s Mem. Supp. 10 (citing Associated Press v. FBI ,
As the parties recognize however, the reasoning of the Fitzgibbon line of cases and of ACLU is not necessarily at odds. ACLU 's admonition that an agency's Glomar response must be "logical or plausible,"
As a court in this circuit recently held in a FOIA case involving a similar issue, what the ACLU court did provide guidance on was the "type of proof ... required to establish that the existence of a document has been officially acknowledged." James Madison Project v. Dep't of Justice ,
2. Application to This Case
Here, Buzzfeed argues that the information sought to be protected by the CIA's Glomar response-the existence or absence of a covert CIA program of payments to Syrian rebels-has already been officially acknowledged. Buzzfeed does not argue that President Trump's July 24, 2017 tweet makes clear, on its face, the existence of the covert CIA program (and of records associated to such a program). Rather, Buzzfeed argues that the tweet, both alone and in conjunction with General Thomas's statements at the Aspen Security Conference and the President's interview with the Wall Street Journal on July 25, 2017, leads to the inescapable inference that such a program existed and was run by CIA before the President ended it. See Pls.' Mem. Supp. 2-7. The Court disagrees.
First, the Court finds that the tweet alone is not sufficiently precise to constitute an official acknowledgment of a CIA program of payments to Syrian rebels. In the tweet, the President stated: "[t]he Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad." @realDonaldTrump, Twitter (July 24, 2017, 07:23 PM). Buzzfeed contends that "[a]ny reasonable person would understand the ... tweet as disclosing that the CIA had made payments to Syrian rebels." Pls.' Mem. Supp. 2. While the tweet states that the Washington Post "fabricated the facts," Buzzfeed points out that "it would not make any sense to describe non-existent payments as being 'massive, dangerous, and wasteful.' " Id. at 3. Buzzfeed also notes that it would be illogical for the President to accuse the Post of "fabricat[ing] the facts on my ending massive ... payments" if there were no payments to end in the first place. Pls.' Mem. Supp. 3.
However, Buzzfeed does not explain how the tweet reveals the existence of a CIA program of payments to Syrian rebels-nor can it. The CIA argues that the tweet "does not link to or otherwise identify any particular article in the Washington Post," that it "does not specify in what respect the Washington Post's reporting is inaccurate," leaving it is unclear what program, if any, exists, and in any event that the tweet provides no indication of "the CIA's involvement in any such program." Def.'s Mem. Supp. 11. Without taking a position as to what program, if any, the tweet may have officially acknowledged,
Even taking into account the context behind the tweet and assuming it referred to the Washington Post article, the President's characterization of the facts in the article as "fabricated" negates any inference that can be drawn from it as to the source of the payments. Because the article asserted that the program was a CIA program, Buzzfeed assumes that the President acknowledged as much, and that his reference to fabricated facts in the article necessarily concerned the details of the program rather than its origin. See Pls.' Mem. Supp. 6. The Court cannot make such an assumption. At most, the tweet revealed that multiple payments were made by the government
Buzzfeed's reliance on ACLU for the proposition that the Court must assume the CIA is behind any covert payment program is also misplaced. In ACLU , the plaintiff sought the production of "records pertaining to the use of unmanned aerial vehicles ('UAVs') ... by the CIA and the Armed Forces for the purposes of killing targeted individuals." ACLU ,
Perhaps recognizing the issue, Buzzfeed also argues in its motion that additional statements made contemporaneously with the tweet support the notion that the CIA, and no other agency, was in charge of the
B. The CIA's Glomar Response Pursuant to FOIA Exemptions 1 and 3 Was Appropriate
The Court next reviews whether the CIA's Glomar response pursuant to FOIA Exemptions 1 and 3 was appropriate. While Buzzfeed does not challenge the validity of the claimed exemptions, Pls.' Mem. Supp. 1 n.1., "the court cannot grant
1. Exemption 1
First, the CIA argues that its Glomar response was proper under Exemption 1 because revealing whether or not the agency operates a covert program of payments to Syrian rebels would disclose classified material, the disclosure of which could reasonably be expected to cause damage to the national security. Def.'s Mem. Supp. 13-15. The Court agrees.
Under FOIA Exemption 1, an agency can withhold from disclosure documents 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."
Here, the CIA argues that the information sought to be withheld is properly classified by Executive Order 13526, which allows the classification of national security information concerning "intelligence activities (including covert action)," Executive Order 13526 § 1.4(c),
Without taking a position as to whether disclosure would reveal the existence of a U.S. covert action program,
2. Exemption 3
The CIA contends that its Glomar response was also proper under FOIA Exemption 3 because the information sought to be withheld is barred from disclosure pursuant to the National Security Act of 1947,
Under Exemption 3, an agency can withhold from disclosure matters that are "specifically exempted from disclosure by statute," provided that the statute either "requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue" or "establishes particular criteria for withholding or refers to particular types of matters to be withheld."
Here, the CIA argues that the National Security Act is an exemption statute that bars disclosure of the information sought to be withheld because it protects from disclosure "intelligence sources and methods." Def.'s Mem. Supp. 16 (quoting
C. The CIA's Limited Search Was Adequate
Finally, the Court reviews whether the limited search the CIA conducted for items responsive to part 4 of Buzzfeed's request was adequate and whether the redactions to documents released to Buzzfeed as a result of that search are logical and plausible. As with the CIA's invocation of Exemptions 1 and 3 above, Buzzfeed does not challenge the adequacy of the CIA's search and release of redacted documents but the Court nonetheless "determine[s] for itself whether the record and any undisputed material facts justify granting summary judgment." Winston & Strawn ,
1. The CIA Conducted an Adequate Search for Documents Responsive to Part 4 of the Request
First, the Court finds that the CIA's limited search for documents responsive to part 4 of Buzzfeed's request but not involving the information sought to be protected by the agency's Glomar response was adequate. "An 'agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was 'reasonably calculated to uncover all relevant documents.' " Defs. of Wildlife ,
2. The CIA Appropriately Redacted Information Pursuant to Exemptions 3 and 6
Next, the Court reviews the agency's invocation of FOIA Exemptions 3 and 6 to withhold the "Agency username and the email addresses and telephone numbers of an Agency employee and two journalists." Shiner Decl. ¶ 13. The Court finds that the redactions are appropriate and grants summary judgment to the agency.
The CIA justifies its withholding of an agency username and of the e-mail address and telephone number for an agency employee under Exemption 3, arguing that the CIA Act of 1949,
As to the reporters' e-mail addresses and phone numbers, the CIA argues that the redactions were made pursuant to FOIA Exemption 6, which shields from disclosure "files the disclosure of which would constitute a clearly unwarranted
V. CONCLUSION
For the foregoing reasons, Defendant's motion for summary judgment (ECF No. 14 ) is GRANTED . Plaintiffs' cross motion for summary judgment (ECF No. 16 ) is DENIED . An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Notes
Because the exhibits in support of Buzzfeed's cross motion are included in a single attachment to the motion, the Court uses PACER page numbers when referring to each exhibit throughout this opinion.
The CIA does not argue that the July 19, 2017 tweet was not an official statement, and instead "assum[es] arguendo" that it was. Def.'s Mem. Supp. 11. The Court notes that the government took the position that presidential tweets were official statements in James Madison Project v. Department of Justice ,
The Court is not entirely convinced by the CIA's arguments on the issue. The agency does not meaningfully attempt to refute the commonsense conclusion that the President's tweet was in response to the July 19, 2017 article. Similarly, the CIA contends that because the tweet does not specify which facts were fabricated, it could be interpreted to mean that the article fabricated "the existence of a covert program" altogether. Def.'s Mem. Supp. 11. But as Buzzfeed points out, it is difficult to "explain how a tweet about 'my ending ... payments' would make any sense if there were no U.S. government payments to end.' " Pls.' Reply 5.
Given the coalition of governments that is operating in the region, one could also plausibly assume that the President may have influence over payments made by other governments.
In any event, as Buzzfeed recognizes, "[an]other agency that could plausibly be making [such] payments ... is the Department of Defense." Pls.' Mem. Supp. 6.
The Court notes that multiple articles published on the issue have suggested that the State Department was also involved in providing support to Syrian rebels. E.g. , Melanie Eversley, Report: U.S.-funded Weapons Reaching Syrian Rebels , USA Today (Sept. 12, 2013), https://www.usatoday.com/story/news/world/2013/09/11/cia-state-department-weapons-gear-syrian-rebels/2802491/; Mark Landler & Michael R. Gordon, U.S. Offers Training and Other Aid to Syrian Rebels , New York Times (Feb. 27, 2013), https://www.nytimes.com/2013/02/28/world/middleeast/us-expands-aid-to-syrian-rebels.html.
According to the Department of Defense's website, General Thomas previously served as the Associate Director for Military Affairs at the CIA. See General Raymond A. Thomas III, Department of Defense, https://dod.defense.gov/About/Biographies/Biography-View/Article/709270/general-raymond-a-thomas-iii/; see also Thomas Gibbons-Neff, JSOC Commander Tapped to Lead Special Operations Command , Washington Post (Feb. 29, 2016), https://www.washingtonpost.com/news/checkpoint/wp/2016/02/29/former-jsoc-commander-tapped-to-lead-special-operations-command/?utm_term=.235ba0496d67 (noting General Thomas's appointment at the CIA in 2013). Arguably, the CIA could be considered an organization General Thomas has been affiliated with in the past.
As discussed above in Part IV.A., the Court does not address what covert program, if any, President Trump's July 24, 2017 tweet may have revealed.