THE NEW YORK TIMES, MATTHEW ROSENBERG v. CENTRAL INTELLIGENCE AGENCY
No. 18-2112-cv
United States Court of Appeals, Second Circuit
July 9, 2020
ARGUED: SEPTEMBER 6, 2019
DECIDED: JULY 9, 2020
No. 18-2112-cv
THE NEW YORK TIMES, MATTHEW ROSENBERG,
Plaintiffs-Appellants,
v.
CENTRAL INTELLIGENCE AGENCY,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of New York.
Before: KATZMANN, Chief Judge, and WALKER, and PARK, Circuit Judges.
New York Times and Matthew Rosenberg (collectively, the Times) brought this Freedom of Information Act (FOIA) action seeking acknowledgement from the Central Intelligence Agency
CHIEF JUDGE KATZMANN dissents in a separate opinion.
DAVID E. MCCRAW, The New York Times Company, Legal Department, New York, NY for Plaintiffs-Appellants.
JEANNETTE A. VARGAS (Benjamin H. Torrance, on the brief), for Geoffrey S. Berman, United States Attorney for Southern District of New York, NY, for Defendant-Appellee.
New York Times and Matthew Rosenberg (collectively, the Times) brought this Freedom of Information Act (FOIA) action seeking acknowledgement from the Central Intelligence Agency (CIA) that it was aware of the existence of records regarding a covert program of arming and training rebel forces in Syria. Claiming that such a disclosure was not required under two FOIA exemptions, the CIA responded to the Times’ initial FOIA request with a so-called Glomar response that that the Agency could neither confirm nor deny the existence or nonexistence of such records. The Times filed a complaint asserting that certain statements made by the President and another individual precluded use of the Glomar response. The parties cross-moved for summary judgment. The district court (Carter, J.) granted summary judgment for the CIA, holding that the relevant statements did not strip the CIA of the claimed exemptions because the statements did not officially acknowledge or inadvertently declassify the existence of such a program. We AFFIRM.
BACKGROUND
Plaintiffs-Appellants, the New York Times and Matthew Rosenberg, a reporter for the New York Times (collectively, the Times), submitted a FOIA request on July 25, 2017, seeking to compel disclosure by the CIA of records pertaining to a covert program
Separately, on July 21, 2017, United States Special Operations Commander, General Raymond (Tony) Thomas, was asked about the “roll[ing] up” of a “covert program to arm [anti-Assad rebels]” at a national security conference at the Aspen Institute. In response,
On August 22, 2017, the Times filed the complaint in this case, asking the district court to compel disclosure of any records responsive to its FOIA request. By letter dated August 23, 2017, the CIA issued its Glomar response,1 informing the Times that it could neither confirm nor deny the existence or nonexistence of records responsive to the request, pursuant to FOIA Exemptions 1 and 3. To support its response, the CIA submitted two declarations by Antoinette B. Shiner, an Information Review Officer for the agency. Shiner asserted that confirming the existence of responsive records would, for instance, “confirm the existence and the focus of sensitive
Both parties filed for summary judgment and, on June 29, 2018, the district court granted the CIA’s motion and denied the Times’s motion.2 The district court first determined that the Shiner Declarations provided “sufficient bases for concluding that revealing whether or not responsive records exist in connection with an alleged program to arm and train Syrian rebels would lead to an unauthorized disclosure of intelligence sources and methods.”3 The district court then held that: (1) the CIA’s Glomar response was appropriately tethered to FOIA Exemptions 1 and 3; (2) President Trump’s statements did not declassify the existence of the covert Syrian program;] (3) those same statements did not officially acknowledge the existence of the program and therefore did not waive the CIA’s eligibility for FOIA Exemptions 1 and 3; and (4) U.S. Special Operations Commander Thomas’s statements did not
DISCUSSION
This case lies at the intersection of two important competing interests: the need for the public to know what its government is doing and the need to keep secret certain government activity the disclosure of which could compromise national security, including by revealing clandestine sources and methods used to acquire foreign intelligence and to conduct covert operations. FOIA provides an avenue for government transparency by making documents available to the public. FOIA contains nine exemptions, however, to balance a variety of governmental interests, including national security, against the public interest in transparency. Exemptions 1 and 3, at issue here, exempt information that is classified to protect national security (Exemption 1) and information that is prohibited from disclosure by another federal law (Exemption 3).4 The right to claim these exemptions can be waived, however, by official statements that acknowledge the existence of records pertaining to the secret activity and that meet certain, specific requirements.
“Affidavits or declarations . . . giving reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain the agency’s burden” and “are accorded a presumption of good faith.”10 “Summary judgment is warranted . . . when the affidavits describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld
I. FOIA Exemptions
Here, the CIA based its Glomar response on FOIA Exemptions 1 and 3.
a. Exemption 1
Exemption 1 permits the nondisclosure of classified 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.”12 The CIA contends that the records are classified under the criteria set forth in Executive order 13,526.13 Shiner’s affidavit attested that, in accordance with the criteria set forth in
b. Exemption 3
FOIA Exemption 3 applies to records “specifically exempted from disclosure by statute,” provided that the statute “requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue.”14 The CIA pointed to Section 102(A)(i)(1) of the National Security Act of 1947, as amended by
In sum, we find that both exemptions apply because any substantive response could reveal, as Shiner attested, “whether or not the United States exercised extraordinary legal authorities to covertly influence the political, economic, and/or military conditions in Syria” or “the CIA’s connection to such a program, if one existed.” At a minimum, a substantive response to whether the CIA had any documents would reveal that the agency had an interest – or lack thereof – that could expose agency priorities, strategies, and areas of operational interest.
II. Official Acknowledgement Doctrine
The Times argues that the CIA’s Glomar response, which refuses to confirm nor deny the existence of records related to the covert program at issue, is inappropriate because the President’s statements, both in the tweet on July 24, 2017 and in the Wall Street Journal interview the following day, officially acknowledged the
“[W]hen 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.”16 More than a decade ago, in Wilson v. CIA,17 we applied a precise and strict test for claims of official disclosure. Classified information that a party seeks to obtain or publish 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.’”18
We cautioned in Wilson that courts will “not infer official disclosure of information classified by the CIA from (1) widespread public discussion of a classified matter, (2) statements made by a person not authorized to speak for the Agency, or (3) release of information by another agency, or even by Congress.”19 The consequence of our holding in Wilson is that just because the existence of classified activity may be inferred from publicly available information or from official statements, government waiver will not
The Times contends that district court: (1) erred by finding that President Trump’s statements were too ambiguous to have officially acknowledged the records at issue; and (2) misread Wilner as holding that a Glomar response is appropriate whenever the CIA might have an “interest” in the discussed covert program even if the program is conducted by another agency.
As an initial matter, the district court did not misread Wilner. In Wilner, the “record [was] clear” that the “general existence of the [relevant covert program] ha[d] been officially acknowledged” through express statements by President Bush and CIA Director Michael Hayden, although those statements did not disclose “the specific methods, targets, and information obtained.”21 We held that, even though the general existence of the program had been disclosed, a Glomar response was still appropriate with respect to “those aspects of the program that have not been subject to such disclosures.”22 Additionally, we found that “an agency only loses its ability to
Even assuming arguendo that President Trump’s statements revealed the general existence of the alleged covert program, a Glomar response is still appropriate if none of the relevant statements officially acknowledged the existence or nonexistence of specific records.25 As we will explain, in light of the Wilson test, the relevant statements did not officially acknowledge the existence of a covert program, much less the existence of corresponding, specific records.
The Times maintains that Wilner “supplies no basis for the CIA’s Glomar response” because, by disclosing the records sought, the CIA would only be revealing its “interest” in the allegedly disclosed program. We disagree. The Shiner affidavits contain sufficiently detailed justifications for invoking Exemptions 1 and 3 that are
We have repeatedly advised that official disclosure is a “strict test,” and here, we agree with the district court that the President’s statements do not satisfy the “specificity” or “matching” requirements set forth in Wilson.27 Wilson starkly illustrated the specificity requirement. There, plaintiff Valerie Plame Wilson, a former CIA agent, sued the CIA arguing that her pre-2002 service with the CIA could not remain classified.28 Agent Wilson pointed to a letter, written on CIA letterhead, that specified the actual dates of her prior service. An official from the Agency’s personnel department signed the letter, which Wilson claimed to be an official acknowledgment.29 Aware that the CIA still demanded that her
In Wilson, we acknowledged that the letter was “reliable as evidence of [plaintiff]’s prior CIA affiliation,” but stated that it was “hardly akin to the CIA director personally reading relevant information into the Congressional Record, as took place in Wolf v. CIA.”31 Accordingly, we held that there had been no official acknowledgement even though the letter specified Wilson’s dates of service.32 It was our view that anything less than the official disclosure upheld in Wolf “necessarily preserves some increment of doubt regarding the reliability of publicly available information,” and that the CIA’s “refusal to permit the elimination of that remaining doubt . . . protects valuable information.”33 Ultimately, we “decline[d] to discount the importance of such ‘lingering doubts’ to maintaining the secrecy of CIA sources and methods.”34 And we do so again here, notwithstanding the public statements by the President and General Thomas regarding governmental activities in Syria.
We agree with the Times that one reasonable way to interpret President Trump’s tweet regarding “massive, dangerous, and wasteful payments to Syrian rebels fighting Assad” is with respect to payments tied to the alleged covert program, as referenced in the
Further, neither the tweet nor the Wall Street Journal interview mentions the CIA and, therefore, anything other than a Glomar response would likely reveal or refute that the CIA had an intelligence interest in the program, evidenced by a cache of records.39 The dissent minimizes the fact that neither the tweet nor the interview explicitly
We then applied the Wilson test to hold that the information contained in the OLC-DOD Memorandum had been officially disclosed because it was “as specific as the information previously released in the DOJ White Paper, it match[ed] the information previously disclosed, and was made public through an official and documented disclosure.”46 We still held, however, that other portions of the Memorandum remained exempted due to a lack of specificity and matching with the official disclosures.47
The Times’s continued reliance on ACLU v. CIA,48 which held that the CIA’s Glomar response pertaining to drones used for targeted killings was unjustified, is also misplaced. The Times argues that ACLU supports its contention that there is no “basis for the CIA’s publicly acknowledged at the highest levels of the Government.” Id. at 118-19.
New York Times Co. v. CIA
KATZMANN, Chief Judge, dissenting
KATZMANN, Chief Judge, dissenting:
Unlike the majority, I believe that President Trump’s public statements cannot be logically interpreted as anything other than an acknowledgement of the existence of “payments to Syrian rebels.” The justifications the CIA provides for issuing a Glomar response are neither “logical [n]or plausible” given the President’s public acknowledgement of the program the CIA purportedly seeks to keep secret. Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009).1 And while the majority speculates that a Glomar response may additionally be appropriate to disguise any “intelligence interest” the CIA has in the program, the CIA never advances this as a justification for its response and we are thus foreclosed from justifying the CIA’s nondisclosure on this basis. See id. at 68 (the “agency resisting disclosure of the requested records” bears the burden of justifying application of a FOIA exemption). A Glomar response is “justified only in unusual circumstances, and only by a particularly persuasive affidavit.” Florez v. CIA, 829 F.3d 178, 182 (2d Cir. 2016).
Because I do not believe this is such a circumstance, I respectfully dissent.
It is worth emphasizing the limited nature of the question before us, and the extraordinarily limited practical consequences of requiring the CIA to issue a non-Glomar response. The question before us is not whether the CIA must disclose whether it has run, or even been involved in, any program of covert payments to Syrian rebels. And it is not whether the CIA must disclose any records it possesses concerning such a program, if it indeed possesses any records. The question before us is solely whether the CIA must disclose the fact that records responsive to the Times’ request either do or do not exist. Were we to find a Glomar response unjustified, the CIA could still avoid disclosing the contents of any responsive records by making a proper showing before the district court. See, e.g., ACLU v. CIA, 710 F.3d 422, 432 (D.C. Cir. 2013) (“The collapse of the CIA’s Glomar response does not mark the end of [a] case.”).
I. President Trump’s Official Acknowledgment
The majority finds that President’s Trump’s tweet—“The Amazon
I find only the first reading plausible. Like the D.C. district court to address the same tweet in another FOIA case, I can locate “no logical reading . . . in which the tweet does not acknowledge that the U.S. government had some knowledge of some payments to Syrian rebels.” Leopold v. CIA, 419 F. Supp. 3d 56, 67 (D.D.C. 2019) (emphasis in original).
Even setting aside what we already understand as ordinary readers, we know that the President was not relaying the Post’s characterizations of the fabricated program because the Post never characterized the program as
The President’s comments to the Wall Street Journal the day after the tweet offer yet further confirmation that he was intentionally acknowledging the payments. Discussing “the story about Syria that was in The [Washington Post] the other day,” President Trump said that “they didn’t write the truthful story” because “[i]t turns out it’s—a lot of al-Qaeda we’re giving these weapons to.” App. 44. Reading the exchange leaves an ordinary reader with no doubt that the President is clearly, consciously acknowledging and discussing the payments program in order to dispute the Post’s characterization of the program and to advocate for more serious efforts to root out leaks in his administration.
Despite all this evidence of the President’s meaning, the majority nevertheless concludes that the President did not acknowledge the payments program because his statements are not clear enough to “remove all doubt as to their meaning.” Maj. Op. at 17. But we have never suggested that the ability to read any doubt whatsoever, no matter how implausible or how belied by context, into a statement calls an official acknowledgment into question. The majority’s description of the value of even an “increment of doubt” is borrowed
In Wilson, we concluded that “anything short” of an official disclosure “necessarily preserves some increment of doubt regarding the reliability of the publicly available information,” or, in other words, plausible deniability. Id.; see also id. at 196–99 (Katzmann, J., concurring in the judgment). Here, we are not addressing an unofficial statement that would leave this kind of doubt as to accuracy; we are addressing a disclosure that came directly from the President. Had the President himself publicly stated the dates of Ms. Wilson’s employment in the CIA—the information there at issue—Wilson would have been a different case entirely.
To the degree that the majority is suggesting that some critical mass of official statements is required to find official acknowledgment, I disagree.3 I see
The majority also contends that the President’s statements do not meet the “specificity” and “matching” requirements for official disclosure. Maj. Op. at 14–17. But “[i]n 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.” ACLU v. CIA, 710 F.3d at 427. As the majority notes, we have on occasion considered official statements that are more “precise” and “thorough” than the President’s statements here. Maj. Op. at 21. However, the level of precision and detail in an official statement is relevant to what has been officially acknowledged, not whether there has been any official
Presumably, in choosing to repeatedly acknowledge the existence of the payments program, the President engaged in a calculus, weighing whether the need to dispute the Post’s characterization of the program as valuable and of his administration’s termination of it as “falling into a Russian trap,” App. 36, outweighed the national security risks posed by acknowledging that such a program had indeed existed. The President evidently determined that the benefits of official disclosure outweighed the risks. It is not our business as judges to second-guess the President’s decision, or to create doubt to avoid its consequences. See, e.g., Wilner, 592 F.3d at 76 (noting “our deferential posture in
II. The CIA’s Justifications
Given the President’s acknowledgment of the payments program, the CIA has failed to meet its burden of showing that its justification for invoking Exemptions 1 or 3—that a substantive response would disclose the existence of the program—“appears logical or plausible.” Wilner, 592 F.3d at 73.
I agree with the majority that, under our precedent in Wilner, even where a FOIA request concerns “a program whose existence has been publicly revealed,” id. at 69, an agency may provide a Glomar response if the request concerns “aspects of the program that have not been the subject of such disclosures,” id. at 70. However, unlike in Wilner, a non-Glomar response would not reveal undisclosed aspects of the payments program; it would only reveal the already-
The CIA argues that a Glomar response is justified because acknowledging the existence of responsive documents would: (1) “confirm the existence and the focus of a sensitive Agency activity that is by definition kept hidden to protect U.S. Government foreign policy objectives,” App. 21; (2) reveal “whether or not the United States Government exercised extraordinary legal authorities to covertly influence the political, economic, and/or military conductions in Syria,” which “could, in turn, either compromise a specific foreign policy goal . . . or serve as confirmation for U.S. adversaries that there was no such objective,” App.
The majority conjectures that a Glomar response additionally may be required to avoid revealing whether the CIA had an “intelligence interest” in the payments. Maj. Op. at 27. The majority leaves unclear the degree to which it actually believes that any “lingering doubts as to the CIA’s interest in the alleged program” can be maintained, id. at 17–18, at some points describing the need to avoid disclosing any CIA “interest” and at other points stressing the fact that the
But even if it could be plausibly maintained that there are any lingering doubts about whether the CIA might be interested in the existence of a program providing payments and training to Syrian rebels, the CIA has never justified its Glomar response on the ground that it is necessary to conceal any “intelligence interest,”5 likely because the Central Intelligence Agency itself does not consider it
To the contrary, the CIA has been clear that it seeks only to conceal its actual “involvement or non-involvement” in the payments. Appellee’s Br. 23; see
confirmation or a denial of the CIA’s connection with any such program would therefore reveal the presence or absence of CIA priorities, capabilities, intelligence and regional interests, resources, and relationships with foreign entities.”) (citing App. 22, 60) (emphasis added). Therefore, in my view, the record does not support the majority’s position that, even if the program’s existence has been confirmed, the CIA has asserted a need to hide any interest in the program.
There is no question that it is the CIA’s burden to present and prove its justification for a Glomar response. Wilner, 592 F.3d at 68. Our role is merely to ensure that the justifications the CIA puts forth are logical and plausible, not to advance bases for the agency’s action that the agency itself has not claimed. Accordingly, avoiding disclosure of the CIA’s intelligence interest in payments to foreign rebels is not a basis for us to affirm.
CONCLUSION
Reversing the district court would leave the CIA free to argue on remand that every single responsive document or even that any information about those documents other than their mere existence is exempt from disclosure. Instead of