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Judicial Watch • 117374104-File-Stamped-Appellant-Reply-Brief-12-13

117374104-File-Stamped-Appellant-Reply-Brief-12-13

117374104-File-Stamped-Appellant-Reply-Brief-12-13

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Number of Pages:19

Date Created:December 13, 2012

Date Uploaded to the Library:July 14, 2015

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USCA Case #12-5137
Document #1410037
Filed: 12/13/2012
[ORAL ARGUMENT SCHEDULED FOR JANUARY 10, 2013] THE UNITED STATES COURT APPEALS
FOR THE DISTRICT COLUMBIA CIRCUIT
_________
No. 12-5137
_________
JUDICIAL WATCH, INC.
Plaintiff-Appellant,
U.S. DEPARTMENT DEFENSE AND
CENTRAL INTELLIGENCE AGENCY
Defendants-Appellees.
__________ APPEAL FROM THE U.S. DISTRICT COURT
FOR THE DISTRICT COLUMBIA
__________
REPLY BRIEF
APPELLANT JUDICIAL WATCH, INC.
__________
Michael Bekesha
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff-Appellant
USCA Case #12-5137
Document #1410037
Filed: 12/13/2012
TABLE CONTENTS
TABLE CONTENTS ............................................................................................i
TABLE AUTHORITIES ....................................................................................
GLOSSARY ABBREVIATIONS ..................................................................... iii
SUMMARY THE ARGUMENT ........................................................................
ARGUMENT .............................................................................................................
The Withheld Images Depict More
Than Just Gruesomeness .......................................................................
II.
Defendants Have Failed Demonstrate That
All Records Pertain Foreign Activities
Intelligence Activities the United States .......................................
III.
Defendants Have Failed Demonstrate That the
Release All Images Reasonably Could
Expected Cause Exceptionally Grave Damage National Security ...............................................................................
IV.
Defendants Have Failed Demonstrate That
They Complied With the Classification Procedures 13526 ........................................................................................
CONCLUSION ........................................................................................................
CERTIFICATE COMPLIANCE .......................................................................
USCA Case #12-5137
Document #1410037
Filed: 12/13/2012
TABLE AUTHORITIES
CASES
ACLU U.S. Department Defense,
628 F.3d 612 (D.C. Cir. 2011) ................................................................ 10-11
Allen Central Intelligence Agency,
636 F.2d 1287 (D.C. Cir. 1980)................................................................. Campbell U.S. Department Justice,
164 F.3d (D.C. Cir. 1998) ....................................................................
Environmental Protection Agency Mink,
410 U.S. (1973)...........................................................................................
Lesar U.S. Department Justice,
636 F.2d 472 (D.C. Cir. 1980)....................................................................... McGehee Casey,
718 F.2d 1137 (D.C. Cir. 1983)...........................................................4, Milner Department the Navy,
131 Ct. 1259 (2011)...............................................................................
Zweibon Mitchell,
516 F.2d 594 (D.C. Cir. 1975)..................................................................... 6-7
STATUTES U.S.C. 552(b)(1) ............................................................................................ Authorities upon which Plaintiff-Appellant chiefly relies are marked with
asterisks.
USCA Case #12-5137
Document #1410037
Filed: 12/13/2012
GLOSSARY ABBREVIATIONS
CIA
Central Intelligence Agency
DoD
U.S. Department Defense 13526
Executive Order 13526
FOIA
Freedom Information Act
Joint Appendix
iii
USCA Case #12-5137
Document #1410037
Filed: 12/13/2012
SUMMARY THE ARGUMENT properly withheld under Exemption the Freedom Information
Act FOIA government agency must demonstrate that the information
specifically authorized under criteria established Executive order kept
secret the interest national defense foreign policy and [is] fact properly
classified pursuant Executive order. U.S.C. 552(b)(1). this case, the
U.S. Department Defense DoD and the Central Intelligence Agency CIA
(collectively Defendants failed sufficiently demonstrate that all images
Osama bin Laden were properly classified and that Defendants followed proper
classification procedures when classifying the images.
Specifically, Defendants have failed provide any evidence that all
images, including those depicting bin Laden burial sea, pertain foreign
activities the United States. Defendants also have failed provide any
evidence that images depicting the burial sea actually pertain intelligence
activities. Nor have they demonstrated that the release images somber,
dignified burial sea reasonably could expected cause identifiable
describable exceptionally grave damage national security. Similarly,
Defendants have failed provide any evidence that all images were classified compliance with Executive Order 13526 13526 For these reasons, the
District Court judgment should reversed.
USCA Case #12-5137
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Filed: 12/13/2012
ARGUMENT
The Withheld Images Depict More Than Just Gruesomeness.
Defendants would have the Court believe that the only images issue this
case are gruesome, graphic images depicting bullet wound bin Laden head
and other wounds his corpse taken moments after was killed. See Brief for
Appellees 33. Yet least some the responsive images depict more than
just bloody mess. John Bennett, Director the National Clandestine Service
the CIA, has testified that, although some the images show the fatal bullet
wound bin Laden head and other similarly graphic images the corpse[,]
other images show the preparation bin Laden body for burial[,] and yet
other images show the burial itself. Defs Reply see also Bennett Decl. (Joint Appendix 22). other words, subset the images depicts
somber burial which the body the mastermind the most deadly terrorist
attack the United States was treated with the utmost dignity and respect. The
government has described the scene the following official statement:
Today religious rites were conducted for the deceased the deck the USS Carl Vinson, which located
the North Arabian Sea. Preparations for at-sea burial
began 1:10 a.m. Eastern Standard Time and were
completed 2:00 a.m. Eastern Standard Time.
Traditional procedures for Islamic burial were followed.
The deceased body was washed and then placed
white sheet. The body was placed weighted bag,
military officer read prepared religious remarks, which
USCA Case #12-5137
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were translated into Arabic native speaker. After the
words were complete, the body was placed prepared
flat board, tipped up, whereupon the deceased body
was eased into the sea.
Exhibit the Declaration Michael Bekesha (JA 79).
How many records specifically depict the burial sea unknown.
Defendants have not provided Vaughn index identifying how many images depict
graphic images and how many images depict the preparation bin Laden body
for burial the burial itself. The only information provided Defendants
bald assertion that the release [the] graphic photographs and other images
bin Laden reasonably could expected cause exceptionally grave damage
national security. Bennett Decl. (JA 29) (emphasis added); see also Brief
for Appellees 33. Because they have glossed over the various images that are
being withheld and treated them all the same manner, Defendants have failed
satisfy their burdens under FOIA.
II.
Defendants Have Failed Demonstrate That All Records
Pertain Foreign Activities Intelligence Activities the United States. 13526, 1.4 requires that classified material pertain one more
seven specified categories. those seven categories, Defendants, the District
Court, asserted that all records pertain the following three categories:
(a)
Military plans, weapons systems, operations;
USCA Case #12-5137
(c)
Document #1410037
Filed: 12/13/2012
Intelligence activities (including covert action), intelligence
sources methods, cryptology; and
(d)
Foreign relations foreign activities the United States,
including confidential sources.
Bennett Decl. (JA 27). Yet their opposition Defendants, for the first
time, argue that irrelevant whether some images pertain one more
categories because all images plainly pertain both foreign activities and
intelligence activities. Brief for Appellees 28-29. Implicit this argument
the concession that least some the images not depict military plans,
weapons systems operations, intelligence sources methods, cryptology.
The District Court found the requirement that the records pertain foreign
activities not very demanding. Opinion (JA 230). This Court however
has expressed concern that the category foreign relations foreign activities
might excessively vague. McGehee Casey, 718 F.2d 1137, 1144 (D.C. Cir.
1983). McGehee, the plaintiff, former CIA officer who sought pre-approval manuscript wrote, sought declaratory judgment that the CIA classification
and pre-approval scheme violated his First Amendment rights. Id. 1139.
arguing that the pre-approval process violated his First Amendment rights, the
plaintiff alleged that the classification category concern[ing] foreign relations
foreign activities the United States was too vague. Id. 1144-1145.
USCA Case #12-5137
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ultimately finding that the plaintiff first amendment rights were not violated, the
Court concluded:
Standing alone, such classification standard might
excessively vague. The CIA, however, has articulated
narrower standards guide classification decisions
under [the category concerning foreign relations
foreign activities the United States]. The guidelines
pertinent this case are sufficiently precise withstand challenge for unconstitutional vagueness.
Id. 1145. that case, the CIA provided the following limitation part its
Agency Information Sec. Program Handbook:
Information that could identify otherwise disclose
activities abroad support national foreign policy
objectives, and planned and executed that the role
the United States Government not apparent
acknowledged publicly; information that could reveal
support for such activities.
Id. addition, the Court noted:
This not say, course, that imprecise standards
would not still present intolerable burden allowing
the censor unwarranted discretion vetoing material,
but, have said, not find the standards for
classifying material secret unconstitutionally vague.
And note that the agent may seek judicial review
the CIA classification decision.
Id. other words, the Court held that the additional, narrower and more precise
standards the CIA guidelines prevented the foreign relations foreign
activities the United States classification category from being too vague and
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imprecise. Moreover, and importantly, the end, the Court could review the
agency classification decision. Id.
FOIA was enacted overhaul earlier public records provision that had
become more withholding statute than disclosure statute. Milner
Department the Navy, 131 Ct. 1259, 1262 (2011) (quoting Environmental
Protection Agency Mink, 410 U.S. 73, (1973)). the role the courts
ensure that the nine delineated exemptions not become sweeping exemptions,
posing the risk that FOIA would become less disclosure than withholding
statute. Milner, 131 Ct. 1259, 1270. other words, the same concerns
government overreaching the Court raised the First Amendment context
McGehee are relevant here.
Defendants assert that all images pertain foreign activities the
United States solely because they were the product overseas operation.
Brief for Appellees 28-29 There can question that the May 2011
operation the compound Abbottabad, the removal bin Laden dead body
from the compound and the burial the body sea were foreign activities the
United States. However, this Court decided McGehee, the application
foreign activities must narrower and more precise than how Defendants apply
it. Not everything the government does overseas can properly subject
classification. Any such broad application 13526 can only lead abuse
USCA Case #12-5137
Document #1410037
Filed: 12/13/2012 power. See e.g., Zweibon Mitchell, 516 F.2d 594, 653 (D.C. Cir. 1975).
addition, Defendants have not presented any case law supporting their expansive
not all encompassing definition the term foreign activities the FOIA
context, any other context for that matter. fact, there appears
precedent this Court, any court, that permits classification records
pertaining foreign activities merely because the records concern overseas
operation.
Defendants similarly assert that all images pertain intelligence
activities because the entire May 2011 operation was conducted under the
direction the CIA. (JA 29). This assertion suffers from the same fatal flaw
the assertion addressed above. The category intelligence activities simply too
vague and imprecise apply without narrower standards guide classification
decisions. McGehee, 718 F.2d 1145. addition, with respect the specific
images being withheld, Defendants fail demonstrate how the images depicting
bin Laden body after had been cleaned and prepared for burial well
images depicting the burial itself pertain intelligence activities. There
apparent nexus between intelligence activities and these images. Nor
Defendants provide one.
Finally, deference not equivalent acquiescence. Campbell U.S.
Department Justice, 164 F.3d 20, (D.C. Cir. 1998). Defendants have failed
USCA Case #12-5137
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Filed: 12/13/2012 provide sufficient specificity and the lower court improperly gave substantial
weight nothing more than Defendants broad brush assertions that all the
responsive records are the product highly sensitive, overseas operation and
that all the records pertain foreign activities the United States. Brief
for Appellees 29; Declaration Bennett (JA 27). Such conclusory
statements not satisfy Defendants burden. Allen Central Intelligence
Agency, 636 F.2d 1287, 1291-92 (D.C. Cir. 1980).
III.
Defendants Have Failed Demonstrate That the Release All Images Reasonably Could Expected Cause
Exceptionally Grave Damage National Security.
Defendants have not presented complete sufficient explanation
why all images, including those images depicting bin Laden burial sea,
reasonably could expected cause identifiable describable exceptionally
grave damage national security. Time and again, Defendants focus the
gruesome images bin Laden head moments after was killed and gloss over
the fact that they are withholding other images well.
President Obama stated that [i]t important for make sure that very
graphic photos somebody who was shot the head are not floating around
incitement additional violence. propaganda tool. Brief for Appellees
Similarly, their brief, Defendants assert that Director Bennett explained
detail why the release all images could cause damage national security.
USCA Case #12-5137
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Brief for Appellees 33. That assertion simply incorrect. Director Bennett
testifies only with respect the gruesome images bin Laden body.
Specifically, stated: this case, the responsive records contain images
UBL body after was killed. These post-mortem
images the former leader al-Qa ida include
photographs the gun-shot wound his head. short,
these pictures are gruesome. result, the release
these graphic photographs and other images UBL
corpse reasonably could expected
Bennett Decl. (JA 29) (emphasis added); see also Brief for Appellees 33.
There discussion the images depicting bin Laden body after had been
cleaned and prepared for burial well the images depicting the burial itself.
Nor Defendants present any evidence demonstrating why images depicting
respectful, dignified burial (Exhibit the Declaration Michael Bekesha (JA
79)) would provide al-Qaeda and other entities hostile the United States with
material they could use recruit, raise funds, inflame tensions, and rally support.
Brief for Appellees 33. Based the complete lack evidence presented
Defendants, the release some the images cannot reasonably expected
cause identifiable describable exceptionally grave damage national security. addition, the government own actions squarely contradict Defendants
assertions. their brief, Defendants assert that the reporting event just
likely the release images the event cause violent protests. Brief for
USCA Case #12-5137
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Appellees 34-35. Yet, with respect the responsive records this case, the
government has repeatedly described, albeit other contexts, what the images
depict. See supra (official statement describing the burial sea). Also, most
recently, response FOIA request from the Associated Press, DoD released email from rear admiral present during the burial, which described the burial detail:
Traditional procedures for Islamic burial was [sic]
followed. The deceased body was washed (ablution)
then placed white sheet. The body was placed
weighted bag. military officer read prepared religious
remarks, which were translated into Arabic native
speaker. After the words were complete, the body was
placed prepared flat board, tipped up, whereupon the
deceased body slid into the sea.
Emails about Osama bin Laden burial, http://www.politico.com/news/stories/
1112/84155.html#ixzz2Em1QlyEm. Not only does this release information
raise questions about the validity the classifications issue this case why
are images depicting the event classified when written descriptions the event
itself are not classified but also raises doubts the alleged harm that will
result from the release the images.
Moreover, contrary Defendants assertions, the images bin Laden
especially those his body cleaned and prepared for burial actually being
buried sea not present the typical scenario which courts defer agencies
assessments harm national security. See ACLU U.S. Department
USCA Case #12-5137
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Defense, 628 F.3d 612, 623-25 (D.C. Cir. 2011). The Court fully capable
reaching its own determination about the logic and plausibility Defendants
assertions harm, taking into account not only Defendants declarations, but also
the substantial information that Defendants have already released the public
about the operation, the death bin Laden, his burial sea, and even the images
themselves. See Exhibits A-J attached the Declaration Michael Bekesha (JA
76-160).
Finally, deference not equivalent acquiescence. Campbell, 164 F.3d 30. Defendants have failed provide sufficient specificity and the lower court
improperly gave substantial weight nothing more than the broad brush statement
that the release these graphic photographs and other images bin Laden
reasonably could expected cause identifiable describable exceptionally
grave damage national security. Bennett Decl. (JA 29); see also Brief for
Appellees 33. Such conclusory assertions simply not satisfy Defendants
burden. Allen, 636 F.2d 1291-92.
IV.
Defendants Have Failed Demonstrate That They
Complied With the Classification Procedures 13526.
The law clear. order withhold records under Exemption agency
must demonstrate that withheld records were classified accordance with the
procedural criteria the governing Executive Order. Lesar U.S. Department Justice, 636 F.2d 472, 483 (D.C. Cir. 1980).
USCA Case #12-5137
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Defendants have failed demonstrate that they satisfied the procedural
requirements 13526. They have not provided any evidence who made the
original classification decision, when that classification took place, whether that
individual determined that the unauthorized disclosure the information
reasonably could expected result damage national security, whether
the original classification occurred before after receipt Judicial Watch
FOIA. Similarly, Defendants provided evidence who made the derivative
classification, when that classification took place, what procedures were followed,
and whether all the requirements 13526 were followed. response, Defendants suggest that whether the images were properly
classified irrelevant. Brief for Appellees 56. Yet such assertion contradicts
the plain language Exemption Exemption explicitly states that information
may only withheld specifically authorized under criteria established Executive order kept secret the interest national defense foreign
policy and [is] fact properly classified pursuant Executive order. U.S.C.
552(b)(1) (emphasis added). addition, the Supreme Court has emphasized, avoid overly expansive
applications the exemptions and maintain FOIA status disclosure statute,
courts should adhere the plain meaning the language used Congress.
Milner, 131 Ct. 1266. Since Congress believed was important for withheld
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information classified pursuant proper procedure, this Court should reject
the lax standard asserted Defendants.
CONCLUSION
For the reasons set forth Judicial Watch opening brief and the additional
reasons set forth above, Judicial Watch respectfully requests that this Court reverse
the District Court order granting Defendants motion for summary judgment and
denying Judicial Watch cross-motion for summary judgment and remand this
matter for further proceedings.
Dated: December 13, 2012
Respectfully submitted,
/s/ Michael Bekesha
Michael Bekesha
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff-Appellant
USCA Case #12-5137
Document #1410037
Filed: 12/13/2012
CERTIFICATE COMPLIANCE
The undersigned certifies that this brief complies with the type-volume
limitations Fed. App. 32(a)(7). The brief, excluding exempted portions,
contains 2,916 words (using Microsoft Word 2010), and has been prepared
proportional Times New Roman, 14-point font.
/s/ Michael Bekesha
USCA Case #12-5137
Document #1410037
Filed: 12/13/2012
CERTIFICATE SERVICE hereby certify that this 13th day December 2012, filed via the
CM/ECF system the foregoing REPLY BRIEF APPELLANT JUDICIAL
WATCH, INC. with the Clerk the Court. Participants the case are registered
CM/ECF users and service will accomplished the Appellate CM/ECF
system. also certify that caused eight copies delivered the Clerk Court
via hand delivery.
/s/ Michael Bekesha