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Judicial Watch • 2011 jw-v-dod-cia-defmot4sj-09262011

2011 jw-v-dod-cia-defmot4sj-09262011

2011 jw-v-dod-cia-defmot4sj-09262011

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THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA  
JUDICIAL WATCH, INC.,  Civil Action No.  
Plaintiff, l-cv-00890-JEB  
U.S. DEPARTMENT DEFENSE, and  
CENTRAL INTELLIGENCE AGENCY,  
Defendants.  

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 
Pursuant Fed. Civ. 56, defendants U.S. Department Defense and the Central Intelligence Agency respectfully move the Court for summary judgment their favor, there genuine issue material fact precluding judgment their favor. The reasons for defendants' motion are set forth the accompanying Memorandum Law and attachments thereto. 
Respectfully Submitted, 
TONY WEST Assistant Attorney General 
IAN GERSHENGORN Deputy Assistant Attorney General 
JOSEPH HUNT Director, Federal Programs Branch 
RONALD MACHEN JR. United States Attorney 
/s/ Marcia Berman ELIZABETH SHAPIRO (D.C. Bar No. 418925) MARCIA BERMAN ((PA Bar No. 66168) United States Department Justice 
Civil Division, Federal Programs Branch Massachusetts venue N.W. Room 7132 Washington, D.C. 20530 
Tel.: (202) 514-2205 
Fax: (202) 616-8470 Emai izabeth.shapiro@usdoj.gov marcia.berman@usdoj.gov 
Attorneys for Defendants. THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA JUDICIAL WATCH, INC.,  Civil Action No.  
Plaintiff, 11-cv-00890-JEB  

U.S. DEPARTMENT DEFENSE, and CENTRAL INTELLIGENCE AGENCY, Defendants. 
) 
MEMORANDUM LAW SUPPORT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 
INTRODUCTION this Freedom oflnformation Act ("FOIA") case, plaintiff Judicial Watch, Inc. seeks public disclosure photographs and/or video recordings taken Osama bin Laden during after the May 2011 raid Pakistan that resulted bin Laden's death. The Central Intelligence Agency ("CIA") located fifty-two responsive records but withholding them their entirety pursuant FOIA Exemption which protects classified information from disclosure, and Exemption which incorporates other nondisclosure statutes. The CIA, the Department Defense ("DoD"), and indeed, the President, have all correctly determined that images Osama bin Laden after was killed United States forces must not publicly disclosed the interest national security. Among other reasons, the danger simply too great that dissemination these images would inflame anti-American sentiments and provoke violent attacks the United States its citizens abroad. 
Plaintiffs amended complaint therefore easily disposed summary judgment. The defendant agencies conducted reasonable searches. Although DoD did not locate any responsive 
records (and should therefore dismissed this ground alone), the CIA did locate records and 
properly determined that they are wholly exempt from disclosure. Declarations from high-
ranking CIA and DoD officials provide compelling explanations for why release the 
responsive records reasonably likely harm the national defense and foreign relations the 
United States. These declarations easily meet the deferential standard which courts review the Executive Branch's assessment harm the national security. Accordingly, pursuant 
U.S.C.  552(b)(l) and (b)(3), the Court should grant the agencies summary judgment and dismiss the amended complaint its entirety. 
BACKGROUND May 2011 Raid Osama bin Laden's Compound. Sunday night, May 2011, President Obama announced the American people and 
the world that the United States had conducted operation that killed Osama bin Laden, the 
leader al-Qa'ida. The President said, "Today, direction, the United States launched 
targeted operation against th[e] compound Abbottabad, Pakistan [where Osama bin Laden was 
hiding out]. small team Americans carried out the operation with extraordinary courage 
and capability. Americans were harmed. They took care avoid civilian casualties. After 
firefight, they killed Osama bin Laden and took custody his body."1 
The President subsequently confirmed that photographs were taken bin Laden and that 
facial analysis was done that indicated that was him. The President also confirmed that the Transcript President Obama's May 2011 remarks, available http://www.whitehouse.gov/the-press-office/2011 /05/02/remarks-president-osama-bin-laden. 
photographs wou not released. interview with Minutes reporter Steve Kroft, the 
President explained why: KROFT: Did you see the pictures? PRESIDENT OBAMA: Yes. KROFT: What was your reaction when you saw them? PRESIDENT OBAMA: was him. KROFT: Why haven't you released them? PRESIDENT OBAMA: You know, discussed this internally. Keep mind that are absolutely certain this was him. We've done DNA sampling and testing. And there doubt that killed Osama bin Laden. important for make sure that very graphic photos somebody who was shot the head are not floating around incitement additional violence. propaganda tool. 
You know, that's not who are. You know, don't trot out this stuff trophies. You know, the fact the matter this was somebody who was deserving the justice that received. And think Americans and people around the world are glad that he's gone. But don't need spike the football. And think that given the graphic nature these photos, would create some national security risk. And I've discussed this with Bob Gates and Hillary Clinton and intelligence teams and they all agree.2 May 2011 Minutes interview with President Obama, transcript available 162-20060530-10391709.html. 
II. Plaintiff's FOIA Requests and Lawsuit. May 2011, Judicial Watch sent request the CIA and DoD under the FOIA seeking "all photographs and/or video recordings Osama (Usama) Bin Laden taken during and/or after the U.S. military operation Pakistan about May 201 1." Declaration John Bennett, Director, National Clandestine Service ("NCS"), Central Intelligence Agency, and Exhibit ("Bennett decl."); Declaration William Kammer and Exhibit ("Kammer decl."). The agencies both provided interim responses stating that was unlikely that they would able provide substantive responses within the 20-day statutory time period under FOIA. Bennett dee!. and Exhibit Kammer decl. and Exhibit May 13, 2011, Judicial Watch filed lawsuit against DoD seeking release the requested records. Subsequently, Judicial Watch amended its complaint add the CIA defendant. The defendant agencies answered the amended complaint June 28, 
III. Defendants' Responses Plaintiff's FOIA Requests. 
Following receipt the plaintiffs FOIA request, the CIA and DoD conducted searches for responsive records. Both agencies thoroughly searched the components that were most likely have responsive records related the May 201 operation. Bennett decl. Kammer dee!. ifi! 4-8. DoD located responsive records. Kammer decl. iii! The CIA, however, located total fifty-two unique responsive records. Bennett dee!. 11. These records contain images Osama bin Laden's body after was killed. Many are graphic and gruesome, they depict the fatal bullet wound bin Laden's head. Id. Some the images were taken inside the compound Abbottabad, Pakistan, where bin Laden was killed. Other images were taken bin Laden's body was transported from the Abbottabad compound the location where was buried sea. Id. Several images depict the preparation Osama bin Laden's body for the burial well the burial itself. Id. Additionally, some the images were taken that the CIA could conduct facial recognition analysis order confirm that the body was that Osama bin Laden. The CIA's facial recognition technology, which highly classified, compares unique facial features, such bone structure, age spots, hair growth patterns, and the size and shape the eyes, ears, and nose, well the relative positioning facial features. Id. The CIA compared historic photographs Osama bin Laden with some the responsive photographs and concluded with high confidence that the deceased individual was fact Osama bin Laden. Id. 
The CIA withheld the fifty-two responsive records their entirety pursuant FOIA Exemptions and U.S.C.  552(b)(l), (3); Bennett dee!.  13-34. The CIA specifically determined that reasonably segregable, non-exempt portions the responsive records could released. Bennett decl.  35. The withholdings are fully supported declarations submitted (1) John Bennett, Director, National Clandestine Service, Central Intelligence Agency; (2) Admiral William McRaven, Commander, United States Special Operations Command; (3) Lieutenant General Robert Neller, Director Operations, J-3, the Joint Staff the Pentagon; and William Kammer, Chief, Office Freedom Information Division, Executive Services Directorate, Washington Headquarters Service, Component DoD. DoD submits Admiral McRaven's declaration classified form, pursuant U.S.C.  552(a)(4)(B) (providing for camera review) and case law authorizing agency submit classified declaration augment its explanation the harm national security where such explanation cannot made the public record. See., Hayden NSA, 608 F.2d 1381, 1384 (D.C. Cir. 1979); Public Education Center DoD, 905 Supp. 19, 
(D.D.C. 1995). redacted version the classified declaration appended this 
memorandum. 
ARGUMENT 	THIS FOIA CASE APPROPRIATELY DISPOSED SUMMARY JUDGMENT. 
The Freedom oflnformation Act, U.S.C. 552 ("FOIA"), represents balance struck 
Congress "'between the right the public know and the need the Government keep 
information confidence."' John Doe Agencyv. John Doe Corp. 493 U.S. 146, 152 (1989) 
(quoting H.R. Rep. 89-1497, 89th Cong., Sess., (1966)). Thus, while FOIA requires 
disclosure under ce11ain circumstances, the statute recognizes "that public disclosure not 
always the public interest." Baldrige Shapiro, 455 U.S. 345, 352 (1982). Consequently, 
FOIA "provides that agency records may withheld from disclosure under any one the nine 
exemptions defined U.S.C.  552(b)." Id. "These exemptions reflect Congress' recognition 
that the Executive Branch must have the ability keep certain types information 
confidential." Hale DOJ, 973 F.2d 894, 898 (10th Cir. 1992), vacated other grounds, 509 
U.S. 918 (1993) (Mem.). See also Ctr.for Nat'! Sec. Studies DOJ, F.3d 918, 925 (D.C. 
Cir. 2003). While the statutory exemptions are narrowly construed, they must also 
construed "to have meaningful reach and application." John Doe, 493 U.S. 152. 
Most FOIA cases are resolved summary judgment based agency affidavits 
declarations. Summary judgment warranted "if the movant shows that there genuine 
dispute any material fact and the movant entitled judgment matter law." Fed. Civ. 56(a). agency's affidavit declaration describes the justifications for 
withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and not contradicted contrary evidence the record evidence the agency's bad faith, then summary judgment warranted the basis the affidavit declaration alone. ACLUv. DoD, 628 F.3d 612, 619 (D.C. Cir. 2011); Larson Dep't State, 565 F.3d 857, 862 (D.C. Cir. 2009). case involving national security matters such this one, courts "must accord substantial weight agency's affidavit concerning the details the classified status the disputed record." Wolf CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (quotations omitted); see also ACLU, 628 F.3d 619. This because courts "lack the expertise necessary second-guess such agency opinions the typical national security FOIA case." Krikorian Dep State, 984 F.2d 461, 464 (D.C. Cir. 1993). "[T]he court not conduct detailed inquiry decide whether agrees with the agency's opinions; would violate the principle affording substantial weight the expert opinion the agency." Halperin CIA, 629 F.2d 144, 148 
(D.C. Cir. 1980). For these reasons, courts have "consistently deferred executive affidavits predicting harm the national security, and have found unwise undertake searching judicial review." Ctr. for Nat Sec. Studies, 331 F.3d 927; see also Larson, 565 F.3d 865 ("Today reaffirm our deferential posture FOIA cases regarding the 'uniquely executive purview' national security."); Fitzgibbon CIA, 911 F.2d 755, 766 (D.C. Cir. 1990) (holding that the district court erred "perform[ing] its own calculus whether not harm the national security intelligence sources and methods would result from disclosure"). 
"'Ultimately, agency's justification for invoking FOIA exemption sufficient ifit appears "logical" "plausible.""' Larson, 565 F.3d 862 (quoting Wolf, 473 F.3d 374-75). this case, the CIA and DoD have submitted detailed declarations explaining the basis for the 
classification and withholding the responsive records. These explanations are not only logical 
and plausible, but also compelling and persuasive. Accordingly, summary judgment 
appropriate. 
II. 	DoD MUST DISMISSED BECAUSE, AFTER CONDUCTING REASONABLE SEARCH, LOCATED RESPONSIVE RECORDS. court possesses jurisdiction under FOIA "enjoin the agency from withholding 
agency records and order the production any agency records improperly withheld from the 
complainant." U.S.C.  552 (a)(4)(B). If, after conducting adequate search, the agency 
locates responsive documents, there nothing left for the court other than dismiss the 
claim. 	See, e.g., Paisley CIA, 712 F.2d 686, 689 (D.C. Cir. 1983), vacated part other 
grounds, 724 F.2d 201 (D.C. Cir. 1984); James Madison Project CIA, 593 Supp. 
(D.D.C. 2009). agency can show that has conducted adequate search for records responsive 
FOIA request demonstrating, through affidavits declarations, that has conducted 
search reasonably calculated uncover all relevant documents." Morley CIA, 508 .3d 1108, 
1114 (D.C. Cir. 2007) (internal quotation marks omitted). "[A]dequacy measured the reasonableness the effort light the specific request." Meeropol Meese, 790 F.2d 942, 
956 (D.C. Cir. 1986). The agency not required search every record system, but need only 
search those systems which believes responsive records are likely located. See 
Morley, 508 F.3d 1120. this case, DoD conducted reasonable search for the records plaintiff requested. DoD 
determined that the components likely have records responsive plaintiff's request were the Office the Chairman the Joint Chiefs Staff ("OCJCS"), the U.S. Special Operations 
Command ("USSOCOM"), and the Department the Navy. Kammer decl. Within the 
OCJCS, single action officer the Directorate for Global Operations maintained all 
documents related the May 2011 operation. This officer searched all hard copy records and 
the only stand alone computer used store electronic records, and responsive records were 
located. Additionally, the email files the Chairman the Joint Chiefs Staff, Admiral Mike 
Mullen, were searched, and responsive records were located. Id. USSOCOM searched 
the Headquarters and relevant military service components, and records responsive 
plaintiffs request were located. Id.  6-7. 
Osama bin Laden's body was buried sea from the U.S. Navy aircraft carrier USS Carl 
Vinson. USS Carl Vinson personnel took any photographs videos the burial. Emails 
the ship's computers system discussing the operation were reviewed, however, effort 
identify any mention responsive photographs video recordings. This effort did not reveal 
evidence any such photographs video recordings the USS Carl Vinson. Kammer dee!. 
Because DoD conducted reasonable search but located records responsive 
plaintiffs request, summary judgment should granted DoD's favor, and DoD should 
dismissed from this suit.3 The CIA conducted similarly reasonable search, see Bennett decl.  10, which did locate responsive records. The withholding the CIA's records explained below. Although the CIA considered the harms identified DoD when classifying the responsive records, and DoD has submitted declarations explaining those harms, the responsive records issue this case were located the CIA and belong the CIA. Id.  10-11. 
III. 	THE RESPONSIVE RECORDS ARE PROPERLY CLASSIFIED TOP SECRET AND EXEMPT FROM DISCLOSURE UNDER EXEMPTION 
Exemption provides that FOIA's disclosure requirements not apply matters that 
are "(A) specifically authorized under criteria established Executive order kept secret the interest national defense foreign policy and (B) are fact properly classified 
pursuant such Executive order." U.S.C.  552(b )(1 "[L ]ittle proof explanation 
required beyond plausible assertion that information properly classified." Morley, 508 F.3d 1124. Because assessment harm national security entrusted the Executive Branch 
rather than the courts, "the government's burden light one;" "searching judicial review" 
inappropriate; and "plausible" and "logical" arguments for nondisclosure will sustained. 
ACLU, 628 F.3d 614. 
The withheld information was properly classified under Executive Order 13,526, Fed. 
Reg. 707 (Dec. 29, 2009). prerequisite for classification under Executive Order 13,526 that 
"the original classification authority determines that the unauthorized disclosure the 
information reasonably could expected result damage the national security, which 
includes defense against transnational terrorism, and the original classification authority able identify describe the damage." Exec. Order No. 13,526  (a)( 4). National security 
defined the national defense foreign relations the United States. Id.  6.l (cc). Under the 
Executive Order, information may only classified falls within prescribed categories 
information, and its unauthorized disclosure reasonably could expected cause identifiable describable damage the national security. Id.  1.2, 1.4. Information may classified 
different levels, ranging from "Confidential" "Top Secret," depending the degree harm national security that unauthorized disclosure could cause. Id.  1.2. the agencies' declarations establish, the responsive records pertain the following 
categories information included Executive Order 13,526: military plans, weapons systems, operations; intelligence activities and intelligence sources methods; and foreign relations 
foreign activities the United States. Exec. Order No. 13,526  1.4( a), d); Bennett decl. 
 21, 28-29; Declaration William McRaven ("McRaven decl.") (redacted version).4 
"[A]ll the responsive records are the product highly sensitive, overseas operation that was 
conducted under the direction the CIA; accordingly, ... all the records pertain 
intelligence activities and/or methods well the foreign relations and foreign activities the 
United States." Bennett decl.  21. See also ACLU DOJ, -F. Supp. 2011 
4005324 at* (D.D.C. Sept. 2011). 
Certain responsive records pertain intelligence methods and activities because they 
"provid[ insight into the manner which the photographs video recordings were obtained well the purpose, utility, manner which the photographs video recordings could 
used the CIA and the extent limitations such capabilities." Bennett dee!.  29. For 
example, release post-mortem photographs taken conduct facial recognition analysis could 
provide insight into the manner which such analysis conducted the extent limitation 

such analysis. Id. Release other images could reveal the types equipment other tools 
that were utilized (or not) during the execution highly sensitive intelligence operation, 
well information regarding the purpose, extent, limitations such tools. Id. The classified 
declaration submitted Admiral McRaven further explains how the responsive records reveal noted earlier, see supra the CIA's declaration makes clear that classifying the responsive records, took into account the specific DoD equities set forth the declarations submitted Admiral McRaven and Lt. Gen. Neller. See Bennett dee!.  21-22. 
information pertaining military operations, including classified Sensitive Site Exploitation Tactics, Techniques, and Procedures and the methods that special operations forces use for identification captured and killed personnel. McRaven decl. (redacted version); see also Bennett dee 21. 
The declarations establish that release the responsive records reasonably could expected cause harm the national security the United States. The CIA's declarant, John Bennett, determined that all the records are properly classified "Top Secret" because "their unauthorized disclosure reasonably could expected result exceptionally grave damage the national security." Bennett decl. 22; see also Exec. Order No. 13,526  1.2(a)(l Mr. Bennett the Director the CIA's National Clandestine Service, the organization within the CIA responsible for conducting the CIA's foreign intelligence and counterintelligence activities. Bennett decl. Mr. Bennett has over twenty-five years experience CIA officer, and most his career with the CIA was spent overseas operational positions. Id. Mr. Bennett's determination that the responsive records are properly classified was based on, among other things, his lifetime service with the CIA, his familiarity with the May 2011 operation which bin Laden was killed and the responsive records related thereto, and his "experience countering the current threat that the United States faces from al-Qa'ida and other hostile groups around the world." Id. 
The responsive records depict Osama bin Laden after was killed U.S. forces, and many graphically show the fatal bullet wound bin Laden's head and other gruesome images. Id.  11, 23. Mr. Bennett logically detennined that release such graphic images Osama bin Laden, the founding father al-Qa'ida, taken after his death the hands the United States, could reasonably expected inflame anti-American sentiment and provoke deadly attacks the United States its citizens abroad. Al-Qa'ida, which has openly declared war the United States and committed killing innocent Americans, has vowed retaliate for the death its leader, Osama bin Laden. The mere release these images Osama bin Laden could interpreted deliberate attempt the United States humiliate the late al-Qa'ida leader, which could trigger violence, attacks, acts revenge against the United States. Bennett decl. iii! 23-27. addition, "the public release the responsive records would provide terrorist groups and other entities hostile the United States with information create propaganda which, turn, could used recruit, raise funds, inflame tensions, rally support for causes and actions that reasonably could expected result exceptionally grave damage both the national defense and foreign relations the United States." Id. 24. "Al-Qa'ida has very effective propaganda operation," id., and has made such use information they believe could inflammatory before. For example, information about abuse Iraqi detainees the Abu Ghraib prison was used al-Qa'ida extremist websites that recruitjihadists and solicit financial support. Id. explained Mr. Bennett, there every reason believe that al-Qa' ida would use these images bin Laden's body inflame jihadist suppo11 and inspire attacks the United States. Id. This belief "is not merely conjectural." Id. 25. fact, alQa'ida already has used the circumstances surrounding Osama bin Laden's death and burial recruit and further its goals. Id. (discussing al-Qa'ida media communications devoted bin Laden's "martyrdom" and criticism his burial). Thus, Mr. Bennett reasonably determined that "releasing post-mortem images [bin Laden] that reflect the gruesome nature his fatal injuries, well his burial sea, could enhance al-Qa'ida's efforts use these events further attack and otherwise inflict exceptionally grave damage the security interests the United States." Id. 
DoD further determined that release the responsive records "will pose clear and grave risk inciting violence and riots against U.S. and Coalition forces." Declaration Robert Neller ("Neller decl."). Lieutenant General Neller the Director Operations, J-3, the Joint Staff the Pentagon. The J-3 responsible for all DoD operational matters outside the continental United States. Id. Lt. Gen. Neller based his determination harm his years experience and judgment well past incidents violence erupting following disclosures that al-Qa'ida used propaganda. Id. 6-9. For example, Lt. Gen. Neller discusses his declaration the violence that followed inaccurate reporting that U.S. military personnel Guantanamo Bay, Cuba, had desecrated the Koran, and how the republication the Danish cartoon depicting the Prophet Muhammad was used stir violent reactions Afghanistan and worldwide. Id. 7-8. concludes, believe that the release the responsive records would reasonably expected endanger the lives and physical safety the approximately 98,000 U.S. troops Afghanistan, endanger the lives and physical safety Afghan civilians large, and police and military personnel the Government Afghanistan, aid the recruitment efforts and other activities insurgent elements, and increase the likelihood violence against United States interests, personnel and citizens worldwide." Id. The argument for nondisclosure here clearly and easily meets the "plausible" and "logical" standard review. ACLU, 628 F.3d 614. 
Release the responsive records could also reasonably expected harm national security revealing sensitive information about intelligence methods and activities and military operations. Release certain photographs and/or video recordings could reveal the manner which, and purpose for which, they were obtained, could reveal the types equipment other tools that were utilized (or not) during this operation. The disclosure such information could allow hostile forces evade, counter, replicate the CIA's intelligence methods, thereby limiting their utility making them obsolete. Bennett dee!.  28-30. Once intelligence method discovered, its continued successful use seriously jeopardized. information about particular intelligence method disclosed, that information can used our adversaries detect, prevent, damage U.S. intelligence operations advance hostile operations against the United States. Id. 28. See also Larson, 565 F.3d 863. both plausible and logical that such disclosure might harm national security. See, e.g., ACLU, 628 F.3d 624-25 (crediting the CIA' assertion that disclosure information relating the capture, detention, and interrogation "high value" detainees would potentially damage national security revealing the CIA's needs, priorities, and capabilities and degrading the CIA's ability effectively question terrorist detainees); Int Counsel Bureau DoD, 723 Supp. 54, 
(D.D.C. 2010) (videos showing how military personnel Guantanamo Bay forcibly move prisoners and out their cells were properly classified, where agency explained that these sensitive internal procedures, released, would permit hostile entities develop countertactics). Moreover, even seemingly innocuous details contained the responsive records could harmful pieced together with other information foreign intelligence services. Bennett decl.  29. See also Larson, 565 F.3d 863; Wolf, 473 F.3d 377. 
Specific explanations why release responsive records would undermine national 
security revealing sensitive military operations are set forth the classified declaration Admiral McRaven. Admiral McRaven currently serving Commander, United States Special Operations Command ("USSOCOM"), component DoD. McRaven decl. (redacted version). USSOCOM ensures the readiness joint special operations forces and conducts worldwide operations. Id. Admiral McRaven based his conclusions his years service and experience the U.S. military and special operations units. Id. Admiral McRaven describes specifically how the responsive records reveal sensitive information pertaining military operations, and how their disclosure could reasonably expected cause damage national security. See Public Education Center, Inc. DoD, 905 Supp. 19, 
(D.D.C. 1995) (classified declaration supported DoD's withholding under Exemption videotapes made during the 1993 raid U.S. armed forces Mogadishu, Somalia). concludes that "the release the responsive records could reasonably expected to: (a) make the special operations unit that participated this operation and its members more readily identifiable the future; (b) reveal classified Sensitive Site Exploitation Tactics, Techniques, and Procedures and other classified information specific special operations; and reveal the methods that special operations forces use for identification captured and killed personnel that the enemy could develop counter-measures defeat future military operations." McRaven decl. (redacted version). 
Because CIA NCS Director Bennett, Admiral McRaven, and Lt. Gen. Neller together have amply and logically explained the exceptionally grave harm national security that may reasonably occur through the release the responsive records, the CIA's reliance Exemption withhold the records was entirely appropriate. Summary judgment should therefore granted its favor. 
IV. 	THE RESPONSIVE RECORDS ARE ALSO EXEMPT FROM DISCLOSURE UNDER FOIA EXEMPTION 
The withheld materials are also exempt from disclosure under FOIA Exemption 
Under Exemption matters "specifically exempted from disclosure" certain statutes need not disclosed. U.S.C.  552(b)(3). examining Exemption claim, court determines 
whether the claimed statute exemption statute under FOIA and whether the withheld 
material satisfies the criteria the exemption statute. CIA Sims, 471 U.S. 159, 167 (1985). 
"Exemption differs from other FOIA exemptions that its applicability depends less the detailed factual contents specific documents; the sole issue for decision the existence 
relevant statute and the inclusion withheld material within that statute's coverage." Go/and CIA, 607 F.2d 339, 350 (D.C. Cir. 1978). Thus, court should "not closely scrutinize the 
contents withheld document; instead, [it shou Id] determine only whether there relevant 
statute and whether the document falls within that statute." Krikorian, 984 F.2d 465. 
Moreover, claim Exemption the Government need not show that there would any harm 
national security from disclosure, only that the withheld information falls within the purview 
the exemption statute. Larson, 565 .3d 868. withholding the responsive records, the CIA relies the National Security Act, 
U.S.C.  403-1 (i), which protects intelligence sources and methods from unauthorized 
disclosure. Bennett dee!. iJil 32, 34. The CIA determined that disclosure the responsive 
records would reveal information pertaining the intelligence methods and activities the 
CIA, discussed above. Id. This statute indisputably qualifies Exemption statute. See, ACLU, 628 F.3d 619; Larson, 565 F.3d 868. Sims, U.S. 180, the Supreme 
Court, recognizing the wide-ranging authority provided the National Security Act protect intelligence sources and methods, held that was "the responsibility the Director Central Intelligence, not that the judiciary, weigh the variety complex and subtle factors determining whether disclosure information may lead unacceptable risk compromising the Agency's intelligence-gathering process." The Court observed that Congress did not limit the scope "intelligence sources and methods" any way. Rather, "simply and pointedly protected all sources intelligence that provide, are engaged provide, information the Agency needs perform its statutory duties with respect foreign intelligence." Id. 169-70. Applying this deferential standard, the CIA has plainly established that the responsive records are protected from disclosure under the National Security Act and Exemption 
The CIA also relies the Central Intelligence Agency Act 1949, U.S.C.  403g, statutory basis which withhold the responsive documents. Section 403g authorizes the CIA withhold information pertaining intelligence methods and activities that related the CIA's core functions. The intelligence methods and activities revealed the responsive records constitute core function the CIA. Bennett decl. ifif 33, 34. well established that the CIA Act, like the National Security Act, Exemption disclosure statute. See Halperin, 629 F.2d 147. Accordingly, because the CIA's declaration establishes that the responsive records fall within the terms statutes mandating the documents withheld, Exemption provides additional basis which grant the CIA summary judgment. 
CONCLUSION 
For all the foregoing reasons, the Court should grant summary judgment favor 
the defendant agencies and dismiss aintifrs amended complaint its entirety. 
Respectfully Submitted, 
TONY WEST 
Assistant Attorney General 
IAN GERSHENGORN 
Deputy Assistant Attorney General 

JOSEPH HUNT 

Director, Federal Programs Branch 

RONA MACI 1EN JR. 
United States Allorney 

Marcia Berman 
ELIZA BETH SHAPIRO (D.C. Bar No. 418925) 
MARCIA BERMA ((PA Bar No. 66168) 

United States Department Justice 

Civil Division, Federal Programs Branch Massachusetts Avenue Room 7132 
Washington, D.C. 20530 

Tel.: (202) 514-2205 

Fax: (202) 616-8470 
Emai izabeth.shap iro@usdoj.gov 

marcia.bennan@usdoj.gov 
Attorneys for Defendants. THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA  
JUDICIAL WATCH, INC.,  Civil Action No.  
Plaintiff, l-cv-00890-JEB  
U.S. DEPARTMENT DEFENSE, and  
CENTRAL INTELLIGENCE AGENCY,  
Defendants.  

DEFENDANTS' STATEMENT MATERIAL FACTS NOT DISPUTE 
Pursuant Local Civil Rule 7(h) the Rules the United States District Court for the 
District Columbia, defendants hereby submit the following statement material facts which 
defendants contend there genuine issue connection with their motion for summary judgment 
under Rule the Federal Rules Civil Procedure. May 2011, Judicial Watch sent request the CIA and DoD under the FOIA 
seeking "all photographs and/or video recordings Osama (Usama) Bin Laden taken during 
and/or after the U.S. military operation Pakistan about May 2011." Declaration 
John Bennett, Director, National Clandestine Service ("NCS"), Central Intelligence Agency, and Exhibit ("Bennett decl. "); Declaration William Kammer and Exhibit 
("Kammer decl."). The agencies both provided interim responses stating that was unlikely that they 
would able provide substantive responses within the 20-day statutory time period under 
FOIA. Bennett dee!. and Exhibit Kammer dee!. and Exhibit The CIA and DoD conducted searches for responsive records. Both agencies 
thoroughly searched the components that were most likely have responsive records related the May 2011 operation. Bennett dee Kammer dee iii! 4-8. DoD located responsive records. Kammer decl. iii! 
DoD determined that the components likely have records responsive plaintiff's request were the Office the Chairman the Joint Chiefs Staff ("OCJCS"), the U.S. Special Operations Command ("USSOCOM"), and the Department the Navy. Kammer decl. Within the OCJCS, single action officer the Directorate for Global Operations maintained all documents related the May 2011 operation. This officer searched all hard copy records and the only stand alone computer used store electronic records, and responsive records were located. Additionally, the email files the Chairman the Joint Chiefs Staff, Admiral Mike Mullen, were searched, and responsive records were located. Id. USSOCOM searched the Headquarters and relevant military service components, and records responsive plaintiff's request were located. Id. iii! 6-7. 
Osama bin Laden's body was buried sea from the U.S. Navy aircraft carrier USS Carl Vinson. USS Carl Vinson personnel took any photographs videos the burial. Emails the ship's computers system discussing the operation were reviewed, however, effort identify any mention responsive photographs video recordings. This effort did not reveal evidence any such photographs video recordings the USS Carl Vinson. Kammer dee!. 
The CIA conducted similarly reasonable search, see Bennett dee!. 10, which did locate responsive records. The CIA located total fifty-two unique responsive records. Bennett dee]. 11. The responsive records contain images Osama bin Laden's body after was killed. Many are graphic and gruesome, they depict the fatal bullet wound bin Laden's head. Id. Some the images were taken inside the compound Abbottabad, Pakistan, where bin Laden was killed. Other images were taken bin Laden's body was transported from the Abbottabad compound the location where was buried sea. Id. Several images depict the preparation Osama bin Laden's body for the burial well the burial itself. Id. The CIA withheld the fifty-two responsive records their entirety pursuant FOIA Exemptions and U.S.C.  552(b)(l), (3); Bennett decl. ifif 13-34. The CIA specifically determined that reasonably segregable, non-exempt portions the responsive records could released. Bennett decl. 35. 
The withheld information was properly classified under Executive Order 13,526, Fed. Reg. 707 (Dec. 29, 2009). the agencies' declarations establish, the responsive records pertain the following categories information included Executive Order 13,526: military plans, weapons systems, operations; intelligence activities and intelligence sources methods; and foreign relations foreign activities the United States. Exec. Order No. 13,526  1.4(a), (c), (d); Bennett decl. ifif 21, 28-29; Declaration Admiral William McRaven ("McRaven decl.") (redacted version). "[A ]11 the responsive records are the product highly sensitive, overseas operation that was conducted under the direction the CIA; accordingly, all the records pertain intelligence activities and/or methods well the foreign relations and foreign activities the United States." Bennett decl. 21. 
Certain responsive records pertain intelligence methods and activities because they "provid[e] insight into the manner which the photographs video recordings were obtained well the purpose, utility, manner which the photographs video recordings could 

used the CIA and the extent limitations such capabilities." Bennett decl.  29. For example, release post-mortem photographs taken conduct facial recognition analysis could provide insight into the manner which such analysis conducted the extent limitation such analysis. Id. Release other images could reveal the types equipment other tools that were utilized (or not) during the execution highly sensitive intelligence operation, well information regarding the purpose, extent, limitations such tools. Id. The classified declaration submitted Admiral McRaven further explains how the responsive records reveal information pertaining military operations, including classified Sensitive Site Exploitation Tactics, Techniques, and Procedures and the methods that special operations forces use for identification captured and killed personnel. McRaven decl. (redacted version); see also Bennett decl.  21. The declarations establish that release the responsive records reasonably could expected cause harm the national security the United States. The CIA's declarant, John Bennett, determined that all the records are properly classified "Top Secret" because "their unauthorized disclosure reasonably could expected result exceptionally grave damage the national security." Bennett decl.  22; see also Exec. Order No. 13,526  l.2(a)(l 
10. The responsive records depict Osama bin Laden after was killed U.S. forces, and many graphically show the fatal bullet wound bin Laden's head and other gruesome images. Bennett decl.  11, 23. Mr. Bennett logically determined that release such graphic images Osama bin Laden, the founding father al-Qa'ida, taken after his death the hands the United States, could reasonably expected inflame anti-American sentiment and provoke deadly attacks the United States its citizens abroad. Al-Qa'ida, which has openly declared war the United States and committed killing innocent Americans, has vowed retaliate for the death its leader, Osama bin Laden. The mere release these images Osama bin Laden could interpreted deliberate attempt the United States humiliate the late al-Qa'ida leader, which could trigger violence, attacks, acts revenge against the United States. Id. iiii 23-27. 
11. addition, "the public release the responsive records would provide terrorist groups and other entities hostile the United States with information create propaganda which, turn, could used recruit, raise funds, inflame tensions, rally support for causes and actions that reasonably could expected result exceptionally grave damage both the national defense and foreign relations the United States." Id. 24. "Al-Qa'ida has very effective propaganda operation," id., and has made such use information they believe could inflammatory before. For example, information about abuse lraqi detainees the Abu Ghraib prison was used al-Qa'ida extremist websites that recruit jihadists and solicit financial support. Id. explained Mr. Bennett, there every reason believe that al-Qa' ida would use these images bin Laden's body inflame jihadist support and inspire attacks the United States. Id. This belief "is not merely conjectural." Id. 25. fact, alQa'ida already has used the circumstances surrounding Osama bin Laden's death and burial recruit and further its goals. Id. (discussing al-Qa'ida media communications devoted bin Laden's "martyrdom" and criticism his burial). Thus, Mr. Bennett reasonably determined that "releasing post-mortem images [bin Laden] that reflect the gruesome nature his fatal injuries, well his burial sea, could enhance al-Qa'ida's efforts use these events further attack and otherwise inflict exceptionally grave damage the security interests the United States." Id. 
12. 
DoD further determined that release the responsive records "will pose clear and grave risk inciting violence and riots against U.S. and Coalition forces." Declaration Robert Neller ("Neller decl."). Lieutenant General Neller the Director Operations, J-3, the Joint Staff the Pentagon. The J-3 responsible for all DoD operational matters outside the continental United States. Id. Lt. Gen. Neller based his determination harm his years experience and judgment well past incidents violence erupting following disclosures that al-Qa'ida used propaganda. Id. iii! 6-9. concludes, believe that the release the responsive records would reasonably expected endanger the lives and physical safety the approximately 98,000 U.S. troops Afghanistan, endanger the lives and physical safety Afghan civilians large, and police and military personnel the Government Afghanistan, aid the recruitment efforts and other activities insurgent elements, and increase the likelihood violence against United States interests, personnel and citizens worldwide." Id. 

13. 
Release the responsive records could also reasonably expected harm national security revealing sensitive information about intelligence methods and activities and military operations. Release ceratin photographs and/or video recordings could reveal the manner which, and purpose for which, they were obtained, could reveal the types equipment other tools that were utilized (or not) during this operation. The disclosure such information could allow hostile forces evade, counter, rep! icate the CIA' intelligence methods, thereby limiting their utility making them obsolete. Bennett decl. iii! 28-30. Once intelligence method discovered, its continued successful use seriously jeopardized. information about particular intelligence method disclosed, that information can used our adversaries 
detect, prevent, damage U.S. intelligence operations advance hostile operations against 
the United States. Id.  28. Moreover, even seemingly innocuous details contained the 
responsive records could harmful pieced together with other information foreign 
intelligence services. Bennett dee!.  29. 
14. Specific explanations why release responsive records would undermine national security revealing sensitive military operations are set forth the classified declaration 
Admiral McRaven. Admiral McRaven based his conclusions his years service and 
experience the U.S. military and special operations units. McRaven decl. Admiral 
McRaven describes specifically how the responsive records reveal sensitive information 
pertaining military operations, and how their disclosure could reasonably expected cause 
damage national security. concludes that "the official release the responsive records 
could reasonably expected to: (a) make the special operations unit that participated this 
operation and its members more readily identifiable the future; (b) reveal classified Sensitive 
Site Exploitation Tactics, Techniques, and Procedures and other classified information specific special operations; and reveal the methods that special operations forces use for identifica
tion captured and killed personnel that the enemy could develop counter-measures defeat 
future military operations." Id. 
Respectfully Submitted, 
TONY WEST 
Assistant Attorney General 
IAN GERSHENGORN 
Deputy Assistant Attorney General 
JOSEPH JIUNT 
Director, Federal Programs Branch 
RONALD MACHEN JR. 
United States Attorney 
Isl Marcia rman 
ELIZABET! SHAPIRO (D.C. Bar No. 418925) MARCIA BERMAN ((PA Bar No. 66168) 
United States Department Justice 
Civil Division, Federal Programs Branch Massachusetts Avenue N.W. Room 7132 Washington, D.C. 20530 
Tel.: (202) 514-2205 
Fax (202) 616-8470 Email: izabeth.shapiro@usdoj.gov 
marcia.berman@usdoj.gov 
Attorneys for Defen dants.