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Bin Laden Ruling

Bin Laden Ruling

Page 1: Bin Laden Ruling

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Number of Pages:29

Date Created:April 26, 2012

Date Uploaded to the Library:February 20, 2014

Tags:Kammer, Neller, Culver, classified, classification, BENNETT, press, DOMA, Exemption, laden, al Qaeda, defendants, EXECUTIVE, AGENCY, order, ACLU, Hillary Clinton, Pentagon, Obama, watch, plaintiff, FBI, White House, records, DOJ, judicial, states, united, court, EPA, IRS, ICE, CIA


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UNITED STATES DISTRICT COURT 
 FOR THE DISTRICT COLUMBIA 
 
 
JUDICIAL WATCH, INC.,  
 
 Plaintiff, 
  Civil Action No.  11-890 (JEB) 
 
U.S. DEPARTMENT DEFENSE, al., 
 
            Defendants. 
 
  
 

 
MEMORANDUM OPINION picture may worth thousand words.  And perhaps moving pictures bear even higher value.  Yet, this case, verbal descriptions the death and burial Osama Bin Laden will have suffice, for this Court will not order the release anything more. the evening May 2011, President Barack Obama announced the world that the United States had conducted operation that resulted the death Bin Laden, the leader the terrorist organization Qaeda.  The very next day, Plaintiff Judicial Watch submitted Freedom Information Act request Defendant Department Defense seeking any photographs and video recordings Bin Laden taking during after that operation.  Judicial Watch sent similar request Defendant Central Intelligence Agency few days later.  After both DOD and the CIA advised that they would unable process the requests within the time permitted under the statute, Plaintiff filed suit. 
 Both agencies have since issued final responses Plaintiffs requests.  After searching the components that determined were most likely possess the sought-after records, DOD turned nothing responsive Judicial Watchs request.   The CIA, however, located fifty-two responsive records, all which withheld.  Specifically, the agency claimed that the photographs and/or video recordings Bin Ladens death and burial were exempt from disclosure under FOIA Exemptions and the exemptions for classified materials and for information specifically exempted other statutes.   
 Both sides now seek summary judgment.  Plaintiff claims that DOD did not conduct adequate search. addition, challenges the level generality which the CIA described the fifty-two responsive records and contends that the agency has not demonstrated that each record may properly withheld under either claimed exemption.  For their part, Defendants maintain that DODs search was sufficient and that the CIA has provided adequate support for its withholdings.   
 Defendants arguments carry the day.  The affidavits they have provided are sufficient establish that DOD conducted adequate search for responsive records and that the records identified the CIA were classified materials properly withheld under Exemption  The Court declines Plaintiffs invitation substitute its own judgment about the national-security risks inherent releasing these records for that the executive-branch officials who determined that they should classified.  The Court, accordingly, will grant Defendants Motion and deny Plaintiffs. Background May 2011 (May 2011, Pakistans time zone), American forces captured and killed Osama Bin Laden his compound Abbottabad, Pakistan.  See Transcript President Obamas May 2011, Remarks, available http://www.whitehouse.gov/the-press-office/2011/05/02/remarks-president-osama-bin-laden. Executive officials have confirmed that the team then took custody Bin Ladens body and transported the aircraft carrier USS Carl Vinson the North Arabian Sea.  See, e.g., Pl.s Mot. Opp., Declaration Michael Bekesha, Exh. (Press Briefing Press Secretary Jay Carney, May 2011)  There, [t]he deceaseds body was washed and then placed white sheet.  Bekesha Decl., Exh. (DOD Background Briefing with Senior Defense Officials from the Pentagon and Senior Intelligence Officials Telephone U.S. Operations Involving Osama Bin Laden, May 2011)  Religious remarks were read, and the prepared body was placed weighted bag and onto flat board.  See id. the board was tipped up, Bin Ladens body slipped into the sea. See id.   
Shortly after the Presidents announcement, the media began report that the government had taken photographs Bin Ladens body the aftermath the raid.  See, e.g., Bekesha Decl., Exh. (Stacia Deshishku, Even More Details the OBL Photos, CNN, May 2011).  This was confirmed White House officials, see, e.g., Bekesha Decl., Exh. (Press Briefing Jay Carney and Assistant the President for Homeland Security and Counterterrorism John Brennan, May 1011) 4-5, who suggested that, May decision had yet been made concerning whether the photographs would released.  See id.; Press Briefing Jay Carney, May 2011, 2-3. particular, Press Secretary Carney expressed concern about the sensitivities involved releasing the images and the potential that doing could inflammatory.  Press Briefing Jay Carney, May 2011,  CIA Director Leon Panetta, however, was more confident that ultimately photograph would presented the public.  Bekesha Decl., Exh. (Leon Panetta Talks About Whether not Photo Osama Bin Laden Will Released the Public, NBC Nightly News, May 2011) May Carney announced that the President ha[d] made the decision not release any the photographs the deceased Osama bin Laden.  Bekesha Decl., Exh. (Press Briefing Jay Carney, May 2011)  The President himself later explained this decision, emphasizing the national security risk involved and stating that the photos might serve [a]s propaganda tool an incitement additional violence.  Interview with President Obama, Minutes,   May 2011, transcript available http://www.cbsnews.com/8301-504803_162-20060530-10391709.html. letter dated May 2011, Judicial Watch, a non-profit, educational foundation, Am. Compl.,  submitted FOIA request DOD for all photographs and/or video recordings Osama (Usama) Bin Laden taken during and/or after the U.S. military operation Pakistan about May 2011.  See Def.s Mot., Declaration William Kammer, Exh. (Letter from Michael Bekesha, May 2011).  DODs Office Freedom Information (OFOI) received the following day.  See Kammer Decl.,  letter dated May 2011, OFOI acknowledged receipt the request, but advised that would unable make release determination within the 20-day statutory time period and that the 10-day extensions provided for FOIA would also not provide sufficient time for the agency complete processing.  See Kammer Decl., Exh. (Letter from Paul Jacobsmeyer, May 2011). May Judicial Watch submitted substantively identical FOIA request the CIA.  See Def.s Mot., Declaration John Bennett, Exh. (Letter from Michael Bekesha, May 2011).  The CIA received the following day, May  See Bennett Decl.,  letter dated May 23, the CIA acknowledged receipt the request and advised Judicial Watch that, light [t]he large number FOIA requests the CIA receives, would unlikely that [the agency could] respond within the working days the FOIA requires.  Bennett Decl., Exh. (Letter from Susan Viscuso, May 23, 2011).  
Seeking compel the agency process its request and release all non-exempt responsive records within the timeframe mandated the statute, Judicial Watch filed suit against DOD May 13, 2011. few weeks later, filed Amended Complaint that added the CIA Defendant.  Both agencies have the meantime finished processing Plaintiffs requests. attempting locate responsive records, DODs OFOI first determined that the DOD components most likely have the records Plaintiff was seeking were the Office the Joint Chiefs Staff (OCJCS), the U.S. Special Operations Command (USSOCOM), and the Department the Navy.  See Kammer Decl.,   Officers then proceeded search those files and electronic record-storage systems within these three components which they believed responsive records might plausibly found.  See id.,  5-8.  DOD ultimately located records responsive Judicial Watchs request.  See id. 
The CIAs search was more fruitful.  The agency conducted search those components most likely have records related the May 2011 operation  determination made easier the nature the operation and the close proximity time between the operation and Plaintiff[s] FOIA request. See Bennett Decl.,  10.  Fifty-two unique responsive records were located.  See id.,  11.  The records are described John Bennett, Director the CIAs National Clandestine Service (NCS), follows: 
These records are photographs and/or video recordings taken [Bin Laden] about May 2011, the day that the United States conducted operation that resulted his death.  These records contain post-mortem images [Bin Laden]s body. result, many them are quite graphic, they depict the fatal bullet wound [Bin Laden]s head and other similarly gruesome images his corpse.  Many the images were taken inside [Bin Laden]s compound Abbottabad, Pakistan, which was killed, while others were taken his corpse was being transported from the Abbottabad compound the location where was ultimately buried sea.  Several other images depict the preparation his body for burial well the burial itself.  Some the responsive photographs were taken that the CIA could conduct facial recognition analysis order confirm that the body the deceased individual was that [Bin Laden]. 
 
Id. 
 But all these photographs and/or videos, the CIA claims, are beyond FOIAs reach.  See id.,  12-36.  Specifically, Bennett averred both that the records question are classified materials exempt from disclosure under FOIA Exemption and that they are exempted from disclosure other statutes and, accordingly, fall within the ambit Exemption  See id., 13-35.  With respect Exemption Bennett stated not merely that the responsive records are fact classified, but also that they were properly classified  i.e., that they met the procedural and substantive criteria for classification set forth under Executive Order (EO) 13526.  See id.,  13-22.  His statement concerning 13526s procedural criteria buttressed the declaration Elizabeth Culver, the Information Review Officer for the NCS.  See generally Def.s Opp. Reply, Decl. Elizabeth Culver.  With regard the Orders substantive requirements, Bennetts averments are supplemented the declarations Robert Neller, the Director Operations, J-3, the Joint Staff the Pentagon, and William McRaven, Commander the USSOCOM.  See generally Def.s Mot., Decl. Robert Neller; Defs Mot., Decl. William McRaven.   
Both parties now seek summary judgment. 
II. Legal Standard 

Summary judgment may granted the movant shows that there genuine dispute any material fact and the movant entitled judgment matter law.  Fed. Civ. 56(a); see also Anderson Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb Powell, 433 F.3d 889, 895 (D.C. Cir. 2006).  A party asserting that fact cannot genuinely disputed must support the assertion citing particular parts materials the record.  Fed. Civ. 56(c)(1)(A).  The moving party bears the burden demonstrating the absence genuine issue material fact.  Celotex Corp. Catrett, 477 U.S. 317, 322 (1986). [A] material fact genuine the evidence such that reasonable jury could return verdict for the nonmoving party element the claim.  Liberty Lobby, Inc., 477 U.S. 248.  Factual assertions the moving partys affidavits declarations may accepted true unless the opposing party submits his own affidavits, declarations, documentary evidence the contrary.  Neal Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992). 
FOIA cases typically and appropriately are decided motions for summary judgment. Defenders Wildlife U.S. Border Patrol, 623 Supp. 83, (D.D.C. 2009); Bigwood United States Agency for Int'l Dev., 484 Supp. 68, (D.D.C. 2007). FOIA case, the Court may grant summary judgment based solely information provided agencys affidavits declarations when they describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted either contrary evidence the record nor evidence agency bad faith.  Military Audit Project Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits declarations are accorded a presumption good faith, which cannot rebutted purely speculative claims about the existence and discoverability other documents.  SafeCard Servs., Inc. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). 
III. Analysis 

Congress enacted FOIA order pierce the veil administrative secrecy and open agency action the light public scrutiny. Dep't Air Force Rose, 425 U.S. 352, 361 (1976) (quoting Rose Dep't Air Force, 495 F.2d 261, 263 (2d Cir. 1974)) (internal quotation marks omitted). The statute provides that each agency, upon any request for records which (i) reasonably describes such records and (ii) made accordance with published rules shall make the records promptly available any person. U.S.C.  552(a)(3)(A).  Consistent with this statutory mandate, federal courts have jurisdiction order the production records that agency improperly withholds.  See U.S.C.  552(a)(4)(B); DOJ Reporters Comm. for Freedom the Press, 489 U.S. 749, 755 (1989).  Unlike the review other agency action that must upheld supported substantial evidence and not arbitrary and capricious, the FOIA expressly places the burden on the agency sustain its action and directs the district courts determine the matter novo.  Reporters Comm., 489 U.S. 755 (quoting U.S.C.  552(a)(4)(B)).  At all times, courts must bear mind that FOIA mandates strong presumption favor disclosure .  Natl Assn Home Builders Norton, 309 F.3d 26, (D.C. Cir. 2002) (quoting U.S. Dept State Ray, 502 U.S. 164, 173 (1991)). this case, Judicial Watch levels different challenge against each Defendant agency.  With respect DOD, which found records responsive its request, Plaintiff contends that that the agencys search was too narrow.  With respect the CIA, which located fifty-two responsive records, Plaintiff alleges that the agency has neither described those records sufficient detail nor demonstrated that they are exempt from disclosure.  The Court will first address the deficiencies ascribed DOD, finding that the agencys search complied with the obligations imposed FOIA. will then turn the more difficult Plaintiffs claims and the crux the dispute: whether the CIA has produced sufficient evidence support its withholdings. the end the day, because the agencys declarations establish that the records question were properly classified, that they pertain the foreign activities the United States, and that their release could reasonably expected damage the national security, the Court concludes that the photographs and/or video recordings Osama Bin Ladens body are exempt from disclosure under FOIA Exemption DODs Search gain summary judgment Plaintiffs challenge the adequacy its search, DOD must demonstrate beyond material doubt that has conducted search reasonably calculated uncover all relevant documents.  Morely CIA, 508 F.3d 1109, 1114 (D.C. Cir. 2007) (quoting Weisberg DOJ, 705 F.2d 1344, 1351 (D.C. Cir. 1983)) (internal quotation mark omitted) (alteration original); see also Nation Magazine U.S. Customs Service, F.3d 885, 890 (D.C. Cir. 1995).  The agency must make a good faith effort conduct search for the requested records, using methods which can reasonably expected produce the information requested, and cannot limit its search only one record system there are others that are likely turn the information requested.  Nation Magazine, F.3d 890 (quoting Oglesby U.S. Dept Army, 920 F.2d 57, (D.C. Cir. 1990)).   A reasonably calculated search, however, does not require agency search every file where document could possibly exist. Hidalgo FBI, No. 10-5219, 2010 5110399, (D.C. Cir. Dec. 15, 2010) (citing SafeCard Servs., 926 F.2d 1201).  Instead, merely requires that the search reasonable light the totality the circumstances.  Id.  [A]ffidavits that explain reasonable detail the scope and method the search conducted the agency will suffice demonstrate compliance with the obligations imposed FOIA.  Negley FBI, 169 Fed. Appx. 591, 594 (D.C. Cir. 2006) (quoting Meeropol Meese, 790 F.2d 942, 952 (D.C. Cir. 1986)) (internal quotation marks omitted) (alteration original). 
William Kammer, Chief DODs Freedom Information Division, stated that DOD searched for records responsive Judicial Watchs request the three locations determined the most likely possess responsive records: the OCJCS, USSOCOM, and the Department the Navy.  See Kammer Decl.,   Within the OCJCS, single officer maintained all documents related the May 2011, operation.  See id.,   That officer searched all hard-copy records and the only computer used store electronic records.  See id. addition, the email files the Chairman the Joint Chiefs Staff, Admiral Mike Mullen, were searched, along with the active inbox the Exchange server and all supporting personal storage table files within Admiral Mullens profile the Secure Internet Protocol Router network.  Id.  For its part, USSOCOM searched its headquarters and relevant components, combing all hard copy and electronic records including all email records during the inclusive dates May 2011, through May 31, 2011.  Id.,   Finally, because Bin Ladens body was buried sea from the Navy aircraft carrier USS Carl Vinson, OFOI coordinated with the Commander the U.S. Pacific Fleet have the ships system searched.  See id.,    The Commander advised that USS Carl Vinson personnel took any photographs videos the burial and that search the ships computer system for email discussions any such photographs video recordings had turned nothing relevant.  See id. 
Judicial Watch nonetheless challenges the adequacy DODs search three respects.  First, contends that DOD did not search least one critical location  the Office the Secretary, Pl.s Mot. Opp. 16, and that this omission rendered DODs search unreasonably narrow. Because it has been widely reported that Secretary Gates advised President Obama about whether release post mortem photographs Bin Laden, Judicial Watch argues that it nearly inconceivable that DOD did not have possession the photographs and suggests that they likely reside the Office the Secretary.  Id.  But even Secretary Gates gave such advice, does not necessarily follow that ever saw the photos.  And even did seem them, that does not mean that actually possessed them and also retained them his office.  Plaintiffs speculation that Secretary Gates must have kept copies these classified records just that: speculation.  Because [a]gency affidavits are accorded presumption good faith which cannot rebutted purely speculative claims about the existence and discoverability other documents, Negley, 169 Fed. Appx. 594 (quoting SafeCard Servs., 926 F.2d 1200) (internal quotation marks omitted) (alteration original), such bald conjectures not undermine the agencys position.  
Second, Plaintiff maintains that Kammers declaration does not demonstrate that Defendants searched the Joint Worldwide Intelligence Communications System (JWICS), system interconnected computer networks used by, inter alia, DOD and the U.S. Department State transmit classified information.  See Pl.s Mot. Opp. 17.  Because has also been reported that Secretary State Hillary Clinton provided advice President Obama about whether release post mortem photographs Bin Laden, Plaintiff reasons, it more than plausible that responsive records were transmitted to/from DOD the U.S. Department State via JWICS.  Id.  Again, Judicial Watch would have the Court infer from the medias reports that Secretary Clinton advised President Obama concerning the photographs release that she fact possessed copies those photographs  or, more specifically, that she viewed them through JWICS. with Secretary Gates, however, this inference entirely unsupported evidence. 
Third, Judicial Watch complains that Kammer did not specifically state that the agency searched for photographs videos taken during the period after the SEALs left Pakistan with Bin Ladens body.  Pl.s Mot. Opp. 17.  If, the media have reported, see, e.g. Deshishku, Even More Details the OBL Photos such records were made, Plaintiff argues, it highly likely that such records would the possession DOD.  Pl.s Opp Mot. 17.  Kammers declaration that the search the USS Carl Vinson for mention photographs videos the burial turned responsive video recordings photographs, Kammer Decl.,  however, plainly covers photographs and videos taken after the mission Pakistan.  More broadly, Kammer repeatedly explains that the searches the various components revealed responsive records.  See id.,   Because Judicial Watch requested all photographs and videos taken during and/or after the operation Pakistan, see Letter from Michael Bekesha, May 2011, Kammers statements that responsive records were located clearly includes those records created subsequent the completion the intelligence mission within Pakistan.  Pl.s Mot. Opp. 17.  Judicial Watch cannot seriously argue otherwise. should emphasized that this was not request for some broadly defined class documents the existence and whereabouts which the agency was likely unaware and that might maintained any number records systems. the contrary, Judicial Watchs request related discrete set extraordinarily high-profile records concerning the most highly classified operation that this government has undertaken many, many years.  Press Briefing Jay Carney, May 2011, DOD has possession these records, the relevant individuals are well aware that fact.   
Judicial Watchs challenge the adequacy DODs search, accordingly, seems reduce suggestion that the agency acted bad faith (although Judicial Watch makes explicit accusation that effect).  Plaintiff, however, has neither rebutted the presumption good faith afforded the agencys declarations nor proffered countervailing evidence that raises a substantial doubt the adequacy the agencys search.  Iturralde Comptroller the Currency, 315 F.3d 311, 314 (D.C. Cir. 2003). the basis Kammers declaration, which provides relatively detailed and nonconclusory explanation DODs search, SafeCard Servs., 926 F.2d 1200 (quoting Ground Saucer Watch, 692 F.2d 771)) (internal quotation mark omitted), therefore, the Court will grant Defendants Motion and deny Plaintiffs the adequacy-of-search issue. The CIAs Withholdings 

Although DOD did not possess the records Judicial Watch sought, the CIA found exactly what Plaintiff was looking for: fifty-two photographs and/or video recordings taken [Bin Laden] about May 2011.  Bennett Decl.,  11.  Frustratingly for Plaintiff, however, the CIA claims that each and every one them exempt from disclosure under FOIA. the sufficiency the agencys support for its withholdings that the Court now directs its focus. 
Congress exempted nine categories documents from FOIAs broad sweep.  [T]he statutory exemptions, which are exclusive, are narrowly construed.  Norton, 309 F.3d (quoting Rose, 425 U.S. 361). The CIA here relies the application both Exemption and Exemption  Exemption applies materials that are specifically authorized under criteria established Executive order kept secret the interest national defense foreign policy and are fact properly classified pursuant such Executive order. U.S.C.  552(b)(1).  Exemption covers information that specifically exempted from disclosure statute, that statute meets certain statutorily enumerated criteria.  Id.  552(b)(3). agency may invoke Exemption withholding records only complies with classification procedures established the relevant executive order and withholds only such material conforms the orders substantive criteria for classification.  King DOJ, 830 F.2d 210, 214 (D.C. Cir. 1987); see also Lesar DOJ, 636 F.2d 472, 483 (D.C. Cir. 1980) (To classified properly, document must classified accordance with the procedural criteria the governing Executive Order well its substantive terms.).  Judicial Watch questions the CIAs compliance with 13526 both procedural and substantive grounds. the Court finds that the CIAs declarations, which are afforded substantial weight, Halperin CIA, 629 F.2d 144, 148 (D.C. Cir. 1980), establish that the agency has properly withheld the photographs and/or video recordings Bin Ladens body pursuant Exemption will grant Defendants summary judgment without reaching the question Exemption 3s applicability. 13526s Procedural Requirements 13526, which prescribes uniform system for classifying, safeguarding, and declassifying national security information, sets out the procedures which information may classified.  The Orders procedural requirements govern wide set issues that range from the authority the original classifier the proper identification and marking classified material.  The CIA maintains that the declarations John Bennett, Director the NCS, and Elizabeth Culver, Information Review Officer for the NCS, establish that the fifty-two records were classified consistent with 13526s procedural requirements. Both these individuals have declared that they possess original TOP SECRET classification authority, see Bennett Decl.,  18; Culver Decl.,  that they personally reviewed each the records issue, see Bennett Decl.,  Culver Decl.,  and that 13526s procedural requirements were satisfied.  See Bennett Decl.,  13; Culver Decl.,    
 Judicial Watch disagrees. its Motion, argued that Bennetts declaration  the only one that had then been submitted the procedural issues  did not suffice establish procedural compliance because failed identify who originally classified the records, when original classification occurred (in particular, whether the records were classified before after Plaintiffs request was received), the date event upon which the records will declassified, and whether the records were properly identified and marked.  See Pl.s Mot. Opp. 23-27.  The CIA subsequently submitted the Culver declaration along with its Opposition and Reply attempt address these specific concerns.  See Culver Decl.,   Culver stated, relevant part: have confirmed that each these records satisfies the procedural requirements Executive Order 13526. the time Mr. Bennetts declaration, these records were marked TOP SECRET and were otherwise maintained manner that satisfied the procedural requirements the Executive Order under the circumstances.  Since then the CIA has, out abundance caution, taken additional steps ensure that each these records contains all the markings required the Executive Order and its implementing directives, including information that reveals the identity the person who applied derivative classification markings, citations the relevant classification guidance and reasons for classification, and the applicable declassification instructions. for Plaintiffs inquiry concerning the identity the original classification authority (OCA), after the CIA received these records, they were derivatively classified accordance with the guidance provided the CIAs designated senior agency official, authorized Part the Executive Order.  The CIA official who provides this classification guidance  and therefore the OCA for these records  the CIAs Director Information Management Services, who the authorized OCA who has been designated direct and administer the CIAs program under which information classified, safeguarded, and declassified.  When Mr. Bennett, who himself [sic] OCA acting under the direction the CIA Director, later reviewed each these records for the purpose this litigation, reaffirmed that these prior classification determinations were correct and that the records continued meet the criteria the Order.  
 
Id.,  7-8 (footnote omitted).   
 Far from convinced, Judicial Watch suggests that Culvers declaration only further confirms that Defendants have failed satisfy their burden proof.  Pl.s Reply points out that derivative classification defined 13526 the incorporating, paraphrasing, restating, generating new form information that already classified, and marking the newly developed material consistent with the classification markings that apply the source information. 13526  6.1(o).  Original classification, the other hand, an initial determination that information requires, the interest the national security, protection against unauthorized disclosure.  Id.  6(ff).  Even Culvers statements establish that the records were derivatively classified consistent with 13526s requirements, the argument goes, neither her testimony nor Bennetts establishes that original classification authority originally classified the information properly. addition failing identify who originally classified the records, her statements not identify when original classification occurred whether the records, which she avers now contain the required markings, were properly marked begin with.  See Pl.s Reply 3-9. preliminary matter, Judicial Watch correct that the CIAs declarations are not model transparency.  Although both Bennett and Culver assert that 13526s procedural requirements were satisfied, see Bennett Decl.,  13; Culver Decl.,  and Culver fleshes out her conclusion with additional details, see Culver Decl.,  7-8, neither reveals, for example, the identity the individual who originally classified the records question.  The Court, nevertheless, will not order these records released procedural grounds for two reasons.  First, even there had been some procedural defect the original classification, was cured proper derivative classification and Bennett and Culvers subsequent reviews.  Second, even cure had taken place, any hypothetical defect would not require that the documents released long did not undermine the agencys assessment the substantive criteria for classification. Any Defect Cured 13526 describes detail the procedures which document may classified, and FOIA requires agency demonstrate conformity with those procedures.  See King, 830 F.2d 214.  Neither the nor the statute, however, specifies the level detail with which agencys declaration, which entitled presumption good faith, see SafeCard Servs., 926 F.2d 1200, must recount its compliance.  Especially given the lack evidence bad faith, thus possible that Bennett and Culvers more general statements that all 13526s procedural requirements were satisfied, see Bennett Decl.,  13; Culver Decl.,  are sufficient.  See, e.g., Schoenman FBI, 575 Supp. 136, 151-52 (D.D.C. 2008) (testimony that record was properly marked CONFIDENTIAL because contains classified national security information, while could stand more specific the procedural requirements, found sufficient).  But light Allen CIA, 636 F.2d 1287 (D.C. Cir. 1980), overruled other grounds Founding Church Scientology Smith, 721 F.2d 828, 830 (D.C. Cir. 1983), which deemed declarations that omitted details such the identity the original classifier insufficient demonstrate procedural compliance, id. 1292, that not likely.  Although Allen may distinguishable  for instance, the ground that the court found that the agency had also failed demonstrate substantive compliance  the Court need not venture down that path. 
 That because even Plaintiff were correct its speculation that there may have been procedural flaws the original classification, such flaws were cured proper derivative classification and subsequent classification reviews.  See, e.g., Washington Post DOD, 766 Supp. 7-9 (D.D.C. 1991) (subsequent review individual with original classification authority cured actual procedural defects); cf. Carlisle Tire and Rubber Co. U.S. Customs Serv., 663 F.2d 210, 215 (D.C. Cir. 1980) ([P]roper subsequent classification under new EO] suffices cure any procedural and substantive defects classification which may have existed under [the old EO].).  Where, Culver has averred, the individual who conducts the derivative classification himself has original classification authority, see Culver Decl.,  and where two additional individuals with original classification authority (Bennett and Culver) review the classified records and attest their compliance with the EOs procedural and substantive requirements, speculative defects the original classification procedure are immaterial.  
 Culver, moreover, expressly confirms that the records bear all the markings required the Executive Order.  Id.,   Notably, the requires that those markings include, among other things, the identity the original classification authority, the agency origin, and declassification instructions.  See 13526  1.6.  Culvers testimony that the records contain all the required markings, accordingly, addresses most the issues Plaintiff has raised, not with the specificity might prefer. addition, even Plaintiff correct that Culvers statements imply that the records may not have initially carried all the required markings, that they are currently marked suffices.  See, e.g., Washington Post, 766 Supp. (deemed adequate that agency, which concede[d] that many documents were not properly marked, under[took] correct [them]). 
 Finally, Plaintiffs claim that Defendants must disclose the date the original classification unfounded. 13526 does not require that the date classification indicated the records themselves, and Plaintiff does not show need included supporting declaration.  Plaintiffs explanation for why needs this information, moreover, does not hold water.  Plaintiff contends that Defendants must disclose the date original classification demonstrate that the additional procedural requirements that pertain classifications that occur after FOIA requests are received  specifically, such classifications must accomplished document-by-document basis with the personal participation under the direction of particular officials, see 13526  1.7(d)  did not apply.  But Judicial Watchs speculation that the records were classified subsequent the agencys receipt its request belied Bennetts declaration and its own chronology.  Bennett attests, and Judicial Watch does not appear dispute, that the CIA received its FOIA request, which was dated May 2011, see Letter from Michael Bekesha, May 2011, May  See Bennett Decl.,   Even according Plaintiffs own timeline, however, classification occurred before then.  See Pl.s Mot. Opp. 25.  Indeed, the formal announcement that the records would not released came May  See Press Briefing Jay Carney, May 2011, at1.  Judicial Watchs suggestion that the operative date May the day DOD received its request, see Kammer Decl.,  rather than the day the CIA received its request, moreover, flawed, since the request issue was made the CIA. any event, even Plaintiff were correct that the records were classified after its FOIA request was received, Bennetts review each the responsive records, Bennett Decl.,  which was conducted under the direction the CIA Director, see Culver Decl.,  meets the requirements 13526  1.7(d).  See Washington Post, 766 Supp. 8-9 (subsequent document-by-document review appropriate official satisfied parallel requirement prior EO). Defect Would Not Require Release 

 Even assuming there had been some uncured defect the original classification procedure  again, Judicial Watch has presented evidence that this was fact the case  actual procedural defects not necessarily require the document disclosed.  Allen, 636 F.2d 1292 n.27 (citing Lesar, 636 F.2d 478, 484).  Indeed, such rule could have intolerable consequences for national security interests.  Lesar, 636 F.2d 484.  To release these materials because mere mishap the time classification, when the documents are sworn contain sensitive information, would only perverse.  Id.  While this does not mean that only conformity with the EOs substantive requirements required, see id., the D.C. Circuit has emphasized that the consequences procedural violations vary according the significance the violation.  Id. 485; see also Allen 636 F.2d 1292 n.27.  Specifically, where violation of such importance that reflect[s] adversely the agencys overall classification decision, camera inspection may necessary.  Lesar, 636 F.2d 485.  Other violations, however, may insignificant, undermining not all the agencys classification decision.  Id. long procedural violations not undermine the agencys decision classify  when, for example, procedural violation suggests that, contrary the EO, classification was undertaken order conceal violation law  the Court will not order documents released that ground. the end the day, given the derivative classification and two subsequent classification reviews, all individuals with original classification authority, the averments that 13526s procedural requirements were satisfied, the seemingly undisputed procedural conformity the derivative-classification process, and the lack any evidence tending undermine the agencys classification decision, the Court finds that any possible procedural errors plainly not warrant release. light the Courts subsequent conclusion that the records meet 13526s substantive criteria for classification, the Court will not order them released the basis merely conjectural procedural shortcomings. [P]ure speculation the [agencys] procedural compliance simply insufficient to establish that the information withheld should produced Plaintiff  i.e., essentially declassified  notwithstanding its substantively correct classification.  Schoenman, 575 Supp. 152 n.9. Substantive Requirements 

 Having determined that any alleged procedural shortcomings have been cured not require the disclosure those records that meet the substantive classification criteria, the Court now turns those substantive criteria. 13526 imposes two primary substantive barriers classification, both which are issue here.  First, the information question must fall within one the classification categories outlined  1.4 the Executive Order.  See 13526  1.1(3), 1.4.  Second, must the case that the unauthorized disclosure the information reasonably could expected result describable damage the national security.  See id.  1.1(4), 1.4. the records issue have been classified TOP SECRET, Bennett Decl.,  22, the potential damage national security must exceptionally grave. 13526  1.2(a)(1). Classification Categories 

 Section 1.4 13526 identifies eight categories information that may potentially subject classification.  See id.  1.4(a)-(h).  Classified records must pertain[ ] one these categories.  See id.  1.4.  The CIA here invokes three them: (a) military plans, weapons systems, operations; (c) intelligence activities (including covert action), intelligence sources methods, cryptology; and (d) foreign relations foreign activities the United States, including confidential sources.  Id.  1.4(a), (c), (d).  Specifically, Bennett here avers that all the responsive records, which were the product highly sensitive, overseas operation that was conducted under the direction the CIA[,] pertain intelligence activities and/or methods well the foreign relations and foreign activities the United States.  Bennett Decl.,  (emphasis added). further attests that the responsive records also reveal information concerning military plans, weapons systems, operations.  Id.   
 Judicial Watch maintains, however, that even the agencys declarations establish that some the records question pertain the classification categories, they not demonstrate that each the fifty-two records pertains. particular, while some the records question may well reveal classified military tactics equipment, see McRaven Decl.,  2-3, 5-8, and others may well disclose classified intelligence methods, see Bennett Decl.,  29, Judicial Watch contends that Defendants have failed establish that every one the records  for example, those that depict the preparation Bin Ladens body for burial and the burial itself  pertains one more the classification categories.  Pl.s Mot. Opp. 32-33.  Without knowing more details about the fifty-two responsive records, Plaintiff asserts, the Court cannot evaluate whether each them relates one the three claimed classification categories. 
 Plaintiff misses the forest for the trees.  Judicial Watch may correct that the CIA has not demonstrated that the burial photos, for example, pertain intelligence methods. 13526  1.4(c). may similarly correct that the agency has not shown that the photographs videos taken the body was transported the USS Carl Vinson pertain military plans operations.  Id.  1.4(a). patently clear, however, that all fifty-two records  which, the terms Judicial Watchs own request, depict Bin Laden during and after the May 2011, operation Abbottabad, Pakistan  pertain the foreign activities the United States. 13526  1.4(d).  Plaintiffs allegation that no one testifies that any the records pertain foreign relations foreign activities the United States, Pl.s Mot. Opp. 34, plainly contradicted Bennetts declaration. See Bennett Decl.,  (all the records pertain the foreign relations and foreign activities the United States (emphasis added)).  Given that the records question were the product highly sensitive, overseas operation that was conducted under the direction the CIA, id., further information required conclude that each them pertains  notably, not very demanding verb  the United States foreign activities. National Security 

 
 Having concluded, therefore, that all the records pertain least one the classification categories, only the second substantive hurdle remains.  Specifically, the Court must determine whether the CIAs declarations demonstrate that the release the images and/or videos reasonably could expected cause exceptionally grave damage the national security. 13526  1.2(1); see also id.  1.1(4), 1.4.  National security, the Executive Order provides, means the national defense foreign relations the United States.  Id.  6.1(cc).   
 Although the Court reviews Defendants withholdings novo, see U.S.C.  552(a)(4)(B), must afford substantial weight agency declarations where the national security concerned.  Krikorian Dep't State, 984 F.2d 461, 464 (D.C. Cir. 1993) (quoting Military Audit Project, 656 F.2d 738); see also ACLU DOD, 628 F.3d 612, 621, 624 (D.C. Cir. 2011). Because courts lack the expertise necessary second-guess such agency opinions the typical national security FOIA case, ACLU, 628 F.3d 619 (quoting Krikorian, 984 F.2d 464), they have consistently deferred executive affidavits predicting harm national security, and have found unwise undertake searching judicial review. Id. 624 (quoting Ctr. for Nat'l Sec. Studies DOJ, 331 F.3d 918, 927 (D.C. Cir. 2003)) (internal quotation mark omitted).  Ultimately, [t]he CIA's arguments need only both plausible and logical justify the invocation FOIA exemption the national security context.  Id. 624 (citing Wolf CIA, 473 F.3d 370, 37475 (D.C. Cir. 2007)). their declarations, Bennett, Neller, and McRaven attest their beliefs that releasing the records Judicial Watch seeks reasonably could expected result exceptionally grave damage the national security.  Bennett Decl.,  22-30; Neller Decl.,  2-3, 6-10; McRaven Decl.,  2-3, 5-8.  These assessments, moreover, are not announced conclusory fashion.  Rather, each declarant expounds his evaluation the national-security risk detail, describing the basis for his beliefs and focusing those risks that relate his area expertise.  
 Bennett, for one, explains that release any the records reasonably could expected inflame tensions among overseas populations that include al-Qaida members sympathizers, encourage propaganda various terrorist groups other entities hostile the United States, lead retaliatory attacks against the United States homeland United States citizens, officials, other government personnel traveling living abroad.  Bennett Decl.,  23. fleshes out his account with examples ways which Qaeda has already used Bin Ladens death and burial opportunity further its anti-American agenda, and highlights other examples the organizations tendency use similar incidents propagandize and incite anti-American sentiment.  See id.,  24-27. addition, Bennett describes additional harm national security [that] could caused the fact that release certain responsive records could also reveal intelligence activities and methods that were employed during after the operation.  Id.,  28.  By way example, explains, release post-mortem photographs [Bin Laden] that were used conduct facial recognition analysis could provide insight into the manner which such analysis conducted the extent limitation such analysis.  Id.,  29. 
 Nellers testimony consistent with Bennetts.  His declaration attests his belief that extremist groups will seize upon these images grist for their propaganda mill, which will result, addition violent attacks, [in] increased terrorist recruitment, continued financial support, and exacerbation tensions between the Afghani people and U.S. and Coalition Forces. Neller Decl.,  further avers that the release the responsive records will pose clear and grave risk inciting violence and riots against U.S. and Coalition forces and expose innocent Afghan and American civilians harm result the reaction extremist groups, which will likely involve violence and rioting.  Id.  Nellers assessment not only draws from his years experience and judgment, id.,  but, like Bennetts, also buttressed historical precedent.  See id.,  7-10. particular, Neller references the violence that resulted from Newsweeks incorrect report that U.S. military personnel Guantanamo Bay had desecrated the Koran, id.,  well that which resulted from the re-publication the Danish cartoon the Prophet Muhammad.  Id.,   
 McRavens partially classified declaration covers somewhat different ground, focusing the risks relating the release information about classified military methods and equipment.  Although the details the methods and equipment claims the records would reveal are classified, his conclusion not: opinion that the release the responsive records could reasonably expected cause harm the national security making the special operations unit that participated this operation and its members more readily identifiable the future; providing the enemy information that will allow them analyze the [Tactics, Techniques, and Procedures] used during [Sensitive Site Exploitation], including the methods used for identification captured and killed enemy personnel; and possibly provide them the opportunity defeat [Special Operations Forces] practices the future. 
McRaven Decl.,  threshhold matter, the Court agrees with Plaintiff that some the declarants testimony, their own admission, applies only certain the fifty-two records issue.  For example, the risk exposing military methods and equipment that McRaven describes and the risk revealing intelligence techniques that Bennett explains only relate some the records question.  Obviously, images taken board the USS Carl Vinson the burial sea are not going reveal site exploitation tactics, techniques, procedures used the Abottabad compound even facial recognition techniques capabilities.  Pl.s Reply 11.  The military- and intelligence-related risks, accordingly, cannot corroborate the CIAs claim that each the fifty-two responsive records properly classified. order obtain summary judgment its claim that the release any the records question reasonably could expected pose risk harm the national security, the agency thus must rely those national-security risks that are applicable all the records.  Put differently, the Court must find that the declarants predictions national-security harm are both plausible and logical with respect even the most innocuous photograph the deceased Bin Laden.  
 Although this frame takes McRavens declaration out the picture, Bennett and Nellers specific and detailed averments, which are based long and distinguished careers the intelligence community, suffice carry the governments burden.  Remember, [t]he test not whether the court personally agrees full with the CIA's evaluation the danger  rather, the issue whether the whole record the Agency's judgment objectively survives the test reasonableness, good faith, specificity, and plausibility this field foreign intelligence which the CIA expert and given Congress special role. Gardels CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982); see also Military Audit Project, 656 F.2d 738 ([T]he Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects [sic] might occur result public disclosures particular classified record.).  Bennett and Nellers accounts easily clear the low hurdles reasonableness, logic, and plausibility.  Their assessments, moreover, are called into question [neither] contradictory evidence the record [n]or evidence agency bad faith.  Halperin, 629 F.2d 148.   
 Because Bennett and Nellers explanations the national-security risks apply any photograph video recording Bin Ladens body, moreover, Defendants need not further disaggregate the fifty-two responsive records. further information about the records necessary demonstrat[e] that material withheld logically within the domain the exemption claimed.  Campbell DOJ, 164 F.3d 20, (D.C. Cir. 1998) (quoting King, 830 217). Bennetts description the responsive records specific enough afford the FOIA requester meaningful opportunity contest, and the district court adequate foundation review, the soundness the withholding, King, 830 F.2d 218, individual descriptions each record are not required.  Nor camera review. 
 While Judicial Watch expresses concern that deferring agencys assessment generalized risks related potential propagandizing and the inflammation anti-American sentiment opens the door potentially unlimited withholdings, such justifications will only pass muster where, here, they are sufficiently detailed and both plausible and logical. the risks Bennett and Neller anticipate are speculative, such the nature risk.  Indeed, any affidavit other agency statement threatened harm national security will always speculative some extent, the sense that describes potential future harm. ACLU, 628 F.3d 619 (quoting Wolf, 473 F.3d 374) (internal quotation mark omitted).  The United States captured and killed the founding father terrorist organization that has successfully  and with tragic results  breached our nations security the past.  Bennett and Nellers testimony that the release images his body could reasonably expected pose risk grave harm our future national security more than mere speculation.  While Qaeda may not need reason attack us, that does not mean risk inheres giving further cause so. true, Plaintiff points out, that ACLU DOD, the D.C. Circuit did not reach the question whether the agencys argument that withheld documents would effective propaganda for Qaeda sufficed justify its classification those documents and subsequent claim for exemption.  628 F.3d 624.  But failure reach that question, course, does not equate with rejection that justification. any event, that case raised distinct issue about whether the propaganda-based national-security justification made sense where the potential for propagandizing stemmed from the fact that the allegations contained the documents question were embarrassing the United States and possibly violations law.  Id.  Because the relevant prohibit[ed] the classification information conceal violations law prevent embarrassment person, organization, agency, the agencys justification was called into question.  Id. (quoting 12958  1.7(a)(1)-(2)). such issue, however, presented here.   
The Court also mindful that many members the public would likely desire see images this seminal event.  Indeed, makes sense that the more significant event our nation  and the end Bin Ladens reign terror certainly ranks high  the more need the public has for full disclosure.  Yet, not this Courts decision make the first instance. the end, while this may not the result Plaintiff certain members the public would prefer, the CIAs explanation the threat our national security that the release these records could cause passes muster.  This was the most highly classified operation that this government has undertaken many, many years. Press Briefing Jay Carney, May 2011,  The Director the NCS, the USSOCOM Commander, and Director Operations the Joint Staff the Pentagon  not mention the President the United States  believe that releasing the photographs and/or videos Bin Ladens body would threaten the national security.  While deference not equivalent acquiescence, Campbell, 164 F.3d 30, the CIAs declarations are comprehensive, logical, and plausible.  This Court will not overturn the agencys determination Plaintiffs speculation that these executive-branch officials made over-cautious assessment the risks involved.  FOIA permits agency withhold properly classified information the interest national security; the CIA has established that the records Judicial Watch seeks were properly classified, the Court will not order them released. 
IV. Conclusion 

For the foregoing reasons, the Court will issue contemporaneous Order granting Defendants Motion for Summary Judgment and denying Plaintiffs. 
 
                          /s/ James Boasberg                 
                  JAMES BOASBERG 
            United States District Judge 
Date:  April 26, 2012



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