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UNITED STATES COURT APPEALS
FOR THE DISTRICT COLUMBIA CIRCUIT
JUDICIAL WATCH, INC.,
Appellant,
No. 12-5137
UNITED STATES DEPARTMENT
DEFENSE, AL.,
Appellees.
Thursday, January 10, 2013
Washington, D.C.
The above-entitled matter came for oral
argument pursuant notice.
BEFORE:
CIRCUIT JUDGES ROGERS AND GARLAND, AND SENIOR
CIRCUIT JUDGE EDWARDS
APPEARANCES: BEHALF THE APPELLANT:
MICHAEL BEKESHA, ESQ. BEHALF THE APPELLEES:
ROBERT LOEB, ESQ. vx
DEFED `ww tw? EDC ECKJG ;FCD< KKD@FFGG ;FCD< KKD@FFFK SWx vx AWx vx
PLU
ORAL ARGUMENT OF:
Michael Bekesha, Esq. Behalf the Appellant
Robert Loeb, Esq. Behalf the Appellees
PAGE
PLU
THE CLERK:
Case number 12-5137, Judicial Watch,
Inc., Appellant United States Department Defense, al.
Mr. Bekesha for the Appellant; Mr. Loeb for the Appellees.
JUDGE ROGERS:
Good morning.
ORAL ARGUMENT MICHAEL BEKESHA, ESQ. BEHALF THE APPELLANT
MR. BEKESHA:
Good morning, may please the Court,
Michael Bekesha behalf Appellant and Plaintiff Judicial
Watch.
Judicial Watch not here today asking that this
Court substitute its own judgment for that the Government. this case with these specific facts the Government not
entitled the substantial weight that usually afforded
the typical national security and intelligence cases. for three reasons, first, the Government has failed
provide sufficiently specific affidavit evidence that the
release each image, all images the body Osama bin
Laden could expected cause exceptionally grave damage
the national security.
case are not the typical scenario where courts usually defer Agency assessments harm; and third, not all the
images pertain foreign activities intelligence
activities meaningful way.
This
Second, the images issue this
First, just want make clear that referring
PLU images today because still not know whether not
are talking about photographs video recordings.
Government
JUDGE ROGERS: got yes.
The
Could just ask you, just want clear got the third point, you say the
declarations are not specific each the 52, then
what was the next one?
MR. BEKESHA:
typical scenario.
The second one was that this isnt the
JUDGE ROGERS:
Not the typical scenario, what does
that mean?
MR. BEKESHA: the, typical scenario, for example, Students Against Genocide case the images issue,
the information issue involve sensitive intelligence
information, intelligence activities, sources
JUDGE ROGERS:
MR. BEKESHA: methods.
JUDGE ROGERS:
All right. see.
And then your third one
was something about its not related national security
meaningful way?
MR. BEKESHA:
Foreign activities intelligence
activities.
JUDGE ROGERS:
MR. BEKESHA:
JUDGE ROGERS:
And meaningful way? meaningful way.
Yes, Your Honor.
And who makes that judgment?
PLU
MR. BEKESHA: think this Court makes that
judgment.
JUDGE ROGERS: whether its meaningfully
related foreign affairs and national security?
MR. BEKESHA:
Thats correct. this case, Your
Honor, the Government has only said that these records pertain foreign activities, pertain intelligence activities
because they were product overseas operation.
JUDGE GARLAND:
Well, what seems pretty the
Executive Order says foreign relations foreign activities,
and you just said overseas, that sounds foreign.
MR. BEKESHA:
JUDGE GARLAND:
Yes.
Theres dispute that all these
photographs were something that took place outside the
domestic United States, right?
MR. BEKESHA:
JUDGE GARLAND:
That correct, Your Honor.
So, why isnt that foreign
activity the United States?
MR. BEKESHA:
place U.S. aircraft carrier.
JUDGE GARLAND: least some these images took
Located in, outside the United
States, right?
MR. BEKESHA:
JUDGE GARLAND:
MR. BEKESHA:
Thats correct. international waters.
Yes, that correct, Your Honor.
PLU
JUDGE GARLAND:
MR. BEKESHA:
not real standard.
Well, why isnt that foreign?
Its extremely broad, vague, and its
The concern would
JUDGE GARLAND:
Well, not sure whether
matters whether its real standard, the issue FOIA
whether comes within the Executive Order, the Executive
Order says foreign activities, doesnt seem vague. might vague was, you know, dont know, docked
within 100 miles the United States, but when its docked mean,
international, when the boat international waters and
many more than 1,000 miles from the United States seems
pretty hard not say thats foreign activity.
you agree with that? your argument, it?
Wouldnt mean, really, this isnt the essence
MR. BEKESHA:
Its not the essence, no.
Its our
third argument, Your Honor.
stronger arguments.
affidavits provided the Government, the Government provided
three affidavits, that they werent sufficiently specific with
regard each the records.
generally stated that some their records were taken the
compound immediately after the raid, some the records were
taken during the transportation bin Ladens body, some
the records were taken during the preparation for the burial,
and some the images depict the burial itself.
Our first two arguments are the
First, that these records, that the
The Government has
PLU their declarations the Government only states
that the graphic and gruesome photographs that depict the
bullet wound bin Ladens head their release would cause
harm the national security.
JUDGE GARLAND:
say all the documents
JUDGE ROGERS:
Thats not quite what they say, they
JUDGE GARLAND:
Right. and they mention and talk
about the graphic ones, but Mr. Nellers affidavit says the
release the responsive records, and then gives two
examples.
would seem like the least dangerous the photos, namely the
burial, and thats what Judge Boasberg did, said you have have explanation that covers even the least graphic,
which would the burial.
likely lead injury Americans, violence and rioting
abroad, exposing innocent Afghan and American civilians
harm, and gives two examples support this, one was the
incorrect reporting News Week that the Quran had been
desecrated, and that itself led people dying
Afghanistan, people being injured Egypt, and the
reaction the republication the Danish cartoon the
Prophet Mohammad, which resulted least people being
killed Afghanistan, including two who died when protestors
turned the U.S. airbase Bagram.
So, think you are right focus the, what
But Mr. Neller says that this
Our standard
PLU
plausible logical, right, thats the standard?
MR. BEKESHA:
JUDGE GARLAND:
Yes, Your Honor.
So, not least plausible
that Government expert who testifies that this likely
cause the same consequences the release the Quran,
the claim about the Quran, the cartoon Mohammad, why
should not defer them? should defer, but its not just him, its also Mr. Bennett
who the Director the National Clandestine Service, and
You say this not question
theyre both telling that there risk, not telling its
certain that there risk that Americans and others will
die release the documents, and our only question
that plausible?
question correctly? that right?
MR. BEKESHA:
Did least focus the extent, Your Honor, with all due
respect, the case law seems suggest, and its pretty clear
that deference only provided when the affidavits
declarations are sufficiently specific.
JUDGE GARLAND:
Well, here its specific, they have
given, hes given, Neller has given two examples releases information that did result death, and Mr. Bennett has
given further explanations the way which al-Qaeda
likely use this information based the way its used
information the past, including the, particularly the use the deaths of, lets see, just trying find the page
PLU
here, when the abuse Iraqi detainees Abu Ghraib was
disclosed, and after Osama bin Ladens death says
paragraph that al-Qaeda has already attempted use this
trying stoke inflammation through Inspire magazine, that
al-Zawahiri released video attacking assertions that was,
that
JUDGE ROGERS:
JUDGE GARLAND:
JUDGE ROGERS:
JUDGE GARLAND: there question? sorry? there question?
Bin Laden has been actually
appropriately buried sea, why arent those specific?
said has specific, think youre correct about that,
why isnt this specific enough?
MR. BEKESHA:
You
Because declarations generally speak
about all responsive records.
appreciate that there are various types images, there are
some images that are graphic and gruesome, and those are the
images that Director Bennett focuses on.
graphic and gruesome images.
that depict somber and dignified burial sea.
are not discussed, they are only referenced to, when
discussing about harm national security theyre only
discussed other records.
records this Court has not found sufficient the past.
There specificity about each record and how the release
The Government fails focuses the
The focus not those images
Those images
The use the phrase other
PLU each individual record, the various images the body
cleaned and wrapped white sheet, the body placed
weighted body bag, the body placed board and tipped over
the side the U.S. aircraft carrier how the release each those images may cause harm national security.
Government just doesnt specify the harm associated with the
assessment with those records.
JUDGE ROGERS:
The
Well, you started out talking
about typical national security case, and the declaration
suggests that this not typical, this the founder,
that almost anything associated with him involving foreign
affairs necessarily concern for the reasons Judge
Garland has just related, you say youre not asking the Court second guess these evaluations and predictions, but what
are you asking?
MR. BEKESHA: the typical scenario the
information being withheld would reveal intelligence, sources,
methods, and operations.
Genocide case the concern with the release
JUDGE ROGERS:
For example, the Students Against understand, but what about the
concern that these images could used for propaganda for
other reasons negative the interests the United States,
that type explanation these experts?
MR. BEKESHA: think this case, this
scenario the Court fully capable reaching its own
PLU
determination about the logic and plausibility about the
release this specific information based not only the
declarations, but also all the additional information that the
Government has officially acknowledged about the raid, and
about the burial.
information would reveal secret locations overseas, secret
conversations discussions with foreign leaders, potentially
foreign terrorist organizations, this will not reveal any
secret information. this case unlike those cases where the
JUDGE GARLAND:
Right.
But the question really isnt this worse?
death, not just release secret information, but death. know examples where this country would think
that the release certain things would not have lead
this, and yet there were, not very long ago video was
released that did lead death American ambassador,
other people, riots other cities, when the Government
tells that this likely lead death isnt that even
more, something should defer even more than when they
say well, this going lead to, you know, the release
some secret information?
MR. BEKESHA:
Theyre telling this could result
And
The declarations the Government
should always reviewed, always, theres some deference that provided the Executive there.
instance, these instances this Court has the experience
However, this
PLU
look the entire picture, look the specific facts and
not just rubber stamp what the Government says may may not
cause harm.
JUDGE ROGERS:
So, part your argument that
given that the Executive Branch has already described some
detail the nature the burial, precisely what was done both preparing the body and burying the body, and the words that
were said the burial, that effect they have already
painted picture, and therefore what more harm, were,
could ensue
MR. BEKESHA:
JUDGE ROGERS:
The Government --- releasing the images,
least some the images?
MR. BEKESHA:
The Government has already painted
picture.
what the photographs themselves would disclose.
their official, the Governments official statements that
was conducted the deck the Carl Vinson, know
took place the North Arabian Sea, know that the burial
began 1:00 a.m. and ended 2:00 a.m., and then know
the details about how the body was prepared, what the visual
image looked like. fact, its painted more complete picture than
JUDGE ROGERS: know from
So, what would your best case for
the proposition that the declaration would have say, for
example, image number 32, which shows, and youve ever seen
PLU picture Egyptian mummy wrapped empty room, even
that causes experts concerned about the potential
risk United States interests, well the injury
people.
MR. BEKESHA: think Lesar, think Allen,
Campbell, all those cases talk about the deference provided
after substantially sufficient, very specific declarations are
provided.
that, the deference afforded the Government but only
The case law this Circuit pretty clear
when there specificity, when each record accounted for its own.
JUDGE ROGERS:
How you factor the fact who
MR. BEKESHA:
The Government its opposition brief
this is?
mentions, they assert that because this bin Laden its
different scenario, its different case, this isnt the same the images being released Saddam Husseins children and
other terrorists.
that issue, the declarations not address what concerns the
Government may may not have when releasing those images
versus releasing the specific images.
brief talks about well, there was some result when those
images were released, that some rioting may have occurred, but
there sworn declaration, there actual evidence
the record that that took place.
However, the declarations dont address
The Government its
The Government making
PLU
that assertion now, but theres evidence the District
Court say that.
This was the mastermind 9-11, this was the most
wanted terrorist the world, but the Government according
its own official statement provided the body bin Laden
dignified and proper burial sea.
said those records this somber event would cause grave
national security harm released.
JUDGE ROGERS:
All right.
The Government has not
Why dont hear from
the Government and give you couple minutes rebuttal.
MR. BEKESHA:
Thank you.
ORAL ARGUMENT ROBERT LOEB, ESQ. BEHALF THE APPELLEES
MR. LOEB:
May please the Court, name
Robert Loeb from the Department Justice, and represent
the Department Defense and the CIA this appeal.
The District Courts ruling here correct and
should affirmed.
Governments declarations here submitted Director Bennett
and Lieutenant General Neller provided detailed and cogent
explanations why release these materials could
reasonably expected harm national security.
say, they will incite violence, they will aid al-Qaeda
recruitment, and will lead attack U.S. military, U.S.
citizens, and attacks against our allies.
The Court properly held that the they
The question under
PLU
this Courts precedence whether those declarations are
sufficiently detailed, and whether the predictions the
likelihood harm national security are plausible and
logical, and the District Court correctly found that they
were.
The Plaintiffs here argue that those declarations
are not sufficiently detailed, Director Bennett with years experience dealing with terrorist groups and al-Qaeda
one our nations leading experts such matters, submitted
22-page declaration cogently explaining why release all the
records here, and that all the records here regarding and
depictions bin Ladens body, why release all those
materials would harm national security.
here that did not make distinctions between the
photographs, and thats simply not the case.
specifically speaks the photographs regarding the burial
sea and said release those, well, would cause grave
harm, and specifically notes that general, speaking
all the photographs that they will used inflame
tensions, theyll used encourage retaliatory attacks,
but the burial images specifically noted that the
time the al-Qaeda leader al-Zawahiri already had tried use
bin Ladens death and the treatment his body inflame
violence against the United States and against United States
citizens, and had already asserted that the method the
The Plaintiffs argue
The declaration
PLU
burial that undertook did not adhere Islamic law.
Releasing those images would just provide additional
ammunition for those who want distort what happened, and
make claims that were being disrespectful Islamic law,
that were being disrespectful bin Laden, the
Muslim people, and that that itself could used
propaganda could used incite violence.
Lieutenant General Neller and Director Bennett here said the
release these materials including the burial images would
Specifically, used recruit, raise funds for al-Qaeda and inflame
tensions general.
was not just mere conjecture, they were doing based
experience, past experience violence when similar things
had occurred.
And both them specifically said this
The Plaintiffs here referred the deaths Saddam
Husseins sons and release those images, but even the
materials they submitted that showed that the Government
experts the time said the release those materials would fact inflame violence, but they found there was
overriding need the time prove the Iraqi people that
Saddam Husseins sons were dead.
assessment the Executive Branch can make its own under the
Executive Order regarding whether materials should released not.
regarding Saddam Husseins sons not show that there not
And course, thats mean, certainly the materials they submitted
PLU likelihood harm and violence, and fact, shows just
the opposite.
This Court has already addressed their argument
regarding whether this pertains foreign activities.
Obviously, all this, their own FOIA request regarding the
killing bin Laden Pakistan, that was the words their
own FOIA request
JUDGE GARLAND:
Mr. Loeb, could ask you about
think whats probably the third prong which addition the requirement that specifically authorized, and the
Executive Order criteria has properly classified, this
take their arguments regarding the procedures
classification, could you explain paragraph eight Ms.
Culvers affidavit, that not clear whether there original classification authority named the document all, whether there never was original classification
authority because was derivative applied from
classification manual, and say the paragraph not clear me, could you explain that?
MR. LOEB:
What that paragraph says that the,
whats identified the person who first classified using
derivative authority under classification guidance.
JUDGE GARLAND:
So, there no, the first
classifier not original classification, that correct?
MR. LOEB: appropriate under the Executive
PLU
Order
JUDGE GARLAND:
MR. LOEB:
JUDGE GARLAND: yes, that -Im not challenging the
appropriateness, thats the next question, but the first
JUDGE ROGERS:
JUDGE GARLAND:
MR. LOEB: just want not
Yes. question just the facts.
Yes, Your Honor.
JUDGE GARLAND:
So, there original
classification authority other than the classification guide, that right?
MR. LOEB:
Well, those instances under the
Executive Order the person who authorizes the classification
guidance and approves considered the original
classification
JUDGE GARLAND:
MR. LOEB:
And the author the guide. considered the original classification
authority, and the person then acting under that using that
derivative authority.
not the original classification, does identify the
original classification authority the guide.
But so, the person whos identified
JUDGE GARLAND: see.
And could you take
through the Executive Order, take that part two,
derivative classifications
PLU
JUDGE ROGERS:
Could just follow Judge
Garlands question, though?
MR. LOEB:
JUDGE ROGERS:
Sure.
And hypothetical someone with
the original authority comes with guide and says there
are things you could consider, and then lower level
employee who has authority and himself result
his position makes the determination that these documents are
secret, and then someone comes along like Bennett, re-
evaluates, does complete independent assessment, that our
situation here?
MR. LOEB:
Yes, but let give caveat, you said
the person who has experience, people who are allowed
derivative classification are people who are trained so, are aware its not just every that the Executive
Order has separate provision for just your average day Joe
who comes into contact with information which may
classified, they can treat presumptively classified and
required until they can give someone who has
either original derivative classification authority.
JUDGE GARLAND:
Thats the exceptional circumstances
part.
JUDGE ROGERS:
MR. LOEB:
JUDGE ROGERS:
Right.
Right.
Right.
Okay.
PLU
JUDGE GARLAND:
But this case its somebody with
derivative authority, other words, the first person
mark this document not somebody with original authority,
its with derivative authority.
MR. LOEB:
Right.
And the declaration does make
clear that all times was being treated classified, and
then the mark gets classified the derivative authority
JUDGE GARLAND:
MR. LOEB:
All right. and thats the person whos
identified -JUDGE GARLAND:
What want you explain how the Executive Order authorizes this kind procedure,
but also wanted ask, because dont have the guide
here, can you give idea what kind thing might the guide that leads this?
guide say something like photos covert operations abroad
are classified, inflammatory photos abroad, or,
mean, what level generality the guide with respect
the way which the person with only derivative authority
making the classification?
MR. LOEB:
So, for example, would the believe the guide itself classified,
and hesitant to, mean, would say those kind
things here, fine
JUDGE GARLAND:
Well, the reason ask this
because this the only case found that has addressed this
PLU
issue was Southern District New York case which they
quote from the guide.
So, obviously not all the guide
MR. LOEB:
JUDGE GARLAND:
MR. LOEB: see.
All right.
Well, that
case could you explain how this procedure authorized the Executive Order?
MR. LOEB:
All right.
So, you look our
addendum, page six, which
Yes. but have, wasnt part the
JUDGE GARLAND: classified.
record here, and not
Obviously not all
JUDGE GARLAND:
Just tell the section. have
the Executive Order separately.
MR. LOEB:
Its 2.1, says person derivative
classification authority someone whos either reproducing
something thats already been classified, or, the end
the sentence, directed classification guidance.
And then the next section 2.2 which gives the criteria
for
JUDGE GARLAND:
But says, then says persons
who apply derivative classification markings shall, and lists
three things, the second which observe and respect
original classification decisions.
classification decision here?
Where the original
PLU
MR. LOEB:
That is, again, the original
classification that instance the guidance itself.
JUDGE GARLAND:
And
For make that judgment doesnt really depend seeing the guide, some level
specificity the guide.
whatever you want?
MR. LOEB:
What the guide just says
Well, the criteria for the guide has
meet the Executive Order 2.2, which the next provision.
And requires certain amount training, requires
certain amount of, doesnt talk about the level
specificity, but talks about the type criteria that need be, and standards that need the guide itself.
and the Plaintiffs here havent argued and whatever the
guideline here that they havent argued that thats been
violated, that theres any
JUDGE GARLAND:
MR. LOEB:
So,
No, but what they judicial rights created the
guideline itself.
JUDGE GARLAND:
No, no, but they have argued that
theres original classification authority listed the
document.
MR. LOEB: think whether there was not have, Judge Rogers pointed out have Director Bennett who -JUDGE GARLAND:
So, take that fallback
PLU
position, that -MR. LOEB:
Right.
What happened here was what
happens, you know, usually the person who foreuns the
information the first instance not original
classification authority, those people are very few the
Government.
the classification done material, people are done under
the guidelines, people who are abroad, people are here, you
know, ships abroad, NCI locations abroad, this
sort of, theres something sort unusual about what went
here, and then what happens part the job Director
Bennett review those determinations and de-classify
things which dont need classified.
So, you know, would say large percentage
JUDGE GARLAND: part his job review those
things regardless whether there was FOIA request? had there been FOIA request his obligation
review all initial classifications that are only derivative
and decide whether they were appropriately done?
MR. LOEB:
That dont think its his job review all
because the amount derivative classifications
JUDGE GARLAND:
MR. LOEB:
Right. would imagine. the Government probably
tremendous, but certainly thats within his job description
that ensure that, that information properly
classified and de-classify information that is, you know,
PLU
over-classified.
JUDGE GARLAND:
All right.
And what about their
question which, and again, not clear from the responses,
was the first classification applied the person with
derivative authority made before after the FOIA request
reached the CIA?
MR. LOEB: the District Court recognized under
their own time line the decision
JUDGE GARLAND:
is.
MR. LOEB:
Our position that was done before
the FOIA request the CIA here, which was
JUDGE GARLAND:
Okay.
When you say its your
position thats your position matter fact.
MR. LOEB:
JUDGE GARLAND: interested what the answer matter fact, yes.
Okay.
And what about the markings,
were they put before after the FOIA request?
MR. LOEB:
The declarations this say that they
were marked the time Director Bennetts review top
secret, and that additional review was
JUDGE GARLAND:
MR. LOEB:
Honor.
So, that would have been afterwards?
That would have been afterwards, Your
were marked before.
Theres the declarations dont speak how they
JUDGE GARLAND:
So, dont know how they were
PLU
marked before?
MR. LOEB:
Right. dont personally know that.
And Ms. Culvers declaration explains that additional review
and scrutiny was done them make sure that all the proper
markings were made and that, you know, her declaration she
explains that, you know, that the time her
declaration have that theyre marked with the identity
the original classifier who was under derivative authority,
his authority which the guidance, the basis for the
classification, de-classification instructions, that those
things are all marked each record. matter law when those markings were made
JUDGE GARLAND:
And really matter
Well, does matter because
theyre put after then you have the provision that requires
document document review, this case there was document document review, according Ms. Culver, but there
hadnt been would matter, isnt that right?
MR. LOEB: the markings? mean, that goes
the substance the review, but the markings the
question before the Court are they marked appropriately
procedurally under the Executive Order, and have
declaration, very sufficient detailed declaration from Ms.
Culver explaining how theyre marked, cetera, and that
theyre sufficiently marked today.
correctly said light that detailed declaration there was
And the District Court
PLU need for camera review make sure they were
appropriately marked because the declaration tells you
everything you need know.
JUDGE GARLAND:
The provision thats applicable
things that are done afterwards that only the whether
classification was made afterwards, does apply the
MR. LOEB: speaks the classification.
So,
the classification -JUDGE GARLAND:
MR. LOEB: see.
So, here theres doubt the
classification was done beforehand, but even wasnt
have under 1.7(d) says its completely fine classify
after FOIA request long the person reviewing
doing under the direction the Agency head, which what have here, Director Bennett under the declarations was
reviewing these document, document basis under direction the Director the CIA, and made determination that
after that document document review that its all properly
classified.
and thats, think they try make some big deal that this some sort extraordinary thing that again fairly,
usual course events, well.
Executive Order because they were appropriately marked and
they meet the standards the Executive Order.
timing, 1.7(d) just makes that issue moot because even
So, thats Section 1.7(d) the Executive Order,
And so, complies with the
And the
PLU
theyre correct about, even theyre correct their
speculation that was classified after they requested
just doesnt make difference because the review was done
the direction the Director the CIA document
document basis.
those salient facts.
And Ms. Culvers declaration expressly states
JUDGE ROGERS:
MR. LOEB:
Anything further?
No, Your Honor. would ask this Court affirm the District Courts judgment here.
JUDGE ROGERS:
Thank you.
Thank you.
ORAL ARGUMENT MICHAEL BEKESHA, ESQ. BEHALF THE APPELLANT
MR. BEKESHA: just want briefly talk about the
classification procedures.
that this isnt big deal, that are
JUDGE ROGERS:
MR. BEKESHA:
The Government seems suggest didnt hear them say that. suggested that this how
happens all the time, there were problem they fixed it,
and the Court should not concerned about the classification
procedures.
material withheld only meets the classification
requirements and that was properly classified.
out one component exemption one would change the exemption
into disclosure statute instead
However, exemption one specifically requires that
JUDGE ROGERS: strike know, but think your burden now
PLU show that Mrs. Culvers declaration contrary some
way the procedures authorized the Executive Order.
MR. BEKESHA: think there are two point there.
One, there evidence the record that the
classification took place prior the receipt the FOIA
request.
JUDGE ROGERS:
MR. BEKESHA:
Okay.
Its not the record, none the
declarations state that, heard here today for the first
time.
classification prior the FOIA request, its just not the
record.
Before today were unaware that the Government made
JUDGE GARLAND:
said, though, right?
MR. BEKESHA:
JUDGE GARLAND:
JUDGE ROGERS:
JUDGE GARLAND:
That what the District Court
That wasnt the record?
No, the District Court -No. said that was done before, not
the markings, but the classification was done before.
MR. BEKESHA: believe the District Court said
the end didnt, the Court didnt find that mattered
because the clarification the supplemental declaration.
Theres nowhere either affidavit that states that the
classification took place prior the FOIA request, and why
that important because Section 1.7(d) talks about the
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proper authority may classify re-classify information after
receiving FOIA request, doesnt talk about review
document document basis.
Director Bennett reviewed the documents individually,
therefore complies with the Executive Order.
Executive Order doesnt talk about subsequent review
document document basis, talks about classification document document basis.
evidence that the Government followed the proper
The Governments argument that
However, the this instance theres
classification procedures when allegedly classified all
records, dont know when took place, really how took
place, this was the first time
JUDGE GARLAND:
What was the difference between
reviewing and classifying?
reviewed each the unique responsive documents issue this litigation, based this review have confirmed that
each these records satisfies the procedural requirements
Executive Order 13526.
MR. BEKESHA:
JUDGE GARLAND:
Ms. Culver says have personally
She talks about review there.
Well, she said she confirms, shes
confirming that they are properly classified.
MR. BEKESHA:
JUDGE GARLAND: mean
Thats correct, but --- even that classification
occurred afterwards heres somebody with original
classification authority who has, who says shes personally
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reviewed and she confirms that theyre properly classified,
what more you want her say?
MR. BEKESHA:
The Executive Order seems be, the
language clear that its classification individual
basis after the fact.
classified the records.
Ms. Culver doesnt say that she
JUDGE GARLAND:
She said she reviewed them and they
were that point properly classified.
difference would and hereby therefore re-classify them,
You mean the
thats the additional words that have said?
MR. BEKESHA: the FOIA context declaration the
words matter, and this instance -JUDGE GARLAND:
Theres case where theyve had
both the head the Clandestine Service and the person
responsible for classification under the Clandestine Service
saying that they have reviewed case case, and confirmed
that now properly classified.
cases, and theres actually case thats ever released
document this ground, all the cases simply remand, but none them have had one.
would asking, would asking send back for
remand for somebody confirm that theyre properly
classified, and here you already have two people saying that,
why isnt that good enough?
MR. BEKESHA:
So, when say there are mean, those cases this what
The two declarations taken whole
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really doesnt explain what occurred when the classifications
occurred and how they occurred.
time that this discussion guide was used for the initial
classification.
believe the District Court talked about that somebody else
first classified the information, was then sent
received, somehow the CIA took possession the information
and the images and they conducted derivative classification the information.
Today was really the first
Prior this point appeared, and
Its unclear, Your Honor said, what
this guide is, what the guide.
about the classification are murky, theyre unclear, theyre
not transparent, and the courts able decide whether not the Government followed the classification procedures,
which required exemption one, the declarations have more sufficient, they have more specific, they have clearer, because otherwise theres room for abuse. this instance for whether not these materials would harm
national security, whether not these materials pertain
foreign activities, whether not these materials would
reveal intelligence activities methods, all are asking
for
JUDGE GARLAND: mean, these affidavits
And
Yes, but this, what youre talking
about now the substance.
minute before was the procedure, right?
MR. BEKESHA:
What you were talking about
Thats correct, Your Honor.
But
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all these circumstances
JUDGE GARLAND:
So, the only issue about what Ms.
Culver was testifying about who has the original, cetera,
that has with the procedures which they were marked,
right?
MR. BEKESHA:
JUDGE GARLAND:
Thats correct, Your Honor.
So, the issues that youre talking
about now are the ones that are either Bennetts
explanation the danger that will result, the other
one, Neller, think.
MR. BEKESHA:
Thats correct, Your Honor. was
just trying but all those instances whether not
its the substance, classification over those three
four affidavits, the issue lack specificity, failure satisfy the Governments burden providing the Court,
well the FOIA requester with enough information figure
out what the Government did properly and sufficiently
analyze the claims exemption, and this case with whether regard the classification procedure,
substance the images the Government failed provide the
specificity necessary.
JUDGE ROGERS:
MR. BEKESHA:
JUDGE ROGERS:
(Recess.)
All right.
Thank you.
Thank you.
Well take the case under advisement.
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DIGITALLY SIGNED CERTIFICATE certify that the foregoing correct
transcription the electronic sound
recording the proceedings the
above-entitled matter.
_________________________
Paula Underwood
DEPOSITION SERVICES, INC.
April 19, 2013