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Judicial Watch • CIA Lutz Decl MSJ

CIA Lutz Decl MSJ

CIA Lutz Decl MSJ

Page 1: CIA Lutz Decl MSJ

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Number of Pages:38

Date Created:September 14, 2012

Date Uploaded to the Library:July 14, 2015

Tags:MSJ, 113534417, filmmakers, Decl, officers, KATHRYN, exhibit, officer, EXECUTIVE, SECRET, AGENCY, order, filed, document, FOIA, office, states, united, CIA


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Case 1:12-cv-00049-RC Document 16-2 Filed 09/14/12 Page
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
Civil Action 12-cv-49 (RC)
U.S. DEPARTMENT DEFENSE, and
CENTRAL INTELLIGENCE AGENCY,
Defendants.
DECLARATION MARTHA LUTZ
INFORMATION REVIEW OFFICER, DIRECTOR AREA
CENTRAL INTELLIGENCE AGENCY MARTHA LUTZ, hereby declare and state: the Information Review Officer IRO for the
Director Central Intelligence Director Area the
Central Intelligence Agency CIA Agency
The Director
Area encompasses not only the Office the Director the CIA
but also several components not organized under one the CIA
four main directorates, such the Office General Counsel
and the Office Public Affairs.
since January 1999. have held this position have held various administrative and
professional positions within the CIA since 1989. the IRO for the Director Area, authorized
assess the current, proper classification CIA information
based the classification criteria Executive Order 13526.
Case 1:12-cv-00049-RC Document 16-2 Filed 09/14/12 Page the IRO, responsible for the classification review
records and information originated the Director Area
otherwise implicating Director Area interests, including
records which may the subject court proceedings public
requests for information under the Freedom Information Act FOIA U.S.C. 552. part official duties,
ensure that any determinations regarding the public release
withholding any such records information are proper and
not jeopardize CIA interests, personnel, facilities, and,
behalf the Director the CIA, not jeopardize
intelligence activities, sources, and methods. senior CIA official and under written delegation authority pursuant Section 1.3(c) Executive Order
13526, hold original classification authority the TOP
SECRET level.
Therefore, authorized conduct
classification reviews and make original classification and
declassification decisions.
This classification and
declassification authority extends all CIA information, not
just that belonging the Director Area.
Pursuant authority delegated the Associate Deputy
Director the CIA, also have been appointed Records
Validation Officer RVO RVO, authorized sign
declarations behalf the CIA regarding searches for
records, and the contents any located records, including
Case 1:12-cv-00049-RC Document 16-2 Filed 09/14/12 Page
those located in, containing information under the cognizance CIA directorates areas other than the Director Area. submitting this declaration support the
Government motion for summary judgment this proceeding.
Through the exercise official duties, have become
familiar with this case and the underlying FOIA requests.
have also personally reviewed all the responsive documents
located the CIA this case. make the following
statements based upon personal knowledge and information made
available official capacity.
This declaration will explain, the greatest extent
possible the public record, the basis for the CIA
redactions several documents that are being challenged the
plaintiff this case, Judicial Watch. August 2011, Judicial Watch sent FOIA request
CIA seeking several categories documents concerning the
Agency interactions with Kathryn Bigelow and Mark Boal filmmakers the makers upcoming film about the killing Usama Bin Laden UBL true and correct copy Judicial
Watch August 2011 letter attached this declaration
Exhibit the Court request, also prepared submit classified
declaration for the Court camera, parte review that contains
information that cannot filed the public record, well unredacted
versions the documents issue.
Case 1:12-cv-00049-RC Document 16-2 Filed 09/14/12 Page August 2011, the CIA accepted Judicial Watch
request but advised that was unlikely respond the
request within working days. true and correct copy the
CIA August 2011 letter attached hereto Exhibit January 2012, Judicial Watch initiated the
present lawsuit. Pursuant agreed-upon schedule, the CIA
produced responsive documents Judicial Watch May
2012 and withheld responsive documents full, primarily
the grounds the attorney-client privilege.
After
subsequently discovering small stack records that were
inadvertently overlooked during its initial processing the
request, the CIA produced additional records August
2012 and withheld one document full. September 2012,
the CIA produced updated versions four these documents,
which limited amount previously-withheld information was
released.
10.
Through letters accompanying the productions, Judicial
Watch was informed that the documents being produced contained
redactions that were made pursuant FOIA
(b)(3), (b)(5), and (b)(6).
exemptions (b)(1),
The CIA also informed Judicial
Watch that the responsive documents that were not produced were personally supervised the CIA search for records response
Judicial Watch FOIA request. The CIA search efforts were described
detail letter Judicial Watch that accompanied the August
production, which attached hereto Exhibit have personal knowledge the facts described that letter, and hereby incorporate into
declaration reference.
Case 1:12-cv-00049-RC Document 16-2 Filed 09/14/12 Page
withheld full the basis FOIA exemption (b)(5) and
part the basis FOIA exemptions (b)(1), (b)(3), and (b)(6).
11. understand that Judicial Watch has informed the
Department Justice that challenging certain redactions the following documents:
C05882735.
C05807298, C05876857, and
The redacted versions these documents are
attached hereto Exhibits D-F. each instance, understand
that Judicial Watch challenging the application FOIA
exemptions (b)(1), (b)(3), and (b)(6) the extent that the
information being redacted these bases was shared with the
filmmakers.
12. described below, the only redactions being
challenged Judicial Watch the documents issue are those
that withheld the names and/or pseudonyms certain CIA
officers who met with the filmmakers.
Each the officers
issue played role the U.S. Government planning for the
UBL operation. understanding that when the meetings
These withheld documents were primarily attorney-client communications
among CIA attorneys and other employees. response inquiry from
Judicial Watch, can represent that none these withheld documents were
communications with the filmmakers any other officer employee
Annapurna Pictures, nor were any these internal CIA communications shown those individuals. one instance, copy the release form that the
filmmakers submitted the Agency was attached privileged internal
communication. copy that release form was produced separately
C05882733.
Several Judicial Watch potential challenges were resolved the
CIA September production, and therefore they are not addressed this
declaration. also understand that the CIA remaining withholdings are not
being challenged Judicial Watch, and therefore not address them
this declaration.
Case 1:12-cv-00049-RC Document 16-2 Filed 09/14/12 Page
with the filmmakers took place the CIA Headquarters, the
guidance provided the officers who were undercover were
otherwise sensitive positions was that they should provide
the filmmakers with their true first names only.
Moreover, understanding that such officer first names were
provided the filmmakers only for the purpose facilitating
these private meetings, and that the Agency did not authorize
the filmmakers publicly release the officers first names
use them their film.
13. will now discuss the redactions that Judicial Watch challenging each the documents issue:
14.
C05807298: this internal email chain among CIA
officers, understand that Judicial Watch challenging all
the redactions the extent any the redacted information was
shared with the filmmakers. knowledge, the only redacted
information this email that may have been shared with the
filmmakers during the meetings was the first name one the
officers who the email chain distribution line.
This
email also contains that officer last name, but, noted
above, understanding that the officer was instructed
not provide his last name the filmmakers.
This officer
undercover, and therefore any information that associates his
last name other identifying information with the CIA
classified.
The only other information redacted this
Case 1:12-cv-00049-RC Document 16-2 Filed 09/14/12 Page
document reflects classification control markings; internal
email addresses, room numbers, and phone numbers; the names and
positions officers who did not meet with the filmmakers; and
the pseudonyms two officers who met with the filmmakers.
The
Agency has reason believe that any this information
would have been shared with the filmmakers during their meetings
with the officers.
15.
C05876857:
This document another internal email
between two CIA officers. understand that Judicial Watch
challenging the redactions the paragraphs that begin with
The mtgs Friday... and Tomorrow, they meeting....
The redacted information these two paragraphs reflects the
true first names four CIA officers who met with the
filmmakers.
These officers are undercover, and one them
the same officer whose full true name was withheld C05807298. noted above, understanding that these officers true
first names most likely would have been shared with the
filmmakers during the meetings.
16.
C05882735:
For this internal email chain,
understanding that Judicial Watch challenging the redactions the sentences immediately below the Saturday TBD and
Monday TBD headings the sentences that begin with Kathryn
chat with... and Kathryn would like....
The redactions
these two sentences are for the pseudonyms two officers who
Case 1:12-cv-00049-RC Document 16-2 Filed 09/14/12 Page
met with the filmmakers. noted, understanding these
officers would not have shared their pseudonyms with the
filmmakers during the meetings; rather, they would have used
their true first names (which are not reflected this
document).
17.
The names CIA officers, including their first names,
are entitled absolute protection from disclosure under FOIA
exemption (b)(3).
FOIA exemption (b)(3) provides that FOIA does
not apply matters that are: specifically exempted from
disclosure statute (other than section 552b this title),
provided that such statute (A) requires that the matters
withheld from the public such manner leave
discretion the issue, (B) establishes particular criteria
for withholding refers particular types matters
withheld
18. U.S.C. 552(b)(3).
Section the Central Intelligence Agency Act
1949, amended, U.S.C. 403g (the CIA Act provides
that the CIA shall exempted from the provisions any other
law (in this case, FOIA) which requires the publication
disclosure of, inter alia, the names CIA personnel.
The
CIA Act therefore constitutes federal statute which
establishes particular criteria for withholding refers
particular types matters withheld, U.S.C.
552(b)(3), and have determined the names the CIA officers
Case 1:12-cv-00049-RC Document 16-2 Filed 09/14/12 Page these challenged documents including first names and
pseudonyms are subject protection under the Act.
19. contrast Executive Order 13526, which governs
classified national security information, the CIA Act does not
require the CIA identify and describe the damage the
national security that reasonably could expected result
from the unauthorized disclosure the names CIA officers.
Nonetheless, can represent the Court that the absolute
protection for officers identities that Congress provided
the CIA Act extremely important the functioning the
Agency and the safety and security its employees.
This
true even for the identities officers who are not undercover,
and also true with respect the first names
undercover officers.
While such identifying information may not classified isolation, the widespread public release
this information creates unnecessary security and counterintelligence risk for the Agency and its officers.
This risk
particularly acute with respect the identity the officers
who were involved the Agency planning for the successful
raid UBL Abbottabad compound.
Given the widespread public
attention given this event and the individuals involved the extent Judicial Watch challenging the internal
classification control markings, internal email addresses, room numbers, and
phone numbers that were withheld from C05807298, that information also
subject protection under the CIA Act, which exempts internal information
concerning the organization and functions the Agency and the official
titles its officers.
Case 1:12-cv-00049-RC Document 16-2 Filed 09/14/12 Page
it, releasing even just the first names these officers
presents unnecessary and unacceptable risk.
20.
Additionally, some the information being challenged Judicial Watch classified and therefore independently
subject protection FOIA exemption (b)(1).
FOIA exemption
(b)(1) provides that FOIA does not require the production
records 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).
21.
Section 1.1(a) Executive Order 13526 provides that
information may originally classified under the terms this
order only all the following conditions are met: (1)
original classification authority classifying the
information; (2) the information owned by, produced
for, under the control the U.S. Government; (3) the
information falls within one more the categories
information listed section 1.4 Executive Order 13526; and
(4) the original classification authority determines that the
unauthorized disclosure the information reasonably could
expected result some level damage the national
security, and the original classification authority able
identify describe the damage.
Case 1:12-cv-00049-RC Document 16-2 Filed 09/14/12 Page
22.
Section 1.2(a) Executive Order 13526 provides that
information shall classified one three levels the
unauthorized disclosure the information reasonably could
expected cause damage the national security and the
original classification authority able identify
describe the damage.
Information shall classified TOP SECRET its unauthorized disclosure reasonably could expected
result exceptionally grave damage the national security;
SECRET its unauthorized disclosure reasonably could
expected result serious damage the national security;
and CONFIDENTIAL its unauthorized disclosure reasonably could expected result damage the national security.
23.
There are two types classified information that were
withheld the redactions being challenged Judicial Watch:
the true full name undercover officer and the pseudonyms
for two undercover officers. original classification
authority, have determined that this information currently
and properly classified, that the documents containing this
information are properly marked, and that the unauthorized
disclosure this information reasonably could expected
harm the national security the United States.
This
Case 1:12-cv-00049-RC Document 16-2 Filed 09/14/12 Page
information owned the U.S. government, and relates
the CIA core intelligence activities, sources, and methods.
24. noted above, C05807298 contains the true first and
last name undercover CIA employee. this context, the
disclosure this employee identity and affiliation with both
the Agency and the UBL raid reasonably could expected harm
the national security the United States.
Given the threats
posed terrorist groups and other adversaries the United
States, and the nature the operation which this CIA
employee was involved, disclosure this information could
jeopardize the safety the officer well the officer
family.
The risk extends persons who could linked the
officer, including other CIA officers, human sources, and
foreign liaison officers.
Because the disclosure this
officer identity and affiliation with the Agency could
endanger the officer, the officer associates, and past and
future CIA intelligence activities, sources, and methods, this
information must protected under FOIA exemption (b)(1).
25.
More generally, all covert CIA officers depend the
Agency provide cover and mitigate the substantial personal accordance with section 1.7 Executive Order 13526, hereby
certify that these determinations have not been made conceal violations
law, inefficiency, administrative error; prevent embarrassment
person, organization, agency; restrain competition; prevent
delay the release information that does not require protection the
interests national security.
Case 1:12-cv-00049-RC Document 16-2 Filed 09/14/12 Page
risks involved their professional mission.
Being required
reveal the true name this undercover CIA officer could impede
the Agency ability recruit, retain, and deploy its covert
officers the future, thus severely undermining the CIA
ability accomplish its mission and thereby harming the
national security the United States.
26.
The other classified information being challenged
Judicial Watch C05807298 and C05882735 reflects the
pseudonyms two undercover CIA officers.
The CIA uses
pseudonyms, which are essentially code names, disguise the
true identity officer internal CIA communications.
using these pseudonyms, the CIA adds extra level security
for these officers, minimizing the damage that would flow from
the unauthorized disclosure compromise these internal CIA
communications.
The use pseudonyms constitutes
intelligence method, and have determined that the unauthorized
disclosure these particular pseudonyms reasonably could
expected damage the national security the United States.
Although the harm from the isolated disclosure pseudonym single document may manageable, when juxtaposed with other
potentially compromised information about the officer, the
disclosure could endanger the officer identity and the
operational security past and future operations involving the
officer.
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EXHIBIT
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EXHIBIT
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EXHIBIT
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EXHIBIT
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EXHIBIT
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EXHIBIT
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