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Judicial Watch • FILE STAMPED Appellant Opening Brief

FILE STAMPED Appellant Opening Brief

FILE STAMPED Appellant Opening Brief

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Number of Pages:66

Date Created:October 16, 2012

Date Uploaded to the Library:February 20, 2014

Tags:Intelligence, classification, BENNETT, laden, Exemption, al Qaeda, defendants, EXECUTIVE, AGENCY, ACLU, order, Pentagon, plaintiff, Obama, records, department, states, district, court, united, EPA, IRS, ICE, CIA


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CERTIFICATE PARTIES, RULINGS, 
AND RELATED CASES 
 
 Pursuant Cir. 28(a)(1), counsel provides the following information parties, rulings, and related cases: 
 (A) Parties and Amici 
 The following parties, interveners, and amici curiae appeared, sought appear, below: 
 Plaintiff:   Judicial Watch, Inc. 
 Defendant:   U.S. Department Defense 
 Defendant:   Central Intelligence Agency 
 The following parties, interveners, and amici curiae are before this Court appeal: 
 Plaintiff-Appellant: Judicial Watch, Inc. 
 Defendant-Appellee: U.S. Department Defense 
 Defendant-Appellee: Central Intelligence Agency 
 (B) Ruling under Review 
 The ruling under review the Opinion and Order the United States District Court for the District Columbia (Boasberg, J.) issued April 26, 2012.  The ruling can found Joint Appendix, page 208, and published Judicial 
Watch, Inc. U.S. Department Defense, 2012 U.S. Dist. LEXIS 58537 (D.D.C. 2012). 
 (C) Related Cases 
 
 Judicial Watch, Inc. does not believe that there are any related cases within the meaning Local 28(a)(1)(C).    
     
/s/ Michael Bekesha
TABLE CONTENTS 
 
TABLE CONTENTS ............................................................................................ 
TABLE AUTHORITIES ................................................................................... iii 
GLOSSARY ABBREVIATIONS ...................................................................... 
JURISDICTIONAL STATEMENT .......................................................................... 
STATEMENT THE ISSUES PRESENTED ....................................................... 
STATUTES AND REGULATIONS ......................................................................... 
STATEMENT THE CASE .................................................................................. 
STATEMENT FACTS ........................................................................................ 
SUMMARY THE ARGUMENT ........................................................................ 
ARGUMENT ............................................................................................................. Standard Review.......................................................................................... 
II. Defendants Failed Demonstrate that All Records 
 Are Properly Withheld Under Exemption .................................................... Defendants failed demonstrate that all records conform 13526s substantive  
  criteria for classification ...................................................................... Defendants failed demonstrate that all records pertain one more the  
   classification categories 13526,  1.4 ............................ 
 
  ii. Defendants failed demonstrate that all records reasonably could expected cause identifiable describable  
   exceptionally grave damage national security .................. Defendants failed demonstrate that they  
  complied with the classification procedures 13526 ................. 
 
III. Defendants Fail Demonstrate that All Records  
 Are Properly Withheld under Exemption ................................................... 
 
CONCLUSION ........................................................................................................ 
 
CERTIFICATE COMPLIANCE ....................................................................... 
  
TABLE AUTHORITIES 
 
CASES 
 
ACLU U.S. Department Defense,  
389 Supp. 547 (S.D.N.Y. 2005)  .................................................... 23-25 ACLU U.S. Department Defense, 628 F.3d 612 
(D.C. Cir. 2011)  ................................................................................ 10, 27, 
 
Allen Central Intelligence Agency, 
 636 F.2d 1287 (D.C. Cir. 1980) ............................................................... 18, 
 
Afshar Department State, 
 702 F.2d 1125 (D.C. Cir. 1983)  .............................................................. 28-29 Campbell U.S. Department Justice, 
 164 F.3d (D.C. Cir. 1998)  .......................................................... 8-9, 14, 
 
Fitzgibbon Central Intelligence Agency, 
 911 F.2d 755 (D.C. Cir. 1990)  ...................................................................... 
 
Goldberg U.S. Department State,  
 818 F.2d (D.C. Cir. 1987)  .................................................................. 18-19 
 
Hetzler Record/Information Dissemination Section, Federal 
Bureau Investigation, 2012 U.S. Dist. LEXIS 126870  
(W.D.N.Y. Sept. 2012)  ............................................................................. 
 
James Madison Project Central Intelligence Agency, 
 605 Supp. 99(D.D.C. 2009)  ................................................................. 
 
King U.S. Department Justice,  
 830 F.2d 210 (D.C. Cir. 1987) ......................................................................... 
 
Krikorian Department State,  
 984 F.2d 461 (D.C. Cir. 1993)  ...................................................................... Authorities upon which Plaintiff-Appellant chiefly relies are marked with asterisks. 
Larson Department State,  
 565 F.3d 857 (D.C. Cir. 2009) ....................................................................... 
 
Lesar U.S. Department Justice,  
 636 F.2d 472 (D.C. Cir. 1980)  .................................................................. 
 
Miller Casey, 730 F.2d 773 (D.C. Cir. 1984)  ............................................... 27-28 
 
Morley Central Intelligence Agency,  
 508 F.3d 1108 (D.C. Cir. 2007)  .............................................................. 37-38 
 
Sample Bureau Prisons,  
 466 F.3d 1086 (D.C. Cir. 2006)  ...................................................................... 
 
Schoenman Federal Bureau Investigation,  
 575 Supp. 136(D.D.C. 2008)  ............................................................... 
 
Summers U.S. Department Justice,  
 140 F.3d 1077 (D.C. Cir. 1998)  .................................................................... 
 
Sussman United States Marshals Service,  
 494 F.3d 1106 (D.C. Cir. 2007)  .......................................................... 13, 
 
Washington Post U.S. Department Defense, 
 766 Supp. (D.D.C. 1991)  ....................................................................... 
 
STATUTES U.S.C.  552(a)(4)(B)  ............................................................................................ U.S.C.  552(b)(1) .................................................................................................. U.S.C.  552(b)(3) ................................................................................................ U.S.C. 1291  ........................................................................................................ U.S.C.  1331  ....................................................................................................... U.S.C.  403g  ..................................................................................................... U.S.C.  403-1(i)  ................................................................................................ 
 
OTHER AUTHORITIES  
 
Executive Order 13526,  ..................................................................................... 
 
Executive Order 13526,  1.2  ................................................................................. 
 
Executive Order 13526,  1.4  ........................................................................... 10, 
 
Executive Order 13526,  1.6  ................................................................................. 
 
Executive Order 13526,  1.7(d) .............................................................................. 
 
Executive Order 13526,  2.1(b) ............................................................................. 
 
Executive Order 13526,  2.1(b)(2)  ........................................................................ 
 
Fed. App. 4(a)(1)(B)  ............................................................................................. 
 
155 CONG. REC. H11389 
 (daily ed. Oct. 15, 2009) (statement Rep. Slaughter) .................................. 
 
 
  
GLOSSARY ABBREVIATIONS 
 
CIA    Central Intelligence Agency 
 
DoD    U.S. Department Defense 
 
The District Court  The U.S. District Court for the District Columbia 13526   Executive Order 13526 
 
FOIA    Freedom Information Act    Joint Appendix 
 
Opinion   Memorandum Opinion U.S. District Judge James      Boasberg 
 
 
 
JURISDICTIONAL STATEMENT 
 Jurisdiction the U.S. District Court for the District Columbia 
(the District Court) was based upon the Freedom Information Act, U.S.C.  552(a)(4)(B), and U.S.C.  1331.  This Court has jurisdiction over this appeal pursuant U.S.C.  1291.  This appeal timely because the District Court entered its final judgment April 26, 2012 (Joint Appendix (JA) 237), and pursuant Fed. App. 4(a)(1)(B), timely notice appeal was filed April 26, 2012. 238. 
STATEMENT THE ISSUES PRESENTED Whether the U.S. Department Defense and the Central Intelligence Agency have satisfied their burden demonstrating that all unique records were properly withheld under FOIA Exemption Whether the U.S. Department Defense and the Central Intelligence Agency have satisfied their burden demonstrating that all unique records were properly withheld under FOIA Exemption 

STATUTES AND REGULATIONS 
 See Addendum. 
 
STATEMENT THE CASE 
This appeal concerns routine Freedom Information Act (FOIA) case which the Court must determine whether the government has submitted 
sufficient evidence satisfy its burden demonstrating that each responsive record was properly withheld under FOIA. this case, the records sought are video recordings photographs Osama bin Laden taken during and/or after the U.S. military operation Pakistan about May 2011.  The FOIA exemptions claimed are Exemption and  Yet, regardless the historical significance the underlying event and the need for visual record it, the end, this case about whether each the responsive records fall within one those FOIA exemptions and whether the government has satisfied its burden demonstrating such. 
Understanding what records are not issue the instant matter essential determining whether all images are exempt under FOIA.  Critically, Plaintiff does not seek any sensitive information such images the equipment tools used during the May 2011 raid.  Nor does Plaintiff seek information about the identities the members the U.S. Navy SEAL team that carried out the raid, site exploitation tactics, techniques, procedures used the team, methods used the team other U.S. military personnel identify bin Ladens body used generally Defendants identify persons who have been captured killed.  Nor does Plaintiff seek any information about the CIAs facial recognition capabilities and techniques.   
The District Court recognized that not all records pertain military plans operations intelligence activities methods. addition, the court specifically noted that not all records reasonably could expected result damage national security revealing intelligence activities and methods classified military methods equipment.  Nevertheless, the District Court ruled that the records were exempt from production toto they pertained foreign activities the United States because they were the product overseas operation. addition, the court concluded that the release these records reasonably could expected result damage national security because the images may inflame tensions among overseas populations, encourage propaganda, lead retaliatory attacks.   
Both these findings are unsupported existing authority.  Never before has this Court, any court for that matter, determined that record may withheld because was product event that occurred outside the United States and that its release may result being used propaganda. addition, even this Court were conclude that the governments legal argument correct, the government failed submit sufficient evidence support its contentions. 
Plaintiff does not seek the production any video recording photograph that has been properly classified would cause exceptionally grave harm the 
United States.  Like all FOIA cases, Plaintiff only seeks hold the government the requirements the law. therefore Plaintiffs contention that least some the records were improperly withheld.  This Courts precedent does not support the governments withholding images only because they were the product event that occurred outside the United States and their release may used propaganda. the end the day, the Court were order the production the records because they not fall within one the nine narrowly interpreted exemptions, the government could ask Congress enact legislation preventing the release these particular records.  They have done the past.  Subsequent the U.S. Court Appeals for the Second Circuit holding that photographs detainees Guantanamo Bay could not withheld pursuant Exemption the government asked some members the House and Senate insert language into[the Homeland Security appropriations bill] make sure the photos stay secret.  155 CONG. REC. H11389 (daily ed. Oct. 15, 2009) (statement Rep. Slaughter). 
STATEMENT FACTS May 2011, President Obama ordered the now-historic raid Osama bin Ladens compound Abbottabad, Pakistan.  Memorandum Opinion U.S. District Court Judge James Boasberg (Opinion), dated April 26, 2012, (JA 209).  Soon after the President announced the existence and success the raid, was widely reported that photographs and video recordings bin Ladens body had been created.  Id. (JA 210). letter dated May 2011, Plaintiff submitted its FOIA request the Department Defense (DoD) seeking access copies all photographs 
and/or video recordings Osama (Usama) bin Laden taken during and/or after the U.S. military operation Pakistan May 2011.  Opinion (JA 211). letter dated May 2011, Plaintiff submitted substantively identical FOIA request the Central Intelligence Agency (CIA).  Id.  Because DoD and CIA (collectively Defendants) failed make final determination within the timeframe mandated statute, Plaintiff filed suit.  Id. 4-5 (JA 211-212).  After commencement this litigation, both agencies finished their processing Plaintiffs FOIA request.  Id. (JA 212).  DoD informed Plaintiff that had located responsive records.  Id.  The CIA, the other hand, located responsive records.  Id.  These records were eventually described consisting the following five general categories records:  (1) images taken inside the compound Abbottabad, Pakistan, where bin Laden was killed; (2) images taken bin Ladens body was transported from the Abbottabad compound the location where was buried sea; (3) images depicting the preparation bin Ladens body for the burial; (4) images the burial itself; and (5) images taken for purposes conducting facial recognition analysis the body order confirm that was bin Laden.  Id. (JA 212) (quoting Declaration John Bennett, Director the National Clandestine Service the CIA (Bennett Decl.)  (JA 22)).  The CIA withheld all records their entirety pursuant Exemptions and  Opinion (JA 213). 
 Defendants subsequently moved for summary judgment, asserting that they had satisfied their statutory obligations under FOIA.  Id.  Plaintiff opposed Defendants motion and simultaneously cross-moved for summary judgment, challenging the adequacy Defendants searches well the applicability Defendants claims Exemptions and  Id. April 26, 2012, the District Court granted Defendants motion for summary judgment and denied Plaintiffs cross-motion.  Order, dated April 26, 2012, (JA 237).  The District Court specifically found that the Defendants satisfied their burdens establishing that they had conducted adequate searches and that they had withheld material properly pursuant Exemption  Opinion (JA 221).  Because Defendants claimed Exemption over all the withheld material, the District Court did not address whether Defendants properly withheld material pursuant Exemption  Id.  Plaintiff only appeals the District Courts determination with respect Exemptions and 
SUMMARY THE ARGUMENT 
 
 Plaintiffs argument straightforward and clear.  Defendants failed demonstrate that all records may properly withheld pursuant Exemptions and 
 With respect Exemption Defendants were required demonstrate that each record pertains one the classification categories contained Executive 
Order 13526 (EO 13526), which prescribes uniform system for classifying information and sets out procedures which information may classified, and that public disclosure the withheld information reasonably could expected result damage national security.  Defendants asserted, and the lower court concluded, that all records pertained foreign activities the United States because they were the product overseas operation. addition, Defendants contended, and the court found, that the release these records could expected somehow result damage national security because the images might inflame tensions among overseas populations, encourage propaganda, lead retaliatory attacks.   
 These arguments and conclusions are unsupported evidence the law.  Defendants failed provide sufficient evidence demonstrate that all records pertain foreign relations foreign activities the United States. addition, 13526 does not authorize the withholding records merely because they may depict operation that occurred outside the United States.  Also, Defendants failed provide sufficient evidence that the release all records could reasonably expected cause identifiable describable damage national security.  Moreover, 13526 does not authorize the withholding records merely because their release may result them being used propaganda.  Finally, 
Defendants failed demonstrate that they properly complied with the classification procedures 13526. 
 With respect Exemption Defendants similarly failed demonstrate that all records related intelligence gathering. Defendants have admitted, only some the records concerned intelligence sources and intelligence methods that are related the CIAs core function. 
 Because Defendants failed demonstrate that all records were properly withheld pursuant Exemptions and the District Courts decision must reversed. addition, Defendants must ordered produce all images depicting nothing more than bin Ladens body. 
ARGUMENT Standard Review. 
 District court decisions summary judgment motions FOIA cases are reviewed novo.  Sussman United States Marshals Service, 494 F.3d 1106, 1111-1112 (D.C. Cir. 2007) (citing Sample Bureau Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006)). 
 With respect review Exemption claims, this Court has held that although substantial weight given government agencys declaration the context national security, deference not equivalent acquiescence; the declaration may justify summary judgment only sufficient to afford the 
FOIA requester meaningful opportunity contest, and the district court adequate foundation review, the soundness the withholding.  Campbell U.S. Department Justice, 164 F.3d 20, (D.C. Cir. 1998). addition, declaration may insufficient due lack detail and specificity.  Campbell, 164 F.3d 30. other words, despite the deference accorded the government, declaration must meet certain standards order justify grant summary judgment.  Id.   
II. Defendants Failed Demonstrate that All Records 
 Are Properly Withheld Under Exemption 
 
 Defendants have withheld all responsive records pursuant Exemption  Exemption protects from disclosure material that specifically authorized under criteria established Executive order kept secret the interest national defense foreign policy and [is] fact properly classified pursuant Executive order. U.S.C.  552(b)(1).  The pertinent Executive Order 13526, which prescribes uniform system for classifying, safeguarding, and declassifying national security information and sets out procedures which information may classified.  Opinion (JA 221). properly invoke Exemption government agency must comply with the classification procedures established 13526 and withhold only such material conforms 13526s substantive criteria for classification.  King U.S. Department Justice, 830 F.2d 210, 214 (D.C. Cir. 1987). other words, withheld material 
must classified accordance with the procedural criteria the governing Executive Order well its substantive terms.  Lesar U.S. Department Justice, 636 F.2d 472, 483 (D.C. Cir. 1980). the instant matter, Defendants failed demonstrate that they have properly complied with the classification procedures 13526 and that all withheld records conform 13526s substantive criteria for classification. 
 Plaintiff will first address the issue conformity 13526s substantive criteria for classification, and, then, address the issue compliance with the classification procedures 13526. Defendants failed demonstrate that all records 
  conform 13526s substantive criteria for  
  classification. conform 13526s substantive criteria for classification, government agency must demonstrate that withheld records pertain one the classification categories contained Section 1.4 13526 and that public disclosure the withheld information reasonably could expected result damage national security. 13526,  1.4; see also ACLU U.S. Department Defense, 628 F.3d 612, 623-624 (D.C. Cir. 2011); Larson Department State, 565 F.3d 857, 863-864 (D.C. Cir. 2009). Defendants failed demonstrate that all records 
   pertain one more the classification categories 13526,  1.4. 13526,  1.4 requires that classified material pertain one more seven specified categories. those seven categories, Defendants asserted that all records pertain the following three categories: 
  (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. 
Bennett Decl.  (JA 22).  Defendants, however, failed demonstrate that each the records pertain one more these three categories. 
 Although Defendants asserted that each the records pertained all three the identified classification categories, support its motion for summary judgment, Defendants submitted only one declaration that purportedly demonstrated that all records pertain military plans, weapons systems, operations; only one declaration that purportedly demonstrated that some records pertain intelligence activities (including covert action), intelligence sources methods, cryptology; and only one declaration that merely concluded that all 
records pertain foreign relations foreign activities the United States, including confidential sources. support its motion for summary judgment, Defendants submitted the declaration the CIAs Director the National Clandestine Service John Bennett. his declaration, Director Bennett testified that the release certain responsive records could reveal intelligence activities and methods that were employed during after the operation.  Bennett Decl.  (JA 32-33) (emphasis added). other words, Director Bennett only testified that some the records pertain intelligence activities, intelligence sources methods. did not describe which records they were.  Nor did describe how many there were. simply stated that the release certain responsive records would reveal information about intelligence methods activities providing insight into the manner which the photographs video recordings were obtained well the purpose, utility, manner which the photographs video recordings could used the CIA and the extent limitations such capabilities.  Id.  (JA 33-34).   
 Director Bennett then testified that [b]y way example, 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. (JA 34).  However, there were 
least five unique categories records withheld Defendants.  Only some the records were used conduct facial recognition analysis.  The other categories  
include:  (1) images taken inside the compound Abbottabad, Pakistan, where bin Laden was killed; (2) images taken bin Ladens body was transported from the Abbottabad compound the location where was buried sea; (3) images depicting the preparation bin Ladens body for the burial; and (4) images the burial itself.  See id.  (JA 22). other words, Director Bennett described specific subset the records that must withheld; did not offer full accounting each and every record withheld.  Director Bennett simply failed demonstrate how these other records would reveal classified intelligence methods. 
 Similarly, Director Bennett testified that the [r]elease other images could similarly reveal the types equipment other tools that were utilized (or not) during the execution highly sensitive intelligence operation.  Id.  (JA 34) (emphasis added). stated above, Plaintiff only sought photographs and video recordings bin Laden.  Plaintiff did not seek all photographs and video recordings taken during after the raid.2  Therefore, not plausible that each the extent that the records contain visuals equipment and other tools, Defendants failed demonstrate that those portions those records cannot segregated from the visual bin Ladens body.  Sussman, 494 F.3d 1116 government agency must demonstrate that, even where particular exemptions properly apply, all non-exempt material has been segregated and disclosed.); see also Summers U.S. Department Justice, 140 F.3d 1077, 1081 (D.C. Cir. 1998) (A segregability determination absolutely essential any FOIA decision.).  
Mr. Bennett did more than provide conclusory statement that segregability cannot done.  Bennett Decl.  (JA 38). See footnote above.  
and every one the records contain visuals equipment and other tools.3  Because Director Bennett used the inherently imprecise phrase certain responsive records and other images describe the records withheld because they could reveal equipment other tools, failed provide sufficient evidence satisfy Defendants burden.  Campbell, 164 F.3d 30. support their claim that each and every record pertains military plans, weapons systems, operations, Defendants also submitted the Declaration William McRaven, Commander the United States Special Operations Command.  Admiral McRaven testified that his declaration supplements the declaration Director Bennett to explain further how the responsive records contain sensitive information that pertains military plans, weapons systems, operations under Section 1.4(a).  Declaration William McRaven (McRaven Decl.)  (JA 55).  Under seal, Admiral McRaven purportedly testified that the release all records would make the special unit that participated this operation and its members more readily identifiable the future, reveal classified Sensitive Site Exploitation Tactics, Techniques, and Procedures and other classified information specific special operations, and reveal the methods that special operations forces use for identification captured and killed personnel.  
Id.  (JA 55-56).  This assertion largely beside the point Plaintiff only sought photographs and video recordings bin Laden, not records the tactics, techniques, procedures, personnel.4 addition, Admiral McRaven did not address the five categories records and demonstrate how each one would pertain military plans, weapons, operations.5  Even some deference given the redacted testimony Admiral McRaven, Defendants, most, only satisfied their burden with respect those records that actually pertain military plans, weapons systems, operations. Also, Admiral McRaven failed address whether any portions the records can segregated.  Sussman, 494 F.3d 1116.  Therefore, Defendants failed provide any evidence that visuals tactics, techniques, procedures, personnel cannot segregated from the visual bin Ladens body. Besides those photographs taken for facial recognition purposes, the other categories are photographs that were taken inside the compound Abbottabad, Pakistan, where bin Laden was killed; were taken bin Ladens body was transported from the Abbottabad compound the location where was buried sea; depict the preparation bin Ladens body for the burial; and are the burial itself. 
 However, Defendants failed demonstrate that the photographs that were taken bin Ladens body was transported from the compound Pakistan the location where was buried sea, including any taken Bagram Airbase, well the photographs that depict the preparation bin Ladens body for the burial and the burial itself, pertain military plans, weapons systems, operations. addition, Admiral McRaven also did not testify that any the 
records pertain intelligence activities (including covert action), intelligence sources methods, cryptology and foreign relations foreign activities the United States, including confidential sources.  Because Admiral McRaven failed provide sufficient evidence which records were withheld because they pertain military plans, weapons systems, operations, Defendants failed satisfy their burden demonstrating that each and every record must withheld.  Campbell, 164 F.3d 30.  
 Finally, Defendants asserted that the Declaration Robert Neller, Lieutenant General the U.S. Marine Corps, also provided evidence that the responsive records pertain military plans, weapons systems, operations.  However, the declaration did such thing.  The declaration only addressed whether General Neller believed that the release the responsive records reasonably could expected harm national security.  See generally Declaration Robert Neller (Neller Decl.) (JA 63-70).  Similarly, the declaration did not present any evidence that the records pertain intelligence activities (including covert action), intelligence sources methods, cryptology.  Therefore, General Nellers testimony did nothing satisfy Defendants burden that the records pertain one more the classification categories 13526,  1.4. 
 Significantly, the District Court stated that Plaintiff 
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 Vinson pertain military plans operations.  Id. 1.4(a). 
 
Opinion (JA 229). other words, the court recognized that Defendants failed demonstrate that all records pertain (a) military plans, weapons systems, operations; (c) intelligence activities (including covert action), intelligence sources methods, cryptology.  Defendants only demonstrated that some the records fall into one those two classification categories. 
 Besides those two classification categories, Defendants also asserted that all records pertain foreign relations foreign activities the United States, including confidential sources.  However, Defendants essentially presented evidence support their assertion.  Defendants sole evidence was the form conclusory statement tacked otherwise incongruous sentence.  Director Bennett testified, In this case, all the responsive records are the product highly sensitive, overseas operation that was conducted under the direction the CIA; accordingly, have determined that all the records pertain intelligence activities and/or methods well the foreign relations and foreign activities the United States.  Bennett Decl.  (JA 22).  Defendants did not demonstrate how the records pertain foreign relations.  Nor did they demonstrate how the records pertain foreign activities.  The lower court 
simply concluded that these records must pertain foreign activities because the records were the product overseas operation.  Opinion (JA 229). 
 Although substantial weight given government agencys declaration the context national security, deference not equivalent acquiescence.  Campbell, 164 F.3d 30. this instance, Defendants failed provide sufficient specificity and the lower court improperly gave substantial weight nothing more than conclusory statement.  Allen Central Intelligence Agency, 636 F.2d 1287, 1291-92 (D.C. Cir. 1980). 
 Even Defendants submitted sufficient evidence, the District Court applied imprecise standard.  The court found the requirement that the records pertain foreign activities not very demanding.  Opinion (JA 230).  This, however, does not appear supported precedent. fact, there appears precedent this Court, any court for that matter, that permits the withholding records merely because they were the product overseas operation.   
 The typical case addresses the classification its entirety  pertaining foreign relations foreign activities.  See e.g. Goldberg U.S. Department State, 818 F.2d 71, (D.C. Cir. 1987) (Information concerning the relationship between the United States mission and the host country, and the mission's priorities for dealing with difficulties they may having, with unsettled differences 
concerning diplomatic reciprocity matters, addresses foreign relations foreign activities the United States, Executive Order 13526,  1.3(a)(5).). other words, the release the information could reasonably impair relations between the United States and foreign government.  Krikorian Department State, 984 F.2d 461, 465 (D.C. Cir. 1993); see also Hetzler Record/Information Dissemination Section, Federal Bureau Investigation, 2012 U.S. Dist. LEXIS 126870, 17-18 (W.D.N.Y. Sept. 2012).  However, this instance, Defendants submit other evidence how the records pertain foreign activities except that they were the product overseas operation. sum, Defendants failed demonstrate that all records pertain (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. fact, the District Court recognized that some the records only purportedly pertain foreign activities the United States.  However, Defendants failed submit sufficient evidence support the finding that all records were properly withheld pertaining foreign activities.  For this reason, the Court, minimum, should reverse the District Courts judgment and order Defendants produce all records that purportedly pertain only foreign activities. 
 
  ii. Defendants failed demonstrate that all records      reasonably could expected cause identifiable describable exceptionally grave damage  
   national security. 
 
 Even Defendants had shown  which they did not  that each and every record properly pertains one more classification categories, Defendants failed demonstrate that the disclosure all records could reasonably expected cause identifiable describable damage national security. 13526,  1.4. addition, because the records purportedly have been classified TOP SECRET, the type identifiable describable damage must exceptionally grave. 13526,  1.2. attempt support their claim that the release each and every record reasonably could expected cause exceptionally grave damage national security, Defendants relied the declaration Director Bennett, which described two types records: (1) Harm National Security from Release Images bin Laden and (2) Harm National Security from Release Information pertaining CIA Intelligence Activities and Methods.  See Bennett Decl.  23-30 (JA 29-35) 
 Director Bennett asserted that the release graphic photographs and other images [bin Ladens] corpse 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.6  Bennett. Decl.  (JA 29). also stated that this was not mere conjecture because since [bin Ladens] death, al-Qaida has already attempted use the circumstances surrounding his death and burial propaganda.  Id.  (JA 30-31). addition, Defendants relied General Nellers declaration evidence that the release all photographs could expected cause exceptionally grave damage national security.  General Neller testified that because other events incidents the past have been used propaganda and have incited violence, the release each and every record would the same.  Neller Decl.  5-6 (JA 66-67). Although Director Bennett purportedly testified that all records reasonably could expected inflame tensions, his testimony ambiguous best.  Director Bennett referred graphic photographs and other images [bin Ladens] corpse. unclear whether all non-graphic photographs would other images. Plaintiff demonstrated above, there are least five categories records, which include images depicting the preparation bin Ladens body for the burial and images the burial itself. not apparent why these photographs reasonably could expected inflame tensions well. essence, Defendants generally asserted that there are some individuals who not like the United States.  Director Bennett and General Neller did more than paint broad picture this hatred.  Based their non-specific declarations, regardless whether the photographs and video recordings bin Laden are released, groups like al-Qaida may create propaganda, recruit new members, raise funds, inflame tensions, and even incite violence overseas. fact, 
Director Bennett testified that even without the release the records, such actions occurred.  Bennett Decl.  (JA 30-31) (al-Qaida has already attempted use the circumstances surrounding his death and burial propaganda).   
 Defendants failed demonstrate how the release each and every record could reasonably expected cause identifiable and describable exceptionally grave harm national security beyond the potential harm that already exists without the release the responsive records.  Moreover, one federal court has recognized: 
Our nation has been war with terrorists since their September 11, 2001 suicide crashes into the World Trade Center, the Pentagon, and field Shanksville, Pennsylvania, killing thousands and wounding our nation ways that still cannot fully recount-indeed, were war with terrorists since well before that event. American soldiers are fighting and dying daily Afghanistan and Iraq.  The morale our nation vital concern and directly affects the welfare our soldiers.  How then deal with the commands FOIA and the strong policy reflects to promote honest and open government, to assure the existence informed citizenry, and to hold the governors accountable the governed? course, national security and the safety and integrity our soldiers, military and intelligence operations are not compromised, but our nation better preserved trying squelch relevant documents that otherwise would produced for fear retaliation enemy that needs pretext attack? 
 
----- 
 
Our nation does not surrender blackmail, and fear blackmail not legally sufficient argument prevent from performing statutory command. Indeed, the freedoms that champion are important our success Iraq and Afghanistan the guns and missiles with which our troops are armed. 
 
----- 
 
The terrorists Iraq and Afghanistan not need pretexts for their barbarism; they have proven aggressive and pernicious their choice targets and tactics. They have driven exploding trucks into groups children play and men seeking work; they have attacked doctors, lawyers, teachers, judges and legislators easily soldiers. Their pretexts for carrying out violence are patent hypocrisies, clearly recognized such except those who would blur the clarity their own vision. With great respect the concerns expressed General Myers, task not defer our worst fears, but interpret and apply the law, this case, the Freedom Information Act, which advances values important our society, transparency and accountability government. 
 
ACLU U.S. Department Defense, 389 Supp. 547, 575-76 (S.D.N.Y. 2005).  Al-Qaida and other groups not need specific reason incite violence.  They will simply so.  Since May 2011, any the following circumstances could have  and probably has some extent  caused groups like al-Qaida create propaganda, recruit new members, raise funds, inflame tension, and incite violence: President Obama announcing the world that U.S. forces killed Osama bin laden; President Obama attending nationally televised basketball game the U.S.S. Carl Vinson, the same aircraft carrier that buried bin Ladens body sea;7 Jennifer Epstein, Obamas All Aboard for Basketball, Politico.com (November 11, 2011), attached Exhibit the Declaration Michael Bekesha (Bekesha Decl.) (JA 178-180). 
 
the killing senior al-Qaida leader Anwar al-Awlaki U.S. Predator drone;8 the killing Pakistani soldiers NATO forces;9 and the use drones U.S. military and intelligence personnel conduct surveillance without detection.10  Groups may use the requested records for propaganda, but their use would not exclusive and any future harm cannot and could not directly identified particular source. other words, Defendants failed present any identifiable describable evidence that the release any the records would cause exceptionally grave damage national security. Islamist Cleric Anwar al-Awlaki Killed Yemen, BBC News Middle East (September 30, 2011), attached Exhibit Bekesha Decl. (JA 181-185). Haris Anwar, U.S. Withdraws Last Forces From Airbase Following Deaths Pakistani Army, Bloomberg (December 12, 2011), attached Exhibit Bekesha Decl. (JA 186-188). Thomas Erdbrink, Iran Demands U.S Apology for Drone Flight, The Washington Post (December 13, 2011), attached Exhibit Bekesha Decl. (JA 189-192). 
 
 Defendants assertion is, thus, speculative best.  Director Bennett and General Neller apparently believed that exceptionally grave damage national security may occur because has the past.  Yet, they presented specific evidence that the release these particular records would cause exceptionally grave harm national security that does not already exist.  Nor did they demonstrate that they personally have the expertise qualifications make such determination. Director Bennett and General Neller both testified and another federal court recognized (ACLU, 389 Supp. 575-76), al-Qaida and similar terrorist groups not need specific reason hate America.  They simply do.  Whether specific incident event will used justification for violence nothing more than speculation.  For this reason alone, the District Courts belief that Plaintiff sought for the court substitute its own judgment about the national-security risks inherent releasing these records for that the executive-branch officials who determined that they should released (Opinion (JA 209)) mistaken.  Plaintiff did not ask the court substitute its judgment for that Defendants.  Plaintiffs simply demonstrated that Defendants failed provide sufficient evidence support their claim.  Campbell, 164 F.3d 30. 
 Also notable relevance, other graphic, post-mortem photographs notable figures have been released similar circumstances the past, without any claim harm national security, much less exceptionally grave harm.  For example, July 24, 2003, the midst the war Iraq, the U.S. Department Defense released graphic photographs the deceased sons Saddam Hussein, Uday and Qusay.  See Uday, Qusay Pictures Released, FoxNews.com (July 25, 2003), attached Exhibit Bekesha Decl. (with copy graphic photographs) (JA 193-198).  Similarly, the Department the Army released gruesome, post-mortem photograph Abu Musab al-Zarqawi, the Iraqi insurgent leader.  See 
Philip Kennicott, Chilling Portrait, Unsuitably Framed, The Washington Post (June 2006), attached Exhibit Bekesha Decl. (with copy graphic photograph) (JA 199-202). fact, the photograph was displayed press conference gold frame.  Id.  Defendants did not present any evidence that the release these photographs resulted exceptionally grave harm national security. Director Bennett only testified that foreign editorials criticized the release the photographs Abu Musab al-Zarqawi.  Bennett Decl.  (JA 31-32).  That may bad public relations, but clearly not exceptionally grave damage national security.  Director Bennett did not discuss the photographs Uday and Qusay Hussein. sum, Defendants failed demonstrate that the release all records would cause anything more than speculative harm national security.  Under 13526, the potential harm cannot speculative; must identifiable and describable.  Similarly, memorandum all agencies, President Obama instructed that the Government should not keep information confidential merely because speculative abstract fears.  Memorandum from President Barack Obama the Heads Executive Departments and Agencies, Freedom Information Act (Jan. 21, 2009).   
 Even Defendants provided identifiable describable evidence that the release each and every record would cause exceptionally grave damage national security, Defendants position unprecedented.  This Court has never 
held that Exemption properly allows government agency withhold material that may inflame tensions among overseas populations, encourage propaganda, lead retaliatory attacks. fact, until the lower courts decision, court had made such decision. ACLU, the government identified five reasons why the disclosure the withheld information might harm national security.  ACLU, 628 F.3d 624.  The defendants argued that the release the requested records would reveal the CIAs needs, priorities, and capabilities; degrade the CIAs ability effectively question terrorist detainees; provide terrorists with insight into the CIAs interrogation techniques, strategies, and methods; damage the CIAs relations with foreign governments; and provide Qaeda with material for propaganda.  Id.  The plaintiff challenged the defendants assertion that national security would harmed providing material for propaganda.  This Court, however, did not decide whether that was proper justification because the defendants identified four other potential harms that the government argues also justify withholding the information under Exemption 1.  Id. 
 Other decisions this Court also highlight the fact that Defendants assertion unjustified. Miller Casey, 730 F.2d 773 (D.C. Cir. 1984), issue was information concerning alleged efforts the United States and other countries infiltrate intelligence agents and potential guerrillas into Albania during the period 1945-53.  Id. 774.  The Court held that the confirmation 
covert intelligence mission reasonably could expected to:  (1) prevent foreign countries from participating future covert missions; (2) hamper future relations with Albania; (3) permit hostile nations piece together catalog U.S. covert missions; (4) enable the Soviet Union ascertain the reliability its double agent; (5) jeopardize sources and sympathizers still within Albania; (6) hamper future recruitment sources; and (7) reveal the particular intelligence method allegedly used the mission.  Id. 775-776.  Release images bin Ladens body  particularly those images showing the body cleaned and prepared for burial and being buried sea  would not reveal any previously unknown covert intelligence missions.  Defendants have freely and repeatedly acknowledged that the May 2011 raid took place, that bin Laden suffered fatal bullet wound his head, and that his body was washed accordance with Islamic custom and buried sea.  Bennett Decl.  (JA 22); Bekesha Decl. Exhibit (JA 78-86). 
 Similarly, Afshar Department State, 702 F.2d 1125 (D.C. Cir. 1983), issue were records that would have confirmed denied covert relationship between intelligence officials the United States and their counterparts Iran.  The Court concluded that the release the requested records would reveal the existence and details concerning activities that had not been officially acknowledged. that instance, the government asserted and the Court agreed that national security concern existed because such intelligence relationships are 
conducted the understanding absolute confidentiality, that their official acknowledgment would jeopardize all existing and future cooperative relationships and would strain disrupt United States relations with other countries.  Id. 1129.  Obviously, the release the images bin Laden different. undisputed that many aspects the raid itself and the subsequent documenting its success have been officially acknowledged.  Therefore, contrast the information issue Afshar, the release the records the instant matter would provide more than visual images facts that have already been officially acknowledged.  
 Nor images bin Laden  especially those his body being cleaned and prepared for burial actually being buried sea  present the typical scenario which courts defer agencies assessments harm national security.  See ACLU, 628 F.3d 623-625.  This Court fully capable reaching its own determination about the logic and plausibility Defendants assertions harm, taking into account not only Defendants declarations, but also the substantial information that Defendants have already released the world about the May 2011 raid, the death bin Laden, and his burial sea. stated above, Defendants asserted the propaganda justification for all records.  Yet, unlike the defendants assertion ACLU, Defendants did not 
identify other potential harms justify the withholding each and every record.  Significantly, the District Court agreed 
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 relates some the records question.  The military- and intelligence-related risks, accordingly, cannot corroborate the CIAs claim that each the fifty-two responsive records properly classified. 
 
Opinion 25-26 (JA 232-233).  Therefore, for some records, the only justification for withholding that their release may inflame tensions among overseas populations, encourage propaganda, lead retaliatory attacks.  For this reason, the Court, minimum, should reverse the District Courts judgment and order Defendants produce all records that were withheld only because they may used propaganda. Defendants failed demonstrate that they complied 
  with the classification procedures 13526. less import for Defendants demonstrate that the withheld records were classified accordance with the procedural criteria 13526 for classification.   Lesar, 636 F.2d 483; see also Schoenman Federal Bureau Investigation, 575 Supp. 136, 152 (D.D.C. 2008) (Whether government agency has compli[ed] with the procedural requirements [the governing Executive Order] great importance.); Washington Post U.S. Department 
Defense, 766 Supp. (D.D.C. 1991) (In the first place, addition showing that the agencys classification decisions meet the substantive criteria [the governing Executive Order], government agency] must also demonstrate that its determinations have satisfied the orders procedural criteria.). addition, agency may not rely declarations that are conclusory, merely recite statutory standards, are vague sweeping.  Allen, 636 F.2d 1291-92 (rejecting affidavits that indicate[d] neither the identity the original classifier nor the date event for declassification review).   
 Contrary this established precedent, the District Court found that any possible procedural errors plainly not warrant release.  Opinion (JA 227).  However, this Court held differently similar situation. Allen, the Court held that there was basis conclude that the procedural requirements the governing Executive Order had been satisfied because the two affidavits submitted the CIA indicate neither the identity the original classifier nor the date event for declassification review.  Allen, 636 F.2d 1291-92.  The Court therefore remanded the case the district court for additional proceedings.  Id. 1300. support its motion for summary judgment, Defendants relied Director Bennetts declaration support their claim that Defendants have satisfied 13526s procedural criteria. opposition, Plaintiff demonstrated the 
inadequacy Defendants submission.  Director Bennett failed identify who made the original classification decision, when the original classification decision was made, the date event which the records will declassified, and whether the records were properly identified and marked.  Opinion (JA 221).  Subsequently, Defendants submitted the declaration National Clandestine Service Information Officer Elizabeth Anne Culver cure any defect.  Id. (JA 222).  Although Ms. Culvers declaration clarified few points, her declaration does not address the operative event  the original classification decision. 
 Prior the submission Ms. Culvers declaration, Defendants had not raised the existence derivative classification decision.  Although Director Bennett did not testify the specific circumstances concerning the original classification decision, testified original classification general.  Yet, was unclear why Director Bennett did not identify who made the original classification decision, when the original classification decision was made, the date event which the records will declassified, and whether the records were properly identified and marked.  Upon reading Ms. Culvers declaration, the reason became apparent.  Ms. Culvers testimony made clear that the classification review conducted Director Bennett was limited review the derivative classification decision.  Declaration Elizabeth Anne Culver, Information Review Officer, National Clandestine Service, Central Intelligence Agency (Culver 
Decl.)  (JA 206-207).  Similarly, Director Bennett did not testify whether the records were properly identified and marked.  Ms. Culver clarified this omission testifying the fact that that when Director Bennett reviewed the records, the records did not contain the markings required Executive Order 15326 for both original classification determinations and for derivative classification determinations.  See Executive Order 13526,  1.6 and 2.1(b).  Ms. Culver testified, At the time Mr. Bennetts declaration, these records were marked TOP SECRET .  Culver Decl.  (JA 205-206).  She continued, Since then, the CIA has, out abundance caution, take additional steps ensure that each these records contains all the markings required the Executive Order .  Id. other words, Defendants did not even attempt comply with the marking requirements Executive Order 13526 until some point after September 26, 2011, nearly five months after Plaintiff served its FOIA requests.  
 Although Ms. Culver clarifies which classification decision Mr. Bennett reviewed and that the required markings were placed the records after-the-fact, Ms. Culver does not testify any the other procedural requirements the original classification.  She only testified the derivative classification.  Culver Decl.  (JA 206-207) (The CIA derivatively classified the unique records identified being responsive Plaintiffs FOIA only after the CIA received 
these records.  This, however, insufficient satisfy Defendants burden. derivative classification must observe and respect the original classification. 13526,  2.1(b)(2) (An official who derivatively classifies information required observe and respect original classification decisions.).  Therefore, determine whether records were properly withheld under FOIA Exemption the operative event the original classification for least two reasons. 
 First, 13526 requires that an original classification authority classifying the information and that the original classification authority determines that the unauthorized disclosure the information reasonably could expected result damage national security. 13526,   Ms. Culver did not testify who purportedly served the original classification authority for each the records.  Nor did she testify whether this person determined that the unauthorized disclosure these records reasonably could expected result damage national security, that she satisfied the numerous other requirements 13526 originally classifying the records. 
 Second, stated above, 13526 contains additional procedural requirements when FOIA request has been made for records before the records have been classified.  Unclassified records requested under FOIA may subsequently classified only such classification meets the requirements this order and accomplished document-by-document basis with the personal 
participation under the direction the agency head, the deputy agency head, the senior agency official designated under section 5.4 this order. 13526,  1.7(d).  Similar Director Bennetts declaration, Ms. Culvers declaration did not state when either the original derivative classification decisions were made.  Defendants therefore only presented evidence that September 26, 2011, the records were properly classified.  Yet, the date original classification much import.  Since Plaintiff sent its FOIA request May 2011, unclear whether the records were originally classified before May 2011 after May 2011 and prior September 26, 2011.  Defendants simply failed present any evidence when the original classification occurred. addition, the records were classified after FOIA request was received, Defendants failed demonstrate that the records were classified document-by-document basis.  Also, stated above, Defendants failed present any evidence who classified the records.  Therefore, Defendants also failed demonstrate whether the records were classified with the personal participation under the direction the agency head, the deputy agency head, the senior agency official designated under section 5.4 this order. sum, Defendants failed satisfy their burden demonstrating that they complied with the classification procedures 13526.  Although Ms. Culvers testimony fleshed out some additional information, details concerning the two most 
important aspects the original classification remain unknown.  Defendants did not provide any evidence who conducted the original classification and when the original classification occurred.  Nor did they demonstrate that the original classification followed 13526s procedural requirements. fact, Defendants failed provide any evidence demonstrate that original classification even occurred.  Because derivative classification can only observe and respect the original classification, contrary the view the district court, derivative classification cannot cure procedural defects the original classification.  Opinion (JA 223). the instant matter, Defendants failed demonstrate that they satisfied the procedural requirements 13526.  They did not provide any evidence who made the original classification decision, whether that individual determined that the unauthorized disclosure the information reasonably could expected result damage national security, whether the original classification occurred before after receipt Plaintiffs FOIA.  For this reason alone, the lower courts decision should reversed, and Defendants should ordered produce all responsive records that were not properly classified pursuant the procedural requirements 13526. 
III. Defendants Fail Demonstrate that All Records 
 Are Properly Withheld under Exemption stated above, because Defendants claimed Exemption over all the withheld material, the District Court did not address whether Defendants properly withheld material pursuant Exemption  Opinion 14.  However, Exemption only permits government agency withhold material specifically exempted from disclosure certain statutes. U.S.C.  552(b)(3). the instant matter, Defendants relied U.S.C.  403-1(i) and U.S.C.  403g.  Section 403-1(i) charges the Director National Intelligence with protecting intelligence sources and methods from unauthorized disclosure, and Section 403g authorizes the CIA withhold intelligence sources and intelligence methods that are related the CIAs core function.  James Madison Project Central Intelligence Agency, 605 Supp. 99, 113 (D.D.C. 2009).  Plaintiff does not challenge Defendants reliance the two sections; Plaintiff only challenges Defendants assertion that each and every record falls within the scope either U.S.C.  403-1(i) U.S.C.  403. 
 When analyzing whether the defendant entitled invoke Exemption the court need not examine the detailed factual contents specific documents withheld; rather, the sole issue for decision the existence relevant statute and the inclusion withheld material within the statutes coverage.  James Madison Project, 605 Supp. 113-114 (quoting Morley Central Intelligence Agency, 508 F.3d 1108, 1126 (D.C. Cir. 2007)). other words, the 
Courts sole task determine whether all records relate intelligence sources and methods.  Fitzgibbon Central Intelligence Agency, 911 F.2d 755, 761 (D.C. Cir. 1990). demonstrate that Defendants are properly withholding records under Exemption Director Bennett testified that the information withheld pursuant exemption (b)(3) the same the information described above relating intelligence methods and activities withheld pursuant exemption (b)(1).  Bennett Decl.  (JA 37) (emphasis added).  Yet, demonstrated above, Director Bennetts declaration was ambiguous best describing which records were withheld because they would reveal intelligence activities and methods.  Id.  (JA 32-33) (certain responsive records could also reveal intelligence activities and methods) (emphasis added). 
 Therefore the extent that Exemption applies any records, would only apply the subset records that the District Court found pertain intelligence methods and activities.  See generally Opinion 25-26 (JA 232-233). 
  
CONCLUSION 
 For the foregoing reasons, Judicial Watch respectfully requests that this Court reverse the District Courts order granting Defendants motion for summary judgment and denying Judicial Watchs cross-motion for summary judgment and remand for further proceedings. 
Dated:  October 16, 2012    Respectfully submitted, 
  
              
       /s/ Michael Bekesha                   
       Michael Bekesha 
       JUDICIAL WATCH, INC. 
       425 Third Street, S.W., Suite 800 
       Washington,  20024 
       (202) 646-5172 
 
       Counsel for Plaintiff-Appellant 
 
  
CERTIFICATE COMPLIANCE 
 The undersigned certifies that this brief complies with the type-volume limitations Fed. App. 32(a)(7).  The brief, excluding exempted portions, contains 878 words (using Microsoft Word 2010), and has been prepared proportional Times New Roman, 14-point font. 
/s/ Michael Bekesha 
 
 
 
 
 
 
 
 
 
 
ADDENDUM  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
ADDENDUM TABLE CONTENTS U.S.C.  552(b) ....................................................................................................... 
Executive Order 13526 December 29, 2009 (Parts and ................................. U.S.C.  403-1(i) ................................................................................................. U.S.C.  403g ...................................................................................................... U.S.C.  552(b): 
 
This section does not apply matters that are  
 
(1) 
 (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; 
 
(3) specifically exempted from disclosure statute (other than section 552b this title USCS  552b]), that statute-- 
       (A)  
  (i) requires that the matters withheld from the public such manner leave discretion the issue; 
  (ii) establishes particular criteria for withholding refers particular types matters withheld 
 
 (B) enacted after the date enactment the OPEN FOIA Act 2009 [enacted Oct. 28, 2009], specifically cites this paragraph. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Executive Order 13526 December 29, 2009 (Parts And 2): 
 
This order prescribes uniform system for classifying, safeguarding, and declassifying national security information, including information relating defense against transnational terrorism. Our democratic principles require that the American people informed the activities their Government. Also, our Nation's progress depends the free flow information both within the Government and the American people. Nevertheless, throughout our history, the national defense has required that certain information maintained confidence order protect our citizens, our democratic institutions, our homeland security, and our interactions with foreign nations. Protecting information critical our Nation's security and demonstrating our commitment open Government through accurate and accountable application classification standards and routine, secure, and effective declassification are equally important priorities. 
  
NOW, THEREFORE, BARACK OBAMA, the authority vested President the Constitution and the laws the United States America, hereby ordered follows: 
  
PART 1--ORIGINAL CLASSIFICATION 
  
Section 1.1. Classification Standards. (a) 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 United States Government; 
  
(3) the information falls within one more the categories information listed section 1.4 this order; and 
  
(4) the original classification authority determines that the unauthorized disclosure the information reasonably could expected result damage national security, which includes defense against transnational terrorism, and the original classification authority able identify describe the damage. 
 
(b) there significant doubt about the need classify information, shall not classified. This provision does not: 
  
(1) amplify modify the substantive criteria procedures for classification; 
  
(2) create any substantive procedural rights subject judicial review. 
 
(c) Classified information shall not declassified automatically result any unauthorized disclosure identical similar information. 
 
(d) The unauthorized disclosure foreign government information presumed cause damage national security. 
  
Sec. 1.2. Classification Levels. (a) Information may classified one the following three levels: 
  
(1) Top Secret shall applied information, the unauthorized disclosure which reasonably could expected cause exceptionally grave damage national security that the original classification authority able identify describe. 
  
(2) Secret shall applied information, the unauthorized disclosure which reasonably could expected cause serious damage the national security that the original classification authority able identify describe. 
  
(3) Confidential shall applied information, the unauthorized disclosure which reasonably could expected cause damage national security that the original classification authority able identify describe. 
 
(b) Except otherwise provided statute, other terms shall used identify United States classified information. 
 
(c) there significant doubt about the appropriate level classification, shall classified the lower level. 
  
Sec. 1.3. Classification Authority. (a) The authority classify information originally may exercised only by: 
  
(1) the President and the Vice President; 
  
(2) agency heads and officials designated the President; and 
  
(3) United States Government officials delegated this authority pursuant paragraph (c) this section. 
 
(b) Officials authorized classify information specified level are also authorized classify information lower level. 
 
(c) Delegation original classification authority. 
  
(1) Delegations original classification authority shall limited the minimum required administer this order. Agency heads are responsible for ensuring that designated subordinate officials have demonstrable and continuing need exercise this authority. 
  
(2) Top Secret original classification authority may delegated only the President, the Vice President, agency head official designated pursuant paragraph (a)(2) this section. 
  
(3) Secret Confidential original classification authority may delegated only the President, the Vice President, agency head official designated pursuant paragraph (a)(2) this section, the senior agency official designated under section 5.4(d) this order, provided that official has been delegated Top Secret original classification authority the agency head. 
  
(4) Each delegation original classification authority shall writing and the authority shall not redelegated except provided this order. Each delegation shall identify the official name position. 
  
(5) Delegations original classification authority shall reported made available name position the Director the Information Security Oversight Office. 
 
(d) All original classification authorities must receive training proper classification (including the avoidance over-classification) and declassification provided this order and its implementing directives least once calendar year. Such training must include instruction the proper safeguarding classified information and the sanctions section 5.5 this order that may brought against individual who fails classify information properly protect classified information from unauthorized disclosure. Original classification authorities who not receive such mandatory training least once within calendar year shall have their classification authority suspended the agency 
head the senior agency official designated under section 5.4(d) this order until such training has taken place. waiver may granted the agency head, the deputy agency head, the senior agency official individual unable receive such training due unavoidable circumstances. Whenever waiver granted, the individual shall receive such training soon practicable. 
 
(e) Exceptional cases. When employee, government contractor, licensee, certificate holder, grantee agency who does not have original classification authority originates information believed that person require classification, the information shall protected manner consistent with this order and its implementing directives. The information shall transmitted promptly provided under this order its implementing directives the agency that has appropriate subject matter interest and classification authority with respect this information. That agency shall decide within days whether classify this information. 
  
Sec. 1.4. Classification Categories. Information shall not considered for classification unless its unauthorized disclosure could reasonably expected cause identifiable describable damage national security accordance with section 1.2 this order, and pertains one more the following: 
 
(a) military plans, weapons systems, operations; 
(b) foreign government information; 
 
(c) intelligence activities (including covert action), intelligence sources methods, cryptology; 
 
(d) foreign relations foreign activities the United States, including confidential sources; 
 
(e) scientific, technological, economic matters relating national security; 
 
(f) United States Government programs for safeguarding nuclear materials facilities; 
 
(g) vulnerabilities capabilities systems, installations, infrastructures, projects, plans, protection services relating national security; (h) the development, production, use weapons mass destruction. 
  
Sec. 1.5. Duration Classification. (a) the time original classification, the original classification authority shall establish specific date event for declassification based the duration national security sensitivity the information. Upon reaching the date event, the information shall automatically declassified. Except for information that should clearly and demonstrably expected reveal the identity confidential human source human intelligence source key design concepts weapons mass destruction, the date event shall not exceed the time frame established paragraph (b) this section. 
 
(b) the original classification authority cannot determine earlier specific date event for declassification, information shall marked for declassification years from the date the original decision, unless the original classification authority otherwise determines that the sensitivity the information requires that marked for declassification for years from the date the original decision. 
 
(c) original classification authority may extend the duration classification years from the date origin the document, change the level classification, reclassify specific information only when the standards and procedures for classifying information under this order are followed. 
 
(d) information may remain classified indefinitely. Information marked for indefinite duration classification under predecessor orders, for example, marked Originating Agency's Determination Required, classified information that contains incomplete declassification instructions lacks declassification instructions shall declassified accordance with part this order. 
  
Sec. 1.6. Identification and Markings. (a) the time original classification, the following shall indicated manner that immediately apparent: 
  
(1) one the three classification levels defined section 1.2 this order; 
  
(2) the identity, name and position, personal identifier, the original classification authority; 
  
(3) the agency and office origin, not otherwise evident; 
  
(4) declassification instructions, which shall indicate one the following: 
 (A) the date event for declassification, prescribed section 1.5(a); 
 
 (B) the date that years from the date original classification, prescribed section 1.5(b); 
 
 (C) the date that years from the date original classification, prescribed section 1.5(b); 
 
 (D) the case information that should clearly and demonstrably expected reveal the identity confidential human source human intelligence source key design concepts weapons mass destruction, the marking prescribed implementing directives issued pursuant this order; and 
  
(5) concise reason for classification that, minimum, cites the applicable classification categories section 1.4 this order. 
 
(b) Specific information required paragraph (a) this section may excluded would reveal additional classified information. 
 
(c) With respect each classified document, the agency originating the document shall, marking other means, indicate which portions are classified, with the applicable classification level, and which portions are unclassified. accordance with standards prescribed directives issued under this order, the Director the Information Security Oversight Office may grant and revoke temporary waivers this requirement. The Director shall revoke any waiver upon finding abuse. 
 
(d) Markings other indicia implementing the provisions this order, including abbreviations and requirements safeguard classified working papers, shall conform the standards prescribed implementing directives issued pursuant this order. 
 
(e) Foreign government information shall retain its original classification markings shall assigned U.S. classification that provides degree protection least equivalent that required the entity that furnished the information. Foreign government information retaining its original classification markings need not assigned U.S. classification marking provided that the responsible agency determines that the foreign government markings are adequate meet the purposes served U.S. classification markings. 
(f) Information assigned level classification under this predecessor orders shall considered classified that level classification despite the omission other required markings. Whenever such information used the derivative classification process reviewed for possible declassification, holders such information shall coordinate with appropriate classification authority for the application omitted markings. 
 
(g) The classification authority shall, whenever practicable, use classified addendum whenever classified information constitutes small portion otherwise unclassified document prepare product allow for dissemination the lowest level classification possible unclassified form. 
 
(h) Prior public release, all declassified records shall appropriately marked reflect their declassification. 
  
Sec. 1.7. Classification Prohibitions and Limitations. (a) case shall information classified, continue maintained classified, fail declassified order to: 
  
(1) conceal violations law, inefficiency, administrative error; 
  
(2) prevent embarrassment person, organization, agency; 
  
(3) restrain competition; 
  
(4) prevent delay the release information that does not require protection the interest national security. 
 
(b) Basic scientific research information not clearly related national security shall not classified. 
 
(c) Information may not reclassified after declassification and release the public under proper authority unless: 
  
(1) the reclassification personally approved writing the agency head based document-by-document determination the agency that reclassification required prevent significant and demonstrable damage national security; 
  
(2) the information may reasonably recovered without bringing undue attention the information; 
  
(3) the reclassification action reported promptly the Assistant the President for National Security Affairs (National Security Advisor) and the Director the Information Security Oversight Office; and 
  
(4) for documents the physical and legal custody the National Archives and Records Administration (National Archives) that have been available for public use, the agency head has, after making the determinations required this paragraph, notified the Archivist the United States (Archivist), who shall suspend public access pending approval the reclassification action the Director the Information Security Oversight Office. Any such decision the Director may appealed the agency head the President through national security Advisor. Public access shall remain suspended pending prompt decision the appeal. 
 
(d) Information that has not previously been disclosed the public under proper authority may classified reclassified after agency has received request for under the Freedom Information Act U.S.C. 552), the Presidential Records Act, U.S.C. 2204(c)(1), the Privacy Act 1974 U.S.C. 552a), the mandatory review provisions section 3.5 this order only such classification meets the requirements this order and accomplished document-by-document basis with the personal participation under the direction the agency head, the deputy agency head, the senior agency official designated under section 5.4 this order. The requirements this paragraph also apply those situations which information has been declassified accordance with specific date event determined original classification authority accordance with section 1.5 this order. 
 
(e) Compilations items information that are individually unclassified may classified the compiled information reveals additional association relationship that: 
  
(1) meets the standards for classification under this order; and 
  
(2) not otherwise revealed the individual items information. 
  
Sec. 1.8. Classification Challenges. (a) Authorized holders information who, good faith, believe that its classification status improper are encouraged and expected challenge the classification status the information accordance with agency procedures established under paragraph (b) this section. 
(b) accordance with implementing directives issued pursuant this order, agency head senior agency official shall establish procedures under which authorized holders information, including authorized holders outside the classifying agency, are encouraged and expected challenge the classification information that they believe improperly classified unclassified. These procedures shall ensure that: 
  
(1) individuals are not subject retribution for bringing such actions; 
  
(2) opportunity provided for review impartial official panel; and 
  
(3) individuals are advised their right appeal agency decisions the Interagency Security Classification Appeals Panel (Panel) established section 5.3 this order. 
(c) Documents required submitted for prepublication review other administrative process pursuant approved nondisclosure agreement are not covered this section. 
  
Sec. 1.9. Fundamental Classification Guidance Review. (a) Agency heads shall complete periodic basis comprehensive review the agency's classification guidance, particularly classification guides, ensure the guidance reflects current circumstances and identify classified information that longer requires protection and can declassified. The initial fundamental classification guidance review shall completed within years the effective date this order. 
 
(b) The classification guidance review shall include evaluation classified information determine meets the standards for classification under section 1.4 this order, taking into account up-to-date assessment likely damage described under section 1.2 this order. 
 
(c) The classification guidance review shall include original classification authorities and agency subject matter experts ensure broad range perspectives. 
 
(d) Agency heads shall provide report summarizing the results the classification guidance review the Director the Information Security Oversight Office and shall release unclassified version this report the public. 
  
 
PART 2--DERIVATIVE CLASSIFICATION 
  
Sec. 2.1. Use Derivative Classification. (a) Persons who reproduce, extract, summarize classified information, who apply classification markings derived from source material directed classification guide, need not possess original classification authority. 
 
(b) Persons who apply derivative classification markings shall: 
  
(1) identified name and position, personal identifier, manner that immediately apparent for each derivative classification action; 
  
(2) observe and respect original classification decisions; and 
  
(3) carry forward any newly created documents the pertinent classification markings. For information derivatively classified based multiple sources, the derivative classifier shall carry forward: 
 
 (A) the date event for declassification that corresponds the longest period classification among the sources, the marking established pursuant section 1.6(a)(4)(D) this order; and 
 
 (B) listing the source materials. 
 
(c) Derivative classifiers shall, whenever practicable, use classified addendum whenever classified information constitutes small portion otherwise unclassified document prepare product allow for dissemination the lowest level classification possible unclassified form. 
 
(d) Persons who apply derivative classification markings shall receive training the proper application the derivative classification principles the order, with emphasis avoiding over-classification, least once every years. Derivative classifiers who not receive such training least once every years shall have their authority apply derivative classification markings suspended until they have received such training. waiver may granted the agency head, the deputy agency head, the senior agency official individual unable receive such training due unavoidable circumstances. Whenever waiver granted, the individual shall receive such training soon practicable. 
  
Sec. 2.2. Classification Guides. (a) Agencies with original classification authority shall prepare classification guides facilitate the proper and uniform derivative classification information. These guides shall conform standards contained directives issued under this order. 
 
(b) Each guide shall approved personally and writing official who: 
  
(1) has program supervisory responsibility over the information the senior agency official; and 
  
(2) authorized classify information originally the highest level classification prescribed the guide. 
 
(c) Agencies shall establish procedures ensure that classification guides are reviewed and updated provided directives issued under this order. 
 
(d) Agencies shall incorporate original classification decisions into classification guides timely basis and accordance with directives issued under this order. 
 
(e) Agencies may incorporate exemptions from automatic declassification approved pursuant section 3.3(j) this order into classification guides, provided that the Panel notified the intent take such action for specific information advance approval and the information remains active use. 
 
(f) The duration classification document classified derivative classifier using classification guide shall not exceed years from the date the origin the document, except for: 
  
(1) information that should clearly and demonstrably expected reveal the identity confidential human source human intelligence source key design concepts weapons mass destruction; and 
  
(2) specific information incorporated into classification guides accordance with section 2.2(e) this order. U.S.C.  403-1(i): 
 
(i) Protection intelligence sources and methods. 
 
   (1) The Director National Intelligence shall protect intelligence sources and methods from unauthorized disclosure. 
 
   (2) Consistent with paragraph (1), order maximize the dissemination intelligence, the Director National Intelligence shall establish and implement guidelines for the intelligence community for the following purposes: 
 
      (A) Classification information under applicable law, Executive orders, other Presidential directives. 
 
      (B) Access and dissemination intelligence, both final form and the form when initially gathered. 
 
      (C) Preparation intelligence products such way that source information removed allow for dissemination the lowest level classification possible unclassified form the extent practicable. 
 
   (3) The Director may only delegate duty authority given the Director under this subsection the Principal Deputy Director National Intelligence. U.S.C.  403g: 
Protection nature Agency's functions the interests the security the foreign intelligence activities the United States and order further implement section 102A(i) national security Act 1947 [50 USCS  403-1(i)] that the Director National Intelligence shall responsible for protecting intelligence sources and methods from unauthorized disclosure, the Agency shall exempted from the provisions sections and chapter 795 the Act August 28, 1935 (49 Stat. 956, 957; 654), and the provisions any other law which require the publication disclosure the organization, functions, names, official titles, salaries, numbers personnel employed the Agency: Provided, That furtherance this section the Director the Office Management and Budget shall make reports the Congress 
connection with the Agency under section 607, title VI, chapter 212 the Act June 30, 1945, amended 947(b)).  
 
CERTIFICATE SERVICE hereby certify that this 16th day October 2012, filed via the CM/ECF system the foregoing BRIEF APPELLANT JUDICIAL WATCH, INC. with the Clerk the Court. Participants the case are registered CM/ECF users and service will accomplished the Appellate CM/ECF system. also certify that caused eight copies delivered the Clerk Court via hand delivery.  
/s/ Michael Bekesha