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Judicial Watch • Judicial Watch v DOD et al Memorandum in Opposition to Defendants Motion for Summary Judgment and in Support of Plaintiff’s Cross Motion for Summary Judgment

Judicial Watch v DOD et al Memorandum in Opposition to Defendants Motion for Summary Judgment and in Support of Plaintiff’s Cross Motion for Summary Judgment

Judicial Watch v DOD et al Memorandum in Opposition to Defendants Motion for Summary Judgment and in Support of Plaintiff’s Cross Motion for Summary Judgment

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THE UNITED STATES DISTRICT COURT 
 FOR THE DISTRICT COLUMBIA 
 
JUDICIAL WATCH, INC., 
   Plaintiff, Civil Action No. 11-00890 (JEB) 
U.S. DEPARTMENT DEFENSE, al., 
Defendants. 
____________________________________) 
 
PLAINTIFFS MEMORANDUM LAW OPPOSITION DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND SUPPORT PLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENT; REQUEST FOR HEARING 
 
         
 
 
 
 
 
 
 
 
 
 
 
        Paul Orfanedes 
 D.C. Bar No. 429716  
        Michael Bekesha 
        D.C. Bar No. 995749 
        JUDICIAL WATCH, INC. 
        425 Third Street S.W., Suite 800 
        Washington, 20024 
        (202) 646-5172 
         
        Counsel for Plaintiff
TABLE CONTENTS 
TABLE CONTENTS  ...............................................................................................................  
 
TABLE AUTHORITIES  ....................................................................................................... iii  
 
MEMORANDUM LAW ...........................................................................................................1 INTRODUCTION ...............................................................................................................1 
 
II. FACTUAL BACKGROUND  ............................................................................................3 Public Information the May 2011 Raid  
  Osama bin Ladens Compound ................................................................................3 Public Information the Content and the Decision  
  Release Post Mortem Photographs and Video Recordings  
  Osama bin Laden .....................................................................................................5 Executive Order 13526 Establishes Uniform System  
  for Classifying National Security Information ......................................................12 
 
III. SUMMARY THE ARGUMENT ................................................................................14 
 
IV. ARGUMENT .....................................................................................................................15 Defendants Search for and Decision Withhold All 
  Records Are Reviewed Novo ...........................................................................15 Defendants Fail Demonstrate that They Conducted  
  Adequate Search for Responsive Records .............................................................15 Defendants Vaughn Declarations Are Inadequate ................................................18 Defendants Fail Demonstrate that All Records Are Being Properly 
  Withheld under Exemption .................................................................................22 Defendants fail demonstrate that they have complied with the      classification procedures 13526 ......................................................23 Defendants fail demonstrate that all records conform 13526s substantive criteria for classification .....................................27 Defendants fail demonstrate that all records  
    pertain one more the classification categories 13526,  1.4 .........................................................................28 Defendants fail demonstrate that all records 
    reasonably could expected cause identifiable describable exceptionally grave damage the 
    national security .............................................................................34 Defendants Fail Demonstrate that All Records Are Being Properly 
  Withheld under Exemption .................................................................................43 CONCLUSION ..................................................................................................................44 
  
 
TABLE AUTHORITIES 
 
Cases 
 
ACLU U.S. Department Defense, 389 Supp. 547 (S.D.N.Y. 2005)  ............................37 
 
ACLU U.S. Department Defense, 628 F.3d 612 (D.C. Cir. 2011)  .................................27, 
 
Allen Central Intelligence Agency, 636 F.2d 1287 (D.C. Cir. 1980)  ................................. 26-27 
 
Anderson Liberty Lobby, Inc., 477 U.S. 242 (1986)  ................................................................15 Campbell U.S. Department Justice,  
 164 F.3d (D.C. Cir. 1998)  .................................................. 22, 28, 31, 33-34, 39, 41-42 
 
Campbell U.S. Department Justice, 231 Supp. (D.D.C. 2002)  ................................19 
 
Coastal States Gas Corporation U.S. Department Energy,  
 617 F.2d 854 (D.C. Cir. 1980)  .........................................................................................18 
 
Council for Livable World U.S. Department State,  
 96-CV-1807, 1998 U.S. Dist. LEXIS 23643 (D.D.C. Nov. 23, 1998)  .............................27 
 
Dellums Powell, 642 F.2d 1352 (D.C. Cir. 1980)  ....................................................................18 
 
Fitzgibbon Central Intelligence Agency, 911 755 (D.C. Cir. 1990)  ...............................43 International Counsel Bureau U.S. Department Defense,  
 723 Supp. (D.D.C. 2010)  ................................... 22, 28, 29, 31, 34, 39, 41-42, 
 
James Madison Project Central Intelligence Agency,  
 605 Supp. (D.D.C. 2009)  ...................................................................................43 
 
Judicial Watch, Inc. U.S. Postal Service, 297 Supp. 252 (D.D.C. 2004)  ...........................15 
 
Judicial Watch, Inc. Food and Drug Administration,  
 449 F.3d 141 (D.C. Cir. 2006)  .........................................................................................18 King U.S. Department Justice, 830 F.2d 210 (D.C. Cir. 1987)  ............................. 18-22, 
 
Larson U.S. Department State, 565 F.3d 857 (D.C. Cir. 2009)  .....................................22, 
 
Lesar U.S. Department Justice, 636 F.2d 472 (D.C. Cir. 1980)  ..........................................23 
 
Mead Data Central, Inc. U.S. Department the Air Force,  
 566 F.2d 242 (D.C. Cir. 1977)  ...................................................................................18, 
 
Morley Central Intelligence Agency, 508 F.3d 1108 (D.C. Cir. 2007)  ....................................43 Nation Magazine U.S. Customs Service, F.3d 885 (D.C. Cir. 1995) .......................... 15-17 
 
Paisley Central Intelligence Agency, 712 F.2d 686 (D.C. Cir. 1983)  ................................ 18-19 
 
Shoenman Federal Bureau Investigation,  
 575 Supp. 136 (D.D.C. 2008)  .................................................................................23 
 
Steinberg U.S. Department Justice, F.3d 548 (D.C. Cir. 1994)  ......................................18 
 
Summers U.S. Department Justice, 140 F.3d 1077 (D.C. Cir. 1998) ....................................31 Sussman U.S. Marshals Service, 494 F.3d 1106 (D.C. Cir. 2007)  ...................... 31-32, 42, 
 
Truitt U.S. Department State, 897 F.2d 540 (D.C. Cir. 1990)  .............................................15 
 
Washington Post U.S. Department Defense, 766 Supp. (D.D.C. 1991)  .......................23 
 
Weisberg U.S. Department Justice, 745 F.2d 1476 (D.C. Cir. 1984)  ............................15, 
 
 
Rules, Statutes, and Executive Orders U.S.C.  552(b)(1)  .....................................................................................................................22 U.S.C.  552(b)(3)  .....................................................................................................................43 Executive Order 13526, C.F.R. 707 (2010)  .............................................. 12-14, 24, 26-27, 
 
Fed.R.Civ.P. 56(c)  ........................................................................................................................15 
 
 Plaintiff Judicial Watch, counsel, respectfully submits this memorandum opposition Defendants motion for summary judgment and support Plaintiffs cross-motion for summary judgment. addition, pursuant LCvR 7(f), Plaintiff requests oral hearing Defendants motion for summary judgment and Plaintiffs cross-motion for summary judgment. grounds therefor, Plaintiff states follows: 
MEMORANDUM LAW INTRODUCTION. 

 Following President Obamas announcement that American forces killed Osama bin Laden and took custody his body and confirmation that photographs and video recordings were taken bin Laden, Judicial Watch, along with numerous news organizations, filed Freedom Information Act (FOIA) requests with the government for copies such photographs and video recordings. with other significant events the past 100 years, news organizations sought visual record this historic event.  Based various accounts, considerable debate occurred within the government how respond the FOIA requests.  Eventually, the American people were told that decision was made the President.  The photographs would not released.  However, what has been ignored and glossed over are the well-defined requirements FOIA. 
 Based the declarations submitted Defendants U.S. Department Defense (DoD) and Central Intelligence Agency (CIA) (collectively Defendants), Defendants are not entitled summary judgment because they have failed satisfy even the most basic requirements FOIA.  Defendants have not presented sufficient evidence that adequate search for records was conducted.  Nor have they provided any evidence whether the withheld records are 
photographs video recordings, accounted for the various circumstances which the records were created, sufficiently correlated specific claims exemption particular records categories records. addition, Defendants inexplicably fail demonstrate that the records were properly classified pursuant President Obamas Executive Order.  For these reasons, Defendants motion for summary judgment should denied, and Defendants should ordered provide sufficient evidence satisfy their burdens under FOIA. addition, Plaintiff entitled summary judgment because regardless whether Defendants are able provide adequate declarations and sufficient evidence, Defendants, least with respect some the records, cannot legally justify their claims exemption.  Plaintiff does not seek the production any photographs video recordings that have been properly classified would actually cause harm the national security revealing intelligence methods the identity U.S. personnel classified technology.  Plaintiff solely seeks those records that have not been properly classified well those records for which military intelligence secrets would revealed. 
 Under FOIA, Plaintiff and the American people have right these historical artifacts capture this moment. date, the government has failed provide legally sufficient justification for why such records must not released.  Therefore, the government must held accountable.  The law requires it. 
  
II. FACTUAL BACKGROUND. Public Information the May 2011 Raid Osama bin Ladens     Compound.1 The following factual background presented for context only and provide the Court with depiction the significant material that publicly available about the raid. May 2011, President Obama ordered the now-historic raid Osama bin Ladens compound Abbottabad, Pakistan.  The mission, officially named Operation Neptune Spear, commenced 1:22 p.m. when Leon Panetta, then-Director the CIA, gave word the Presidents orders Admiral William McRaven, Commander the United States Special Operations Command. approximately 3:00 p.m., President Obama joined members his national security team the Situation Room monitor the raid.  According sources, those present watched night-vision images taken from drone while Director Panetta narrated the mission. 
 The raid was carried out approximately two dozen helicopter-borne United States Navy SEALs from the Red Squadron the Joint Special Operations Commands United States Naval Special Warfare Development Group (DEVGRU).  They operated two teams and were reportedly equipped with Heckler Koch 416 carbine military assault rifles (with attached suppressors), night-vision goggles, body armor and handguns.  The two teams originated the Bagram Airbase northeastern Afghanistan and flew into Pakistan two modified Black Hawk helicopters.  According media reports, the helicopters had never been publicly seen prior the mission. 
 Once the SEALs entered Pakistan, the helicopters landed outside the compound and the SEALs scaled the walls get inside.  The SEALs advanced into the house, breaching walls and 
doors with explosives.  Once inside the compound, the SEALs encountered the residents the compound's guest house, the main building the first floor where two adult males lived, and the second and third floors where bin Laden lived with his family.  According reports, Abu Ahmed al-Kuwaiti, bin Ladens courier, opened fire the first team SEALs with AK-47 from behind the guesthouse door, and firefight took place between him and the SEALs which al-Kuwaiti was killed.  Additionally, al-Kuwaitis relative was shot and killed, before could reach weapon found lying nearby, the SEALs' second team the first floor the main house.  Also, the SEALs were approached one bin Ladens adult sons who rushed towards the SEALs the staircase the main house and was shot and killed the second team. 
 Once the SEALs cleared the first floor, the SEALs found bin Laden his bedroom the third floor.  Once inside, member the SEALs team shot bin Laden the chest and then the head. The SEAL subsequently radioed, For God and countryGeronimo, Geronimo, Geronimo, and then, Geronimo E.K.I.A..  Still the situation room, President Obama said, We got him.  The SEALs collected information and took photographs, removed bin Ladens corpse, and left the compound. 
 The helicopters returned Bagram Airfield and the body bin Laden was then flown from Bagram the aircraft carrier Carl Vinson V-22 Osprey escorted two U.S. Navy F/A-18 fighter jets.  Once aboard the Carl Vinson, bin Ladens body was washed, wrapped white sheet, and placed weighted plastic bag. officer read prepared religious remarks which were translated into Arabic native speaker. Afterward, bin Ladens body was placed onto flat board. The board was tilted upward one side and the body slid off into the sea. Public Information the Content and the Decision Release Post    Mortem Photographs and Video Recordings Osama bin Laden. 
 
 Soon after the President announced the existence and success the raid, was reported that photographs and video recordings bin Ladens body had been created.  Several news sources described the photographs belonging least three different categories.  The categories included: (1) photographs taken within the compound Pakistan; (2) photographs bin Ladens body hangar after was brought Bagram Airbase Afghanistan; and (3) photographs taken prior and during the burial sea the U.S.S. Carl Vinson, which depicted bin Ladens body both before shroud was placed and after was wrapped the shroud.  See e.g., Stacia Deshishku, Even more details the OBL photos, CNN (May 2011, 10:59 AM), attached Exhibit the Declaration Michael Bekesha (Bekesha Decl.). 
 Following President Obamas announcement, the Department Defense held background briefing about the raid.  News Transcript, DoD Background Briefing with Senior Defense Officials from the Pentagon and Senior Intelligence Officials Telephone U.S. Operations Involving Osama bin Laden, U.S. Department Defense (May 2011), attached Exhibit Bekesha Decl.  During the briefing, reporter asked, Do you plan release any proof death, such images video the burial? And why havent you done that yet?  Id. which, senior intelligence official answered, I think need take that question and get back both.  Id.  Later that day 2:00 p.m., Jay Carney, White House Press Secretary, and John Brennan, Assistant the President for Homeland Security and Counterterrorism, held press briefing.  News Transcript, Press Briefing Press Secretary Jay Carney and Assistant the President for Homeland Security and Counterterrorism John Brennan, 5/2/2011, The White House (May 2011), attached Exhibit Bekesha Decl.  When asked where [are you] 
this point the idea releasing photos bin Laden, Mr. Brennan responded, We are less than hours from the arrival target those individuals. have released tremendous amount information date. are going continue look the information that have and make sure that are able share what can, because want make sure that not only the American people but the world understand exactly what happened, and the confidence that have that was all conducted accordance with the mission design.  Id. further stated, We are going everything can make sure that nobody has any basis try deny that got Osama bin Laden.  And so, therefore, the releasing information, and whether that includes photographs, this something determined.  Id. 
 Twenty-four hours later decision had yet been made.  During his afternoon press briefing May 2011, Mr. Carney explained, I dont have any updates [the release video images], except echo what John Brennan said this morning, which that were obviously reviewing information.  Weve made great deal available the public remarkable time; were talking about the most highly classified operation that this government has undertaken many, many years.  And the amount information weve tried provide you this short period time quite substantial. will continue review that and make decisions about the appropriateness releasing more information that review continues on.  News Transcript, Press Briefing Press Secretary Jay Carney, 5/3/2011, The White House (May 2011), attached Exhibit Bekesha Decl.  Additionally, Mr. Carney had exchange about some the considerations being accounted for: And lastly, the previous administration did release photographs high-value targets  Uday and Qusay Hussein just two examples.  What would hold you back from doing this? seemed have gone off relatively without hitch, far know.  Why would you not release photograph bin Laden? 
Mr. Carney: Well, candid, there are sensitivities here terms the appropriateness releasing photographs Osama bin Laden the aftermath this firefight, and were making evaluation about the need that because the sensitivities involved.  And review this information and make this decision with the same calculation many things, which what were trying accomplish and does serve any way harm our interests.  And that not just domestic, but globally. Can you explain sensitivities? Because its gruesome photograph, that that 
 
Mr. Carney: Its fair say that its gruesome photograph. That could inflammatory?  Thats the sensitivity youre  
 
Mr. Carney: certainly possible that  and this issue that are taking into consideration, that could inflammatory. 
 
Id.  The same day, CIA Director Panetta was asked Brian Williams NBC Nightly News whether post mortem photographs bin Laden would released the public.  News Transcript, Leon Panetta talks about whether not photo Osama bin Laden will released the public, NBC Nightly News (May 2011), attached Exhibit Bekesha Decl.  Director Panetta responded, I dont think theres  there was any question that ultimately photograph would presented the public.  Obviously, Ive seen those photographs, weve analyzed them, and theres question that its bin Laden.  Id.  Director Panetta continued, I think theres question that there were concerns and there were questions that had debated about just exactly what kind impact would these photos have.  But the bottom line that, you know, got bin Laden, and think have reveal the rest the world the fact that were able get him and kill him.  Id.  Hence, May 2011, decision whether release the photographs had been made.  The CIA Director believed, however, that least some photographs would ultimately produced.  
 However, the following afternoon, May 2011, final decision was made.  Mr. Carney began his 2:00 p.m. press briefing stating, [T]he President has made the decision not release any the photographs the deceased Osama bin Laden.  News Transcript, Press Briefing Press Secretary Jay Carney, 5/4/2011, The White House (May 2011), attached Exhibit Bekesha Decl. then read the interview President Obama gave CBS Minutes.  See Defendants Memorandum Law Support Defendants Motion for Summary Judgment (Defs Mem.)  Subsequently, Mr. Carney had the following exchanges with reporters: was he, the time period youre discussing, the moment had the photos until now that know the answer, was grappling with this all? was his stance clear and was just gathering other opinions? 
 
Mr. Carney:  Well, dont know about the evolution his decision-making process.  When Ive heard him discuss it, held this opinion very firmly.  And has held that opinion very firmly.  But this very short period time.  Obviously wanted hear the opinions others, but was very clear about his view this.  And obviously his decision categorical. One other question.  Director Panetta, one the interviews did yesterday, said, The government obviously has been talking about how best this, but dont think theres there was any question that ultimately photograph would presented the public.  How you explain that? 
 
Mr. Carney: What would say that there are compelling arguments for, general, the release information and theres discussion had about the pros and cons.  And the President engaged that discussion and made decision.  Every member the national security team aware and expressed the downside releasing, which has think weighed heavily the President terms the potential risks would pose Americans serving abroad and Americans traveling abroad. 
 
----- Well, that understand, but Im saying his comment was there was question that photograph would released obviously that was wrong. 
 
Mr. Carney: Well, look, the thing the President made this decision. consulted members his national security team.  Theres reasonable arguments made.  The President felt very strongly and made the decision made. 
 
----- just want clarify, you said that the President, based your observations, had always held the position that these photos should not released? 
 
Mr. Carney: Well, dont know just meant that were now two and half days since this took place, that know had this heard him express this view yesterday.  But there was still was gathering the thoughts and views others his team. long held impossible statement make since were only talking about couple days. 
 
----- And then, know you answered this, but can you clarify you said visual evidence all going released, including video anything that 
 
Mr. Carney: Thats right. [The] visual record Osama bin Ladens death his deceased body. 
 
Press Briefing Press Secretary Jay Carney, 5/4/2011, attached Exhibit Bekesha Decl. (emphasis added).  Similarly, the same day, Mark Toner, Acting Deputy Department Spokesman for the Department State informed reporters: 
Id refer you the White House regarding the decision not release photo. And just the Secretarys role, would just say that she conveyed the State Departments views. This was interagency discussion, and Brennan  John Brennan and others have said, there was very deliberate process  towards making this decision, and she conveyed the State Departments views. But dont want get into the substance those views. 
 
News Transcript, Daily Press Briefing Acting Deputy Department Spokesman Mark Toner, 5/4/2011, U.S. Department State (May 2011), attached Exhibit Bekesha Decl.  Besides CIA Director Panetta and Secretary Clinton, Robert Gates, then-Secretary the Department Defense, also weighed the decision withhold all post mortem photographs 
and video recordings bin Laden.  Secretary Gates advocated for withholding the records because feared that the photographs would electronically altered.  Josh Gerstein, Gates: Obama Kept bin Laden photo secret due Photoshop fears, Politico (May 12, 2011), attached Exhibit Bekesha Decl.  Secretary Gates stated:  
One the things that think concerns Secretary Clinton and the risk not only the pictures themselves inflaming people who were bin Ladens adherents and radical extremists, but were also worried about the potential for manipulation those photos and doing things with those photos that would pretty outrageous terms provoking reaction that might fact put our troops greater risk both Iraq and Afghanistan. 
 
Id.  Once the decision was made, was final.  The government decided not release any post mortem photographs video recordings bin Laden. 
 However, members Congress were unsatisfied with the Presidents decision.  The CIA therefore allowed members the Armed Service and Intelligence Committees Congress view some the photographs the CIA headquarters.  After viewing the photographs, Senator Jim Inhofe was interviewed Elliott Spitzer CNN.  Senator Inhofe, member the Senate Armed Services Committee, described what saw: 
There are pictures. The first were taken the compound it's obvious its right after the incident took place. they're pretty grueling. The other three were taken the ship. And they included the burial sea. would say this. Three the first pictures were Osama when was alive. And they did this for the purpose being able look those and seeing the nose, the eyes and his relationship for positive identification purposes. And that was good. 
 
One the things that was you know had make own conclusion this because they're not really sure. One the shots went through ear and out through the eye socket, went through the eye socket and out and then exploded. was that kind ordinance that was. 
 
Now that caused the brains hanging out the eye socket, that was pretty gruesome. 
 
But the revealing shots really, thought, the pictures, were the three that were taken the USS Vinson the Northern Arabian Sea, and they were the ones that showed him during the cleanup period. the cleanup period, had some kind undergarment, very, very pale. 
 
But they had taken enough blood and material off his face was easier identify who was. Now those are the ones and then course the burial sea, had the transition first all, identifying who was. Then course the fact that they buried him sea. 
 
News Transcript, Bin Ladens Diaries Planned Attacks; Senator Views Pictures bin Ladens Body; China Interested Stealth Technology, CNN: the Arena (May 11, 2011), attached Exhibit Bekesha Decl. addition, Senator Inhofe stated, I still believe they should release these pictures  some the pictures, the public. least the ones during the cleanup period the USS Vinson.  Thats just personal opinion.  Id.  Also, Senator Inhofe discussed whether the photographs should withheld prevent inflaming overseas populations:  
And don't buy this whole concept that's coming out the White House that, you know, you don't want this, you might make the terrorists mad. Well, you know, those people want kill all anyway. They've tried times, maybe more than that, during the since 9/11 very sophisticated plans some inflict lot harm America.  We've stopped each one them. they have way doing it, they're going anyway. It's not going because they have seen some gruesome picture  
 
Id.  Besides members Congress, many others wanted visually capture this historical event. least six entities, including Plaintiff, filed FOIA request for the records.  John Hudson, Look Who's FOIAing the Bin Laden Death Photo, Atlantic Wire (May 2011), attached Exhibit Bekesha Decl. Executive Order 13526 Establishes Uniform System for Classifying National   Security Information. 
 
 President Obama issued Executive Order 13526 December 29, 2009. entitled Classified National Security Information and prescribes uniform system for classifying, safeguarding, and declassifying national security information while recognizing that democratic principles require that the American people informed the activities their Government.  Exec. Order No. 13526, C.F.R. 707 (2010) (EO 13526).  The Executive Order divided into six parts; however, Part  Original Classification the only one relevance the instant case.  First, the Executive Order establishes the conditions which material may originally classified.  The conditions are: 
(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 the national security, which includes defense against transnational terrorism, and the original classification authority able identify describe the damage. 13526,  1.1.  Second, 13526 creates three levels classification. issue the instant case the Top Secret level which can only applied material that reasonably could expected cause exceptionally grave damage the national security. 135256,  1.2.  Third, the Executive Order identifies who has the authority classify material. 135256,  
1.3.  Fourth, 13526 identifies the eight classification categories which material must pertain one more classified. The classification categories, issue the instant case, are: 
(a) military plans, weapons systems, operations; 

(c) intelligence activities (including covert action), intelligence sources methods, cryptology; 

(d) foreign relations foreign activities the United States, including confidential sources; 135256,  1.4. 
 Fifth, 13526 requires that the time classification, the individual classifying the material must establish specific date event for declassification. 135256,  1.5.  Sixth, the Executive Order instructs that the individual classifying the material indicate 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  

(5) concise reason for classification that, minimum, cites the applicable classification categories section 1.4 this order. 135256,  1.6.  Seventh, 13526 prohibits the classification material 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 the national security. 135256,  1.7. addition,  1.7 imposes additional requirements for classification information not previously classified and subject FOIA request. 
III. SUMMARY THE ARGUMENT. properly withhold material under FOIA, Defendants must satisfy certain, general burdens under the statute well meet specific burdens associated with their claims exemption.  Defendants have failed so. 
 First, Defendants fail satisfy basic, general requirements FOIA.  Specifically, Defendants not demonstrate that they have conducted adequate search for records responsive Plaintiffs FOIA request. addition, Defendants not identify the specific type media each record is.  Also, Defendants not adequately describe each withheld record.  Finally, Defendants not correlate specific claims exemption particular records. 
 Second, Defendants fail satisfy specific burdens associated with claims Exemptions and  With respect Exemption Defendants not demonstrate that they complied with the proper classification procedures. addition, Defendants not demonstrate that each withheld record pertains one more classification category.  Also, Defendants not demonstrate, they must, that the release each withheld record would cause exceptionally grave damage the national security.  Finally, with respect Exemption Defendants not demonstrate that each withheld record pertains intelligence activities and methods. 
 Because Defendants fail satisfy their general and specific burdens, Defendants motion for summary judgment should denied, and Plaintiffs cross-motion for summary judgment should granted. 
IV. ARGUMENT. Defendants Search for and Decision Withhold All Records Are    Reviewed Novo. FOIA litigation, all litigation, summary judgment appropriate only when the pleadings and declarations demonstrate that there genuine issue material fact and that the moving party entitled judgment matter law.  Anderson Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Fed.R.Civ.P. 56(c). FOIA cases, decisions government agency withhold disclose information under FOIA are reviewed novo.  Judicial Watch, Inc. U.S. Postal Service, 297 Supp. 252, 256 (D.D.C. 2004). reviewing motion for summary judgment under FOIA, the court must view the facts the light most favorable the requester.  Weisberg U.S. Department Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). Defendants Fail Demonstrate that They Conducted Adequate Search    for Responsive Records. 
 
 For government agency obtain summary judgment the adequacy the search, the agency must demonstrate beyond material doubt that its search was reasonably calculated uncover all relevant documents.  Nation Magazine U.S. Customs Service, F.3d 885, 890 (D.C. Cir. 1995) (quoting Truitt U.S. Department State, 897 F.2d 540, 542 (D.C. Cir. 1990)).  Specifically, agency must make good faith effort conduct search for the requested records, using methods which can reasonably expected produce the information requested, and cannot limit its search only one record system there are others that are likely turn the information requested.  Nation Magazine, F.3d 890 (internal citations omitted) (emphasis added).   
 Defendants contend that DoD conducted reasonable search and that did not locate any records responsive Plaintiffs FOIA request.  Defs Mem. support their argument, Defendants submitted the Declaration William Kammer, Chief the Freedom Information Division, Executive Services Directorate, Washington Headquarters Service.  Mr. Kammer testifies that oversees the processing initial FOIA requests for documents within the possession and control the Office the Secretary Defense (OSD) and the Office the Chairman the Joint Chiefs Staff (OCJCS).  Declaration William Kammer (Kammer Decl.)  addition, oversees the processing FOIA Appeals for the OSD, OCJCS, and the U.S. Special Operations Command (USSOCOM).  Id. 
With respect Plaintiffs FOIA request, Mr. Kammer testifies that DoD determined that only OCJCS, USSOCOM, and the Department the Navy were the likely components have responsive records.  Id.   Therefore, DoD searched for all hard copy and electronic records within these entities.  See id.  and  Significantly, however, according Mr. Kammers declaration, DoD did not search least one critical location  the Office the Secretary. itself, this demonstrates that DoD conducted unreasonably narrow search. referenced above, has been widely reported that Secretary Gates advised President Obama about whether release post mortem photographs bin Laden. able provide such advice, nearly inconceivable that DoD did not have possession the photographs. minimum, search should have been conducted the OSD. addition, Mr. Kammer does not testify whether any records exist depicting the period after the SEALs left Pakistan with bin Ladens body. stated above, the SEALs returned Bagram Airfield Afghanistan before military personnel transported bin Ladens body the U.S.S. Carl Vinson V-22 Osprey escorted two U.S. Navy F/A-18 fighter jets.  Presumably, DoD personnel were charge the U.S. Army military base, during the transport military aircraft, and finally upon military aircraft carrier. photographs and video recordings were created subsequent the completion the intelligence mission within Pakistan2  reported numerous media organizations  highly likely that such records would the possession DoD. noted above, CNN reported that one category records received the White House were photographs bin Ladens body taken hangar after was brought Bagram Airbase Afghanistan. 
Also, based Mr. Kammers declaration, not apparent that Defendants conducted search the Joint Worldwide Intelligence Communications System (JWICS).  JWICS system interconnected computer networks used DoD and the U.S. Department State transmit classified information packet switching over TCP/IP secure environment.  Because has also been reported that Secretary State Hillary Clinton provided advice President Obama about whether release post mortem photographs bin Laden, more than plausible that responsive records were transmitted to/from DoD the U.S. Department State via JWICS. light these three critical omissions Mr. Kammer, clear that DoD should have conducted broader search.  Nation Magazine, F.3d 890 (internal citations omitted).  Therefore, because DoD did not conduct a search reasonably calculated uncover all relevant 
documents[,] DoD must compelled conduct proper search all record systems, including that the Office the Secretary, for records responsive Plaintiffs request, and Plaintiff entitled summary judgment regarding the inadequacy DoDs original search.  Steinberg U.S. Department Justice, F.3d 548, 551 (D.C. Cir. 1994), quoting Weisberg, 745 F.2d 1485. Defendants Vaughn Declarations Are Inadequate. 
 
 The typical FOIA case distorts the traditional adversary nature our legal systems form dispute resolution.  Judicial Watch, Inc. Food and Drug Administration, 449 F.3d 141, 145 (D.C. Cir. 2006) (citations omitted).  When party submits FOIA request, faces asymmetrical distribution knowledge where the agency alone possesses, reviews, discloses, and withholds the subject matter the request.  Id.  Because this lopsided relationship, the burden the agency establish its right withhold information from the public.  Coastal States Gas Corporation. U.S. Department Energy, 617 F.2d 854, 861 (D.C. Cir. 1980). agency withholding records must supply a relatively detailed justification, specifically identifying the reasons why particular exemption relevant and correlating those claims with the particular part withheld document which they apply.  Mead Data Central, Inc. U.S. Department the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977) (emphasis added). Dellums Powell, 642 F.2d 1352, 1361 (D.C. Cir. 1980), the D.C. Circuit held that the government agency was required demonstrat[e] the applicability the exemptions invoked each document segment withheld.  King U.S. Department Justice, 830 F.2d 210, 224 (D.C. Cir. 1987) (citing Dellums, 642 F.2d 1361) (emphasis original).  Additionally, the government agencys submissions must adequately describe[] each withheld record deletion 
and set[] forth the exemption claimed and why that exemption relevant.  King, 830 F.2d 224 (quoting Paisley Central Intelligence Agency, 712 F.2d 686, 690 (D.C. Cir. 1983)).  Such specificity necessary that FOIA requester able contest the [government agencys] basis for the redactions.  Campbell U.S. Department Justice, 231 Supp. (D.D.C. 2002). 
 The chief declaration submitted Defendants support their motion for summary judgment fails satisfy this well-established standard.  See generally Declaration John Bennett, Director the National Clandestine Service the CIA (Bennett Decl.).  First, Defendants fail identify the specific type media each record is.  Plaintiff requested all photographs and video recordings taken bin Laden following the raid. his declaration, Director Bennett asserts that result the CIAs search, unique records responsive Plaintiffs request were located.  Id.  11. addition, states that the records are photographs and/or video recordings taken [bin Laden] about May, 2011.  Id. (emphasis added).  Based his statement, Defendants have not demonstrated whether all records are photographs, video recordings, some sort hybrid the two types media. Defendants burden demonstrate whether the responsive records are photographs video recordings, and therefore, Defendants should ordered provide such evidence.3 Plaintiff reserves the right challenge the reasonableness Defendants search based any such supplemental evidence. all unique records are photographs, Defendants must demonstrate that they searched for video recordings.  Based their current submissions, unclear whether such search was performed. 
 
 Second, Defendants fail adequately describe each withheld record.  Nor Defendants adequately describe categories records, specify which particular records fall into each category, state whether any the records fall into more than one category.  Rather, Defendants describe the records consisting the following five categories records generally:  (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.  Defs Mem. 4-5. unclear, however, whether these categories accurately describe the records. noted above, Senator Inhofe viewed photographs depicting bin Ladens body after the raid. stated that the photographs viewed fell into only two categories: (1) photographs taken the compound Pakistan and (2) photographs taken aboard the U.S.S. Carl Vinson, which included the cleanup period and the burial sea. addition, there were numerous news reports that the President received three categories photographs.  The three categories included: (1) photographs taken within the compound Pakistan; (2) photographs bin Ladens body hangar after was brought Bagram Airbase Afghanistan; and (3) photographs taken prior and during the burial sea the U.S.S. Carl Vinson, which depicted bin Ladens body both before shroud was placed and after was wrapped the shroud.  Defendants fail even address whether photographs were taken Bagram Airbase whether they are included the records. some instances, categorization may appropriate  Plaintiff does not concede that this such instance4  however [t]he availability categorization does not ... supplant the Courts have recognized that a system for categorizing Exemption claims may appropriate, particularly where the documents question are voluminous and the same exemption applies large number segments.  King, 830 F.2d 224.  Defendants have not 
demonstrated that unique records are unduly voluminous that the reasons for withholding the records are the same for large number the records. 
demand for particularity.  King, 830 F.2d 224. the instant case, Defendants fail satisfy this basic requirement FOIA.  Defendants have not demonstrated how many records fall into each category whether these categories are even accurate and comprehensive.  Based public statements U.S. Senator well senior government official, is, minimum, unclear whether Defendants descriptions are accurate and complete. Defendants burden adequately describe the records categories records, and therefore, Defendants should ordered provide such evidence. 
 Third, Defendants fail adequately describe each withholding and the consequences disclosing the sought-after information.  Id. 223-224. Plaintiff will demonstrate below, Defendants fail correlate specific claims exemption with particular records.  Defendants have not demonstrated that all records are being properly withheld under Exemptions and Defendants burden correlate specific claims exemption particular records categories records, and therefore, Defendants should ordered provide such evidence. sum, Defendants clearly fail meet some the most basic and general requirements FOIA.  Defendants have not demonstrated that they conducted search reasonably calculated uncover all responsive records.  Nor have they provided sufficient evidence concerning the types records that they continue withhold and any specific reason for withholding them. addition, they fail correlate specific claims exemption with particular records.  Defendants motion for summary judgment therefore must denied, and they should ordered provide sufficient evidence that they have satisfied their burdens under FOIA or, they cannot provide 
such evidence, ordered search for and produce all non-exempt records responsive Plaintiffs FOIA request. Defendants Fail Demonstrate that All Records Are Being Properly    Withheld under Exemption 
 
 Defendants claim withholding all responsive records pursuant Exemption  Defs Mem. 10-17.  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). other words, government agency may only invoke Exemption it complies with [the] classification procedures established the relevant executive order and withholds only such material conforms the orders substantive criteria for classification.  King, 830 F.2d 214. 
 Additionally, courts have recognized that even when applying exemption conclusory affidavits that merely recite statutory standard, are overly vague sweeping will not, standing alone, carry the governments burden.  International Counsel Bureau U.S. Department Defense, 723 Supp. 54, (D.D.C. 2010) (quoting Larson U.S. Department State, 565 F.3d 857, 864 (D.C. Cir. 2009).  Similarly, the D.C. Circuit has made clear that a categorical description redacted material coupled with categorical indication anticipated consequences disclosure clearly inadequate support withholding records, even under exemption 1.  International Counsel Bureau, 723 Supp. (quoting Campbell U.S. Department Justice, 164 F.3d 20, (D.C. Cir. 1998)). other words, even the national security context, the government must provide a relatively detailed justification why particular record being withheld.  Mead Data Central, Inc., 566 F.2d 251. Defendants fail demonstrate that they have complied with the     classification procedures 13526. 
 
 To classified properly, document 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); 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.).  Defendants rely Director Bennetts declaration support their claim that Defendants have satisfied 13526s procedural criteria.  However, Director Bennetts declaration does little more than present self-serving, conclusory statements such I have determined that the responsive records issue this case are currently and properly classified accordance with the substantive and procedural requirements 13526.  Bennett Decl.  13.  Director Bennetts declaration simply fails demonstrate that Defendants complied with the specific classification procedures 13526. 
 First, Defendants fail identify who classified the records.  Director Bennett testifies who generally has the authority classify information TOP SCERET and who generally has the authority delegate such authority.  Bennett Decl.  14-15. addition, Director Bennett states that the Director the CIA has delegated original TOP SECRET classification authority me. original classification authority, authorized conduct classification reviews and make original classification decisions.  Id.  18.  Yet, Director Bennett does not testify that personally classified the records.  Nor does state that any other authorized official actually classified the records. Director Bennett testifies, only the President, the Vice President, agency heads, and individuals who had the authority delegated them the President, the Vice President, agency heads have the authority classify information TOP SECRET.  Id.  14.  Because the universe individuals who have original TOP SECRET classification authority minimal, Defendants must demonstrate that the individual who classified the records TOP SECRET had the authority so. Defendants burden demonstrate who classified the records and whether that individual had the proper authority so, and Defendants should ordered provide such evidence. individual without the proper authority classified the records, Defendants have not complied with the procedural requirements 13526. 
 Second, Director Bennett does not specifically testify when the records were classified.  Director Bennett only states that September 26, 2011, the records are currently and properly classified.  Yet, the day Director Bennett drafted and signed his declaration inconsequential.  The operative date whether the classification occurred according proper procedures the date classification. stated above, different procedures exist for records that were classified prior subsequent the receipt FOIA request.  Once FOIA request has been received, government agency can only classify material if 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) (emphasis added).  The raid and the creation the records occurred May 2011.  Bennett 
Decl.  Plaintiff and others submitted FOIA requests for the records early May 2011.5 stated above, President Obama explained around 1:00 p.m. May 2011 that had made the decision not release post mortem photographs bin Laden. addition, then-Director Panetta stated the evening May 2011 that least some the photographs would released. other words, the morning May 2011, decision had been reached.  Since Plaintiff sent its FOIA request May 201, more than likely that the records were classified after FOIA request for the records was received.  Yet, Defendants have not presented any evidence whether the records were classified between their creation and the Presidents comments, after the Presidents comments and prior September 26, 2011. addition, the records were classified after FOIA request was received, Defendants have failed demonstrate that the records were classified document-by-document basis.  Also, stated above, Defendants have not presented any evidence who classified the records.  Therefore, Defendants have 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. Defendants burden demonstrate specifically when the records were classified, and Defendants should ordered provide such evidence. the records were classified the morning May 2011 and the records were not classified document-by-document basis individual with proper authority, Defendants have not complied with the procedural requirements 13526. Mr. Kammer testifies that the FOIA request dated May 2011 was received May 2011.  Kammer Decl.  
 Third, Defendants fail demonstrate the date event which the records will declassified.  Pursuant Section 1.5, At the time original classification, the original 
classification authority shall establish specific date event for declassification based the duration the national security sensitivity the information. 13526,  1.5(a).  Director Bennett way references this requirement.  See Bennett Decl.  13-22. Defendants burden demonstrate that declassification date was established, and Defendants should ordered provide such evidence. declassification date was not established, Defendants have not complied with the procedural requirements 13526 
 Fourth, Defendants fail demonstrate that the records were properly identified and marked. stated above, at the time original classification, agency must indicate[] manner that immediately apparent very specific information. 13526,  1.6.  Director Bennett does not testify that any the records have been properly marked that the required information immediately apparent. Defendants burden demonstrate whether the records were properly identified and marked, and Defendants should ordered provide such evidence. the records were not properly identified and marked, Defendants have not complied with the procedural requirements 13526. 
 The declarations submitted Defendants are similar the inadequate declarations submitted and rejected Allen Central Intelligence Agency, 636 F.2d 1287 (D.C. Cir. 1980). Allen, the CIA presented affidavits that were drawn conclusory terms that merely parrot the language the Executive Order.  636 F.2d 1292. that case, the D.C. Circuit found that because the inadequacy the affidavits, there was basis on which trial court might conclude that the procedural requirements [the governing Executive Order] have been satisfied.  Id. addition, the Court noted that the two affidavits indicate neither the identity the original classifier nor the date event for declassification review.  Id.  The 
Court therefore remanded the case the district court for additional proceedings.  Id. 1300. contrast, based submitted declarations, Judge Henry Kennedy Council for Livable World U.S. Department State, 96-CV-1807, 1998 U.S. Dist. LEXIS 23643 (D.D.C. Nov. 23, 1998) found that because the U.S. Department State did not classify the documents accordance with proper procedure, the documents must disclosed.  Because Defendants have failed demonstrate that they have complied with the classification procedures 13526, minimum, Defendants should ordered provide evidence their compliance. Defendants cannot demonstrate that they have complied with the classification procedures 13526, Defendants must produce all records Plaintiff. Defendants fail demonstrate that all records conform 13526s substantive criteria for classification. 
 
 Along with demonstrating that complied with the classification procedures 13526, government agency must also demonstrate that the withheld material conforms the orders substantive criteria for classification.  King, 830 F.2d 214. conform 13526s substantive criteria for classification, the agency must demonstrate that withheld records pertain one the classification categories contained Section 1.4 and that public disclosure the withheld information reasonably could expected result damage the national security. 13526,  1.1(4); see also ACLU U.S. Department Defense, 628 F.3d 612, 623-624 (D.C. Cir. 2011); Larson, 565 F.3d 863-864.   
 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, 164 F.3d 30; see also International Counsel Bureau, 723 Supp. 63. addition, declaration may insufficient due lack detail and specificity.  Campbell, 164 F.3d 30. other words, despite the deference given the government, declaration must meet certain standards order justify grant summary judgment.  Id.  Defendants fail provide sufficient detail and specificity with respect which records pertain which, any, classification categories and whether the release each and every record reasonably could expected result exceptionally grave damage the national security. Defendants fail demonstrate that all records pertain 
    one more the classification categories 13526,  1.4. stated above, 13526,  1.4 requires that classified material pertain one more specified categories.  Director Bennett testifies that all records pertain to: 
  (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.  21.  Defendants however fail satisfy their burden demonstrating that each and every record pertains one more these three categories. 
 Defendants assert that they have submitted three affidavits support their claim 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, including confidential sources.  Defs Mem. 11.  However, upon close examination, Defendants submit only one declaration that purportedly 
demonstrates that all records pertain military plans, weapons systems, operations; only one declaration that purportedly demonstrates that some records pertain intelligence activities (including covert action), intelligence sources methods, cryptology; and declaration that demonstrates that any records pertain foreign relations foreign activities the United States, including confidential sources. addition, the evidence submitted Defendants more than conclusory declarations with overly vague and sweeping statements. his declaration, Director Bennett testifies that the release certain responsive records could reveal intelligence activities and methods that were employed during after the operation.  Bennett Decl.  (emphasis added). other words, Director Bennett only testifies that some the records pertain intelligence activities, intelligence sources methods. does not describe which records they are.  Nor does describe how many there are. addition, relies overly vague and sweeping statements justify his assertion.  International Counsel Bureau, 723 Supp. 63. simply states 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. 29.  Director Bennett then testifies 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.  Although Plaintiff does not concede that such 
records would reveal any information not already publicly available,6 Plaintiff recognizes that such records might properly withheld prevent the disclosure classified intelligence methods, and Defendants can sufficiently identify such records and provide evidence that they have been properly classified, Plaintiff does not seek their release.  However, Plaintiff demonstrated earlier, there are least five unique categories records being withheld Defendants.  Only some the records were used conduct facial recognition analysis.  The other categories include photographs that were taken: (1) inside the compound Abbottabad, Pakistan, where bin Laden was killed; (2) when bin Ladens body was transported from the Abbottabad compound the location where was buried sea; (3) depicting the preparation bin Ladens body for the burial; and (4) during the burial itself. addition, Senator Inhofe described viewing specific photographs taken aboard the U.S.S. Carl Vinson, which included the cleanup period and the burial sea.  Also, senior government official described some the records depicting bin Ladens body hangar after was brought Bagram Airbase Afghanistan and depicting bin Ladens body wrapped shroud preparation for the burial sea. other words, Director Bennett describes specific subset the records that must withheld; does not offer full accounting each and every record being withheld.  Director When considering Defendants claim the sensitive equipment used identify bin Laden, should noted that reports have indicated that the SEALs used equipment exactly the same similar facial recognition devices known SEEK II and/or HIIDE 5.  Marcus Weisgerber, Stealth Helo, Other High-Tech Gear Used Raid, Defense News (May 2011); CSI Bin Laden: Commandos Use Thumb, Eye Scans Track Terrorists, Gizmodo (May 2011), attached Exhibit the Bekesha Decl.  These devices are the most widely-deployed, handheld multi biometric devices.  Their technical specifications and even user manual are easily accessible the Internet.  Exhibit the Bekesha Decl. addition, DoDs own website provides the public with the opportunity purchasing photographs and video recordings military personnel using this equipment and discussing its capabilities.  Exhibit Bekesha Decl. 
 
Bennett simply fails demonstrate how these other records would reveal classified intelligence methods.   
 Similarly, Director Bennett testifies 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. (emphasis added).  Again, this statement not specific and overly broad and sweeping.  International Counsel Bureau, 723 Supp. 63.  Plaintiff has only sought photographs and video recordings bin Laden.  Plaintiff does not seek all photographs and video recordings taken during after the raid.7  Therefore, not plausible that each and every one the records contain visuals equipment and other tools.8  Because Director Bennett uses the inherently imprecise phrase certain responsive records and other images describe the records being withheld because they could reveal equipment other tools, fails provide sufficient evidence satisfy Defendants burden.  Campbell, 164 F.3d 30. the extent that the records contain visuals equipment and other tools, Defendants have failed demonstrate that those portions those records cannot segregated from the visual bin Ladens body.  Sussman U.S. Marshals Service, 494 F.3d 1106, 1116 (D.C. Cir. 2007) 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 does more than provide conclusory statement that segregability cannot done.  Bennett Decl.  36.  Therefore, minimum, Defendants should ordered demonstrate why they cannot black out the visuals the equipment other tools and leave the visual bin Ladens body. See footnote above. support their claim that each and every record pertain military plans, weapons systems, operations, Defendants submit the Declaration William McRaven, Commander the United States Special Operations Command.  Admiral McRaven testifies 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.)   Under seal, Admiral McRaven purportedly testifies 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.   This assertion largely beside the point Plaintiff only seeks photographs and video recordings bin Laden, not records the tactics, techniques, procedures, personnel.9 addition, Admiral McRaven does not address the five categories records and how each one would pertain military plans, weapons, operations.10  Even some deference given the redacted testimony Admiral McRaven, Defendants will have, most, only satisfied their burden with respect those records that actually pertain military plans, weapons systems, operations. Also, Admiral McRaven fails address whether any portions the records can segregated.  Sussman, 494 F.3d 1116.  Therefore, Defendants fail provide any evidence that visuals tactics, techniques, procedures, personnel cannot segregated from the visual bin Ladens body. minimum, Defendants should ordered demonstrate why they cannot black out the visuals highly sensitive material. 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, date, Defendants have failed demonstrate that the photographs that were taken bin Ladens body was being 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 does 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 fails provide sufficient evidence which records are being withheld because they pertain military plans, weapons systems, operations, Defendants fail satisfy their burden demonstrating that each and every record must withheld.  Campbell, 164 F.3d 30.  
 Finally, Defendants assert that the Declaration Robert Neller provides evidence that the responsive records pertain military plans, weapons systems, operations.  However, the declaration does such thing.  The declaration only addresses whether General Neller believes that the release the responsive records reasonably could expected harm the national security.  See generally Neller Declaration.  Similarly, the declaration does not present any evidence that the records pertain intelligence activities (including covert action), intelligence sources methods, cryptology.  Therefore, General Nellers testimony does nothing satisfy Defendants burden that the records pertain one more the classification categories 13526,  1.4. sum, Defendants fail satisfy their burden demonstrating with specificity that each and every record pertains one more the classification categories 13526,  1.4.  Defendants assert that all records pertain to: (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.  
Yet, Director Bennett only testifies that certain records pertain military plans, weapons systems, operations; Admiral McRaven testifies that all records pertain military plans, weapons systems, operations; and one testifies that any the records pertain foreign relations foreign activities the United States, including confidential sources. addition, the evidence submitted Defendants more than conclusory declarations with overly vague and sweeping statements.  International Counsel Bureau, 723 Supp. 63.  Also, Defendants have failed provide sufficient detail and specificity warrant any deference.  Campbell, 164 F.3d 30. Defendants burden provide sufficient evidence, and Defendants should ordered provide it. Defendants fail demonstrate that all records reasonably      could expected cause identifiable describable       exceptionally grave damage the national security. 
 
 Even Defendants could show  which they cannot  that each and every record pertains one more classification categories, Defendants fail demonstrate that the disclosure all records could reasonably expected cause identifiable describable damage the national security. 13526,  1.4. addition, because the records have been purportedly classified TOP SECRET, the type identifiable describable damage must exceptionally grave. 13526,  1.2. attempt support Defendants claim that the release each and every record reasonably could expected cause exceptionally grave damage the national security, Director Bennett describes 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. 
 Director Bennett asserts 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.11  Bennett. Decl.  23. also states that this not mere conjecture because since [bin Ladens] death, al-Qaida has already attempted use the circumstances surrounding his death and burial propaganda.  Id.  25. addition, Defendants submit General Nellers declaration evidence that the release all photographs could expected cause exceptionally grave damage the national security.  General Neller testifies 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. Although Director Bennett purportedly testifies that all records reasonably could expected inflame tensions, his testimony ambiguous best.  Director Bennett refers 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. addition, Senator Inhofe described viewing photographs taken aboard the U.S.S. Carl Vinson, which included the cleanup period and the burial sea.  Also, senior government official described some the records depicting bin Ladens body hangar after was brought Bagram Airbase Afghanistan and depicting bin Ladens body wrapped shroud preparation for the burial sea. not apparent why these photographs reasonably could expected inflame tensions well. other words, Defendants generally assert that there are some individuals who not like America.  Director Bennett and General Neller 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 testifies that even without the release the records, such actions occurred.  Bennett Decl.  (al-Qaida has already attempted use the circumstances surrounding his death and burial propaganda).   
 Defendants fail demonstrate how the release each and every record could reasonably expected cause identifiable and describable exceptionally grave harm the 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? 
 
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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. 
 
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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 did some extent  cause 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;12 the killing Senior Qaeda leader Anwar al-Awlaki U.S. Predator Drone;13 the killing Pakistani soldiers NATO forces;14 and the use drones U.S. military and intelligence personnel conduct surveillance without detection.15  Most recently, the Iranian government found drone lost U.S. intelligence forces.  Id.  The Iranian government has used the drones existence and the U.S.s acknowledgement create propaganda.  Id.  Groups may use the requested records for propaganda, but their use would not exclusive and any future harm cannot and could not Jennifer Epstein, Obamas All Aboard for Basketball, Politico.com (November 11, 2011), attached Exhibit Bekesha Decl. Islamist Cleric Anwar al-Awlaki Killed Yemen, BBC News Middle East (September 30, 2011), attached Exhibit Bekesha Decl. Haris Anwar, U.S. Withdraws Last Forces From Airbase Following Deaths Pakistani Army, Bloomberg (December 12, 2011), attached Exhibit Bekesha Decl. Thomas Erdbrink, Iran Demands U.S Apology for Drone Flight, The Washington Post (December 13, 2011), attached Exhibit Bekesha Decl. 
 
directly identified particular source. other words, Defendants have not presented any identifiable describable evidence that the release any the records would cause exceptionally grave damage the national security.   
 Defendants assertion speculative best.  Director Bennett and General Neller believe that exceptionally grave damage the national security may occur because has the past.  They have not presented any specific evidence that the release these particular records would cause exceptionally grave harm the national security that does not already exist.  Nor have they demonstrated that they have the expertise qualifications make such determination. Director Bennett and General Neller both testified and another federal court recognized, 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. 
 Also notable relevance, other graphic post mortem photographs notable figures have been released similar circumstances the past, without any claim harm the 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).  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). fact, the photograph was displayed press conference gold frame.  Id.  Defendants not present any evidence that the release these photographs resulted exceptionally grave harm the national security. Director Bennett only testifies that foreign editorials criticized the release the photographs Abu Musab al-Zarqawi.  Bennett Decl.  26.  That may bad public relations, but clearly not exceptionally grave damage the national security.  Director Bennett does not discuss the photographs Uday and Qusay Hussein. sum, Defendants have not demonstrated that the release all records would cause anything more than speculative harm the 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). addition, Defendants solely rely mere conclusory declarations with overly vague and sweeping statements.  International Counsel Bureau, 723 Supp. 63. addition, Defendants have failed provide sufficient detail and specificity warrant any deference.  Campbell, 164 F.3d 30. Defendants burden demonstrate that the release each and every record reasonably could expected cause identifiable describable exceptionally grave damage the national security, and Defendants should ordered provide such evidence.   
 Even Defendants are able provide identifiable describable evidence that the release each and every record would cause exceptionally grave damage the national security, Defendants request the Court unprecedented.  Defendants have not cited any instance which court has held that Exemption properly allows government agency withhold material that may inflame tensions among overseas populations, encourage propaganda, lead 
retaliatory attacks.  Defendants have not done so, because they cannot. court has made such decision. ACLU U.S. Department Defense, the government agencies 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 the national security would harmed providing material for propaganda.  The 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.  Hence, Court has ruled that the propaganda justification alone sufficient, and this Court should not the first create significant new FOIA exemption. stated above, Defendants assert the propaganda justification for all records.  Yet, unlike the defendants assertion American Civil Liberties Union, Defendants not identify other potential harms justify the withholding each and every record.  Defendants, instead, only assert that there specific subset those records which their release would cause harm the national security revealing intelligence activities and methods.  Specifically, Director Bennett testifies, In addition the harm described above, which applies all the responsive images, additional harm the national security could caused the fact that release certain responsive records could also reveal intelligence activities and methods that were employed during after the operation.  Bennett Decl.  (emphasis added). Plaintiff stated 
previously, although Plaintiff does not concede that certain records would reveal any information not already publicly available, Plaintiff recognizes that some the records may properly withheld prevent the disclosure classified reveal intelligence activities and methods, and Defendants can sufficiently identify such records and that they have been properly classified, Plaintiff does not seek their release.  However, Plaintiff demonstrated earlier, there are least five unique categories records being withheld Defendants. addition, Senator Inhofe described viewing photographs taken aboard the U.S.S. Carl Vinson, which included the cleanup period and the burial sea.  Also, senior government official described some the records depicting bin Ladens body hangar after was brought Bagram Airbase Afghanistan and depicting bin Ladens body wrapped shroud preparation for the burial sea.  Director Bennett therefore fails provide anything more than overly vague and sweeping statements with specific correlation particular records.  International Counsel Bureau, 723 Supp. 63.  Because his declaration does not provide sufficient detail and specificity, not entitled deference.  Campbell, 164 F.3d 30. 
 Similarly, Admiral McRaven testifies that the release all records reasonably could expected cause harm the national security revealing military plans, weapons systems, operations.  McRaven Decl.   First, Admiral McRaven does not even suggest that the release the records could expected cause exceptionally grave damage the national security required for TOP SECRET material 13526,  1.4.  Second, Plaintiff demonstrated above, Defendants fail identify which records would reveal military plans, weapons system, operations.  Plaintiff only seeks photographs and video recordings bin 
Laden, not records military plans, weapons systems, operations.17  Admiral McRaven simply does not address the five categories records and how each one would reveal military plans, weapons, operations.  Therefore, Admiral McRavens declaration insufficient does more than present conclusory statements.  International Counsel Bureau, 723 Supp. 63. addition, because his declaration does not provide sufficient detail and specificity, not entitled deference.  Campbell, 164 F.3d 30. Also, Admiral McRaven fails address whether any portions the records can segregated.  Sussman, 494 F.3d 1116.  Therefore, Defendants fail provide any evidence that visuals tactics, techniques, procedures, personnel cannot segregated from the visual bin Ladens body. minimum, Defendants should ordered demonstrate why they cannot black out the visuals highly sensitive material. sum, Defendants have failed demonstrate that the release all records could reasonably expected cause identifiable describable exceptionally grave damage the national security.  Director Bennett and General Neller provide nothing more than speculative reasons for why the records should withheld. addition, court has ruled that the propaganda justification alone proper basis for withholding.  Similarly, Director Bennett has not demonstrated that certain records should withheld because they may reveal intelligence activities methods.  Nor has Admiral McRaven specified which records should withheld prevent the disclosure military operations.  Therefore, minimum, Defendants should ordered provide such evidence.  International Counsel Bureau, 723 Supp. 63; Campbell, 164 F.3d 30. Defendants cannot provide the necessary evidence, they should ordered disclose all records responsive Plaintiffs FOIA request. Defendants Fail Demonstrate that All Records Are Being  
  Properly Withheld under Exemption 
 
 Exemption permits government agency withhold material specifically exempted from disclosure certain statutes. U.S.C.  552(b)(3). the instant case, Defendants rely 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 403(g) 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). support its assertion that all records would reveal intelligence sources and methods, Defendants rely solely the declaration Director Bennett.  See generally Defs Mem. 17-18. demonstrate that records are being properly withheld under Exemption Director Bennett simply testifies 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.  (emphasis added).  Yet, demonstrated above, Director Bennetts declaration ambiguous best describing which records are being withheld because they would reveal intelligence activities and methods.  Id.  (certain responsive records could also reveal intelligence activities and methods) (emphasis added). 
 Although Plaintiff does not concede that such records would reveal any information not already publicly available, Plaintiff recognizes that some the records may properly withheld prevent the disclosure classified intelligence activities and methods,18 and Defendants can sufficiently identify such records and provide evidence that they have been properly classified, Plaintiff does not seek their release.  Because Defendants have failed provide anything more than overly vague and sweeping statements with respect their claim Exemption Defendants, minimum, should ordered provide additional evidence support their claim.  International Counsel Bureau, 723 Supp. 63. they cannot produce sufficient evidence, they should ordered produce all records responsive Plaintiffs FOIA request. Also, Director Bennett fails address whether any portions the records can segregated.  Sussman, 494 F.3d 1116.  Therefore, Defendants fail provide any evidence that visuals intelligence activities and methods cannot segregated from the visual bin Ladens body. minimum, Defendants should ordered demonstrate why they cannot black out the visuals highly sensitive material. CONCLUSION 
 Based the evidence submitted the Court, Defendants have failed satisfy even the most basic requirements FOIA.  They have not presented sufficient evidence that adequate search for records was conducted.  Nor have they provided any evidence whether the withheld records are photographs video recordings, accounted for the various stages which the records were created, sufficiently correlated specific claims exemption particular records 
categories records. addition, Defendants fail demonstrate that the records were properly classified under 13526.  For the foregoing reasons, Defendants motion for summary judgment should denied, and Defendants should ordered provide sufficient evidence satisfy their burdens under FOIA. addition, regardless whether Defendants are able provide adequate declarations and sufficient evidence, Defendants have failed establish their claims exemption.  Specifically, Plaintiffs are entitled all photographs video recordings that have not been properly classified well those records for which military intelligence secrets will revealed and for which the government relies the unprecedented argument.  For the foregoing reasons, Plaintiffs cross-motion for summary judgment should granted, and Defendants should ordered produce all such records. 
Dated:  December 14, 2011    Respectfully submitted, 
                    /s/ Paul Orfanedes 
       Paul Orfanedes (D.C. Bar No. 429716) 
 
       /s/ Michael Bekesha 
       Michael Bekesha (D.C. Bar No. 995749) 
       JUDICIAL WATCH, INC. 
       425 Third Street S.W., Suite 800 
       Washington, 20024 
       (202) 646-5172 
        
       Counsel for Plaintiff



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