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Judicial Watch • JW Cross Motion v Navy

JW Cross Motion v Navy

JW Cross Motion v Navy

Page 1: JW Cross Motion v Navy

Category:General

Number of Pages:10

Date Created:July 11, 2013

Date Uploaded to the Library:February 20, 2014

Tags:lacks, ADMIN, Islam, Declaration, Fedeli, Chris, Material, facts, paragraph, statement, summary, defendant, watch, plaintiff, judicial, district, EPA, IRS, ICE, CIA


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THE UNITED STATES DISTRICT COURT
 FOR THE DISTRICT COLUMBIA
 
JUDICIAL WATCH, INC.,  
Plaintiff,  Case No. 1:12-cv-01182-RJL  

DEPARTMENT THE NAVY
 Defendant.
 

PLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENT 
Plaintiff Judicial Watch, Inc., counsel and pursuant Rule 56(c) the Federal Rules Civil Procedure, hereby cross-moves for summary judgment against Defendant Department the Navy. grounds therefor, Plaintiff respectfully refers the Court the accompanying Plaintiffs Memorandum Law Opposition Defendants Motion for Summary Judgment and Support Plaintiffs Cross-Motion for Summary Judgment and Plaintiffs Response Defendants Statement Material Facts Not Dispute and Plaintiffs Statement Material Facts Support Cross-Motion for Summary Judgment. Dated: July 11, 2013      Respectfully submitted, 
/s/ Chris Fedeli 
        Chris Fedeli
 D.C. Bar No. 472919 

JUDICIAL WATCH, INC.
        425 Third Street S.W., Suite 800         Washington, 20024 
(202) 646-5172 
Counsel for Plaintiff THE UNITED STATES DISTRICT COURT
 FOR THE DISTRICT COLUMBIA
 
JUDICIAL WATCH, INC.,  
Plaintiff,  Case No. 1:12-cv-01182-RJL  

DEPARTMENT THE NAVY, 
Defendant.
 ____________________________________) 

PLAINTIFFS MEMORANDUM LAW OPPOSITION DEFENDANTS 
MOTION FOR SUMMARY JUDGMENT AND SUPPORT PLAINTIFFS  
CROSS-MOTION FOR SUMMARY JUDGMENT
 
Plaintiff Judicial Watch, counsel, respectfully submits this memorandum opposition Defendants motion for summary judgment and support Plaintiffs cross-motion for summary judgment.  Defendant has failed release all information required release under the Freedom Information Act (FOIA), based the facts and arguments presented Defendant and the ruling Judicial Watch Department Defense and Central Intelligence Agency, No. 12-5137, 2013 U.S. App. Lexis 10143 (D.C. Cir. May 21, 2013) (Judicial Watch DoD). 
Plaintiff only challenges only very limited redactions from Defendants production.  Specifically, Plaintiff challenges those redactions made pursuant Exemption relating descriptions the actual funeral and burial bin Laden.  Plaintiff does not challenge any redactions information about military equipment the USS Carl Vinson, the security the USS Carl Vinson, the condition the ship, the locations the ship, weapons systems the ship, secret military tactics protocols, identities the individuals involved the burial and funeral service. Plaintiff challenges only the standalone Exemption redactions Documents and which contain descriptive information about the actual funeral and burial.  See Defendants Declaration, ECF 10-1  16, 21, 22. More specifically, Plaintiff challenges only the following pieces information they relate the funeral and burial:   
 Document [D]etails about what take place and how and the expected timing the operation (ECF 10-1  16). 
 Document [T]he timing the burial operation (ECF 10-1  21).  
 Document [T]he timeline events the burial operation and information about 
where the USS Carl Vinson the burial took place (ECF 10-1  22).  
The Navy relies Lieutenant General Scaparrottis declaration support its claim that  releasing that information could reasonably expected harm national security by:  (1) providing adversaries with information they could use thwart future sensitive military operations; and (2) inciting al-Qaida members into attacks U.S. citizens.  Defendants Declaration, ECF 10-1  24-26.  The first those two justifications does not apply, Plaintiff seeks only descriptions the burial and funeral, and not any sensitive military information which could used thwart possible future military operation.  Furthermore, this first justification mere boilerplate assertion the exemption which lacks any specificity and could used exclude almost any military document from public inspection.  Accordingly, this justification fails carry Defendants burden.  See e.g. Vaughn Rosen, 484 F.2d 820 
(D.C. Cir. 1973). 
With respect the second justification, the very limited information Plaintiff now seeks this case cannot withheld under the D.C. Circuits recently announced inciting violence test Judicial Watch DoD. That test is, essentially: whenever the government attempts withhold records information under Exemption because alleged potential incite violence, the government must present evidence reasonably analogous situation which the release information incited violence the past.  Judicial Watch DoD, 2013 U.S. App. Lexis 10143 *12. 
The analogies Defendant offers are insufficient under the D.C. Circuits ruling.  Comparing the release certain factual information government emails about burial false report Newsweek about the desecration Koran, which considered its adherents the verbatim word God,1 not even close the primary analogy supporting the D.C. Circuits ruling Judicial Watch DoD   namely, comparing bin Laden death photos cartoon images mocking Muhammad.  See Defendants Declaration, ECF 10-1  26.  While al-Qaida may have attempted propagandize the burial, Defendant does not cite any example violence resulting from those efforts.  See Defendants Declaration, ECF 10-1  25.  This may because the Muslim world believes the funeral was respectful, and refuses misled extremist propaganda. any event, the necessity conducting the global war terror should not render the U.S. government afraid its own shadow that refuses release truthful information the American people when required FOIA.     
Furthermore, all the withheld information this case written text instead the extraordinary set images issue Judicial Watch DoD, the instant information even less likely inflame foreign populations because does not risk offending historical Islamic proscriptions against photographs individuals, which are still maintained minority Muslims.2 2013 U.S. App. Lexis 10143 *15. Both the limited scope and nature this information could therefore not reasonably expected give al-Qaida material use 
propaganda against the United States, nor could reasonably compromise military operational secrets. See Defendants Declaration, ECF 10-1  24.   
Defendant has not carried its burden demonstrating analogy how such limited truthful information describing the burial and funeral could distorted raise foreign ire and lead retaliatory attacks American citizens U.S. interests. addition, conceivable analogy given why the timing the burial ceremony, the location the burial ceremony the USS Carl Vinson  port stern  could used propagandize offense Islam.  The only support offered for these withholdings mere speculation Defendants declarant. But mere assertion exemption without substantive reasoning and analysis insufficient overcome Defendants burden.  Ford Motor Co. United States Customs Border Protect., 2008 U.S. Dist. Lexis 101503, 44-45 (E.D. Mich. 2008); Dolin, Thomas, Solomon, LLP United States Dept Labor, 719 Supp. 245, 249 (W.D. 2010) (An agencys decision claim one more the FOIA exemptions disclosure must substantially justified. mere assertion privilege insufficient .).    
Accordingly, the limited information described above not subject Exemption under the D.C. Circuits test articulated Judicial Watch DoD otherwise, and must released pursuant FOIA. The Court should therefore deny Defendants motion for summary judgment and grant Plaintiffs cross-motion for summary judgment the extent described herein.   
Dated: July 11, 2013     Respectfully submitted, 
/s/ Paul Orfanedes 
Paul Orfanedes 
D.C. Bar No. 429716 

/s/ Chris Fedeli 
Chris Fedeli 
D.C. Bar No. 472919 

JUDICIAL WATCH, INC.
       425 Third Street S.W., Suite 800 
       Washington, 20024 

(202) 646-5172 

Counsel for Plaintiff See Islam, Wikipedia, available http://en.wikipedia.org/wiki/Islam (visited July 11, 2013). See Aniconism Islam, Wikipedia, available http://en.wikipedia.org/wiki/Aniconism_in_Islam (visited July 2013). THE UNITED STATES DISTRICT COURT
 FOR THE DISTRICT COLUMBIA
 
JUDICIAL WATCH, INC., 
Plaintiff, 	Civil Action No. 1:12-cv-01182-RJL DEPARTMENT THE NAVY, 
Defendant. ____________________________________) 

PLAINTIFFS RESPONSE DEFENDANTS STATEMENT MATERIAL FACTS 
NOT DISPUTE AND PLAINTIFFS STATEMENT MATERIAL FACTS 
SUPPORT CROSS-MOTION FOR SUMMARY JUDGMENT
 
Plaintiff Judicial Watch, Inc., counsel and pursuant Local Civil Rule 7.1(h), respectfully submits this response Defendants Statement Material Facts Not Dispute and Plaintiffs Statement Material Facts Support Cross-Motion for Summary Judgment: 	
Plaintiffs Response Defendants Statement Material Facts Not Dispute.	
 Not disputed. 	
Not disputed. 	
Not disputed. 
Plaintiff lacks sufficient knowledge confirm deny this paragraph.  Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145-146 (D.C. Cir. 2006) (Because its unique evidentiary configuration, the typical FOIA case distorts the traditional adversary nature our legal systems form dispute resolution.  When party submits FOIA request, faces asymmetrical distribution knowledge where the agency alone possesses, reviews, discloses, and withholds the subject matter the request.  The agency would therefore have nearly 

impregnable defensive position save for the fact that the statute places the burden the agency sustain its action.) (internal citations and punctuation omitted). 
This paragraph contains legal conclusions about classified information, which are improperly asserted statement facts, and therefore require response.  With respect the remainder the paragraph, Plaintiff lacks sufficient knowledge confirm deny it.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 145-146. 
Plaintiff lacks sufficient knowledge confirm deny this paragraph.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 145-146. 
Not disputed. 
Not disputed. 
Plaintiff lacks sufficient knowledge confirm deny this paragraph.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 145-146. 

10. 
Plaintiff lacks sufficient knowledge confirm deny this paragraph.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 145-146. 

11. 
Plaintiff lacks sufficient knowledge confirm deny this paragraph.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 145-146. 

12. 
Plaintiff lacks sufficient knowledge confirm deny this paragraph.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 145-146. 

13. 
Plaintiff lacks sufficient knowledge confirm deny this paragraph.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 145-146. 

14. 
Plaintiff lacks sufficient knowledge confirm deny this paragraph.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 145-146. 

15. 
Plaintiff lacks sufficient knowledge confirm deny this paragraph.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 145-146. 

16. 
This paragraph contains legal conclusions about classified information, which are improperly asserted statement facts, and therefore require response.   

17. Not disputed. 
18. 
This paragraph contains legal conclusions about classified information, which are improperly asserted statement facts, and therefore require response.  With respect the remainder the paragraph, Plaintiff lacks sufficient knowledge confirm deny it.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 145-146. 

19. 
The facts what Lieutenant General Scaparrotti stated his Declaration speak for themselves, and Plaintiffs dispute any characterization beyond that.   

20. 
Plaintiff lacks sufficient knowledge confirm deny this paragraph.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 145-146. 

21. 
This paragraph contains legal conclusions about classified information, which are improperly asserted statement facts, and therefore require response.  With respect the remainder the paragraph, Plaintiff lacks sufficient knowledge confirm deny it.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 145-146. 

22. 
Plaintiff lacks sufficient knowledge confirm deny this paragraph.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 145-146. 

23. 
Disputed, except the extent that Plaintiff lacks sufficient knowledge confirm deny the headings were processed response the FOIA request.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 145-146. 
24. Plaintiff lacks sufficient knowledge confirm deny this paragraph.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 145-146. 
II. 	Plaintiffs Statement Material Facts Not Dispute Support Cross-Motion for Summary Judgment. 
Defendant Department the Navy produced ten documents claims responsive Plaintiffs FOIA request. 
Certain information these documents was redacted the defendant allegedly exempt pursuant FOIA Exemption U.S.C.  552(b)(1), the grounds that its release could reasonably expected harm national security virtue revealing military operational secrets potentially inflaming tensions among overseas populations that include al-Qaida members sympathizers result its use our enemies insinuate that the procedures utilized the burial were affront Islam, potentially leading retaliatory attacks against the United States and its citizens home and abroad.  ECF 10-1  25.       Dated: July 11, 2013      Respectfully submitted, 

/s/ Chris Fedeli  
        Chris Fedeli Bar No. 472919 
JUDICIAL WATCH, INC.
        425 Third Street S.W., Suite 800         Washington, 20024 
(202) 646-5172 
Counsel for Plaintiff