JW v DoD & CIA – Osama 1-10-2013
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United States Court Appeals FOR THE DISTRICT COLUMBIA CIRCUIT Argued January 10, 2013 Decided May 21, 2013 No. 12-5137 JUDICIAL WATCH, INC., APPELLANT UNITED STATES DEPARTMENT DEFENSE AND CENTRAL INTELLIGENCE AGENCY, APPELLEES Appeal from the United States District Court for the District Columbia (No. 1:11-cv-00890) Michael Bekesha argued the cause and filed the briefs for appellant. Paul Orfanedes and James Peterson entered appearances. Robert Loeb, Attorney, U.S. Department Justice, argued the cause for appellees. With him the brief were Stuart Delery, Principal Deputy Assistant Attorney General, Ronald Machen Jr., U.S. Attorney, and Matthew Collette, Attorney. Before: GARLAND, Chief Judge, ROGERS, Circuit Judge, and EDWARDS, Senior Circuit Judge. Opinion for the Court filed PER CURIAM. PER CURIAM: Judicial Watch filed Freedom Information Act request seeking disclosure the Central Intelligence Agency post-mortem images Osama bin Laden. The agency refused the ground that the images were classified Top Secret. Judicial Watch sued, and the district court granted summary judgment for the agency. affirm because the images were properly classified and hence are exempt from disclosure under the Act. May 2011, President Obama announced that American personnel had killed Qaeda leader Osama bin Laden Abbottabad, Pakistan and buried his body sea. Shortly thereafter, Judicial Watch filed Freedom Information Act (FOIA) requests with the Department Defense and the Central Intelligence Agency (CIA) seeking any photographs videos depicting bin Laden during and/or after the U.S. military operation Pakistan. The Defense Department responded that had such images. The CIA acknowledged that had responsive records, but said that intended withhold them because they were classified Top Secret.1 Judicial Watch sued, and the parties filed cross-motions for summary judgment. 1After oral argument this appeal, the CIA acknowledged that had located seven additional responsive records, which withheld the same basis the original images. See Rule 28(j) Letter from CIA Counsel (filed Feb. 15, 2013). The Government supported its motion with three declarations that are relevant appeal.2 The first, lengthy declaration John Bennett, Director the CIAs National Clandestine Service, stated that all responsive records contained post-mortem images [bin Ladens] body. Bennett Decl. 11. Many, said, were quite graphic and gruesome pictures displaying the bullet wound that killed bin Laden; some showed bin Ladens face way intended enable facial recognition analysis; and some documented the transportation and burial bin Ladens corpse. Id. Bennett attested that had personally reviewed each image and concluded that all them were properly classified Top Secret because, disclosed, they could expected lead retaliatory attacks against Americans and aid the production anti-American propaganda. Id. 12, 23. Bennett analogized the bin Laden images post-mortem photographs Qaeda leader Abu Musab al-Zarqawi, which had been portrayed Pakistan ad for jihad, id. 26, and images abuse Abu Ghraib prison, which had been used very effective[ly] Qaeda recruit supporters and raise funds, id. 24. said that Qaeda had already produced propaganda relating bin Ladens death, and that its new leader had questioned whether bin Laden had fact received proper burial sea. Id. 25. Bennett also noted that subset the records, including those used conduct facial recognition analysis, could enable foreign intelligence services infer certain CIA intelligence techniques. Id. 29. Lieutenant General Robert Neller, the Director Operations, J-3, the Joint Staff the Pentagon, affirmed that fourth declaration, filed William Kammer, Chief the Department Defenses Freedom Information Division, attested that the Pentagon possessed responsive records. Judicial Watch longer contests this point. he, too, had personally reviewed the images. See Neller Decl. Like Bennett, Neller believed that their release would pose clear and grave risk inciting violence and riots against U.S. and Coalition forces, and expose innocent Afghan and American civilians harm. Id. Neller cited the fatal riots that had followed both the publication Danish cartoon the Prophet Muhammad and erroneous report that American soldiers had desecrated the Koran. Id. 7-8. Neller believed that similar violent reaction could expected follow the release the bin Laden images. Id. Admiral William McRaven, Commander the United States Special Operations Command, submitted third, partially classified declaration.3 the non-classified portions the declaration, McRaven attested, again the basis first-hand review, that disclosure some the images would enable identification the special operations unit that participated the Abbottabad operation, thereby exposing its members and their families great risk harm. McRaven Decl. explained that other images would reveal classified methods and tactics used U.S. special operations. Id. result, believed release could reasonably expected cause harm the national security. Id. its cross-motion for summary judgment, Judicial Watch argued that the CIAs declarations failed demonstrate either substantive procedural compliance with the criteria for classification. With respect the latter, Judicial Watch argued that the declarations failed identify the original classification authority who had classified the records, attest that the records had been properly marked. The CIA responded filing 3The CIA filed unredacted version the McRaven declaration parte. not rely the classified portions the declaration this opinion. fourth declaration, written Elizabeth Culver, the Information Review Officer for the CIAs National Clandestine Service. Culver explained that the images had initially been derivatively classified CIA official accordance with the criteria set out classification guide written the CIAs Director Information Management. Culver Decl. the time Director Bennett had filed his declaration, the records each contained the marking Top Secret. Id. Since then, out abundance caution, other markings had been added the records, including the identity the derivative classifier, citations the classification guide and the reasons for classification, and the applicable declassification instructions. Id. Culver said she had confirmed, after personally reviewing the records, that each now contained all the required classification markings. Id. the basis these declarations, the district court concluded that the CIA had sustained its burden showing that the images bin Laden satisfied the substantive and procedural criteria for classification. See Judicial Watch, Inc. U.S. Dept Def., 857 Supp. 44, (D.D.C. 2012). The CIAs declarations, the court said, gave plausible and logical account the harm national security that might result from the release these images. Id. 63. While the record left uncertain whether the images had been classified according proper procedures the time Judicial Watch made its FOIA request, the court said the declarations submitted Bennett and Culver demonstrated that the agency had since remedied whatever procedural defects might have existed. Id. 57-58. Accordingly, the court held that the CIA had properly withheld these records under FOIA Exemption 1.4 Id. 63-64. Judicial Watch appealed. FOIA requires agencies disclose records request unless one nine exemptions applies. See Milner Dept the Navy, 131 Ct. 1259, 1262 (2011). Exemption which the CIA invokes this case, permits agencies withhold records that are (A) specifically authorized under criteria established Executive order kept secret the interest national defense foreign policy and (B) are fact properly classified pursuant such Executive order. U.S.C. 552(b)(1). Agencies may establish the applicability Exemption affidavit (or declaration). See ACLU U.S. Dept Def., 628 F.3d 612, 619 (D.C. Cir. 2011). accord such affidavit substantial weight: long describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and not contradicted contrary evidence the record evidence the agencys bad faith, summary judgment warranted the basis the affidavit alone. Id. (internal quotation marks omitted); see Larson Dept State, 565 F.3d 857, 862 (D.C. Cir. 2009); Wolf CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007); Miller Casey, 730 F.2d 773, 776 (D.C. Cir. 1984). Ultimately, agency's justification for invoking FOIA exemption sufficient appears logical plausible. ACLU, 628 F.3d 619 (quoting Larson, 565 F.3d 862 (quoting Wolf, 473 F.3d 37475)). 4The district court did not address the agencys alternative argument that some the images could withheld under FOIA Exemption See Judicial Watch, 857 Supp. 55; U.S.C. 552(b)(3). also not reach that question. Executive Order No. 13,526, Fed. Reg. 707 (Dec. 29, 2009), the operative classification order under Exemption sets forth both substantive and procedural criteria for classification. See, e.g., Lesar U.S. Dept Justice, 636 F.2d 472, 481 (D.C. Cir. 1980) (explaining that the Executive Orders substantive and procedural criteria must satisfied for agency properly invoke Exemption 1); H.R. REP. NO. 93-1380, 22829 (1974) (same). The Orders substantive criteria, relevant here, are twofold. First, classified information must pertain least one eight subject-matter classification categories. See Exec. Order No. 13,526, 1.1(a)(3), 1.4. Second, disclosure that information must reasonably expected cause some degree harm national security the case Top Secret information, exceptionally grave harm that identifiable describable. See id. 1.1(a)(4), 1.2(a)(1), 1.4. The Order also establishes two pertinent procedural requirements. Information may classified only individual with original derivative classification authority. See id. 1.1(a)(1), 2.1. And classified documents must marked with several pieces information, including the identity the classifier and instructions for declassification. See id. 1.6, 2.1(b). Judicial Watch raises both substantive and procedural challenges the CIAs classification decision. consider each turn. Turning first the substantive question, indisputable that the images issue fall within the Executive Orders subject-matter limits. least some the images pertain intelligence activities (including covert action), [or] intelligence sources methods, Exec. Order No. 13,526, 1.4(c), and all images plainly pertain foreign activities the United States, id. 1.4(d). the district court observed, pertains not very demanding verb. Judicial Watch, 857 Supp. 60. And every image issue documents events involving American military personnel thousands miles outside American territory. There also doubt that the declarations Director Bennett and Admiral McRaven establish the requisite level harm the second substantive limit classification for great many the images. The photographs used conduct facial recognition analysis could reasonably expected reveal classified intelligence methods. See Bennett Decl. 29; Judicial Watch Br. 12-13 (conceding the point). The images displaying members the special operations unit that conducted the raid could reasonably expected endanger those personnel. See McRaven Decl. These are valid grounds for classification under our precedents. See, e.g., Miller, 730 F.2d 775-77; Halperin CIA, 629 F.2d 144, 148-50 (D.C. Cir. 1980). Furthermore, Judicial Watch does not appear seriously question the CIAs contention that the most graphic and gruesome the remaining images those displaying the bullet wound bin Ladens head merit classification because the danger that their release would lead violence against American interests. See Judicial Watch Reply Br. 8-9. any event, the rationale for withholding less graphic and gruesome images bin Laden (discussed below) would apply fortiori these images. Judicial Watch correctly focuses instead the most seemingly innocuous the images: those that depict the preparation [bin Ladens] body for burial and the burial itself, Bennett Decl. 11. See Judicial Watch Reply Br. Judicial Watch contends unlikely that the disclosure those images would cause any damage, let alone exceptionally grave damage, U.S. national security. argues that Qaeda and its affiliates do not need specific reason incite violence, and that any claim that individuals would engage violence upon seeing such images mere speculation. Judicial Watch Br. 24. the district court rightly concluded, however, the CIAs declarations give reason believe that releasing images American military personnel burying the founder and leader Qaeda could cause exceptionally grave harm. See Judicial Watch, 857 Supp. 62. General Nellers declaration describes prior instances which reasonably analogous disclosures have led widespread and fatal violence the Middle East, some directed U.S. interests. The publication Danish cartoon the Prophet Muhammad led hundreds injuries and deaths, well attack U.S. airbase Afghanistan. See Neller Decl. Likewise, erroneous article Newsweek, alleging that American soldiers had desecrated the Koran, led eleven deaths and many injuries during protests against the United States Afghanistan and Egypt. Id. Director Bennetts declaration gives plausible reason believe that comparable reaction would follow the release post-mortem images bin Laden, including images his burial. Bennett Decl. 27. Bennett explains that Qaeda has already devoted attention the so-called martyrdom bin Laden and has specifically attacked the United States assertions that [he] received appropriate Islamic burial sea. Id. 25. Bennett also notes that releasing the images the burial sea could interpreted deliberate attempt the United States humiliate bin Laden. Id. 27. Together, these declarations support their declarants determinations that releasing any the images, including the burial images, could reasonably expected trigger violence and attacks against United States interests, personnel, and citizens worldwide. Neller Decl. see id. Bennett Decl. 25, 27.5 Judicial Watch protests that the governments declarations show nothing more than that release the images may cause some individuals who not like the United States commit violence overseas, and that the courts should not succumb this kind blackmail. Judicial Watch Br. 21-22. First, important remember that this case does not involve First Amendment challenge effort the government suppress images the hands private parties, challenge that would come out quite differently. Cf. Forsyth Cnty. Nationalist Movement, 505 U.S. 123, 134-35 (1992) (Speech cannot banned, simply because might offend hostile mob.). Rather, statutory challenge, which the sole question whether the CIA has properly invoked FOIA Exemption authorize withholding images its own possession. Cf. Afshar Dept State, 702 F.2d 1125, 1131 (D.C. Cir. 1983) (permitting the withholding documents under FOIA where release may force [foreign] government retaliate). Second, this not case which the declarants are making predictions about the consequences releasing just any images. Rather, they are predicting the consequences releasing extraordinary set images, ones that depict American military personnel burying the founder and leader 5For the same reasons, these declarations support the agencys determination that releasing the images bin Laden would cause harm notwithstanding its prior written descriptions the event, Judicial Watch Reply Br. 10. See ACLU, 628 F.3d 625 ([W]e have repeatedly rejected the argument that the governments decision disclose some information prevents the government from withholding other information about the same subject.); Wolf, 473 F.3d 378 (permitting withholding notwithstanding the fact that information exists some form the public domain). Qaeda. Third, the declarants support those predictions not with generalized claims, but with specific, reasonably analogous examples. Finally, undisputed that the government withholding the images not shield wrongdoing avoid embarrassment, see Exec. Order No. 13,526, 1.7(a), but rather prevent the killing Americans and violence against American interests. Indeed, because the CIAs predictions the violence that could accompany disclosure the images provide adequate basis for classification, not rely upon reach the agencys alternative argument that the images may classified the ground that their disclosure would facilitate anti-American propaganda. See ACLU, 628 F.3d 624 (declining decide whether classification that ground proper). have said before, any affidavit other agency statement threatened harm national security will always speculative some extent. Id. 619 (citation omitted). Our role ensure that those predictions are logical plausible. Id. (quoting Larson, 565 F.3d 862). agree with the district court that the CIAs declarations this case cross that threshold. See Judicial Watch, 857 Supp. 62. agency may withhold records under Exemption only they are classified accordance with the procedural criteria the governing Executive Order well its substantive terms. See Lesar, 636 F.2d 483. appeal, Judicial Watch argues that the CIA failed follow proper procedures two respects. First, Judicial Watch argues that the images issue were not classified until after the CIA received its FOIA request, thereby triggering special procedural requirements that Judicial Watch alleges were not followed. See Exec. Order No. 13,526, 1.7(d) (providing that previously undisclosed information may classified after agency has received FOIA request only such classification accomplished document-bydocument basis with the personal participation under the direction the agency head, deputy agency head, the senior agency official designated under section of] this order). But Judicial Watchs factual premise mistaken, the CIA has averred that the images were fact classified before received the appellants FOIA request, see Culver Decl. n.1; CIA Br. 52; Oral Arg. Recording 28:50-29:20, and there evidence the contrary. Second, Judicial Watch argues that the images not contain all the proper classification markings because they fail name the person with original classification authority who first classified them. See Exec. Order No. 13,526, 1.6(a)(2). The Culver declaration, which the agency clarified oral argument, explains the CIAs position: the records were not initially classified someone with original classification authority, but rather individual who derivatively classified the records apply[ing] classification markings directed classification guide. Culver Decl. Exec. Order No. 13,526, 2.1(a); see Oral Arg. Recording 21:30-23:10. Accordingly, the CIA says, the only original classification authority identified the records was the classification guide itself. See Culver Decl. 7-8; Oral Arg. Recording 23:05-08. Although this explanation may account for why the CIA did not mark the documents with the name person possessing original classification authority, raises separate problem. Even the CIA right that documents can derivatively classified and marked this way and express view the matter cannot determine whether derivative classification the images was proper without some description the classification guide which the derivative classifier purportedly relied. Yet this case, the CIA has provided description the guides provisions, not even general description, that would permit determine whether the derivative classification was properly based the guide. Cf. Wilson McConnell, 501 Supp. 545, 553 (S.D.N.Y. 2007) (concluding that the derivative classification document was proper examining specific provisions CIA classification guide that the agency had provided the court). Hence, cannot determine whether the derivative classifier misapplied the guide, whether the guides instructions were vague operate constraint all. some cases, agencys silence such matter would merit remand requiring agency official review the documents and file additional affidavit, or, rare cases, requiring the district court review the documents camera. Cf. Allen CIA, 636 F.2d 1287, 1292 (D.C. Cir. 1980); Lesar, 636 F.2d 485; Halperin Dept State, 565 F.2d 699, 707 (D.C. Cir. 1977). this case, however, already have declaration from Director Bennett, who has original classification authority, see Bennett Decl. 18, averring that reviewed the images and determined that they were correctly classified Top Secret, id. 27. Accordingly, because the affidavits clearly indicate that the documents fit within the substantive standards [the] Executive Order, and because the Bennett declaration removes any doubt that person with original classification authority has approved the classification decision, any failure relating application the classification guide would not reflect adversely the agencys overall classification decision. Lesar, 636 F.2d 484, 485. Therefore, further steps are required for determine that withholding the images was warranted. See id. III For the foregoing reasons, the judgment the district court Affirmed.