Skip to content

Judicial Watch • Osama bin Laden Photos Reply Brief: Judicial Watch v. DOD and CIA (CV-13-238)

Osama bin Laden Photos Reply Brief: Judicial Watch v. DOD and CIA (CV-13-238)

Osama bin Laden Photos Reply Brief: Judicial Watch v. DOD and CIA (CV-13-238)

Page 1: Osama bin Laden Photos Reply Brief: Judicial Watch v. DOD and CIA (CV-13-238)

Category:Legal Document

Number of Pages:15

Date Created:December 2, 2013

Date Uploaded to the Library:December 05, 2013

Tags:osama bin laden


File Scanned for Malware

Donate now to keep these documents public!

  • demand_answers

See Generated Text   ˅

Autogenerated text from PDF

No. 13-238 THE
Supreme Court the United States
_________
JUDICIAL WATCH, INC.
Petitioner,
UNITED STATES DEPARTMENT DEFENSE
AND CENTRAL INTELLIGENCE AGENCY,
_________
Respondents. Petition for Writ Certiorari
the United States Court Appeals for
the District Columbia Circuit
_________
REPLY BRIEF FOR PETITIONER
_________
Michael Bekesha
Counsel Record
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
mbekesha@judicialwatch.org
(202) 646-5172
Counsel for Petitioner
TABLE CONTENTS
TABLE CONTENTS .............................................
TABLE AUTHORITIES ......................................
INTRODUCTION .......................................................1
ARGUMENT ...............................................................2
Deference Not Equivalent Acquiescence ..........................................2
II.
The Lower Courts Afforded the
Executive Branch Blind Deference ............
III.
This Case Raises Important
Question Concerning the Proper
Construction and Interpretation Exemption ...........................................8
CONCLUSION ..........................................................10
TABLE AUTHORITIES
CASES
Center for National Security
Studies Department Justice,
331 F.3d 918 (D.C. Cir. 2003) .....................4,
Central Intelligence Agency Sims,
471 U.S. 159 (1985) ..................................... 8-9
Department the Air Force Rose,
425 U.S. 352 (1976) .........................................9
Department the Navy Egan,
484 U.S. 518 (1988) .........................................2
Federal Bureau Investigation Abramson, 456 U.S. 615 (1982) ...................9
Federal Open Market Committee
Federal Reserve System
Merrill, 443 U.S. 340 (1979) ............................9
Federal Trade Commission Grolier, Inc., 462 U.S. (1983) ..................9
Gilligan Morgan,
413 U.S. (1973) .................................
Goldman Weinberger,
475 U.S. 503 (1986) .....................................3,
iii
John Doe Agency John Doe
Corporation, 493 U.S. 146 (1989) ...................8
Judicial Watch, Inc. United States
Department Defense,
857 Supp. (D.D.C. 2012) ....................7
Judicial Watch, Inc. United States
Department Defense,
715 F.3d 937 (D.C. Cir. 2013) ..........................7
Kissinger Reporters Committee for
Freedom the Press,
445 U.S. 136 (1980) .........................................9
Milner Dep the Navy,
131 Ct. 1259 (2011) ..............................2,
National Labor Relations Board
Sears, Roebuck Company,
421 U.S. 132 (1975) .........................................9
Renegotiation Board. Bannercraft
Clothing Company,
415 U.S. (1974) .............................................9
Renegotiation Board
Grumman Aircraft
Engineering Corporation,
421 U.S. 168 (1975) .........................................8
United States Department Justice
Reporters Committee for Freedom the Press, 489 U.S. 749 (1989)......................8
United States Department Justice
Tax Analysts, 492 U.S. 136 (1989) ...................8
United States Department State Ray, 502 U.S. 164 (1991) .............................8
United States Department State
Washington Post Company,
456 U.S. 595 (1982) .........................................9
STATUTES U.S.C. 552(a)(4)(B) ........................................2, U.S.C. 552(b)(7)(A) ................................................4
MISCELLANEOUS
H.R. Rep. No. 93-1380,
93rd Cong. Sess. 219 (1974) ........................3
SUP. CT. 10...............................................................8
INTRODUCTION
This case about the withholding images Osama bin Laden dead body, primarily those
images that depict the body cleaned and prepared for
burial actually being buried sea. This case
not about the withholding prototypical, classified
information that identifies military plans, weapons
systems, operations even intelligence sources
methods.
The Executive Branch argues that this Court
should not, and cannot, conduct meaningful review its withholding regardless how flawed the
process was how weak the justifications are. The
Executive Branch also argues that the Court, like
the courts below, should simply ignore the explicit
intentions Congress well the plain language FOIA and rubber stamp the Executive Branch
withholding the requested images because the
process was, and the justifications are, good
enough. That not the law. Nor should be. The
Court therefore should grant certiorari resolve the
important
question
concerning
the
proper
construction and interpretation Exemption
ARGUMENT
Deference Not Equivalent Acquiescence.
The issue not whether the Executive
Branch afforded some deference even
 substantial deference the courts concerning
classification decisions. The issue whether the
two lower courts properly afforded blind deference
the Executive Branch concerning its decision
withhold images bin Laden dead body.
The Executive Branch cites litany cases
that purportedly support its assertion that the Court
should not conduct meaningful review its
classification decision.
However, each case
inapposite and only weakens the Executive Branch
position. issue Department the Navy Egan
was whether the courts had the authority review
decision deny revoke security clearance. 484
U.S. 518, 520 (1988). deciding that the courts
not have such authority, this Court stated, [U]nless
Congress specifically has provided otherwise, courts
traditionally have been reluctant intrude upon the
authority the Executive military and national
security affairs. Id. 530. Unlike decisions
concerning security clearances, Congress specifically
has provided the courts with the authority review novo classification decisions within the FOIA
context. U.S.C. 552(a)(4)(B); see also Milner
Department the Navy, 131 Ct. 1259, 1266
(2011).
Similarly, Gilligan Morgan, this Court
concluded, The complex, subtle, and professional
decisions the composition, training, equipping,
and control military force are essentially
professional military judgments. 413 U.S.
(1973). Therefore, whether the Ohio National Guard
violated students rights speech and assembly was
not justiciable controversy because the relief
sought required review and continuing surveillance
over the training, weaponry, and standing orders
the National Guard. Id. 11-12. Because Congress
specifically provided courts with the authority
review decisions the Executive Branch withhold
purportedly classified information, any concern that
judicial relief would interfere with professional
military judgments unfounded. See H.R. Rep. No.
93-1380, 93rd Cong. Sess. 219, 228-229 (1974). issue Goldman Weinberger was
whether Air Force regulation prohibiting
members from wearing headgear while indoors
violated officer First Amendment rights because
the regulation forbade him from wearing
yarmulke. 475 U.S. 503, 504 (1986). concluding
that the regulation did not violate the First
Amendment, this Court stated: the context the present case, when
evaluating whether military needs
justify particular restriction
religiously motivated conduct, courts
must give great deference the
professional judgment military
authorities concerning the relative
importance particular military
interest.
Id. 507. The Court did not address any issues
relating any classification decisions. The Court
decision more akin the issue Gilligan than
the issue the instant matter. The Court provided
deference the Executive branch with respect the
 professional
military
judgment 
concerning
 composition, training, equipping, and control
military force. Gilligan, 413 U.S. 10.
Finally, the Executive Branch cites Center
for National Security Studies Department
Justice, 331 F.3d 918 (D.C. Cir. 2003), the only FOIA
case upon which relies. However, that case, the
Executive Branch was withholding information
under Exemption 7(A), which allows agency
withhold information that, released, could
reasonably expected interfere with enforcement
proceedings. U.S.C. 552(b)(7)(A). The U.S.
Court Appeals for the District Columbia Circuit D.C. Circuit stated, Exemption 7(A) explicitly
requires predictive judgment the harm that will
result from disclosure information, permitting
withholding when could reasonably expected 
that the harm will result. 
National Security
Studies, 331 F.3d 928. The harm that case
would the ability Qaeda other terrorist
groups map the course the investigation and
thus develop the means impede it. Id. The
Executive Branch continues withhold the images bin Laden dead body under Exemption The
predictive judgment related the potential effect
future law enforcement proceedings simply
irrelevant the instant matter. addition, distinguishing the level
review conducted the courts concerning claims
Exemption and claims Exemption 7(A), the
National Security Studies dissent stated: any event, the governments case
fails even under the heightened
deference
have
applied
Exemption and National Security Act
cases. matter the level deference,
our review not vacuous. Even when
reviewing Exemption applicability
materials classified the interest
national security, have made clear
that amount deference can make for agency allegations that display,
for example, lack detail and
specificity since deference not
equivalent acquiescence.
National Security Studies, 331 F.3d 939-940
(Tatel, J., dissenting) (internal citations omitted).
Simply put, the Executive Branch has failed demonstrate why should afforded blind
deference withhold material that may not have
been properly classified nor specifically authorized classified. Nor has demonstrated that the
Court cannot conduct meaningful review
classification decisions.
Instead, the Executive
Branch weakly argues that the decision the D.C.
Circuit does not conflict with opinion this Court any other court appeals and that Petitioner
contentions are fact-bound and warrant further
review. Brief for Respondents Opposition 8-9.
Implicit those arguments the Executive
Branch tried position that the requested records
purportedly have been classified and therefore any
review unnecessary. That not the law. Nor
should be. FOIA specifically authorizes courts
review the Executive Branch withholding
information.
 552(a)(4)(B) [T]he court shall
determine the matter novo. Anything short
meaningful review will cause FOIA become less disclosure than withholding statute. Milner,
131 Ct. 1270.
II.
The Lower Courts Afforded the
Executive Branch Blind Deference. demonstrated the Petition, this case
the poster child for blind deference. First, the lower
courts expressed concern that the withheld records
were not properly classified. Second, both courts
failed conduct meaningful review the Executive
Branch claims that all the images conformed
the
substantive
criteria
for
classification.
Nevertheless, the end, the courts concluded that,
regardless the clear failure the part the
Executive Branch fully satisfy its burdens under
Exemption the evidence submitted was good
enough for all images bin Laden dead body
withheld.
With respect whether the images bin
Laden dead body were properly classified, the U.S.
District Court for the District Columbia stated, preliminary matter, Judicial Watch correct
that the CIA declarations are not model
transparency. Judicial Watch, Inc. United States
Department Defense, 857 Supp. 44, 56-57
(D.D.C. 2012) (App. 40a). addition, the court
found that the CIA failed submit evidence that
demonstrated basic facts such the identity the
individual who originally classified the records
question. Id. (App. 40a). Similarly, the D.C.
Circuit concluded, [W]e cannot determine whether
the derivative classifier misapplied the guide,
whether the guide instructions were vague
operate constraint all. Judicial Watch, Inc. United States Department Defense, 715 F.3d
937, 944 (D.C. Cir. 2013) (App. 16a-17a).
With respect whether the images bin
Laden dead body conformed the substantive
criteria for classification, the court appeals
concluded that the Executive Branch blanket
withholding all the images was proper because
the
submitted
declarations
expressed
 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. Judicial Watch, 715 F.3d 942 (App.
13a)
(internal
citations
omitted).
Such
determinations are not the classic professional
military judgments that are typically afforded
substantial deference because they concern the
 composition, training, equipping, and control
military force. Gilligan, 413 U.S. 10. The images bin Laden dead body not reveal military
plans, weapons systems, operations even
intelligence sources methods.
Nor did the
Executive Branch assert that the images depicted
prototypical, classified information. Nevertheless,
the lower court did more than blindly affirm the
Executive Branch determinations. wholly failed conduct meaningful, novo review the
classification decision required statute. See
U.S.C. 552(a)(4)(B).
III.
This Case Raises Important
Question Concerning the Proper
Construction and Interpretation Exemption
This Court grants certiorari when United
States court appeals has decided important
question federal law that has not been, but should
be, settled this Court. SUP. CT. 10. fact, least FOIA cases heard this Court,
certiorari was granted because the Court sought
resolve important questions concerning the proper
construction and interpretation various FOIA
exemptions.
Renegotiation Board Grumman
Aircraft Engineering Corporation, 421 U.S. 168, 183
(1975); see also United States Department State
Ray, 502 U.S. 164 (1991); John Doe Agency John
Doe Corporation, 493 U.S. 146 (1989); United States
Department Justice Tax Analysts, 492 U.S. 136
(1989); United States Department Justice
Reporters Committee for Freedom the Press, 489
U.S. 749 (1989); Central Intelligence Agency Sims,
471 U.S. 159 (1985); Federal Trade Commission
Grolier, Inc., 462 U.S. (1983); Federal Bureau
Investigation Abramson, 456 U.S. 615 (1982);
United States Department State Washington
Post Company, 456 U.S. 595 (1982); Kissinger
Reporters Committee for Freedom the Press, 445
U.S. 136 (1980); Federal Open Market Committee
Federal Reserve System Merrill, 443 U.S. 340
(1979); Department the Air Force Rose, 425 U.S.
352 (1976); National Labor Relations Board Sears,
Roebuck Company, 421 U.S. 132 (1975);
Renegotiation Board. Bannercraft Clothing
Company, 415 U.S. (1974).
None those cases concern the construction
and interpretation Exemption since was
rewritten years ago. demonstrated the
Petition, Congress overrode presidential veto and
amended Exemption for the express purpose
replacing the blind deference standard with
standard that provides substantial weight the
Executive Branch while authorizing the courts
conduct meaningful review. The lower courts did not
conduct such review this case. Therefore, the
Executive Branch repeated assertion that there conflict authority plainly misses the mark.
This Court can, and should, grant certiorari
resolve important questions concerning the proper
construction and interpretation Exemption
CONCLUSION
For these reasons, the petition for writ
certiorari should granted.
Respectfully submitted,
Michael Bekesha
Counsel Record
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
mbekesha@judicialwatch.org
(202) 646-5172
Counsel for Petitioner