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Judicial Watch • Petition for Writ of Certiorari: Judicial Watch v. DoD and CIA

Petition for Writ of Certiorari: Judicial Watch v. DoD and CIA

Petition for Writ of Certiorari: Judicial Watch v. DoD and CIA

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Date Created:August 16, 2013

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No. ___ THE
Supreme Court the United States
_________
JUDICIAL WATCH, INC.
Petitioner,
UNITED STATES DEPARTMENT DEFENSE
AND CENTRAL INTELLIGENCE AGENCY,
Respondent.
_________ Petition for Writ Certiorari
the United States Court Appeals
for the District Columbia Circuit
_________
PETITION FOR WRIT CERTIORARI
_________
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
LEGAL PRINTERS
LLC,
Washington 202-747-2400 legalprinters.com
QUESTION PRESENTED
Whether U.S.C. 552(b)(1), which allows the
Executive
Branch
withhold
information
 specifically authorized under criteria established Executive order kept secret the interest
national defense foreign policy and [is] fact
properly classified pursuant Executive order, 
limits courts provide almost blind deference the
Executive Branch classification determinations
whether mandates that courts conduct meaningful
review those determinations.
PARTIES THE PROCEEDINGS
Petitioner Judicial Watch, Inc. not-for-profit,
educational foundation that seeks promote
integrity, transparency, and accountability
government and fidelity the rule law.
furtherance its public interest mission, Petitioner
regularly requests access public records federal,
state, and local government agencies and officials and
disseminates its findings the public.
Petitioner initiated the proceedings below
filing complaint under the Freedom Information
Act FOIA against respondents Department
Defense DoD and Central Intelligence Agency CIA the United States District Court the
District Columbia District Court The District
Court granted summary judgment favor the DoD
and the CIA and dismissed the case. Petitioner
appealed the District Court ruling the United
States Court Appeals for the District Columbia
Circuit D.C. Circuit which affirmed the District
Court grant summary judgment. Petitioner not publicly-owned corporation.
iii
TABLE CONTENTS
QUESTION PRESENTED .........................................
PARTIES THE PROCEEDINGS ........................
TABLE CONTENTS ........................................... iii
TABLE AUTHORITIES .......................................v
PETITION FOR WRIT CERTIORARI ........................................................1
DECISIONS BELOW..................................................1
JURISDICTION ..........................................................1
STATUTORY PROVISION ........................................2
STATEMENT ..............................................................3
REASONS FOR GRANTING THE PETITION .........4
The FOIA Disclosure Statute .............8
II.
Exemption Indisputably Requires All
Withheld Material Classified
Accordance with the Procedural Criteria Well Its Substantive Terms ............9
III.
The D.C. Circuit Blindly Approved the
CIA Withholding the Requested
Images Even Though the Records
Were Not Properly Classified ..................10
The D.C. Circuit Blindly Approved
the CIA Claim That the Release the
Images Reasonably Could Expected Cause Exceptionally Grave Damage National Security .................................12
The Courts Almost Blind Deference
Eviscerates the FOIA Disclosure
Statute ......................................................14
CONCLUSION ..........................................................15
APPENDIX
United States Court Appeals for the
District Columbia Circuit Judgment,
dated May 21, 2013..............................................1a
United States Court Appeals for the
District Columbia Circuit Opinion,
dated May 21, 2013..............................................3a
United States District Court for the District Columbia Memorandum Opinion,
dated April 26, 2012 ..........................................19a
United States District Court for the District Columbia Order,
dated April 26, 2012 ..........................................58a
TABLE AUTHORITIES
CASES
ACLU U.S. Department Defense,
628 F.3d 612 (D.C. Cir. 2011) ........................13
Environmental Protection Agency Mink,
410 U.S. (1973) ........................................5,
King U.S. Department Justice,
830 F.2d 210 (D.C. Cir. 1987) ..........................9
Lesar U.S. Department Justice,
636 F.2d 472 (D.C. Cir. 1980) ..........................9
Judicial Watch, Inc. United States
Department Defense,
857 Supp. (2012)...................
Judicial Watch, Inc.
United States Department Defense,
715 F.3d 937 (D.C. Cir. 2013) .......... 10-13
Milner Dep the Navy,
131 Ct. 1259 (2011) ............................7,
Ray Turner,
587 F.2d 1187 (D.C. Cir. 1978) ........................5
STATUTES U.S.C. 552(b)..........................................................2 U.S.C. 552(b)(1) ....................................i, U.S.C. 1254(1)......................................................1
MISCELLANEOUS
Executive Order 13526, 6.1(cc) .............................12
H.R. Rep. No. 93-1380,
93rd Cong. Sess. 219 (1974) ........................6
Josh Gerstein, Judge: Courts too
deferential classified information,
Politico (May 13, 2013). ................................ 6-7
PETITION FOR WRIT CERTIORARI
Petitioner Judicial Watch, Inc. respectfully
petitions for writ certiorari review the
judgment the United States Court Appeals for
the District Columbia Circuit.
DECISIONS BELOW
The decision the United States Court
Appeals for the District Columbia Circuit,
published Judicial Watch, Inc. United States
Department Defense, 715 F.3d 937 (D.C. Cir. 2013), reprinted the Appendix (App.) 3a. The
decision the United States District Court the
District Columbia, published Judicial Watch,
Inc. United States Department Defense, 857
Supp. (2012), reprinted App. 19a.
JURISDICTION
The Court Appeals affirmed the District Court
grant summary judgment for Respondents. This
Court has jurisdiction under U.S.C. 1254(1).
STATUTORY PROVISION U.S.C. 552(b) the Freedom Information
Act provides pertinent part:
(b)
This section [providing for
public access government records]
does not apply matters that are:
(1)
(A) specifically authorized under
criteria established Executive
order kept secret the interest
national defense foreign policy and
(B) are fact properly classified
pursuant such Executive order.
STATEMENT May 2011, President Barack Obama
announced the world that the United States had
conducted operation that resulted the death
Osama bin Laden. Judicial Watch, 857 Supp.2d (App. 19a).
Shortly thereafter, Petitioner
submitted FOIA requests the DoD and CIA seeking
copies all photographs and video recordings bin
Laden taking during after that operation. Id. (App.
19a-20a). After both agencies advised that they would unable process the requests within the time
permitted under the statute, Petitioner filed suit. Id.
(App. 20a).
After searching the components that
determined were most likely possess the soughtafter records, the DoD turned nothing responsive Petitioners request. Id. (App. 20a). The CIA,
however, located responsive records. Although the
CIA did not provide index identifying which the images were photographs video recordings
what was depicted each image, the CIA disclosed
that the images consisted five general
categories: (1) images taken inside the compound
Abbottabad, Pakistan, where bin Laden was killed;
(2) images taken bin Laden body was transported
from the Abbottabad compound the location where was buried sea; (3) images depicting the
preparation bin Laden body for the burial; (4)
images the burial itself; and (5) images taken for
purposes conducting facial recognition analysis
the body order confirm that was bin Laden. Id. 50-51 (App. 25a).
The CIA withheld all records, claiming that the
photographs and/or video recordings bin Ladens
death and burial were exempt from disclosure under
Exemptions and the exemptions for classified
materials and for information specifically exempted other statutes. Judicial Watch, 715 F.3d 939940 (App. 5a-9a). The CIA subsequently moved for
summary judgment. Id. (App. 4a-8a). April 26, 2012, the District Court granted the
CIA motion for summary judgment. Id. (App. 4a8a). 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. Id. (App. 4a-8a). Because
the court found that all records were being properly
withheld under Exemption the District Court did
not address the CIA claims withholding under
Exemption Id. (App. 4a-8a). appeal, the U.S. Court Appeals for the
District Columbia Circuit affirmed the District
Court ruling. Id. 944 (App. 18a).
REASONS FOR GRANTING THE PETITION issue the role the courts reviewing
determinations the Executive Branch withhold
material under Exemption the FOIA. Petitioner
does not dispute that the Executive Branch may
properly withhold material under Exemption Nor
does Petitioner dispute that the courts should afford
some deference the Executive Branch. Rather,
Petitioner requests that this Court grant certiorari
address whether the courts should conduct
meaningful review classification decisions the
Executive Branch. 1973, Exemption allowed government
agency withhold material that was specifically
required Executive order kept secret the
interest the national defense foreign policy. Ray Turner, 587 F.2d 1187, 1190-1191 (D.C. Cir. 1978)
(quoting U.S.C. 552(b)(1) (1970)). That year,
Environmental Protection Agency Mink, 410 U.S.
(1973), this Court considered challenge the
withholding material pursuant Exemption and
held that courts should not review the substantive
propriety the classification behind agency
affidavit stating that the requested documents had
been duly classified. Id. other words, Exemption written, permitted not required courts
provide effectively blind deference the Executive
Branch.
The following year, Congress overrode
presidential veto and amended the FOIA for the
express purpose changing the blind deference
standard set forth Mink. Ray, 587 F.2d 11901191. FOIA Exemption now allows government
agency withhold material only 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). addition, drafting, discussing, and
debating the revisions Exemptions Congress
recognize[d]
that
the
Executive
departments responsible for national
defense and foreign policy matters have
unique insights into what adverse
affects might occur result public
disclosure particular classified
record.
Accordingly,
[Congress]
expects[s] that Federal courts,
making novo determinations, will
accord substantial weight any
agency affidavit
H.R. Rep. No. 93-1380, 93rd Cong. Sess. 219, 228229 (1974). other words, Congress sought
replace the blind deference standard with standard
that provides substantial weight the Executive
Branch but also affords the courts with
opportunity conduct meaningful review.
Yet, the succeeding years, contrary the
express wishes Congress, courts have reverted back their old ways conducting essentially
meaningless
review
Executive
Branch
determinations. then-Chief Judge the U.S.
District Court for the District Columbia Royce
Lamberth recently stated, Most judges give almost
blind deference Exemption claims. bothers that judges, general, are far too deferential
Exemption claims. Josh Gerstein, Judge: Courts
too deferential classified information, Politico (May
13,
2013),
available
http://www.politico.com/blogs/under-the-radar/
2013/05/judge-courts-too-deferential-on-classifiedinformation-163826.html.
The instant case the poster child the almost
blind deference being provided the Executive
Branch. First, both courts confirmed and expressed
concern that the records were not properly classified.
Second, both the District Court and D.C. Circuit failed conduct meaningful review the CIA claims that
all images conformed 13526 substantive
criteria for classification. Nevertheless, the end,
both courts concluded that, regardless any failure the part the CIA fully satisfy its burdens
under Exemption the evidence submitted was good
enough for all images withheld. The D.C.
Circuit did not even remand the case afford the CIA second opportunity remedy their failures. ignoring the explicit intentions Congress
and providing almost blind deference the CIA
withhold material that may not have been properly
classified nor specifically authorized classified,
the D.C. Circuit has once again reverted back
meaningless review the courts, causing the FOIA become more withholding statute than
disclosure statute. See Milner Dep the Navy,
131 Ct. 1259, 1270 (2011). Petitioner therefore
requests that this Court grant certiorari address
this disturbing reversal identified Chief Judge
Lamberth.
The FOIA Disclosure Statute. this Court has recently reiterated, the FOIA
was enacted overhaul earlier public records
provision that had become more withholding
statute than disclosure statute. Milner, 131 Ct. 1262 (quoting Mink, 410 U.S. 79). For the FOIA escape this same fate, the nine exemptions
contained therein must interpreted narrowly. Id.
(The exemptions are explicitly made exclusive and
must narrowly construed. (internal citations
omitted)); id. 1265 have often noted the Act
goal broad disclosure and insisted that the
exemptions given narrow compass. avoid
overly expansive applications the exemptions and
maintain the FOIA status disclosure statute,
this Court explained that the lower courts should
adhere the plain meaning the language used
Congress. Id. 1270 (holding that odd reading
the plain language would produce sweeping
exemption, posing the risk that FOIA would become
less disclosure than withholding statute.
(internal citations omitted). addition, the role the courts enforce
that congressionally determined balance rather than assess case case, department department,
and task task whether disclosure interferes with
good government. Id. 1266. exemption does
not permit the withholding information that the
government believes the country interest
withhold, the Government may course seek relief
from Congress. Id. 1271. This Court concluded,
 All hold today that Congress has not enacted
the FOIA exemption the government desires.
leave Congress, appropriate, the question
whether should so. Id.
II.
Exemption Indisputably Requires
All Withheld Material Classified Accordance with the Procedural
Criteria Well Its Substantive
Terms.
Almost thirty years ago, Congress decided that
the courts should and must conduct meaningful
review the Government determinations.
Therefore, Congress carefully crafted Exemption
allow only the withholding 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).
Since then, courts have held that properly
invoke Exemption government agency must
 comply with the classification procedures established 13526 and withhold only such material
conforms 13526 substantive criteria for
classification. See e.g., King U.S. Department
Justice, 830 F.2d 210, 214 (D.C. Cir. 1987); Lesar
U.S. Department Justice, 636 F.2d 472, 483 (D.C.
Cir. 1980) (withheld material must classified
accordance with the procedural criteria the
governing Executive Order well its substantive
terms. Nevertheless, the instant action, the D.C.
Circuit failed follow
indisputable standard.
III.
this
well-established,
The D.C. Circuit Blindly Approved
the CIA Withholding the Requested
Images Even Though the Records
Were Not Properly Classified.
With respect whether the CIA properly
classified the images, the District Court aptly stated, preliminary matter, Judicial Watch correct
that the CIA declarations are not model
transparency. Judicial Watch, 857 Supp. 5657 (App. 40a). addition, the District 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). However, the court
found that the CIA cured its failure originally
classify the records through process known
derivative classification. Judicial Watch, 715 F.3d
937 (App. 8a-9a). appeal, the D.C. Circuit also identified
concerns that had with the evidence submitted
the CIA. The court explained:
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 guide provisions, not
even general description, that would
permit determine whether the
derivative classification was properly
based the guide. Hence cannot
determine whether the derivative
classifier misapplied the guide,
whether the guide instructions were
vague operate constraint
all.
Id. 944 (App. 16a-17a) (internal citation with
discussion omitted). Unlike the District Court, the
D.C. Circuit determined that there was evidence
that the procedural defect was cured. other words,
the two courts collectively concluded that the CIA
provided evidence demonstrate that the images
were properly classified. Id. 940 (App. 16a-17a); id. 944 (App. 16a-17a). fact, the D.C. Circuit even
remarked that its usual course action would
remand the case and order the government agency
submit sufficient information. Id. 944 (App. 17a).
Yet the D.C. Circuit did not remand the case.
Instead, the court agreed with the District Court that
the records should not released. the end, the
reasoning both courts was the same: regardless
whether there any evidence that the CIA properly
classified the images, the records may withheld
because, after-the-fact and during the litigation, the
images were reviewed the agency and determined the agency correctly classified. This blind
deference provided the courts makes mockery out the well-established, indisputable standard that
records are only properly withheld when
government agency compl[ies] with the classification
procedures established 13526. U.S.C. 
552(b)(1).
IV.
The D.C. Circuit Blindly Approved
the CIA Claim That the Release
the Images Reasonably Could
Expected Cause Exceptionally
Grave Damage National Security. properly withhold the requested images the
CIA was required demonstrate that the release
each the records reasonably could expected
cause identifiable describable exceptionally grave
damage national security. National Security
defined 13526 the national defense
foreign relations the United States. 13526, 
6.1(cc). The D.C. Circuit concluded that the CIA
withholding all the images was proper because
the submitted declarations supporting the Executive
Branch 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). addition, the
court seems suggest that the result such violence
and attacks equivalent exceptionally grave
damage national security. Id. (App. 13a). Prior
this ruling, court had ever held that speculative,
unspecific violence harms the national defense the
United States. the D.C. Circuit noted, Petitioner focused its
appeal the most seemingly innocuous the
images: those that depict the preparation bin
Laden body for burial and the burial itself. Id.
942 (App. 12a). Although the CIA arguably presented
sufficient evidence how the release gruesome
images bin Laden could trigger violent attacks
terrorists, the D.C. Circuit did conduct meaningful
review the CIA determination withhold images somber, dignified burial sea.
Because the withholding images somber,
dignified burial had previously never been upheld, the
D.C. Circuit should have conducted more
meaningful review the CIA justifications for its
alleged classification. For example, can argued
that although any attack U.S. interests citizens regrettable and unfortunate, not every such event
causes exceptionally grave damage the nation
national defense foreign relations. fact, the most
recent, despicable attack American interests the
September 11-12, 2012 killings four U.S.
government
personnel,
including
the
U.S.
Ambassador Libya does not align within the
typical scenario harm national security. See
ACLU U.S. Department Defense, 628 F.3d 612,
623-25 (D.C. Cir. 2011).
Similarly, could argued that the release
images depicting somber burial which the body
the mastermind the most deadly terrorist attack
the United States was treated with the utmost dignity
and respect could lead the easing tensions
overseas. Instead conducting meaningful review
the CIA determination, the Court merely concluded
that the CIA justifications 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 and releasing the images the
burial sea could interpreted deliberate
attempt the United States humiliate bin Laden 
were logical and plausible reasons for why the
images may withheld. Judicial Watch, 715 F.3d
942 (App. 13a). However, the release images
depicting the traditional procedures for Islamic
burials that were followed could discredit such claims terrorists and provide less, not more, reason
attack American interests overseas. Yet the D.C.
Circuit blindly affirmed the Executive Branch
determinations.
The Courts Almost Blind Deference
Eviscerates the FOIA Disclosure
Statute.
This case presents important question
federal law because highlights the disturbing fact
that courts have once again reverted back
meaningless review. doing so, courts continue
eviscerate the FOIA disclosure statute directly
contradicting the plain language Exemption and
the explicit intentions Congress. providing
almost blind deference the Executive Branch,
foreseeable that the Executive Branch will abuse its
seemingly unreviewable authority and will claim
Exemption avoid disclosure. Therefore, this
Court does not grant certiorari and address this
disturbing reversal identified Chief Judge
Lamberth, Exemption will remain sweeping
exemption and the FOIA will continue less
disclosure than withholding statute. Milner, 131 Ct. 1270.
CONCLUSION
For the foregoing 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
United States Court Appeals
FOR THE DISTRICT COLUMBIA CIRCUIT
____________
No. 12-5137
September Term, 2012
FILED ON: May 21, 2013
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)
________
Before: GARLAND, Chief Judge, ROGERS,
Circuit Judge, and EDWARDS, Senior Circuit
Judge
JUDGMENT
This cause came heard the record appeal from the United States District Court for
the District Columbia and was argued counsel. consideration thereof,
ORDERED and ADJUDGED that the
judgment the District Court appealed from this
cause hereby affirmed, accordance with the
opinion the court filed herein this date.
Per Curiam
FOR THE COURT:
Mark Langer, Clerk
BY: /s/
Michael McGrail
Deputy Clerk
Date: May 21, 2013
Opinion Per Curiam
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
After oral argument this appeal, the CIA
acknowledged that had located seven additional responsive
records, which withheld the same basis the original
Watch sued, and the parties filed cross-motions for
summary judgment.
The Government supported its motion with
three declarations that are relevant appeal.2 The
first, lengthy declaration John Bennett, Director the CIA National Clandestine Service, stated that
all responsive records contained post-mortem
images [bin Laden body. Bennett Decl. 11.
Many, said, were quite graphic and gruesome 
pictures displaying the bullet wound that killed bin
Laden; some showed bin Laden face way
intended enable facial recognition analysis; and
some documented the transportation and burial bin
Laden 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 postmortem photographs Qaeda leader Abu Musab
al-Zarqawi, which had been portrayed Pakistan 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 Laden
images. See Rule 28(j) Letter from CIA Counsel (filed Feb. 15,
2013) fourth declaration, filed William Kammer, Chief
the Department Defense Freedom Information Division,
attested that the Pentagon possessed responsive records.
Judicial Watch longer contests this point.
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 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,
The CIA filed unredacted version the McRaven
declaration parte. not rely the classified portions
the declaration this opinion.
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 CIA 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
fourth declaration, written Elizabeth Culver, the
Information Review Officer for the CIA 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 CIA 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. Dep
Def., 857 Supp. 44, (D.D.C. 2012). The CIA
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 Dep 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
The district court did not address the agency
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. 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. Dep 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 agency bad faith,
summary judgment warranted the basis the
affidavit alone. Id. (internal quotation marks
omitted); see Larson Dep State, 565 F.3d 857,
862 (D.C. Cir. 2009); Wolf CIA, 473 F.3d 370, 37475 (D.C. Cir. 2007); Miller Casey, 730 F.2d 773, 776
(D.C. Cir. 1984). Ultimately, agencys 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 374 75)).
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. Dep Justice, 636 F.2d 472, 481 (D.C. Cir.
1980) (explaining that the Executive Order
substantive and procedural criteria must satisfied
for agency properly invoke Exemption 1); H.R.
REP. NO. 93-1380, 228-29 (1974) (same). The
Order substantive criteria, relevant here, are
twofold. First, classified information must pertain
10a 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 CIA classification
decision. consider each turn.
Turning first the substantive question,
indisputable that the images issue fall within the
Executive Order 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
11a
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 CIA
contention that the most graphic and gruesome
the remaining images those displaying the bullet
wound bin Laden 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 Laden body for
burial and the burial itself, Bennett Decl. 11. See
Judicial Watch Reply Br. Judicial Watch contends
12a 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 not need specific reason incite violence, and that any claim that individuals
would engage violence upon seeing such images
mere speculation. Judicial Watch Br. 23-24. the district court rightly concluded,
however, the CIA 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 Neller 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 Bennett 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
13a
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 government
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,
For the same reasons, these declarations support the
agency 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 government 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
14a
which the sole question whether the CIA has
properly invoked FOIA Exemption authorize
withholding images its own possession. Cf. Afshar Dep 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 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 CIA predictions the violence that
could accompany disclosure the images provide
adequate basis for classification, not rely upon reach the agency 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
15a
those predictions are logical plausible. Id.
(quoting Larson, 565 F.3d 862). agree with the
district court that the CIA 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-by-document 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 Watch factual premise mistaken,
the CIA has averred that the images were fact
classified before received the appellant FOIA
request, see Culver Decl. n.1; CIA Br. 52; Oral Arg.
Recording 28:50-29:20, and there evidence
the contrary.
16a
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 CIA 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 21:3023:10. 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 guide provisions, not even general description,
that would permit determine whether the
derivative classification was properly based the
guide. Cf. Wilson McConnell, 501 Supp. 545,
17a
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 guide
instructions were vague operate
constraint all. some cases, agency 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 Dep 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 agency overall
classification decision. Lesar, 636 F.2d 484, 485.
Therefore, further steps are required for
determine that withholding the images was
warranted. See id.
18a
III
For the foregoing reasons, the judgment the
district court
Affirmed.
19a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
______________________________
JUDICIAL WATCH, INC.,
Plaintiff, No. 11-890 (JEB)
U.S. DEPARTMENT
DEFENSE, al.,
Defendants.
______________________________)
MEMORANDUM OPINION picture may worth thousand words. And
perhaps moving pictures bear even higher value.
Yet, this case, verbal descriptions the death and
burial Osama Bin Laden will have suffice, for
this Court will not order the release anything more. the evening May 2011, President
Barack Obama announced the world that the
United States had conducted operation that
resulted the death Bin Laden, the leader the
terrorist organization Qaeda. The very next day,
Plaintiff Judicial Watch submitted Freedom
Information Act request Defendant Department
Defense seeking any photographs and video
recordings Bin Laden taking during after that
20a
operation. Judicial Watch sent similar request
Defendant Central Intelligence Agency few days
later. After both DOD and the CIA advised that they
would unable process the requests within the
time permitted under the statute, Plaintiff filed suit.
Both agencies have since issued final responses Plaintiff requests. After searching the
components that determined were most likely
possess the sought-after records, DOD turned
nothing responsive Judicial Watch request. The
CIA, however, located fifty-two responsive records, all which withheld. Specifically, the agency claimed
that the photographs and/or video recordings Bin
Laden death and burial were exempt from
disclosure under FOIA Exemptions and the
exemptions for classified materials and for
information specifically exempted other statutes.
Both sides now seek summary judgment.
Plaintiff claims that DOD did not conduct
adequate search. addition, challenges the level
generality which the CIA described the fifty-two
responsive records and contends that the agency has
not demonstrated that each record may properly
withheld under either claimed exemption. For their
part, Defendants maintain that DOD search was
sufficient and that the CIA has provided adequate
support for its withholdings.
Defendants arguments carry the day. The
affidavits they have provided are sufficient
establish that DOD conducted adequate search for
responsive records and that the records identified
21a
the CIA were classified materials properly withheld
under Exemption The Court declines Plaintiff
invitation substitute its own judgment about the
national-security risks inherent releasing these
records for that the executive-branch officials who
determined that they should classified. The Court,
accordingly, will grant Defendants Motion and deny
Plaintiff Background May 2011 (May 2011, Pakistan
time zone), American forces captured and killed
Osama Bin Laden his compound Abbottabad,
Pakistan. See Transcript President Obama May
2011,
Remarks,
available
http://www.whitehouse.gov/the-pressoffice/2011/05/02/remarks-president-osama-binladen. Executive officials have confirmed that the
team then took custody Bin Laden body and
transported the aircraft carrier USS Carl Vinson the North Arabian Sea. See, e.g., Pl. Mot. Opp.,
Declaration Michael Bekesha, Exh. (Press
Briefing Press Secretary Jay Carney, May 2011) There, [t]he deceased body was washed and
then placed white sheet. Bekesha Decl., Exh.
(DOD Background Briefing with Senior Defense
Officials from the Pentagon and Senior Intelligence
Officials Telephone U.S. Operations Involving
Osama Bin Laden, May 2011) Religious
remarks were read, and the prepared body was placed weighted bag and onto flat board. See id. the
board was tipped up, Bin Laden body slipped into
the sea. See id.
22a
Shortly after the President announcement,
the media began report that the government had
taken photographs Bin Laden body the
aftermath the raid. See, e.g., Bekesha Decl., Exh.
(Stacia Deshishku, Even More Details the OBL
Photos, CNN, May 2011). This was confirmed
White House officials, see, e.g., Bekesha Decl., Exh.
(Press Briefing Jay Carney and Assistant the
President
for
Homeland
Security
and
Counterterrorism John Brennan, May 1011) 4-5,
who suggested that, May decision had yet
been made concerning whether the photographs
would released. See id.; Press Briefing Jay
Carney, May 2011, 2-3. particular, Press
Secretary Carney expressed concern about the
sensitivities involved releasing the images and the
potential that doing could inflammatory. Press
Briefing Jay Carney, May 2011, CIA
Director Leon Panetta, however, was more confident
 that ultimately photograph would presented
the public. Bekesha Decl., Exh. Leon Panetta
Talks About Whether not Photo Osama Bin
Laden Will Released the Public, NBC Nightly
News, May 2011) May Carney
announced that the President ha[d] made the
decision not release any the photographs the
deceased Osama bin Laden. Bekesha Decl., Exh.
(Press Briefing Jay Carney, May 2011) The
President himself later explained this decision,
emphasizing the national security risk involved and
stating that the photos might serve [a]s
propaganda tool incitement additional
violence. Interview with President Obama,
23a
Minutes, May 2011, transcript available
http://www.cbsnews.com/
8301-504803_162-20060530-10391709.html. letter dated May 2011, Judicial Watch,
non-profit, educational foundation, Am. Compl.,
submitted FOIA request DOD for all
photographs and/or video recordings Osama
(Usama) Bin Laden taken during and/or after the U.S.
military operation Pakistan about May
2011. See Def. Mot., Declaration William
Kammer, Exh. (Letter from Michael Bekesha, May 2011). DOD Office Freedom Information
(OFOI) received the following day. See Kammer
Decl., letter dated May 2011, OFOI
acknowledged receipt the request, but advised that would unable make release determination within the 20-day statutory time period and that
the 10-day extensions provided for FOIA would
also not provide sufficient time for the agency
complete processing. See Kammer Decl., Exh.
(Letter from Paul Jacobsmeyer, May 2011). May Judicial Watch submitted
substantively identical FOIA request the CIA. See
Def. Mot., Declaration John Bennett, Exh.
(Letter from Michael Bekesha, May 2011). The CIA
received the following day, May See Bennett
Decl., letter dated May 23, the CIA
acknowledged receipt the request and advised
Judicial Watch that, light [t]he large number
FOIA requests the CIA receives, would
 unlikely that [the agency could] respond within the
24a working days the FOIA requires. Bennett Decl.,
Exh. (Letter from Susan Viscuso, May 23, 2011).
Seeking compel the agency process its
request and release all non-exempt responsive
records within the timeframe mandated the
statute, Judicial Watch filed suit against DOD
May 13, 2011. few weeks later, filed Amended
Complaint that added the CIA Defendant. Both
agencies have the meantime finished processing
Plaintiff requests. attempting locate responsive records,
DOD OFOI first determined that the DOD
components most likely have the records Plaintiff
was seeking were the Office the Joint Chiefs Staff
(OCJCS), the U.S. Special Operations Command
(USSOCOM), and the Department the Navy. See
Kammer Decl., Officers then proceeded search
those files and electronic record-storage systems
within these three components which they believed
responsive records might plausibly found. See id.,
 5-8. DOD ultimately located records responsive Judicial Watch request. See id.
The CIA search was more fruitful. The agency
conducted search those components most likely have records related the May 2011 operation determination made easier the nature the
operation and the close proximity time between the
operation and Plaintiff[ FOIA request. See
Bennett Decl., 10. Fifty-two unique responsive
records were located. See id., 11. The records are
25a
described John Bennett, Director the CIA
National Clandestine Service (NCS), follows:
These records are photographs and/or
video recordings taken [Bin Laden] about May 2011, the day that the
United States conducted operation
that resulted his death. These records
contain post-mortem images [Bin
Laden] body. result, many them
are quite graphic, they depict the fatal
bullet wound [Bin Laden] head and
other similarly gruesome images his
corpse. Many the images were taken
inside [Bin Laden] compound
Abbottabad, Pakistan, which was
killed, while others were taken his
corpse was being transported from the
Abbottabad compound the location
where was ultimately buried sea.
Several other images depict the
preparation his body for burial well the burial itself. Some the
responsive photographs were taken
that the CIA could conduct facial
recognition analysis order confirm
that the body the deceased individual
was that [Bin Laden].
Id.
But all these photographs and/or videos, the
CIA claims, are beyond FOIA reach. See id., 1236. Specifically, Bennett averred both that the records question are classified materials exempt from
26a
disclosure under FOIA Exemption and that they are
exempted from disclosure other statutes and,
accordingly, fall within the ambit Exemption See
id., 13-35. With respect Exemption Bennett
stated not merely that the responsive records are
fact classified, but also that they were properly
classified i.e., that they met the procedural and
substantive criteria for classification set forth under
Executive Order (EO) 13526. See id., 13-22. His
statement concerning 13526 procedural criteria buttressed the declaration Elizabeth Culver,
the Information Review Officer for the NCS. See
generally Def. Opp. Reply, Decl. Elizabeth
Culver. With regard the Order substantive
requirements,
Bennett
averments
are
supplemented the declarations Robert Neller,
the Director Operations, J-3, the Joint Staff
the Pentagon, and William McRaven, Commander
the USSOCOM. See generally Def. Mot., Decl.
Robert Neller; Def Mot., Decl. William McRaven.
Both parties now seek summary judgment.
II. Legal Standard
Summary judgment may granted the
movant shows that there genuine dispute
any material fact and the movant entitled
judgment matter law. Fed. Civ. 56(a); see
also Anderson Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986); Holcomb Powell, 433 F.3d 889, 895
(D.C. Cir. 2006). party asserting that fact cannot genuinely disputed must support the
assertion citing particular parts materials
27a
the record. Fed. Civ. 56(c)(1)(A). The moving
party bears the burden demonstrating the absence genuine issue material fact. Celotex Corp.
Catrett, 477 U.S. 317, 322 (1986). [A] material fact
 genuine the evidence such that reasonable
jury could return verdict for the nonmoving party element the claim. Liberty Lobby, Inc., 477
U.S. 248. Factual assertions the moving party
affidavits declarations may accepted true
unless the opposing party submits his own affidavits,
declarations, documentary evidence the
contrary. Neal Kelly, 963 F.2d 453, 456 (D.C. Cir.
1992).
FOIA cases typically and appropriately are
decided motions for summary judgment. Defenders Wildlife U.S. Border Patrol, 623 Supp. 83, (D.D.C. 2009); Bigwood United States Agency for
Intl Dev., 484 Supp. 68, (D.D.C. 2007).
FOIA case, the Court may grant summary judgment
based solely information provided agency
affidavits declarations when they describe the
documents and the justifications for nondisclosure
with reasonably specific detail, demonstrate that the
information withheld logically falls within the
claimed exemption, and are not controverted either
contrary evidence the record nor evidence
agency bad faith. Military Audit Project Casey, 656
F.2d 724, 738 (D.C. Cir. 1981). Such affidavits
declarations are accorded presumption good
faith, which cannot rebutted purely speculative
claims about the existence and discoverability other
documents. SafeCard Servs., Inc. SEC, 926 F.2d
28a
1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer
Watch, Inc. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
III. Analysis
Congress enacted FOIA order pierce the
veil administrative secrecy and open agency
action the light public scrutiny. Dept Air
Force Rose, 425 U.S. 352, 361 (1976) (quoting Rose Dept Air Force, 495 F.2d 261, 263 (2d Cir. 1974))
(internal quotation marks omitted). The statute
provides that each agency, upon any request for
records which (i) reasonably describes such records
and (ii) made accordance with published rules shall make the records promptly available any
person. U.S.C. 552(a)(3)(A). Consistent with this
statutory mandate, federal courts have jurisdiction
order the production records that agency
improperly withholds. See U.S.C. 552(a)(4)(B);
DOJ Reporters Comm. for Freedom the Press, 489
U.S. 749, 755 (1989). Unlike the review other
agency action that must upheld supported
substantial evidence and not arbitrary and
capricious, the FOIA expressly places the burden
the agency sustain its action and directs the
district courts determine the matter novo. 
Reporters Comm., 489 U.S. 755 (quoting U.S.C. 
552(a)(4)(B)). all times, courts must bear mind
that FOIA mandates strong presumption favor
disclosure Nat Ass Home Builders
Norton, 309 F.3d 26, (D.C. Cir. 2002) (quoting U.S.
Dep State Ray, 502 U.S. 164, 173 (1991)).
29a this case, Judicial Watch levels different
challenge against each Defendant agency. With
respect DOD, which found records responsive
its request, Plaintiff contends that that the agency
search was too narrow. With respect the CIA, which
located fifty-two responsive records, Plaintiff alleges
that the agency has neither described those records
sufficient detail nor demonstrated that they are
exempt from disclosure. The Court will first address
the deficiencies ascribed DOD, finding that the
agency search complied with the obligations
imposed FOIA. will then turn the more
difficult Plaintiff claims and the crux the
dispute: whether the CIA has produced sufficient
evidence support its withholdings. the end the
day, because the agency declarations establish that
the records question were properly classified, that
they pertain the foreign activities the United
States, and that their release could reasonably
expected damage the national security, the Court
concludes that the photographs and/or video
recordings Osama Bin Laden body are exempt
from disclosure under FOIA Exemption DOD Search gain summary judgment Plaintiff
challenge the adequacy its search, DOD must
demonstrate beyond material doubt that has
conducted search reasonably calculated uncover
all relevant documents. Morely CIA, 508 F.3d
1109, 1114 (D.C. Cir. 2007) (quoting Weisberg DOJ,
705 F.2d 1344, 1351 (D.C. Cir. 1983)) (internal
quotation mark omitted) (alteration original); see
also Nation Magazine U.S. Customs Service,
30a
F.3d 885, 890 (D.C. Cir. 1995). The 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 (quoting Oglesby U.S.
Dep Army, 920 F.2d 57, (D.C. Cir. 1990)).
reasonably calculated search, however, does not
require agency search every file where
document could possibly exist. Hidalgo FBI, No.
10-5219, 2010 5110399, (D.C. Cir. Dec. 15,
2010) (citing SafeCard Servs., 926 F.2d 1201).
Instead, merely requires that the search
reasonable light the totality the
circumstances. Id. [A]ffidavits that explain
reasonable detail the scope and method the search
conducted the agency will suffice demonstrate
compliance with the obligations imposed FOIA. 
Negley FBI, 169 Fed. Appx. 591, 594 (D.C. Cir.
2006) (quoting Meeropol Meese, 790 F.2d 942, 952
(D.C. Cir. 1986)) (internal quotation marks omitted)
(alteration original).
William Kammer, Chief DOD Freedom
Information Division, stated that DOD searched for
records responsive Judicial Watch request the
three locations determined the most likely
possess responsive records: the OCJCS, USSOCOM,
and the Department the Navy. See Kammer Decl., Within the OCJCS, single officer
maintained all documents related the May 2011,
operation. See id., That officer searched all hard-
31a
copy records and the only computer used store
electronic records. See id. addition, the email files the Chairman the Joint Chiefs Staff, Admiral
Mike Mullen, were searched, along with the active
inbox the Exchange server and all supporting
personal storage table files within Admiral Mullen
profile the Secure Internet Protocol Router
network. Id. For its part, USSOCOM searched its
headquarters and relevant components, combing all
hard copy and electronic records including all email
records during the inclusive dates May 2011,
through May 31, 2011. Id., Finally, because Bin
Laden body was buried sea from the Navy aircraft
carrier USS Carl Vinson, OFOI coordinated with the
Commander the U.S. Pacific Fleet have the ship
system searched. See id., The Commander
advised that USS Carl Vinson personnel took any
photographs videos the burial and that search the ship computer system for email discussions
any such photographs video recordings had turned nothing relevant. See id.
Judicial Watch nonetheless challenges the
adequacy DOD search three respects. First,
contends that DOD did not search least one
critical location the Office the Secretary, Pl.
Mot. Opp. 16, and that this omission rendered
DOD search unreasonably narrow. Because has
been widely reported that Secretary Gates advised
President Obama about whether release post
mortem photographs Bin Laden, Judicial Watch
argues that nearly inconceivable that DOD did
not have possession the photographs and suggests
that they likely reside the Office the Secretary.
32a
Id. But even Secretary Gates gave such advice,
does not necessarily follow that ever saw the
photos. And even did seem them, that does not
mean that actually possessed them and also
retained them his office. Plaintiff speculation that
Secretary Gates must have kept copies these
classified records just that: speculation. Because
 [a]gency affidavits are accorded presumption
good faith which cannot rebutted purely
speculative claims about the existence and
discoverability other documents, Negley, 169 Fed.
Appx. 594 (quoting SafeCard Servs., 926 F.2d
1200) (internal quotation marks omitted) (alteration original), such bald conjectures not undermine
the agency position.
Second, Plaintiff maintains that Kammer
declaration does not demonstrate that Defendants
searched
the
Joint
Worldwide
Intelligence
Communications System (JWICS), system
interconnected computer networks used by, inter alia,
DOD and the U.S. Department State transmit
classified information. See Pl. Mot. Opp. 17.
 Because has also been reported that Secretary
State Hillary Clinton provided advice President
Obama about whether release post mortem
photographs Bin Laden, Plaintiff reasons,
more than plausible that responsive records were
transmitted to/from DOD the U.S. Department
State via JWICS. Id. Again, Judicial Watch would
have the Court infer from the media reports that
Secretary Clinton advised President Obama
concerning the photographs release that she fact
possessed copies those photographs or, more
33a
specifically, that she viewed them through JWICS.
with Secretary Gates, however, this inference
entirely unsupported evidence.
Third, Judicial Watch complains that Kammer
did not specifically state that the agency searched for
photographs videos taken during the period after
the SEALs left Pakistan with Bin Laden body. Pl.
Mot. Opp. 17. If, the media have reported, see,
e.g. Deshishku, Even More Details the OBL
Photos such records were made, Plaintiff
argues, highly likely that such records would the possession DOD. Pl. Opp Mot. 17.
Kammer declaration that the search the USS
Carl Vinson for mention photographs videos
the burial turned responsive video recordings photographs, Kammer Decl., however, plainly
covers photographs and videos taken after the
mission Pakistan. More broadly, Kammer
repeatedly explains that the searches the various
components revealed responsive records. See id., Because Judicial Watch requested all
photographs and videos taken during and/or after 
the operation Pakistan, see Letter from Michael
Bekesha, May 2011, Kammer statements
that responsive records were located clearly
includes those records created subsequent the
completion the intelligence mission within
Pakistan. Pl. Mot. Opp. 17. Judicial Watch
cannot seriously argue otherwise. should emphasized that this was not
request for some broadly defined class documents
the existence and whereabouts which the agency
34a
was likely unaware and that might maintained
any number records systems. the contrary,
Judicial Watch request related discrete set
extraordinarily high-profile records concerning the
most highly classified operation that this government
has undertaken many, many years. Press Briefing Jay Carney, May 2011, DOD has
possession these records, the relevant individuals
are well aware that fact.
Judicial Watch challenge the adequacy
DOD search, accordingly, seems reduce
suggestion that the agency acted bad faith
(although Judicial Watch makes explicit
accusation that effect). Plaintiff, however, has
neither rebutted the presumption good faith
afforded the agency declarations nor proffered
 countervailing evidence that raises substantial
doubt the adequacy the agency search.
Iturralde Comptroller the Currency, 315 F.3d
311, 314 (D.C. Cir. 2003). the basis Kammer
declaration, which provides relatively detailed and
nonconclusory explanation DOD search,
SafeCard Servs., 926 F.2d 1200 (quoting Ground
Saucer Watch, 692 F.2d 771)) (internal quotation
mark omitted), therefore, the Court will grant
Defendants Motion and deny Plaintiff the
adequacy-of-search issue. The CIA Withholdings
Although DOD did not possess the records
Judicial Watch sought, the CIA found exactly what
Plaintiff was looking for: fifty-two photographs
35a
and/or video recordings taken [Bin Laden]
about May 2011. Bennett Decl., 11. Frustratingly
for Plaintiff, however, the CIA claims that each and
every one them exempt from disclosure under
FOIA. the sufficiency the agency support
for its withholdings that the Court now directs its
focus.
Congress exempted nine categories
documents from FOIA broad sweep. [T]he statutory
exemptions, which are exclusive, are narrowly
construed. Norton, 309 F.3d (quoting Rose, 425
U.S. 361). The CIA here relies the application
both Exemption and Exemption Exemption
applies materials that are specifically authorized
under criteria established Executive order
kept secret the interest national defense
foreign policy and are fact properly classified
pursuant such Executive order. U.S.C. 
552(b)(1). Exemption covers information that
 specifically exempted from disclosure statute,
that statute meets certain statutorily enumerated
criteria. Id. 552(b)(3). agency may invoke Exemption
withholding records only complies with
classification procedures established the relevant
executive order and withholds only such material
conforms the order substantive criteria for
classification. King DOJ, 830 F.2d 210, 214 (D.C.
Cir. 1987); see also Lesar DOJ, 636 F.2d 472, 483
(D.C. Cir. 1980) classified properly,
document must classified accordance with the
procedural criteria the governing Executive Order
36a well its substantive terms. Judicial Watch
questions the CIA compliance with 13526
both procedural and substantive grounds. the
Court finds that the CIA declarations, which are
afforded substantial weight, Halperin CIA, 629
F.2d 144, 148 (D.C. Cir. 1980), establish that the
agency has properly withheld the photographs and/or
video recordings Bin Laden body pursuant
Exemption will grant Defendants summary
judgment without reaching the question Exemption applicability. 13526 Procedural Requirements 13526, which prescribes uniform system for
classifying, safeguarding, and declassifying national
security information, sets out the procedures
which information may classified. The Order
procedural requirements govern wide set issues
that range from the authority the original classifier the proper identification and marking classified
material. The CIA maintains that the declarations
John Bennett, Director the NCS, and Elizabeth
Culver, Information Review Officer for the NCS,
establish that the fifty-two records were classified
consistent with 13526 procedural requirements.
Both these individuals have declared that they
possess original TOP SECRET classification
authority, see Bennett Decl., 18; Culver Decl., that they personally reviewed each the records
issue, see Bennett Decl., Culver Decl., and
that 13526 procedural requirements were
satisfied. See Bennett Decl., 13; Culver Decl.,
37a
Judicial Watch disagrees. its Motion,
argued that Bennett declaration the only one that
had then been submitted the procedural issues 
did not suffice establish procedural compliance
because failed identify who originally classified
the records, when original classification occurred (in
particular, whether the records were classified before after Plaintiff request was received), the date
event upon which the records will declassified, and
whether the records were properly identified and
marked. See Pl. Mot. Opp. 23-27. The CIA
subsequently submitted the Culver declaration along
with its Opposition and Reply attempt
address these specific concerns. See Culver Decl.,
Culver stated, relevant part: have confirmed that each these
records
satisfies
the
procedural
requirements Executive Order 13526. the time Mr. Bennett declaration,
these records were marked TOP
SECRET 
and
were
otherwise
maintained manner that satisfied
the procedural requirements the
Executive
Order
under
the
circumstances. Since then the CIA has,
out abundance caution, taken
additional steps ensure that each
these records contains all the
markings required the Executive
Order and its implementing directives,
including information that reveals the
identity the person who applied
derivative
classification
markings,
38a
citations the relevant classification
guidance and reasons for classification,
and the applicable declassification
instructions. for Plaintiff inquiry concerning the
identity the original classification
authority (OCA), after the CIA received
these records, they were derivatively
classified accordance with the
guidance provided the CIA
designated senior agency official,
authorized Part the Executive
Order. The CIA official who provides this
classification guidance and therefore
the OCA for these records the CIA
Director Information Management
Services, who the authorized OCA
who has been designated direct and
administer the CIA program under
which
information
classified,
safeguarded, and declassified. When Mr.
Bennett, who himself [sic] OCA
acting under the direction the CIA
Director, later reviewed each these
records for the purpose this litigation, reaffirmed that these prior
classification
determinations
were
correct and that the records continued
meet the criteria the Order.
Id., 7-8 (footnote omitted).
39a
Far from convinced, Judicial Watch suggests
that Culver declaration only further confirms that
Defendants have failed satisfy their burden
proof. Pl. Reply points out that derivative
classification defined 13526 the
incorporating, paraphrasing, restating, generating new form information that already classified,
and marking the newly developed material consistent
with the classification markings that apply the
source information. 13526 6.1(o). Original
classification, the other hand, initial
determination that information requires, the
interest the national security, protection against
unauthorized disclosure. Id. 6(ff). Even Culver
statements establish that the records were
derivatively classified consistent with 13526
requirements, the argument goes, neither her
testimony nor Bennett establishes that original
classification authority originally classified the
information properly. addition failing identify
who originally classified the records, her statements not identify when original classification occurred whether the records, which she avers now contain
the required markings, were properly marked
begin with. See Pl. Reply 3-9. preliminary matter, Judicial Watch
correct that the CIA declarations are not model
transparency. Although both Bennett and Culver
assert that 13526 procedural requirements were
satisfied, see Bennett Decl., 13; Culver Decl.,
and Culver fleshes out her conclusion with additional
details, see Culver Decl., 7-8, neither reveals, for
example, the identity the individual who originally
40a
classified the records question. The Court,
nevertheless, will not order these records released
procedural grounds for two reasons. First, even
there had been some procedural defect the original
classification, was cured proper derivative
classification and Bennett and Culver
subsequent reviews. Second, even cure had taken
place, any hypothetical defect would not require that
the documents released long did not
undermine the agency assessment the
substantive criteria for classification. Any Defect Cured 13526 describes detail the procedures
which document may classified, and FOIA
requires agency demonstrate conformity with
those procedures. See King, 830 F.2d 214. Neither
the nor the statute, however, specifies the level
detail with which agency declaration, which
entitled presumption good faith, see SafeCard
Servs., 926 F.2d 1200, must recount its compliance.
Especially given the lack evidence bad faith,
thus possible that Bennett and Culver more general
statements that all 13526 procedural
requirements were satisfied, see Bennett Decl., 13;
Culver Decl., are sufficient. See, e.g., Schoenman FBI, 575 Supp. 136, 151-52 (D.D.C. 2008)
(testimony that record was properly marked
 CONFIDENTIAL because contains classified
national security information, while could stand more specific the procedural requirements, 
found sufficient). But light Allen CIA, 636 F.2d
1287 (D.C. Cir. 1980), overruled other grounds
41a
Founding Church Scientology Smith, 721 F.2d
828, 830 (D.C. Cir. 1983), which deemed declarations
that omitted details such the identity the
original classifier insufficient demonstrate
procedural compliance, id. 1292, that not likely.
Although Allen may distinguishable for instance, the ground that the court found that the agency
had also failed demonstrate substantive
compliance the Court need not venture down that
path.
That because even Plaintiff were correct
its speculation that there may have been procedural
flaws the original classification, such flaws were
cured proper derivative classification and
subsequent classification reviews. See, e.g.,
Washington Post DOD, 766 Supp. 7-9 (D.D.C.
1991) (subsequent review individual with original
classification authority cured actual procedural
defects); cf. Carlisle Tire and Rubber Co. U.S.
Customs Serv., 663 F.2d 210, 215 (D.C. Cir. 1980) [P]roper subsequent classification under new EO]
suffices cure any procedural and substantive
defects classification which may have existed under
[the old EO]. Where, Culver has averred, the
individual who conducts the derivative classification
himself has original classification authority, see
Culver Decl., and where two additional
individuals with original classification authority
(Bennett and Culver) review the classified records
and attest their compliance with the
procedural
and
substantive
requirements,
speculative defects the original classification
procedure are immaterial.
42a
Culver, moreover, expressly confirms that the
records bear all the markings required the
Executive Order. Id., Notably, the requires
that those markings include, among other things, the
identity the original classification authority, the
agency origin, and declassification instructions. See 13526 1.6. Culver testimony that the records
contain all the required markings, accordingly,
addresses most the issues Plaintiff has raised, not
with the specificity might prefer. addition, even Plaintiff correct that Culver statements imply
that the records may not have initially carried all
the required markings, that they are currently
marked suffices. See, e.g., Washington Post, 766
Supp. (deemed adequate that agency, which
 concede[d] that many documents were not properly
marked, under[took] correct [them]
Finally, Plaintiff claim that Defendants must
disclose the date the original classification
unfounded. 13526 does not require that the date classification indicated the records
themselves, and Plaintiff does not show need
included supporting declaration. Plaintiff
explanation for why needs this information,
moreover, does not hold water. Plaintiff contends that
Defendants must disclose the date original
classification demonstrate that the additional
procedural
requirements
that
pertain
classifications that occur after FOIA requests are
received specifically, such classifications must
 accomplished document-by-document basis with
the personal participation under the direction 
43a
particular officials, see 13526 1.7(d) did not
apply. But Judicial Watch speculation that the
records were classified subsequent the agency
receipt its request belied Bennett declaration
and its own chronology. Bennett attests, and Judicial
Watch does not appear dispute, that the CIA
received its FOIA request, which was dated May
2011, see Letter from Michael Bekesha, May 2011, May See Bennett Decl., Even according Plaintiff own timeline, however, classification
occurred before then. See Pl. Mot. Opp. 25.
Indeed, the formal announcement that the records
would not released came May See Press
Briefing Jay Carney, May 2011, at1. Judicial
Watch suggestion that the operative date May
the day DOD received its request, see Kammer Decl., rather than the day the CIA received its request,
moreover, flawed, since the request issue was
made the CIA. any event, even Plaintiff were
correct that the records were classified after its FOIA
request was received, Bennett review each the
responsive records, Bennett Decl., which was
conducted under the direction the CIA Director, see
Culver Decl., meets the requirements
13526 1.7(d). See Washington Post, 766 Supp.
8-9 (subsequent document-by-document review
appropriate official satisfied parallel requirement
prior EO). Defect Would Not Require Release
Even assuming there had been some uncured
defect the original classification procedure again,
Judicial Watch has presented evidence that this
44a
was fact the case actual procedural defects
not necessarily require the document disclosed. 
Allen, 636 F.2d 1292 n.27 (citing Lesar, 636 F.2d
478, 484). Indeed, such rule could have intolerable
consequences for national security interests. Lesar,
636 F.2d 484. release these materials because mere mishap the time classification, when
the documents are sworn contain sensitive
information, would only perverse. Id. While this
does not mean that only conformity with the
substantive requirements required, see id., the D.C.
Circuit has emphasized that the consequences
procedural violations vary according the
significance the violation. Id. 485; see also Allen,
636 F.2d 1292 n.27. Specifically, where violation such importance that reflect[s] adversely
the agency overall classification decision, camera
inspection may necessary. Lesar, 636 F.2d 485.
Other violations, however, may insignificant,
undermining not all the agency classification
decision. Id. long procedural violations not
undermine the agency decision classify when,
for example, procedural violation suggests that,
contrary the EO, classification was undertaken
order conceal violation law the Court will not
order documents released that ground. the end the day, given the derivative
classification and two subsequent classification
reviews, all individuals with original classification
authority, the averments that 13526 procedural
requirements were satisfied, the seemingly
undisputed procedural conformity the derivativeclassification process, and the lack any evidence
45a
tending undermine the agency classification
decision, the Court finds that any possible procedural
errors plainly not warrant release. light the
Court subsequent conclusion that the records meet 13526 substantive criteria for classification, the
Court will not order them released the basis
merely conjectural procedural shortcomings. [P]ure
speculation the [agency procedural
compliance simply insufficient establish that
the information withheld should produced
Plaintiff
 
i.e.,
essentially
declassified
 
notwithstanding
its
substantively
correct
classification. Schoenman, 575 Supp. 152
n.9. Substantive Requirements
Having determined that any alleged
procedural shortcomings have been cured not
require the disclosure those records that meet the
substantive classification criteria, the Court now
turns those substantive criteria. 13526 imposes
two primary substantive barriers classification,
both which are issue here. First, the information question must fall within one the classification
categories outlined 1.4 the Executive Order.
See 13526 1.1(3), 1.4. Second, must the
case that the unauthorized disclosure the
information reasonably could expected result
describable damage the national security. See id.
 1.1(4), 1.4. the records issue have been
classified TOP SECRET, Bennett Decl., 22, the
potential damage national security must
 exceptionally grave. 13526 1.2(a)(1).
46a Classification Categories
Section 1.4 13526 identifies eight categories
information that may potentially subject
classification. See id. 1.4(a)-(h). Classified records
must pertain[ one these categories. See id. 
1.4. The CIA here invokes three them: (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. Id. 1.4(a),
(c), (d). Specifically, Bennett here avers that all the
responsive records, which were the product
highly sensitive, overseas operation that was
conducted under the direction the CIA[,] pertain intelligence activities and/or methods well the
foreign relations and foreign activities the United
States. Bennett Decl., (emphasis added).
further attests that the responsive records also
reveal information concerning military plans,
weapons systems, operations. Id.
Judicial Watch maintains, however, that even the agency declarations establish that some the
records question pertain the classification
categories, they not demonstrate that each the
fifty-two records pertains. particular, while
some the records question may well reveal
classified military tactics equipment, see McRaven
Decl., 2-3, 5-8, and others may well disclose
classified intelligence methods, see Bennett Decl., 
29, Judicial Watch contends that Defendants have
47a
failed establish that every one the records for
example, those that depict the preparation Bin
Laden body for burial and the burial itself 
pertains one more the classification categories.
Pl. Mot. Opp. 32-33. Without knowing more
details about the fifty-two responsive records,
Plaintiff asserts, the Court cannot evaluate whether
each them relates one the three claimed
classification categories.
Plaintiff misses the forest for the trees. Judicial
Watch may correct that the CIA has not
demonstrated that the burial photos, for example,
pertain intelligence methods. 13526 1.4(c). may similarly correct that the agency has not
shown that the photographs videos taken the
body was transported the USS Carl Vinson pertain military plans operations. Id. 1.4(a).
patently clear, however, that all fifty-two records 
which, the terms Judicial Watch own request,
depict Bin Laden during and after the May 2011,
operation Abbottabad, Pakistan pertain the
 foreign activities the United States. 13526 
1.4(d). Plaintiff allegation that one testifies that
any the records pertain foreign relations
foreign activities the United States, Pl. Mot.
Opp. 34, plainly contradicted Bennett
declaration. See Bennett Decl., all the
records pertain the foreign relations and foreign
activities the United States (emphasis added)).
Given that the records question were the product highly sensitive, overseas operation that was
conducted under the direction the CIA, id.,
further information required conclude that each
48a them pertains notably, not very demanding
verb the United States foreign activities. National Security
Having concluded, therefore, that all the
records pertain least one the classification
categories, only the second substantive hurdle
remains. Specifically, the Court must determine
whether the CIA declarations demonstrate that the
release the images and/or videos reasonably could expected cause exceptionally grave damage
the national security. 13526 1.2(1); see also id.
 1.1(4), 1.4. National security, the Executive
Order provides, means the national defense
foreign relations the United States. Id. 6.1(cc).
Although the Court reviews Defendants 
withholdings novo, see U.S.C. 552(a)(4)(B),
must afford substantial weight agency
declarations where the national security concerned.
Krikorian Dept State, 984 F.2d 461, 464 (D.C.
Cir. 1993) (quoting Military Audit Project, 656 F.2d
738); see also ACLU DOD, 628 F.3d 612, 621, 624
(D.C. Cir. 2011). Because courts lack the expertise
necessary second-guess such agency opinions the
typical national security FOIA case, ACLU, 628 F.3d 619 (quoting Krikorian, 984 F.2d 464), they
 have consistently deferred executive affidavits
predicting harm national security, and have found unwise undertake searching judicial review. Id. 624 (quoting Ctr. for Natl Sec. Studies DOJ, 331
F.3d 918, 927 (D.C. Cir. 2003)) (internal quotation
mark omitted). Ultimately, [t]he CIAs arguments
49a
need only both plausible and logical justify the
invocation FOIA exemption the national
security context. Id. 624 (citing Wolf CIA, 473
F.3d 370, 374 (D.C. Cir. 2007)). their declarations, Bennett, Neller, and
McRaven attest their beliefs that releasing the
records Judicial Watch seeks reasonably could
expected result exceptionally grave damage
the national security. Bennett Decl., 22-30; Neller
Decl., 2-3, 6-10; McRaven Decl., 2-3, 5-8. These
assessments, moreover, are not announced
conclusory fashion. Rather, each declarant expounds
his evaluation the national-security risk detail,
describing the basis for his beliefs and focusing
those risks that relate his area expertise.
Bennett, for one, explains that release any
the records reasonably could expected inflame
tensions among overseas populations that include alQa ida 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. 
Bennett Decl., 23. fleshes out his account with
examples ways which Qaeda has already used
Bin Laden death and burial opportunity
further its anti-American agenda, and highlights
other examples the organization tendency use
similar incidents propagandize and incite antiAmerican sentiment. See id., 24-27. addition,
Bennett describes additional harm national
security [that] could caused the fact that release
50a certain responsive records could also reveal
intelligence activities and methods that were
employed during after the operation. Id., 28.
way example, explains, 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., 29.
Neller testimony consistent with Bennett
His declaration attests his belief that extremist
groups will seize upon these images grist for their
propaganda mill, which will result, addition
violent attacks, [in] increased terrorist recruitment,
continued financial support, and exacerbation
tensions between the Afghani people and U.S. and
Coalition Forces. Neller Decl., further avers
 that the release the responsive records will pose
clear and grave risk inciting violence and riots
against U.S. and Coalition forces and expose
innocent Afghan and American civilians harm
result the reaction extremist groups, which will
likely involve violence and rioting. Id. Neller
assessment not only draws from his years
experience and judgment, id., but, like Bennett also buttressed historical precedent. See id., 
7-10. particular, Neller references the violence that
resulted from Newsweek incorrect report that U.S.
military personnel Guantanamo Bay had
desecrated the Koran, id., well that which
resulted from the re-publication the Danish
cartoon the Prophet Muhammad. Id.,
51a
McRaven partially classified declaration
covers somewhat different ground, focusing the
risks relating the release information about
classified military methods and equipment. Although
the details the methods and equipment claims
the records would reveal are classified, his conclusion not: opinion that the release the
responsive records could reasonably
expected cause harm the national
security making the special
operations unit that participated this
operation and its members more readily
identifiable the future; providing the
enemy information that will allow them analyze the [Tactics, Techniques, and
Procedures] used during [Sensitive Site
Exploitation], including the methods
used for identification captured and
killed enemy personnel; and possibly
provide them the opportunity defeat
[Special Operations Forces] practices
the future.
McRaven Decl., threshhold matter, the Court agrees with
Plaintiff that some the declarants testimony,
their own admission, applies only certain the
fifty-two records issue. For example, the risk
exposing military methods and equipment that
McRaven describes and the risk revealing
intelligence techniques that Bennett explains only
52a
relate some the records question. Obviously,
images taken board the USS Carl Vinson the
burial sea are not going reveal site exploitation
tactics, techniques, procedures used the
Abottabad compound even facial recognition
techniques capabilities. Pl. Reply 11. The
military- and intelligence-related risks, accordingly,
cannot corroborate the CIA claim that each the
fifty-two responsive records properly classified.
order obtain summary judgment its claim that
the release any the records question
reasonably could expected pose risk harm
the national security, the agency thus must rely
those national-security risks that are applicable all the records. Put differently, the Court must find
that the declarants predictions national-security
harm are both plausible and logical with respect even the most innocuous photograph the
deceased Bin Laden.
Although this frame takes McRaven
declaration out the picture, Bennett and Neller
specific and detailed averments, which are based
long and distinguished careers the intelligence
community, suffice carry the government burden.
Remember, [t]he test not whether the court
personally agrees full with the CIAs evaluation
the danger rather, the issue whether the whole
record the Agencys judgment objectively survives the
test reasonableness, good faith, specificity, and
plausibility this field foreign intelligence
which the CIA expert and given Congress
special role. Gardels CIA, 689 F.2d 1100, 1105
(D.C. Cir. 1982); see also Military Audit Project, 656
53a
F.2d 738 [T]he Executive departments
responsible for national defense and foreign policy
matters have unique insights into what adverse
affects [sic] might occur result public
disclosures particular classified record. Bennett
and Neller accounts easily clear the low hurdles
reasonableness, logic, and plausibility. Their
assessments, moreover, are called into question
[neither] contradictory evidence the record [n]or evidence agency bad faith. Halperin, 629 F.2d 148.
Because Bennett and Neller explanations
the national-security risks apply any photograph
video recording Bin Laden body, moreover,
Defendants need not further disaggregate the fiftytwo responsive records. further information about
the records necessary demonstrat[e] that
material withheld logically within the domain
the exemption claimed. Campbell DOJ, 164 F.3d
20, (D.C. Cir. 1998) (quoting King, 830 217).
Bennett description the responsive records
 specific enough afford the FOIA requester
meaningful opportunity contest, and the district
court adequate foundation review, the
soundness the withholding, King, 830 F.2d 218,
individual descriptions each record are not
required. Nor camera review.
While Judicial Watch expresses concern that
deferring agency assessment generalized
risks related potential propagandizing and the
inflammation anti-American sentiment opens the
door potentially unlimited withholdings, such
54a
justifications will only pass muster where, here,
they are sufficiently detailed and both plausible and
logical. the risks Bennett and Neller anticipate are
speculative, such the nature risk. Indeed, any
affidavit other agency statement threatened
harm national security will always speculative some extent, the sense that describes
potential future harm. ACLU, 628 F.3d 619
(quoting Wolf, 473 F.3d 374) (internal quotation
mark omitted). The United States captured and killed
the founding father terrorist organization that
has successfully and with tragic results breached
our nation security the past. Bennett and Neller
testimony that the release images his body could
reasonably expected pose risk grave harm
our future national security more than mere
speculation. While Qaeda may not need reason
attack us, that does not mean risk inheres giving further cause so. true, Plaintiff points out, that ACLU DOD, the D.C. Circuit did not reach the question
whether the agency argument that withheld
documents would effective propaganda for
Qaeda sufficed justify its classification those
documents and subsequent claim for exemption. 628
F.3d 624. But failure reach that question,
course, does not equate with rejection that
justification. any event, that case raised distinct
issue about whether the propaganda-based nationalsecurity justification made sense where the potential
for propagandizing stemmed from the fact that the
allegations contained the documents question
were embarrassing the United States and possibly
55a
violations law. Id. Because the relevant
 prohibit[ed] the classification information
 conceal violations law prevent
embarrassment person, organization, agency, 
the agency justification was called into question. Id.
(quoting 12958 1.7(a)(1)-(2)). such issue,
however, presented here.
The Court also mindful that many members the public would likely desire see images this
seminal event. Indeed, makes sense that the more
significant event our nation and the end
Bin Laden reign terror certainly ranks high the
more need the public has for full disclosure. Yet,
not this Court decision make the first instance. the end, while this may not the result Plaintiff certain members the public would prefer, the
CIA explanation the threat our national
security that the release these records could cause
passes muster. This was the most highly classified
operation that this government has undertaken
many, many years. Press Briefing Jay Carney,
May 2011, The Director the NCS, the
USSOCOM Commander, and Director Operations the Joint Staff the Pentagon not mention
the President the United States believe that
releasing the photographs and/or videos Bin
Laden body would threaten the national security.
While deference not equivalent acquiescence, 
Campbell, 164 F.3d 30, the CIA declarations are
comprehensive, logical, and plausible. This Court will
not overturn the agency determination Plaintiff
speculation that these executive-branch officials
made over-cautious assessment the risks
56a
involved. FOIA permits agency withhold
properly classified information the interest
national security; the CIA has established that the
records Judicial Watch seeks were properly classified,
the Court will not order them released.
57a
IV. Conclusion
For the foregoing reasons, the Court will issue contemporaneous Order granting Defendants 
Motion for Summary Judgment and denying
Plaintiff
/s/ James Boasberg
JAMES BOASBERG
United States District Judge
Date: April 26, 2012
58a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
______________________________
JUDICIAL WATCH, INC.,
Plaintiff, No. 11-890 (JEB)
U.S. DEPARTMENT
DEFENSE, al.,
Defendants.
______________________________)
ORDER
For the reasons set forth the accompanying
Memorandum Opinion, the Court
ORDERS that: Defendants Motion for Summary Judgment
GRANTED; Plaintiff Motion for Summary Judgment
DENIED; and Judgment ENTERED favor Defendants. ORDERED.
59a
/s/ James Boasberg
JAMES BOASBERG
United States District Judge
Date: April 26, 2012