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Judicial Watch • Respondents brief in opposition (Osama bin Laden Photos) Case: CV 13-238 JW v. DoD

Respondents brief in opposition (Osama bin Laden Photos) Case: CV 13-238 JW v. DoD

Respondents brief in opposition (Osama bin Laden Photos) Case: CV 13-238 JW v. DoD

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No. 13-238 the Supreme Court the United States
JUDICIAL WATCH, INC., PETITIONER
DEPARTMENT DEFENSE, AL. PETITION FOR WRIT CERTIORARI THE UNITED STATES COURT APPEALS
FOR THE DISTRICT COLUMBIA CIRCUIT
BRIEF FOR THE RESPONDENTS OPPOSITION
DONALD VERRILLI, JR.
Solicitor General
Counsel Record
STUART DELERY
Assistant Attorney General
MATTHEW COLLETTE
CATHERINE DORSEY
Attorneys
Department Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether the court appeals correctly concluded
that images Osama bin Laden dead body are exempt from mandatory disclosure under Exemption the Freedom Information Act, U.S.C. 552(b)(1).
(I)
TABLE CONTENTS
Opinions below ................................................................................
Jurisdiction ......................................................................................
Statement .........................................................................................
Argument .........................................................................................
Conclusion ......................................................................................
TABLE AUTHORITIES
Cases:
ACLU DoD, 628 F.3d 612 (D.C. Cir. 2011) ....................
Afshar Department State, 702 F.2d 1125
(D.C. Cir. 1983) .....................................................................
CIA Sims, 471 U.S. 159 (1985) ...........................................
Center for Nat Sec. Studies Department Justice, 331 F.3d 918 (D.C. Cir. 2003), cert. denied,
540 U.S. 1104 (2004) .............................................................
Department the Navy Egan, 484 U.S. 518 (1988) ......
EPA Mink, 410 U.S. (1973).............................................
Gilligan Morgan, 413 U.S. (1973) ..................................
Goldman Weinberger, 475 U.S. 503 (1986) ......................
Miller Casey, 730 F.2d 773 (D.C. Cir. 1984) ....................
United States Johnston, 268 U.S. 220 (1925) ..................
Statute and regulation:
Freedom Information Act, U.S.C. 552 ............................ U.S.C. 552(b)(1) ........................................................... U.S.C. 552(b)(3) ...............................................................
Executive Order No. 13,526, C.F.R. 298 (2009
Comp.) (available U.S.C. 435 note (Supp.
2011)) ..............................................................................
 1.1(a)(1) ..............................................................................
(III)
Regulation Continued:
 1.1(a)(2) ..............................................................................
 1.1(a)(3) ..............................................................................
 1.1(a)(4) .................................................................. 11,
 1.2(a) ...................................................................................
 1.2(a)(1) ............................................................................
 1.3(a) .................................................................................
 1.4(a) ...................................................................................
 1.4(c) ...................................................................................
 1.4(d) ..................................................................................
 1.6 .......................................................................................
 1.6(a) ...................................................................................
 1.6(b) ..................................................................................
 1.6(f ...................................................................................
 2.1 .......................................................................................
 2.1(a) ...................................................................................
 6.1(cc) ...........................................................................
Miscellaneous:
120 Cong. Rec. 36,623 (1974) ............................................ 10,
H.R. Conf. Rep. No. 1380, 93d Cong., Sess. (1974).... the Supreme Court the United States
No. 13-238
JUDICIAL WATCH, INC., PETITIONER
DEPARTMENT DEFENSE, AL. PETITION FOR WRIT CERTIORARI THE UNITED STATES COURT APPEALS
FOR THE DISTRICT COLUMBIA CIRCUIT
BRIEF FOR THE RESPONDENTS OPPOSITION
OPINIONS BELOW
The opinion the court appeals (Pet. App. 3a18a) reported 715 F.3d 937. The opinion the
district court (Pet. App. 19a-57a) reported 857
Supp. 44.
JURISDICTION
The judgment the court appeals (Pet. App. 1a2a) was entered May 21, 2013. The petition for
writ certiorari was filed August 19, 2013. The
jurisdiction this Court invoked under U.S.C.
1254(1).
STATEMENT May 2011, the United States conducted
overseas operation Abbottabad, Pakistan that killed
Osama bin Laden. Pet. App. 4a. Shortly thereafter,
the United States buried bin Laden body sea, id.
(1) 21a, and publicly announced that the President had
determined that photographs the body should not publicly released, id. 21a-22a.
Petitioner submitted requests under the Freedom Information Act (FOIA), U.S.C. 552, the Department Defense (DoD) and Central Intelligence
Agency (CIA) seeking all photographs and video recordings bin Laden taken during and/or after the
U.S. military operation that killed him. Pet. App. 4a,
23a. DoD located responsive records. Id. 4a,
n.2. The CIA located post-mortem images bin
Laden body, many which are quite graphic and
 gruesome. Id. 4a-5a.
The CIA withheld all the image records under two
FOIA exemptions: Exemptions and U.S.C.
552(b)(1) and (3). See Pet. App. n.4. The petition
for writ certiorari concerns Exemption which
exempts from mandatory disclosure under FOIA
those matters that are (A) specifically authorized
under criteria established Executive order
kept secret the interest national defense foreign policy and (B) are fact properly classified pursuant such Executive order. U.S.C. 552(b)(1).
The post-mortem images issue were classified
under Executive Order No. 13,526, C.F.R. 298 (2009
Comp.), available U.S.C. 435 note (Supp. 2011).
Under that Order, original classification authority may classify information owned by, produced
for, under the control the United States government she determines that the unauthorized
disclosure the information reasonably could
expected result damage the national security 
(i.e., the national defense foreign relations the
United States, including defense against transna-
tional terrorism and able identify describe
the damage. Id. 1.1(a)(1), (2) and (4), 6.1(cc). The
information also must pertain[] one more classification categories, which include military
operations intelligence activities (including covert
action) intelligence sources methods and foreign activities the United States. Id. 1.1(a)(3),
1.4(a), (c) and (d). Such information then classified Top Secret, Secret, Confidential, based
the degree damage the national security that
 the unauthorized disclosure [the information] reasonably could expected cause. Id. 1.2(a).
When information originally classified, Executive
Order No. 13,526 directs that the information shall
properly identified and marked. See Exec. Order No.
13,526, 1.6. Among other things, the classification
level the information (e.g., Top Secret), the identity the original classification authority, the agency and
office origin, and declassification instructions normally should indicated. Id. 1.6(a) and (b). The
absence such markings, however, does not affect
the status the underlying information properly
classified. Information assigned level classification under [Executive Order No. 13,526] predecessor orders shall considered classified that
level classification despite the omission other
required markings. Id. 1.6(f
Once information has been originally classified,
personnel other than original classification authority may designate derivative[ly] classifi[ed] materials. Exec. Order No. 13,526, 2.1. Such personnel are
authorized apply derivative classification markings when they reproduce, extract, summarize
classified information, apply classification markings
derived from source material, apply such markings directed classification guide. Id.
 2.1(a). Petitioner filed suit district court before the
CIA and DoD completed processing petitioner FOIA
requests. Pet. App. 23a-24a. After the agencies processed the requests, the government moved for summary judgment based declarations explaining the
CIA decision withhold the post-mortem images
bin Laden, including declarations from John Bennett,
the Director the CIA National Clandestine Service; Lieutenant General Robert Neller, the Director Operations, J-3, the Pentagon Joint Staff;
Admiral William McRaven, Commander the United
States Special Operations Command; and Elizabeth
Culver, CIA Information Review Officer. See id.
5a-7a n.3. relevant here, Culver explained that the records
had been derivatively classified CIA official
pursuant classification guide authored the
CIA Director Information Management; that the
relevant records had all been marked Top Secret
and that the records had subsequently been marked
 out abundance caution with additional markings that, e.g., identify the derivative classifier, cite
the classification guide and the reasons for classification, and provide declassification instructions. Pet.
App. 7a.
Director Bennett explained that had reviewed
the records and had independently determined (as
original classification authority) that they were properly classified Top Secret. Pet. App. 5a, 17a; see id.
38a. explained that the records pertain appropriate classification categories: All the images are
products highly sensitive overseas operation and
thus pertain intelligence activities and/or methods;
foreign relations; and foreign activities the United
States. Id. 46a.
Director Bennett further explained that the records were properly classified Top Secret because,
based his years CIA experience (which included extensive service hostile overseas environments), concluded that public disclosure the
records reasonably could expected result
exceptionally grave damage the national security, 
including retaliatory attacks against Americans.
Pet. App. 49a. stated that Qaeda had already
utilized the so-called martyrdom and burial bin
Laden for its own propaganda purposes and had previously used similar events incite anti-American
sentiment. Id. 12a, 49a. Bennett also concluded
that releasing the records reasonably could expected inflame tensions among overseas populations that include al-Qa ida members sympathizers, encourage propaganda various terrorist
groups other entities hostile the United States, 
and lead retaliatory attacks against the United
States homeland United States citizens, officials,
other government personnel traveling living
abroad. Id. 49.
General Neller reinforced Director Bennett conclusions explaining that had determined, based his own extensive experience the field and his
review past incidents, that releasing the records
would pose clear and grave risk inciting violence
and riots against U.S. and Coalition forces and expose innocent Afghan and American civilians
harm. Pet. App. 6a. The General noted that fatal
riots ensued after false press report that American
soldiers had desecrated the Koran and after the publication Danish cartoon the Prophet Muhammad.
Ibid. The General concluded that similar violent
reaction could expected follow the release the
bin Laden images. Ibid. The district court entered summary judgment
for the government. Pet. App. 58a-59a; see id. 19a57a (opinion). The court held that the records identified the CIA were classified materials properly
withheld under Exemption Id. 20a-21a. The
court explained that the government declarations
showed that the records had been properly classified
under Executive Order No. 13,526 because the order
substantive requirements (id. 45a-55a) and procedural requirements (id. 36a-45a) had been satisfied. The court appeals affirmed. Pet. App. 3a-18a.
The court appeals stated that reviewing court
must accord substantial weight agency declarations describing the applicability Exemption Pet.
App. (quoting ACLU DoD, 628 F.3d 612, 619
(D.C. Cir. 2011)). The court explained that agency conclusion that disclosure reasonably could
expected result damage the national security
always will speculative some extent and that
the role reviewing court ensure that the
Executive Branch predictive judgment about the
national security implications release are logical plausible. Id. 9a, 14a-15a (quoting ACLU, 628
F.3d 619). The court further explained that agency declarations describe[] the justifications for withholding the information with specific detail and demonstrate[] that the information withheld logically
falls within the claimed exemption, court may grant
summary judgment the government the basis
the declarations, long they are not contradicted contrary evidence the record evidence
the agency bad faith. Id. (quoting ACLU, 628
F.3d 619). this case, the court appeals continued, the
government declarations established that the substantive and procedural requirements the Executive Order governing classified national security information had been met and that Exemption therefore protected the post-mortem images bin Laden
from mandatory FOIA disclosure. Pet. App. 9a-17a.
The court explained that was indisputable that the
records satisfied the substantive requirement that
each record pertain one more the subjectmatter categories identified the Executive Order.
Id. 10a-11a. The court also stated that there was doubt that, for great many the images, the
government declarations had established the requisite level [national-security] harm warrant classification. Id. 11a.
Petitioner, the court appeals observed, correctly focuse[d] the most seemingly innocuous the
images, i.e., the images that depict the preparation
bin Laden body for burial and the burial itself. Pet.
App. 11a. But the court concluded that the government declarations provided sufficient reason believe that releasing the images could cause exceptionally grave harm the national security. Id.
12a. The court reasoned that the government documentation prior instances which reasonably
analogous disclosures have led widespread and fatal
violence, some which was directed U.S. interests, provided adequate basis for classification
and for the government conclusion that releasing the
records here could reasonably expected trigger
violence and attacks against United States interests,
personnel, and citizens worldwide. Id. 12a-14a.
The court explained that the government position
was further reinforced the nature the records
question, which are extraordinary set images 
that depict American military personnel burying the
founder and leader Qaeda. Id. 14a.
The court appeals rejected petitioner contention that the government had failed satisfy the
procedural requirements for classification. Pet. App.
15a-17a. The court found evidence contradicting
the government evidence that the images were classified before [the CIA] received [petitioner FOIA
request. Id. 15a. And although the court stated
that could not fully evaluate the CIA derivative
classification the images based the current record, concluded that remand was not warranted
this case. Id. 16a-17a. The court reasoned that
original classification authority (Director Bennett)
had already personally reviewed the images and confirmed that they were properly classified, thereby
 remov[ing] any doubt that person with original
classification authority has approved the classification
decision. Id. 17a.
ARGUMENT
The decision the court appeals upholding the
application FOIA Exemption CIA images
Osama bin Laden dead body correct and does not
conflict with any decision this Court any other
court appeals. Indeed, petitioner does not even attempt identify division authority that might
warrant certiorari. Petitioner contentions are factbound and warrant further review. Exemption took its current form 1974, when
Congress amended the Exemption response EPA Mink, 410 U.S. (1973). See H.R. Conf. Rep. No.
1380, 93d Cong., Sess. (1974) (1974 Conf. Rep.). Mink, this Court had held that Exemption
originally enacted precluded any judicial review
 the soundness executive security classifications 
and that the only relevant consideration that time
was [t]he fact [a] classification[] under Executive Order. 410 U.S. 84. The Court further held
that courts were not authorized under FOIA conduct camera inspection agency records for
which the government invoked Exemption Ibid.;
see id. 81-84. Congress then amended Exemption require some judicial inquiry into whether the information question was properly classified under Executive Order, U.S.C. 552(b)(1), and amended
other FOIA provisions grant courts discretionary
authority conduct camera review. See 1974
Conf. Rep. 12.
Congress, however, made clear that courts conducting novo review the government invocation Exemption must give substantial weight
government affidavits providing details the classified status the disputed record[s]. 1974 Conf. Rep.
12. Congress recognized that such substantial deference was warranted because the Executive departments responsible for national defense and foreign policy matters possess unique insights into
what adverse [national-security] [e]ffects might occur result public disclosure. Ibid. The manager the 1974 FOIA amendments the House Repre-
sentatives accordingly explained that courts would
clearly rule for the Government under the revision
Exemption the government classification decision had reasonable basis under the governing
Executive Order. 120 Cong. Rec. 36,623 (1974) (statement Rep. Moorhead). emphatically rejected
the possibility that court could overturn reasonable classification judgment government official
the court thought the plaintiff position just reasonable. Ibid. [N]o one familiar with the drafting
history, explained, could ever imagine that Members Congress would adopt such obviously
dangerous provision. Ibid.
The substantial deference that Congress understood must govern court Exemption inquiry
reflects this Court longstanding and substantial
deference Executive judgments the realm
national security. assessment risk national
security requires [p]redictive judgment that must made those with the necessary expertise
protecting classified information. Department the
Navy Egan, 484 U.S. 518, 529 (1988). For reasons too obvious call for enlarged discussion, the
protection classified information must [therefore] committed the broad discretion the agency
responsible. Ibid. (quoting CIA Sims, 471 U.S.
159, 170 (1985)); see Sims, 471 U.S. 180-181. This
Court has recognized that substantial deference
particularly warranted national-security contexts,
because difficult conceive area governmental activity which the courts have less competence. Gilligan Morgan, 413 U.S. (1973);
see, e.g., Goldman Weinberger, 475 U.S. 503, 507
(1986) courts must give great deference the pro-
fessional judgment military authorities concerning
the relative importance particular military interest Center for Nat Sec. Studies Department
Justice, 331 F.3d 918, 928 (D.C. Cir. 2003) [T]he
judiciary extremely poor position secondguess the executive judgment [the] area national security. cert. denied, 540 U.S. 1104 (2004).
The central role the government nationalsecurity judgment the Exemption context reinforced the terms Executive Order No. 13,526.
That order authorizes the original classification
information only when specially trained Executive
Branch official vested with original classification
authority determines that disclosure reasonably
could expected not just when disclosure would expected harm the national security. Exec.
Order No. 13,526, 1.1(a)(4) (emphasis added); see id.
 1.3(a) (original classification authority).
Even petitioner concedes that courts must give
 some deference the Executive Branch this context. Pet. Petitioner also acknowledges that Congress intended that courts would accord substantial
weight the government explanation its classification decisions agency declarations. Pet. (citing
1974 Conf. Rep. 12). Yet petitioner offers alternative formulation which judge Executive Branch
national-security judgments other than petitioner
assertion (Pet. that some form meaningful review warranted. Nor does petitioner explain how
the court appeals erred formulating the relevant
standard when the court explained that must accord
 substantial weight the government declarations they describe[] the justifications for withholding
the information with specific detail and demon-
strate[] that the information withheld logically falls
within the claimed exemption. Pet. App. 9a. The fact
that petitioner has not even attempted identify
conflict authority over the relevant standard
review underscores that petitioner ultimately seeks
review based its fact-bound disagreement with the
court appeals decision. That dispute merits
further review. See United States Johnston, 268
U.S. 220, 227 (1925) not grant certiorari review evidence and discuss specific facts. Petitioner specific fact-bound contentions confirm that certiorari should denied.
Petitioner principal contention that the court
appeals erred because the court concluded that the
government failed sufficiently show that the records had properly been derivatively classified under
Executive Order No. 13,526 but, rather than remand allow the government submit sufficient information about the derivative classification, the court
upheld the government invocation Exemption
Pet. 10-12. the court appeals recognized, remand would have been pointless given that Director
Bennett original classification authority determined that the records question had been properly
classified Top Secret. Pet. App. 17a; see also id.
15a (explaining that the record established that the
relevant records had been classified before the CIA
received petitioner FOIA request and that petitioner
presented [contrary] evidence
Petitioner further contends (Pet. 12-14) that the
 D.C. Circuit did [not] conduct meaningful review 
because, petitioner posits, can argued that
post-mortem images bin Laden body taken while
the body was being prepared for burial and during bin
Laden burial sea might not impermissibly harm
national security. Petitioner, for instance, suggests
(Pet. 12-13) that speculative, unspecific violence
the form attack[s] U.S. interests citizens, 
while regrettable, might not cause exceptionally
grave damage the national security. But national
security includes defense against transnational terrorism part the national defense, see Exec.
Order No. 13,526, 1.1(a)(4), 6.1(cc), and retaliatory
acts against United States interests have long been
understood constitute damage the national security. See, e.g., Miller Casey, 730 F.2d 773, 777 (D.C.
Cir. 1984); Afshar Department State, 702 F.2d
1125, 1132-1133 n.12, 1134 (D.C. Cir. 1983). Furthermore, the court appeals explained, judgments about the risk harm the national security
 will always speculative some extent because
they are definition predictive judgments. Pet. App.
14a. this case, the government amply explained 
and both courts below accepted reasonable the
conclusion that disclosing the post-mortem images
bin Laden body reasonably could expected
cause exceptionally grave harm the national security, Exec. Order 13,526, 1.1(a)(4), 1.2(a)(1).
Finally, petitioner contends (Pet. 13-14) that
could argued that releasing post-mortem pictures bin Laden body could lead the easing tensions overseas because the images could confirm that
the United States treated bin Laden body with the
utmost dignity and respect. 
Because petitioner
merely states that this position could argued, 
Pet. 13, unclear whether petitioner actually embraces this exceedingly optimistic projection, which
conflicts with the seasoned judgment the Executive
Branch national-security personnel. But even
petitioner were advocate that view, and even
might plausibly argued reasonable projection, Congress (as petitioner acknowledges, Pet.
intended courts give substantial weight the
declarations Executive Branch officials having
national-security expertise, not litigants having
national-security responsibilities. Indeed, the position
petitioner appears advocate regarding Exemption
reflects precisely the sort obviously dangerous
provision that one familiar with Exemption
drafting history could ever imagine that Members
Congress would have adopted. 120 Cong. Rec.
36,623 (statement Rep. Moorhead).
CONCLUSION
The petition for writ certiorari should denied.
Respectfully submitted.
DONALD VERRILLI, JR.
Solicitor General
Counsel Record
STUART DELERY
Assistant Attorney General
MATTHEW COLLETTE
CATHERINE DORSEY
Attorneys
NOVEMBER 2013