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Judicial Watch • 117374108-JW-Reply-Zero-Dark-Thirty-1



Page 1: 117374108-JW-Reply-Zero-Dark-Thirty-1

Category:Legal Document

Number of Pages:11

Date Created:December 17, 2012

Date Uploaded to the Library:July 14, 2015

Tags:Dark, 117374108, Advocates, Muslim, Fedeli, MCKINLEY, students, watkins, names, Reply, USDA, defendants, motion, Circuit, Pentagon, government, filed, White House, plaintiff, document, FBI, DOJ, FOIA, court, CIA

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Case 1:12-cv-00049-RC Document Filed 12/17/12 Page THE UNITED STATES DISTRICT COURT
Case No. 1:12-cv-00049-RC
PLAINTIFF MOTION FOR SUMMARY JUDGMENT its responsive brief, the government says wanted facilitate accurate movie
portrayal the people involved the hunt for bin Laden, but still wishes keep secret the
identities those individuals who will accurately portrayed. These desires appear
mutually exclusive. Just Plaintiff predicted its opening brief, within the past week the
privacy least one these government employees has been eroded media outlets seeking satisfy the overwhelming public interest the making this critically acclaimed and
controversial film. This should have been foreseeable year ago when the government agreed
allow filmmakers Kathryn Bigelow and Mark Boal interview the men and women behind the
search for bin Laden for quasi-journalistic movie based their efforts.
The government mistakenly argues that there could substantive public interest
the names the government employees who met with the filmmakers. However, courts have
routinely found that the release even bare names under FOIA may ordered where the
Plaintiff notes that Defendants Reply (ECF 20) was not styled consolidated reply and
opposition Plaintiff Cross-Motion for Summary Judgment, nor did Defendants docket any
separate opposition Plaintiff motion the Court ECF System, calling into question
whether they have properly opposed Plaintiffs motion pursuant Local Civil Rule 7(b).
Case 1:12-cv-00049-RC Document Filed 12/17/12 Page
public interest sufficient. See Gordon FBI, 388 Supp. 1028, 1041 (N.D. Cal. 2005)
(the public interest served disclosure individual agency employee names because
revealing the names government employees who are making important government policy
serves FOIA core purpose contributing the public understanding how its government
operates. Judicial Watch DOJ, 102 Supp. 17-18 (D.D.C. 2000) (allowing deletion home addresses and telephone numbers, but ordering release identities individuals who
wrote the Attorney General about campaign finance Independent Counsel issues);
Baltimore Sun U.S. Marshals Serv., 131 Supp. 725, 729-30 (D. Md. 2001) (declaring that
[a]ccess the names and addresses [of purchasers seized property] would enable the public assess law enforcement agencies exercise the substantial power seize property, well USMS performance its duties regarding disposal forfeited property appeal dismissed
voluntarily, No. 01-1537 (4th Cir. June 25, 2001); Maples USDA, No. 97-5663, slip op.
(E.D. Cal. Jan. 13, 1998) (finding that release names and addresses permit holders would
show the public how the permit process works and eliminate suspicions favoritism giving
out permits for use federal lands).
Despite the government plea that the Court not consider Plaintiff evidence
Congressional Inspector General investigations, take notice the movie itself
considering the remaining privacy interests, this Court can and should consider all the
circumstances surrounding the disclosures deciding whether the public interest favors the
release personal information. Schmidt U.S. Air Force, 2007 U.S. Dist. Lexis 69584, *32
(C.D. Ill. 2007). the public knows which names were shared with the filmmakers (and
deduction, which were not), will shed light how and whether the government was trying
influence the narrative accurate theatrical portrayal.
Case 1:12-cv-00049-RC Document Filed 12/17/12 Page
Finally, while the government witness testified that widespread release the
names would cause unnecessary security and counterintelligence risk, the same time the
government essentially acknowledges that took almost precautions releasing the
information the filmmakers not even requiring much non-disclosure agreement. ECF
16-2, Lutz Decl. 19; ECF 20, 20, Defendants Response Plaintiff Statement Material
Facts Not Dispute (Defs Response Statement) 2-4. Plaintiff demonstrated,
this degree casualness with which the government disclosed these names private citizens
which casts doubt the alleged harms that would result from their wider release. ECF 18,
Plaintiff Brief 21. the security concerns about the names were great the government
claims, the names would not have been disclosed the way they were. The Government Arguments That Has Not Waived Exemption Are Unpersuasive
Because the unique context these disclosures, finding that the exemption for
the names has been waived under the public domain test appropriate, even though the names
have not yet been memorialized public documents. the instant case, the names question
were: released private citizens; without substantial security measures preventing further
dissemination; conjunction with detailed interviews given for the purpose creating
accurate portrayal these individuals; for movie written and directed two Hollywood
most acclaimed filmmakers; about the CIA ten year hunt catch kill the man responsible
for the September terrorist attacks. under these extraordinary circumstances the names
have not been irretrievably put into the public domain the government, the test may well
Case 1:12-cv-00049-RC Document Filed 12/17/12 Page
The Government Purpose Sharing Non-Public Information Relevant
The government wishes strip the public domain waiver test any considerations about
the circumstances surrounding disclosures, and instead reduce mindless algorithm. The
courts both Students Against Genocide and Muslim Advocates found the government
purpose sharing non-public and sensitive information was relevant whether the FOIA
exemption had been waived. Muslim Advocates DOJ, 833 Supp. (D.D.C. 2011),
Students Against Genocide Dep State, 257 F.3d 828 (D.C. Cir. 2001). The government
argues that the sole decisional factor for the court these cases was that the records issue
were not disclosed the general public. ECF 20, Gov Reply This argument ignores the
fact that both courts conducted more thorough analysis that delved into matters beyond the
simple question whether the information had been widely published.
The government attempt explain away the D.C. Circuit language Students
unpersuasive. ECF 20, Gov Reply Plaintiff has made argument similar the one
advanced the plaintiffs Students, and key reason the Students court rejected the plaintiffs
argument that case was the government affirmative public policy reasons for sharing
sensitive information selectively foreign nations. Students Against Genocide, 257
837.2 explained Plaintiff brief, the government has similar defense here. ECF 18,
Plaintiff Brief 12-13.
Similarly, strains credibility for Defendants claim that the purpose the disclosure Muslim Advocates was not relevant factor the court decision that waiver had
The Students court also rejected the nationality the people who received the selective
disclosures grounds for waiver, and found the recipients the information lacked the expert
qualifications needed glean information from about U.S. technical reconnaissance
capability. Students Against Genocide, 257 836-837. Neither factor appears relevant
Case 1:12-cv-00049-RC Document Filed 12/17/12 Page
occurred. ECF 20, Gov Reply 8-9. This reading would reduce the court extensive factual
recitation mere dicta, turning thirteen-page opinion into one that could have been resolved one-sentence finding permanent public record. ECF 20, Gov Reply 13. Plaintiff
explained that the government purpose making the disclosure was element the Muslim
Advocates court findings. ECF 18, Plaintiffs Brief 18. more in-depth look the court
language indicates this reasoning present:
Therefore given both the circumstances prior disclosure which
small group civil rights and civil liberties groups were invited FBI
headquarters and given approximately two hours review and give feedback
the FBI the civil liberty, privacy, and civil rights concerns the FBI
domestic investigation guidelines and the particular exemption[] claimed
i.e., Exemption 7(E) protection information compiled for law enforcement
purposes, the Court finds that application the public-domain doctrine
appropriate this case.
Muslim Advocates, 833 Supp. 102, fn. (bold emphasis added).
The Watkins Waiver Test Should Applied
The government incorrectly argues that this Court could not apply the court reasoning Watkins the case bar because the Watkins holding represents rejection the D.C.
Circuit public domain waiver test. ECF 20, Gov Reply 4-5. This overstates matters. The
dissenting opinion Judge Rymer notwithstanding, Watkins more properly viewed
natural extension the standard public domain waiver test the unique set facts before the
court that case. Furthermore, Watkins only partly distinguished itself from other cases based lack national security concerns, contrary the government suggestion. ECF 20, Gov
Reply 6-7. After discussing string national security FOIA cases, the Watkins court added: course, this not the D.C. Circuit standard for FOIA public domain waiver cases. [T]he
D.C. Circuit has not established uniform, inflexible rule requiring every public-domain claim substantiated with hard copy simulacrum the sought-after material. Muslim
Advocates, 833 Supp. 100 (internal quotations omitted).
Case 1:12-cv-00049-RC Document Filed 12/17/12 Page
Moreover, none these [national security] cases presented scenario which the government
had already provided no-strings-attached disclosure the confidential information private
third party. Watkins U.S. Bureau Customs Border Protect., 643 F.3d 1189, 1197 (9th
Cir. 2011). This unique distinguishing fact similarly present the case bar.
The Government Lack Concern over Information Security Relevant
The government now essentially admits took significant steps beyond oral
request the filmmakers not share the allegedly sensitive information. ECF 20, 20, Defs
Response Statement 2-4. Lacking facts supporting its withholdings, the government tries
unsuccessfully minimize the importance legal prohibitions disseminating information
both Watkins and McKinley. ECF 20, Gov Reply 5-6 and fn. However, the presence
absence confidentiality agreements was factor both decisions.
The government suggests that the McKinley court mentioned the existence the
confidentiality agreement for reason all, and speculates that the lack confidentiality
agreement would not have changed that court decision. ECF 20, Gov Reply fn. This
interpretation strained. The fact that the McKinley court pointed out twice two paragraphs
that the documents that case were disclosed under written confidentiality agreement
speaks for itself. McKinley Board Governors Fed. Res. Sys., 849 Supp. 47,
(D.D.C. 2012).
Watkins was even more explicit about the need for limits dissemination prevent
waiver. Watkins, 643 F.3d 1198. attempting distinguish it, the government argues that
the Watkins court never used the words legally binding limits dissemination, suggesting the
court might have meant that merely requested restrictions would sufficient. ECF 20, Gov
Reply Contrary the government suggestion, considerations information security
Case 1:12-cv-00049-RC Document Filed 12/17/12 Page
measures are not unique the Ninth Circuit. This Court has found the existence
confidentiality agreements relevant determinations under the public domain waiver test
McKinley and elsewhere. See Ctr. for Auto Safety Nat Highway Traffic Safety Admin.,
Supp. (D.D.C. 2000) Such disclosures have been limited, and have generally been
accompanied confidentiality agreements protective orders. Plaintiff not asking this
Court depart from existing precedent, but rather apply the law manner befitting the
facts before it.
Finally, the Defendants never explain why was necessary for them disclose allegedly
sensitive names outside the agencies order facilitate meetings. Plaintiff has shown,
these disclosures could have been avoided without hindering the agencies ability facilitate
meetings. ECF 18, Plaintiff Brief 21, fn. 11.
The Government Fails Show That Exemption Not Outweighed
The government arguments concerning the privacy exemptions fail offer single
new fact source law rebuttal. The government asserts, without evidence, that there
limited public interest the disclosures the filmmakers. ECF 20, Gov Reply 12. This
assertion ignores the overwhelming evidence submitted Plaintiff demonstrating the public
interest the Zero Dark Thirty disclosures. ECF 18-1, Fedeli Decl. 2-16. support this assertion, the government claims (without citation authority) that FOIA
only weighs the public interest disclosure the specific information requested, and does
not consider the aggregate impact new information. ECF 20, Gov Reply 11. This claim
incorrect. Rather, requester must demonstrate the incremental value the public interest
the specific information sought. Schrecker DOJ, 349 F.3d 657, 661 (D.C. Cir. 2003) (an
inquiry regarding the public interest should focus not the general public interest the
Case 1:12-cv-00049-RC Document Filed 12/17/12 Page
subject matter the FOIA request, but rather the incremental value the specific
information being withheld. Plaintiff identified the incremental value these names not
one but two subject matters that are overwhelming public interest the Abbottabad raid and
the Zero Dark Thirty filmmaker disclosures.4 ECF 18, Plaintiff Brief 22-23. discussed
above, the fact that the selective disclosures consist names does not lessen the government
burden under FOIA. See pp. 1-2, supra, citing Gordon FBI, alia.
The government even acknowledges that the information Plaintiff requests has
incremental value when admits that release the names could lead additional FOIA
requests for further information. ECF 20, Gov Reply 14. Equally importantly, knowing the
names will help shed light whether the government practice what very closely resembles
embedded journalism was intended influence the film narrative beyond merely ensuring
The government argument that the disclosure bare names, especially bare first names, has more limited public interest value cuts equally against the government own position here.
ECF 20, Gov Reply 11-12. also true there much less privacy interest
someone bare first name than there would broader disclosure employee full
name, title, duties, and role.
Case 1:12-cv-00049-RC Document Filed 12/17/12 Page
accurate portrayals CIA operatives.5 Given the debates about the effectiveness enhanced
interrogation techniques the movie has spawned, the public interest even greater.6
The government says pure conjecture that the characters the movie will based the government employees interviewed and that their identities will become known such
way that virtually eliminates their remaining privacy interests. ECF 20, Gov Reply 13. First,
the government own brief partly contradicts itself this point. Specifically, the government
admits that the purpose its disclosures the filmmakers was ensure accurate portrayal people involved the raid. ECF 20, Gov Reply Nowhere did the government
present countervailing evidence suggesting the filmmakers have dishonored those wishes.
Secondly, Plaintiff assertion was not conjecture the time Plaintiff Motion, and even
less now. Plaintiff relied documents produced this FOIA litigation, well media
reports deemed accurate evidence, for its well-grounded predictions. ECF 18-1, Fedeli Decl. 13, 18-19. Since Defendants filed their Reply, pre-release publicity from the
filmmakers themselves confirms that the characters Zero Dark Thirty are least partly based
Peter Maass, Don Trust Zero Dark Thirty, The Atlantic, Dec. 13, 2012, available The fundamental problem that our government has again gotten away with
offering privileged access carefully selected individuals and getting flattering story return.
Embeds, officially begun during the invasion Iraq, are deeply troubling because not every
journalist filmmaker can get these coveted invitations. That the reason the embed
special invitation exists; the government does its best keep journalists, even friendly ones,
away from disgruntled officials who have unflattering stories tell
Id. That one reason, think, the film presents torture effective the CIA ground zero that unholy belief. Boal and Bigelow had embedded the FBI, whose agents have been
critical torture, their film would probably have different message about waterboarding
See also Howard Kurtz, CIA most famous operative secret star, CNN, Dec. 13, 2012,
available Bigelow made
this film with the help officials the Pentagon, CIA and White House who provided her with
extraordinary access. When director gets that kind official help, raises troubling
questions about the objectivity those rendering the instant history.
Case 1:12-cv-00049-RC Document Filed 12/17/12 Page accurate portrayals the government employees interviewed.7 Also the past week,
Washington Post journalist effectively pursued and reported personal details about one the
operatives upon whom character the movie was based.8 Plaintiff informed the Court that
this elimination personal privacy would very likely occur based available evidence over
month ago. ECF 18, Plaintiff Brief and fn. Given the facts, anyone looking
objectively this case could have predicted the same.
Finally, the government oddly suggests the Court should not watch take notice the
film Zero Dark Thirty. ECF 20, Gov Reply 13, fn. Plaintiff believes has already well
established that the film relies personal details from the government employee interviews for
its character portrayals, which undermines any remaining privacy interests. ECF 18-1, Fedeli
Decl. 15, 18-19, 21; see also fns. and infra. the Court needs further evaluate
Plaintiff evidentiary claims, judicial notice the film would appropriate.
Martha Raddatz and Ely Brown, Zero Dark Thirty Bin Laden Manhunt Film Based
Controversial Firsthand Accounts: Nightline Exclusive, ABC News, Nov. 26, 2012, available Both Bigelow and Boal felt responsibility accurately portray the
lives the people who normally work the shadows, their efforts rarely known the outside
world. While some the dialog word for word real, based interviews with the young CIA
officer and others, some the dialog dramatized and the decade-long narrative events
Greg Miller, Zero Dark Thirty, she the hero; real life, CIA agent career more
complicated, Washington Post, Dec. 10, 2012, available
Case 1:12-cv-00049-RC Document Filed 12/17/12 Page
The Court should conclude that the government has waived its right keep these names
secret because the circumstances the government disclosures, the security interests must
necessarily relatively minor based those circumstances, and whatever limited privacy
interest remains outweighed the incremental public interest value publication. Plaintiff
therefore respectfully requests the Court grant its Cross-Motion for Summary Judgment and
Deny Defendants Motion for Summary Judgment.
Dated: December 17, 2012
Respectfully submitted,
/s/ Chris Fedeli
Chris Fedeli (DC Bar No. 472919)
425 Third Street SW, Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff