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Judicial Watch • #12-5137 142789197-JW-v-DoD-and-CIA

#12-5137 142789197-JW-v-DoD-and-CIA

#12-5137 142789197-JW-v-DoD-and-CIA

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Category:Legal Document

Number of Pages:14

Date Created:May 15, 2013

Date Uploaded to the Library:July 14, 2015

Tags:142789197, Neller, Culver, images, Qaeda, BENNETT, classification, classified, laden, Exemption, Dod, al Qaeda, EXECUTIVE, AGENCY, ACLU, order, Pentagon, filed, Obama, document, American, records, FOIA, states, united, CIA

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USCA Case #12-5137
Document #1437137
Filed: 05/21/2013
United States Court Appeals
Argued January 10, 2013
Decided May 21, 2013
No. 12-5137
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
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,
Before: GARLAND, Chief Judge, ROGERS, Circuit Judge,
and EDWARDS, Senior Circuit Judge.
USCA Case #12-5137
Document #1437137
Filed: 05/21/2013
Opinion for the Court filed PER CURIAM.
PER CURIAM: Judicial Watch filed Freedom
Information Act request seeking disclosure the Central
Intelligence Agency post-mortem images Osama bin
Laden. The agency refused the ground that the images were
classified Top Secret. Judicial Watch sued, and the district court
granted summary judgment for the agency. affirm because
the images were properly classified and hence are exempt from
disclosure under the Act. May 2011, President Obama announced that
American personnel had killed Qaeda leader Osama bin
Laden Abbottabad, Pakistan and buried his body sea.
Shortly thereafter, Judicial Watch filed Freedom Information
Act (FOIA) requests with the Department Defense and the
Central Intelligence Agency (CIA) seeking any photographs
videos depicting bin Laden during and/or after the U.S. military
operation Pakistan. The Defense Department responded that had such images. The CIA acknowledged that had
responsive records, but said that intended withhold them
because they were classified Top Secret.1 Judicial Watch sued,
and the parties filed cross-motions for summary judgment.
After oral argument this appeal, the CIA acknowledged that had located seven additional responsive records, which withheld the same basis the original images. See Rule 28(j) Letter
from CIA Counsel (filed Feb. 15, 2013).
USCA Case #12-5137
Document #1437137
Filed: 05/21/2013
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 post-mortem 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 death, and that its new leader had questioned whether
bin Laden had fact received proper burial sea. Id. 25.
Bennett also noted that subset the records, including those
used conduct facial recognition analysis, could enable foreign
intelligence services infer certain CIA intelligence techniques.
Id. 29.
Lieutenant General Robert Neller, the Director
Operations, J-3, the Joint Staff the Pentagon, affirmed that fourth declaration, filed William Kammer, Chief the
Department Defense Freedom Information Division, attested
that the Pentagon possessed responsive records. Judicial Watch
longer contests this point.
USCA Case #12-5137
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Filed: 05/21/2013
he, too, had personally reviewed the images. See Neller Decl. Like Bennett, Neller believed that their release would pose clear and grave risk inciting violence and riots against U.S.
and Coalition forces, and expose innocent Afghan and
American civilians harm. Id. Neller cited the fatal riots
that had followed both the publication Danish cartoon the
Prophet Muhammad and erroneous report that American
soldiers had desecrated the Koran. Id. 7-8. Neller believed
that similar violent reaction could expected follow the
release the bin Laden images. Id.
Admiral William McRaven, Commander the United
States Special Operations Command, submitted third, partially
classified declaration.3 the non-classified portions the
declaration, McRaven attested, again the basis first-hand
review, that disclosure some the images would enable
identification the special operations unit that participated
the Abbottabad operation, thereby exposing its members and
their families great risk harm. McRaven Decl.
explained that other images would reveal classified methods and
tactics used U.S. special operations. Id. result,
believed release could reasonably expected cause harm
the national security. Id. its cross-motion for summary judgment, Judicial Watch
argued that the 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
The CIA filed unredacted version the McRaven declaration parte. not rely the classified portions the declaration this opinion.
USCA Case #12-5137
Document #1437137
Filed: 05/21/2013 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
USCA Case #12-5137
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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 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, 374-75 (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)).
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.
USCA Case #12-5137
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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, 22829 (1974) (same). The Order substantive criteria, relevant
here, are twofold. First, classified information must pertain least one eight subject-matter classification categories. See
Exec. Order No. 13,526, 1.1(a)(3), 1.4. Second, disclosure that information must reasonably expected cause some
degree harm national security the case Top Secret
information, exceptionally grave harm that identifiable
describable. See id. 1.1(a)(4), 1.2(a)(1), 1.4. The Order also
establishes two pertinent procedural requirements. Information
may classified only individual with original
derivative classification authority. See id. 1.1(a)(1), 2.1.
And classified documents must marked with several pieces information, including the identity the classifier and
instructions for declassification. See id. 1.6, 2.1(b).
Judicial Watch raises both substantive and procedural
challenges the 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
USCA Case #12-5137
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observed, pertains not very demanding verb. Judicial
Watch, 857 Supp. 60. And every image issue
documents events involving American military personnel
thousands miles outside American territory.
There also doubt that the declarations Director
Bennett and Admiral McRaven establish the requisite level
harm the second substantive limit classification for
great many the images. The photographs used conduct
facial recognition analysis could reasonably expected
reveal classified intelligence methods. See Bennett Decl. 29;
Judicial Watch Br. 12-13 (conceding the point). The images
displaying members the special operations unit that conducted
the raid could reasonably expected endanger those
personnel. See McRaven Decl. These are valid grounds
for classification under our precedents. See, e.g., Miller, 730
F.2d 775-77; Halperin CIA, 629 F.2d 144, 148-50 (D.C.
Cir. 1980). Furthermore, Judicial Watch does not appear
seriously question the 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 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
USCA Case #12-5137
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that any claim that individuals would engage violence upon
seeing such images mere speculation. Judicial Watch Br. 2324. 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 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
USCA Case #12-5137
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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, 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
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
USCA Case #12-5137
Document #1437137
Filed: 05/21/2013 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 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
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
USCA Case #12-5137
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Watch alleges were not followed. See Exec. Order No. 13,526,
1.7(d) (providing that previously undisclosed information may classified after agency has received FOIA request only such classification accomplished document-bydocument basis with the personal participation under the
direction the agency head, deputy agency head, the senior
agency official designated under section of] this order But
Judicial 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.
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
21:30-23:10. Accordingly, the CIA says, the only original
classification authority identified the records was the
classification guide itself. See Culver Decl. 7-8; Oral Arg.
Recording 23:05-08.
Although this explanation may account for why the CIA did
not mark the documents with the name person possessing
original classification authority, raises separate problem.
Even the CIA right that documents can derivatively
classified and marked this way and express view
the matter cannot determine whether derivative
USCA Case #12-5137
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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, 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.
USCA Case #12-5137
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Filed: 05/21/2013
For the foregoing reasons, the judgment the district court