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Judicial Watch • JW Reply Zero Dark Thirty

JW Reply Zero Dark Thirty

JW Reply Zero Dark Thirty

Page 1: JW Reply Zero Dark Thirty


Number of Pages:11

Date Created:December 17, 2012

Date Uploaded to the Library:February 20, 2014

Tags:Advocates, Genocide, Muslim, Fedeli, MCKINLEY, students, watkins, names, Reply, USDA, DOMA, defendants, motion, Circuit, Pentagon, government, White House, plaintiff, FBI, DOJ, court, EPA, IRS, ICE, CIA

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Plaintiff,  Case No. 1:12-cv-00049-RC  

Defendants. ____________________________________) 
PLAINTIFFS REPLY DEFENDANTS OPPOSITION1 AND SUPPORT PLAINTIFFS 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 Plaintiffs Cross-Motion for Summary Judgment, nor did Defendants docket any separate opposition Plaintiffs motion the Courts ECF System, calling into question whether they have properly opposed Plaintiff's motion pursuant Local Civil Rule 7(b).   
publics 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 FOIAs core purpose contributing the publics 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 USMSs 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 governments plea that the Court not consider Plaintiffs 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.   
Finally, while the governments 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 Plaintiffs 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, Plaintiffs 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 Governments 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 Hollywoods most acclaimed filmmakers; about the CIAs 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 meaningless. The Governments 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 governments 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 Dept. 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, Govt 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 governments attempt explain away the D.C. Circuits language Students unpersuasive. ECF 20, Govt 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 governments affirmative public policy reasons for sharing sensitive information selectively foreign nations.  Students Against Genocide, 257 
837.2 explained Plaintiffs brief, the government has similar defense here.  ECF 18, Plaintiffs Brief 12-13. 
Similarly, strains credibility for Defendants claim that the purpose the disclosure Muslim Advocates was not relevant factor the courts 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 here. 
recitation mere dicta, turning thirteen-page opinion into one that could have been resolved one-sentence finding no permanent public record.3  ECF 20, Govt Reply 13.  Plaintiff 
explained that the governments purpose making the disclosure was element the Muslim 
Advocates courts findings. ECF 18, Plaintiffs Brief 18. more in-depth look the courts 
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 FBIs domestic investigation guidelines  and the particular exemption[] claimed  i.e., Exemption 7(E)s 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 courts reasoning Watkins the case bar because the Watkins holding represents rejection the D.C. Circuits public domain waiver test.  ECF 20, Govt 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 governments suggestion.  ECF 20, Govt Reply 6-7. After discussing string national security FOIA cases, the Watkins court added: course, this not the D.C. Circuits 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).  
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 Governments 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, Govt 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 courts decision.  ECF 20, Govt 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, Govt Reply Contrary the governments suggestion, considerations information security 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 Natl 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, Plaintiffs Brief 21, fn. 11. 

II. The Government Fails Show That Exemption Not Outweighed  
The governments 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, Govt Reply 1112.  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 publics interest disclosure the specific information requested, and does not consider the aggregate impact new information.  ECF 20, Govt 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 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, Plaintiffs Brief 22-23. discussed above, the fact that the selective disclosures consist names does not lessen the governments 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, Govt Reply 14.  Equally importantly, knowing the names will help shed light whether the governments practice what very closely resembles embedded journalism was intended influence the films narrative beyond merely ensuring  The governments argument that the disclosure bare names, especially bare first names, has more limited public interest value cuts equally against the governments own position here.  ECF 20, Govt Reply 11-12. also true there much less privacy interest someones bare first name than there would broader disclosure employees full name, title, duties, and role.   
interrogation techniques the movie has spawned, the publics 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, Govt Reply 13. First, 
the governments own brief partly contradicts itself this point.  Specifically, the government 
admits that the purpose its disclosures the filmmakers was to ensure accurate portrayal people involved the raid. ECF 20, Govt Reply  Nowhere did the government 
present countervailing evidence suggesting the filmmakers have dishonored those wishes.  
Secondly, Plaintiffs assertion was not conjecture the time Plaintiffs 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, Dont 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. Thats 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 effectivethe 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, CIAs 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.). 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, Plaintiffs 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, Govt 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 Plaintiffs 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 condensed.). Greg Miller, Zero Dark Thirty, shes the hero; real life, CIA agents career more complicated, Washington Post, Dec. 10, 2012, available   
The Court should conclude that the government has waived its right keep these names secret because the circumstances the governments 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)  
JUDICIAL WATCH, INC.       425 Third Street SW, Suite 800        Washington, 20024        (202) 646-5172  
       Counsel for Plaintiff