ROSEMARY M. COLLYER, District Judge.
Alarmed at the reported use of unmanned drones to kill selected human targets
Plaintiffs ACLU and ACLU Foundation followed the customary path before bringing this dispute to court. The background facts are uncontested and are taken from the declaration of Mary Ellen Cole, Information Review Officer for the CIA. See CIA's Mot. for Summ. J. [Dkt. # 15] ("CIA Mem."), Ex. 1 (Declaration of Mary Ellen Cole ("Cole Decl.")). In a letter to the CIA's Information and Privacy Coordinator on January 13, 2010 (incorrectly dated as January 13, 2009), Plaintiffs submitted a FOIA request seeking "records pertaining to the use of unmanned aerial vehicles (`UAVs')—commonly referred to as `drones' and including the MQ-1 Predator and MQ-9 Reaper—by the CIA and the Armed Forces for the purpose of killing targeted individuals." Cole Decl., Ex. A (Jan. 13, 2010 FOIA Request) ("FOIA Request") at 2. In particular, Plaintiffs were seeking "information about the legal basis in domestic, foreign, and international law for the use of drones to conduct targeted killings." Id.
By letter dated March 9, 2010, the CIA issued a final response to Plaintiffs' request, stating that "the CIA can neither confirm nor deny the existence or nonexistence of records responsive to your request." Id., Ex. B (Mar. 9, 2010 CIA Response). The CIA explained that the "fact of the existence or nonexistence of requested records is currently and properly classified and is intelligence sources and methods information that is protected from disclosure by section 6 of the CIA Act of 1949, as amended." Id. The CIA cited FOIA Exemptions 1 and 3 as the basis for its response. Id. Plaintiffs appealed this denial on April 22, 2010. Before the appeal was decided, Plaintiffs filed an amended complaint on June 1, 2010, adding the CIA as defendant.
Plaintiffs seek information on "drone strikes;" a term used by Plaintiffs (and the Court for the sake of consistency) to mean the "targeted killing" of a human with a drone. Paraphrasing the ten categories of
Cole Decl., Ex. A (Jan. 13, 2010 FOIA Request) at 5-8 (emphasis omitted). In briefing, Plaintiffs abandoned their request of the CIA for information on category 2 and subcategory 1(B) as listed in the FOIA request, both of which concern records on the understanding, cooperation or involvement of foreign governments in drone strikes. See Pls.' Opp'n & Cross-Mot. for Summ. J. [Dkts. ## 20, 21] ("Pls.' Opp'n") at 3.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgement as a matter of law." FED.R.CIV.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party; however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505.
Federal district courts have original jurisdiction over civil actions arising under federal statutes. See 28 U.S.C. § 1331. As Plaintiffs bring suit under FOIA, this
Jurisdiction in a FOIA case is dependent upon a showing that an agency has (1) improperly (2) withheld (3) agency records. U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989); United We Stand America, Inc. v. IRS, 359 F.3d 595, 598 (D.C.Cir.2004). The agency bears the burden to demonstrate—not the requester to disprove—that it has not improperly withheld agency records. Tax Analysts, 492 U.S. at 142 n. 3, 109 S.Ct. 2841. This is consistent with the purpose of FOIA which was "enacted to facilitate public access to Government documents," U.S. Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991), in order "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). "Consistently with this purpose, as well as the plain language of the Act, the strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents." Ray, 502 U.S. at 173, 112 S.Ct. 541.
An agency may meet its burden solely on the basis of information provided in agency declarations that 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 by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). "[C]onclusory affidavits that merely recite statutory standards, or are overly vague or sweeping will not, standing alone, carry the government's burden." Larson v. Dep't of State, 565 F.3d 857, 864 (D.C.Cir.2009). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible." Id. at 862 (internal quotation marks omitted). Further, the "court owes substantial weight to detailed agency explanations in the national security context." King v. U.S. Dep't of Justice, 830 F.2d 210, 217 (D.C.Cir.1987). A "defendant in a FOIA action is entitled to summary judgment if the defendant proves that it has fully discharged its obligations under the Act." Reliant Energy, 520 F.Supp.2d at 200.
The exemptions under FOIA "cover not only the content of protected government records but also the fact of their existence or nonexistence, if that fact itself properly falls within the exemption." Larson, 565 F.3d at 861. Thus, an agency may refuse to confirm or deny the existence of responsive records—an answer commonly known as a Glomar response—when "to answer the FOIA inquiry would cause harm cognizable under an FOIA exception." Gardels v. CIA, 689 F.2d 1100, 1103 (D.C.Cir.1982); see also Larson, 565 F.3d at 861. A Glomar response takes its name from the Hughes Glomar Explorer, an oceanic research vessel at issue in the case that first authorized the government to refuse to confirm or deny the existence of records responsive to a FOIA request. See generally Phillippi v. CIA, 546 F.2d 1009 (D.C.Cir.1976).
Neither side disputes the customary principles that govern FOIA requests to the CIA. In this matter, the CIA has invoked FOIA Exemptions 1 and 3 to justify
FOIA Exemption 3 authorizes the withholding of agency records on subject-matters specifically exempted from disclosure by a non-FOIA statute, provided that such statute "(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3). To properly invoke Exemption 3, the CIA "need only show that the statute claimed is one of exemption as contemplated by Exemption 3 and that the withheld material falls within the statute." Larson, 565 F.3d at 865.
The CIA first points to the Central Intelligence Agency Act of 1949, as amended, 50 U.S.C. § 403-4 et seq. ("CIA Act"), which exempts the CIA from "any . . . law which require[s] the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency." 50 U.S.C. § 403g. Secondly, the CIA proffers the National Security Act of 1947, as amended, 50 U.S.C. § 401 et seq. (the "NSA"), which mandates that the "Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure." 50 U.S.C. § 403-1(i)(1). It is well-established that both statutory provisions cited by the CIA qualify as withholding statutes for purposes of Exemption 3. See, e.g., ACLU v. U.S. Dep't of Defense, 628 F.3d 612, 619 (D.C.Cir.2011); Halperin v. CIA, 629 F.2d 144, 147 (D.C.Cir.1980); Majed Subh v. CIA, 760 F.Supp.2d 66, 70 (D.D.C.2011).
The CIA claims it properly relies upon § 403g of the CIA Act to protect information relating to the "functions" of its personnel; that is, "information relating to its core functions—which plainly include clandestine intelligence activities, intelligence sources and methods and foreign liaison relationships." Cole Decl. ¶ 41. Plaintiffs counter that the CIA presents an overbroad reading of CIA "functions" under the statute. To be sure, the D.C. Circuit has recognized that § 403g is not without limits: it does not sanction the CIA to "refuse to provide any information at all about anything it does" under the guise that such information pertains to personnel "functions." Phillippi, 546 F.2d at 1015 n. 14. The provision is designed primarily to shield the CIA from having to divulge "information about its internal structure." Id. Accordingly, § 403g of the CIA Act offers a limited sanctuary from the CIA's FOIA obligations because "[o]nly the specific information on the
The CIA's Information Review Officer responds that the CIA is "charged with carrying out a number of important functions on behalf of the United States, which include, among other activities, collecting and analyzing foreign intelligence and counterintelligence." Cole Decl. ¶ 13. "A defining characteristic of the CIA's intelligence activities is that they are typically carried out through clandestine means, and therefore they must remain secret in order to be effective." Id. "In the context of FOIA, this means that the CIA must carefully evaluate whether its response to a particular FOIA request could jeopardize the clandestine nature of its intelligence activities or otherwise reveal previously undisclosed information about its sources, capabilities, authorities, interests, strengths, weaknesses, resources, etc." Id.
"Hypothetically, if the CIA were to respond to this request by admitting that it possessed responsive records, it would indicate that the CIA was involved in drone strikes or at least had an intelligence interest in drone strikes—perhaps by providing supporting intelligence, as an example." Id. ¶ 19. "In either case, such a response would reveal a specific clandestine intelligence activity or interest of the CIA, and it would provide confirmation that the CIA had the capability and resources to be involved in these specific activities." Id. On the other hand, by revealing it had no responsive records, that fact "would indicate that the CIA had no involvement or interest in drone strikes." Id. ¶ 21. "Such a response would reveal sensitive information about the CIA's capabilities, interests, and resources that is protected from disclosure." Id.
The fact of the existence or nonexistence of responsive information falls within the ambit of § 403g because whether the CIA cooperates with, is interested in, or actually directs drone strikes pertains to (possible) functions of CIA personnel. See Riquelme v. CIA, 453 F.Supp.2d 103, 111 (D.D.C.2006) (accepting CIA's argument that FOIA request seeking information relating to CIA agents' "activities, assistance, participation, involvement, and contacts" speaks to the "functions" of CIA agents, protected from disclosure under § 403g). Plaintiffs' FOIA request—sent to multiple agencies—is clearly designed, at least in part, to determine which agencies, and its personnel, are involved in drone strikes and in what capacities. See FOIA Request at 4 ("Reports also suggest that in addition to Air Force and Special Forces personnel, non-military personnel including CIA agents are making targeting decisions, piloting drones, and firing missiles. . . [i]t appears, therefore, that lethal force is being exercised by individuals who are not in the military chain of command."); id. at 5 ("It is unclear who may be targeted by a drone strike, how targets are selected . . . and who is making operational decisions about particular strikes."); id. at 6 (seeking records regarding "whether drones can be used by the CIA . . . in order to execute targeted killings"); id. at 7 (requesting records "pertaining to the assessment or evaluation of individual drone strikes after the fact," including how the performance of those operating and involved in drone strikes is assessed); id. at 8 (seeking records "pertaining to the involvement of CIA personnel" in drone strikes and the piloting and operation of drones).
The CIA affidavit, which is entitled to "substantial weight," see Frugone v. CIA, 169 F.3d 772, 775 (D.C.Cir.1999), asserts that disclosing the existence or nonexistence
The CIA declaration offers "reasonable specificity of detail rather than merely conclusory statements" and has not been "called into question by contradictory evidence in the record or by evidence of agency bad faith." Halperin, 629 F.2d at 148. "If the agency's statements meet this standard, the court is not to conduct a detailed inquiry to decide whether it agrees with the agency's opinions; to do so would violate the principle of affording substantial weight to the expert opinion of the agency." Id. In the end, the CIA is justifiably concerned that revealing the existence or nonexistence of records sought on the various topics sought by Plaintiffs could alone reveal information on the CIA's internal structure and its capabilities and potential interests and involvement in/operation of the drone program. Although the matter is not entirely free from doubt, the Court is satisfied that the CIA has properly invoked § 403g of the CIA Act to withhold this fact under Exemption 3.
Whatever the ambit of § 403g of the CIA Act, the CIA correctly contends that its Glomar response is justified because the information sought by Plaintiffs relates to "intelligence sources and methods," protected from disclosure under the NSA. 50 U.S.C. § 403-1(i)(1).
Sims explained that through the statutory predecessor to § 403-1(i)(1) of the NSA, Congress vested the Director of Central Intelligence
Id. at 169-70, 105 S.Ct. 1881.
Accordingly, the Supreme Court held the "`plain meaning' of § 102(d)(3) [codified at § 403-1(i)(1)] may not be squared with any limiting definition that goes beyond the requirement that the information fall within the Agency's mandate to conduct foreign intelligence." Sims, 471 U.S. at 169, 105 S.Ct. 1881. "Congress simply and pointedly protected all sources of intelligence that provide, or are engaged to provide, information the Agency needs to perform its statutory duties with respect to foreign intelligence." Id. at 169-70, 105 S.Ct. 1881. Against a congressional backdrop "highlighting the requirements of effective intelligence operations," id. at 172, 105 S.Ct. 1881, the Court noted that Congress authorized the CIA to protect intelligence sources and methods to ensure "the most effective accomplishment of the intelligence mission related to the national security." Id. (internal quotation omitted).
At first blush, there is force to Plaintiffs' argument that a "targeted-killing program is not an intelligence program" in the most strict and traditional sense, the argument bolstered by the principle that FOIA exemptions are to be narrowly construed. See Public Citizen, Inc. v. Rubber Mfrs. Ass'n, 533 F.3d 810, 813 (D.C.Cir.2008). Nonetheless, Plaintiffs seek too narrow a reading of the authority
The Court has no reason to second-guess the CIA as to which programs that may or may not be of interest implicate the gathering of intelligence, see Wolf, 473 F.3d at 377 ("The Supreme Court gives even greater deference to CIA assertions of harm to intelligence sources and methods under the National Security Act."). The CIA need only "demonstrate[] that the information withheld logically falls within the claimed exemption." ACLU, 628 F.3d at 619; see also Fitzgibbon, 911 F.2d at 762 (explaining that in determining whether the material withheld "relates to intelligence sources and methods . . . we accord substantial weight and due consideration to the CIA's affidavits").
Ms. Cole declares that, "[i]ntelligence sources and methods are the basic practices and procedures used by the CIA to accomplish its mission. They can include human assets, foreign liaison relationships, sophisticated technological devices, collection activities, cover mechanisms, and other sensitive intelligence tools." Cole Decl. ¶ 33. Knowing whether the CIA lacks or maintains records responsive to Plaintiffs' FOIA request "would reveal a specific clandestine intelligence activity or interest of the CIA, and it would provide confirmation that the CIA had the capability and resources to be involved in these specific activities." Id. ¶ 19. Responding to Plaintiffs' request, the CIA argues, would reveal whether the CIA maintains an intelligence interest in, cooperates with, or directly operates a program of drone strikes. See id. ¶¶ 32-35, 40.
The CIA further explains that it "must do more than prevent explicit references to an intelligence source or method; it must also prevent indirect references to such a source or method." Id. ¶ 35. By reviewing officially disclosed information about CIA capabilities, hostile groups "have the capacity and ability to gather information from myriad sources, analyze it, and deduce means and methods from disparate details to defeat the CIA's collection efforts." Id. "Thus, even seemingly innocuous, indirect references to an intelligence source or method could have significant adverse effects when juxtaposed with other publicly-available data." Id.
"Because `the purpose of national security exemptions to the FOIA is to protect intelligence sources before they are compromised and harmed, not after,' Halperin, 629 F.2d at 149, `the Director of Central Intelligence may protect all intelligence sources, regardless of their provenance.'" Wolf, 473 F.3d at 377 (quoting Fitzgibbon v. CIA, 911 F.2d 755, 762 (D.C.Cir.1990)). Taking into account the deference owed the CIA's declaration in
Lastly, Plaintiffs' argument that a program of drone strikes cannot form the basis of, or involve, intelligence sources or methods also ignores the scope of the CIA's specific authority to engage in activities beyond "traditional" intelligence gathering (however defined), such as intelligence activities and operations, covert operations, and foreign relations activities. Executive Order 12333, as amended, includes within the CIA's mandate the requirement that it, inter alia, "[c]ollect . . ., analyze, produce, and disseminate foreign intelligence and counterintelligence;" "[c]onduct counterintelligence activities;" "[c]onduct covert action activities approved by the President;" "[c]onduct foreign intelligence liaison relationships;" and "[p]erform such other functions and duties related to intelligence as the Director [of the Central Intelligence Agency] may direct." See United States Intelligence Activities, Executive Order No. 12333, 46 Fed.Reg. 59941 (Dec. 4, 1981), as amended by Further Amendments to Executive Order 12333, Executive Order No. 13470, 73 Fed.Reg. 45325, § 1.7(a) (July 30, 2008); see also 50 U.S.C. § 403-4a(d) (authorizing the Director of the Central Intelligence Agency to, inter alia, "collect intelligence through human sources and by other appropriate means" and "perform such other functions and duties related to intelligence affecting the national security as the President or the Director of National Intelligence may direct"); id. § 403-4a(f) (directing the Director of the CIA to "coordinate the relationships between elements of the intelligence community and the intelligence or security services of foreign governments or international organizations on all matters involving intelligence related to the national security or involving intelligence acquired through clandestine means").
The Supreme Court noted that the authority granted under the NSA "may not be squared with any limiting definition that goes beyond the requirement that the information fall within the Agency's mandate to conduct foreign intelligence." ACLU, 628 F.3d at 622 (quoting Sims, 471 U.S. at 169, 105 S.Ct. 1881); see also Sims, 471 U.S. at 169-70, 105 S.Ct. 1881 ("Congress simply and pointedly protected all sources of intelligence that provide, or are engaged to provide, information the Agency needs to perform its statutory duties with respect to foreign intelligence."). It would surprise no one that the CIA may be authorized to engage in more than gathering facts around the world; the NSA's grant of protection to "intelligence sources and methods" cannot be so limited. See, e.g., Riquelme, 453 F.Supp.2d at 108-11 (finding agency's Glomar response proper under Exemption 1 and 3 relating to "clandestine activities" including whether CIA engaged in activities related to the ascension of a general to power in a particular nation or participated in training of officers in the School of the Americas).
Confirming the existence or nonexistence of pertinent agency records on drone strikes could reasonably be expected to lead to the unauthorized disclosure of intelligence sources and/or methods. See Halperin, 629 F.2d at 147.
Plaintiffs next contend that former CIA Director Leon J. Panetta has officially admitted that some or all of the requested records exist so that they are no longer FOIA exempt. When "information has been `officially acknowledged,' its disclosure may be compelled even over an agency's otherwise valid exemption claim." Fitzgibbon, 911 F.2d at 765. To be officially acknowledged: "(1) the information requested must be as specific as the information previously released; (2) the information requested must match the information previously disclosed; and (3) the information requested must already have been made public through an official and documented disclosure." ACLU, 628 F.3d at 620-21. Moreover, as the D.C. Circuit "further explained in Wolf, `[p]rior disclosure of similar information does not suffice; instead, the specific information sought by the plaintiff must already be in the public domain by official disclosure. This insistence on exactitude recognizes the Government's vital interest in information relating to national security and foreign affairs.'" Id. at 621 (quoting Wolf, 473 F.3d at 378). Ultimately, the "fact that information exists in some form in the public domain does not necessarily mean that official disclosure will not cause harm cognizable under a FOIA exemption." Wolf, 473 F.3d at 378. Plaintiffs bear the burden of demonstrating that the information they seek has been officially acknowledged. See id.
This question is somewhat muddled by the CIA's stated reason for its Glomar response, which is essentially that to respond to the FOIA request would reveal whether or not the CIA was involved or interested in drone strike operations, in any capacity. See Cole Decl. ¶¶ 19, 22. Plaintiffs seize on this rationale and contend that it is no longer operative because of the following statements by then-Director Panetta which arguably acknowledged CIA involvement in drone strikes.
For instance, on May 18, 2009, Director Panetta spoke before the Pacific Council on International Policy, and during a question and answer session, the following exchange with Director Panetta occurred:
Pls.' Opp'n, Ex. B (Leon Panetta Remarks at the Pacific Council on International Policy (May 18, 2009)) at 9-10.
Contrary to Plaintiffs' argument, these comments by Director Panetta did not officially disclose the CIA's involvement in the drone strike program. Responding to the questioner's perception of the drone strikes as the "President's strategy in Pakistan," Director Panetta spoke generally of his knowledge of "covert and secret operations" in Pakistan and his assessment that those operations had been precise with minimal collateral damage. Even if Director Panetta were speaking squarely on the issue of drone strikes, he never acknowledged the CIA's involvement in such program. That Director Panetta acknowledged that such a program exists and he had some knowledge of it, or that he was able to assess its success, is simply not tantamount to a specific acknowledgment of the CIA's involvement in such program, nor does it waive the CIA's ability to properly invoke Glomar. See, e.g., Wilner v. NSA, 592 F.3d 60, 70 (2d Cir.2009) ("[A]n agency may invoke the Glomar doctrine in response to a FOIA request regarding a publicly revealed matter.")
Plaintiffs also quote selected statements from an interview Director Panetta gave to the Washington Post, which was printed on March 17, 2010. The Court quotes a few paragraphs:
Pls.' Opp'n, Ex. C (Mar. 17, 2010 Article "Al-Qaida Crippled as Leaders Stay in Hiding, CIA Chief Says) at 1.
The Post story focused on relentless attacks targeting al-Qaida in Pakistan, and appeared to speak to the joint efforts of the military and non-military agencies of the U.S. Government (and perhaps even its allies) in the efforts against terrorism there. Director Panetta merely admitted that the CIA's operations in Pakistan, left undefined, were the most aggressive ever undertaken by the CIA. While the story cited "more frequent strikes" as one example of the aggressive campaign waged in Pakistan, the reference is just as easily read to describe part of a larger campaign in Pakistan, in which the CIA played an undefined role. Furthermore, the article specified that the CIA formally declined to acknowledge U.S. participation in the use of unmanned aerial vehicles in Pakistan; it would be contradictory under the circumstances to read Director Panetta's reference to the CIA operations as a specific reference to drone strikes.
Plaintiffs argue that Director Panetta had gone "so far as to acknowledge the targets of particular strikes." Pls.' Opp'n at 12. In a Wall Street Journal article on the March 8, 2010 drone strike killing of Hussein al-Yemeni, Director Panetta commented, "We now believe that al-Yemeni, who was one of the top 20 [al Qaeda
Id. at 2.
Similarly, in speaking with ABC News, Mr. Panetta echoed the comment, stating in response to a question about the possible whereabouts of Osama bin Laden:
Id., Ex. E (June 27, 2010 Transcript of This Week "Jake Tapper Interviews CIA Director Leon Panetta") at 4.
Plaintiffs argue that these comments, together with other news stories, bar the CIA from relying on a generalized Glomar response here; that the "fact underlying the CIA's Glomar response is identical to the fact officially acknowledged: that the CIA is involved in drone strikes." Pls.' Opp'n at 15. Interesting as it is, Plaintiffs' argument misperceives the applicable legal standard. Whereas Director Panetta spoke generally, Plaintiffs fail to cite any official disclosure containing the exact information sought by Plaintiffs. Director Panetta's comments lacked a specific reference to any particular CIA action except that the CIA was involved in undefined, aggressive operations in Pakistan. In all the statements cited by Plaintiffs, Director Panetta's references to "we" or "our" could have just as easily referred to the joint efforts of all U.S. military and civilian resources dedicated in Afghanistan and Pakistan. The gist of the stories was that the U.S. had al-Qaida on the run and was disrupting its networks. Further, two of the statements cited by Plaintiffs stated specifically that the CIA did not officially speak to covert actions.
Ultimately, Plaintiffs attempt to impose an exactitude lacking in Director Panetta's generalized statements. "We have noted, however, that `while the logic of FOIA postulates that an exemption can serve no purpose once information . . . becomes public, we must be confident that the information sought is truly public and that the requester receive no more than what is publicly available before we find a waiver.'" Students Against Genocide v. Dep't of State, 257 F.3d 828, 836 (D.C.Cir.2001) (quoting Cottone v. Reno, 193 F.3d 550, 555 (D.C.Cir.1999)).
Here, Plaintiffs seek exactly what is not publicly available—an official CIA acknowledgment of the fact that it is or is not involved in the drone strike program. See Public Citizen v. Dep't of State, 11 F.3d 198, 201 (D.C.Cir.1993) ("FOIA plaintiffs cannot simply show that similar information has been released, but must establish
Even less can it be said that Director Panetta officially confirmed the existence of CIA records on drone strikes—which the CIA argues is the relevant inquiry here. See Def.'s Opp'n at 14. "In the Glomar context, then, if the prior disclosure establishes the existence (or not) of records responsive to the FOIA request, the prior disclosure necessarily matches both the information at issue—the existence of records—and the specific request for that information." Wolf, 473 F.3d at 379; see also Wilner, 592 F.3d at 70 ("An agency only loses its ability to provide a Glomar response when the existence or nonexistence of the particular records covered by the Glomar response has been officially and publicly disclosed."). Certainly none of the comments by former Director Panetta on which Plaintiffs rely constituted an explicit admission "that a specific record exists." Wilner, 592 F.3d at 70.
Plaintiffs submitted ten detailed requests for records, covering the gamut from the "legal basis" for drone strikes; the selection of human targets; civilian casualties; post-strike assessments; limits to the use of drones; the agency of government or branch of the military involved; the supervision, oversight, discipline, or training of drone operators and those involved in targeting decisions, and more. There is nothing in the various statements submitted by Plaintiffs which speaks to any records on these points; only by inference from former Director Panetta's statements might one conclude that the CIA might have some kind(s) of documentation somewhere. Thus, even if former Director Panetta could be understood colloquially to have suggested some sort of CIA involvement in drone strikes, he neither referenced specific records nor referenced records that go to the exact requests posed by Plaintiffs.
Lastly, despite speculation or overt factual assertions of the CIA's involvement in drone strikes rampant in the various articles cited in Plaintiffs' briefs, the statements of journalists, "experts," or even unofficial or unidentified sources (even were they CIA personnel) are not "official" disclosures by the CIA. See Frugone v. CIA, 169 F.3d 772, 774 (D.C.Cir.1999); ACLU, 628 F.3d at 621 (explaining that a leaked report, not released pursuant to a government declassification process, could not be considered officially acknowledged). Ultimately, "[i]t is one thing for a reporter or author to speculate or guess that a thing may be so or even, quoting undisclosed sources, to say that it is so; it is quite another thing for one in a position to know of it officially to say that it is so." ACLU, 628 F.3d at 621-22 (quoting Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362, 1370 (4th Cir.1975)).
Plaintiffs fail to demonstrate that the CIA has officially acknowledged either the CIA's involvement in a drone strike program or the existence or nonexistence of pertinent agency records. Plaintiffs' arguments to the contrary, the CIA has not
FOIA Exemption 1 also authorizes the CIA's Glomar response. Exemption 3 and 1 are independent exemptions; the "[p]roper invocation of, and affidavit support for, either Exemption, standing alone, may justify the CIA's Glomar response." Wolf, 473 F.3d at 375; see also Gardels, 689 F.2d at 1106. Although the Court need not consider the CIA's invocation of Exemption 1 to affirm its Glomar response, already found proper under Exemption 3, see Larson, 565 F.3d at 862-63, the Court nonetheless considers the CIA's reliance on Exemption 1 and finds it proper.
Exemption 1 of FOIA protects matters that are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1); see also Larson, 565 F.3d at 861. Executive Order 13526 governs the classification of national security information. See Classified National Security Information, Executive Order No. 13526, 75 Fed.Reg. 707 (Dec. 29, 2009) ("E.O. 13526"). Information can be properly classified under Executive Order 13526 if four requirements are met: (1) an original classification authority classifies the information; (2) the United States Government owns, produces, or controls the information; (3) the information falls within one or more of eight protected categories listed in section 1.4 of the Executive Order; and (4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in a specified level of damage to the national security, and the original classification authority is able to identify or describe the damage. Id. § 1.1(a). Executive Order 13526 expressly authorizes an agency to "refuse to confirm or deny the existence or nonexistence of requested records whenever the fact of their existence or nonexistence is itself classified under this order or its predecessors." Id. § 3.6(a).
Mary Ellen Cole, the Information Review Officer for the CIA's National Clandestine Service, holds original classification authority and has determined that "the existence or nonexistence of [responsive] records is a currently and properly classified fact" under the control of the U.S. Government. Cole Decl. ¶¶ 3, 5, 30. Ms. Cole explains that this fact is protected from disclosure by § 1.4(c) and (d) of the Executive Order, which permits the classification of information concerning "intelligence activities (including covert action), intelligence sources or methods, or cryptology," and "foreign relations or foreign activities of the United States, including confidential sources," respectively. Cole Decl. ¶ 30 (quoting E.O. 13526 § 1.4(c), (d)). Ms. Cole explains with sufficient detail that the unauthorized disclosure of the existence or nonexistence of records reasonably could be expected to result in specific and identifiable damage to the national security.
Through Ms. Cole's Affidavit, the CIA has sufficiently demonstrated that disclosure of records sought by Plaintiffs would cause damage to national security by providing insight into the CIA's intelligence activities, sources and methods, which are properly classifiable under § 1.4(c) of Executive Order 13526. The Court has already determined that the records sought pertain to "intelligence sources and methods" under the NSA; such analysis applies here as well. See infra Part III(A)(2); Military Audit Project, 656 F.2d at 736 n. 39. Information on drone strikes is even easier to fit within the purview of intelligence
Independently, the CIA also demonstrates that the fact of whether or not the CIA maintains responsive records also implicates "foreign relations or foreign activities of the United States, including confidential sources." E.O. 13526 § 1.4(d). Because the CIA's operations are conducted almost exclusively outside the United States, they inherently involve foreign activities. See Cole Decl. ¶ 36. "Although it is generally known that the CIA conducts clandestine intelligence operations, identifying an interest in a particular matter or publicly disclosing a particular intelligence activity could cause the affected or interested foreign government to respond in ways that would damage U.S. national interests." Id. ¶ 37. The CIA argues that to acknowledge officially whether it has responsive records could be construed by foreign governments as an affirmation that the CIA has operated undetected in their borders, or has taken intelligence operations against its citizens or residents, which could adversely affect U.S. relations with such nations. See id.; cf. Afshar v. Dep't of State, 702 F.2d 1125, 1130-31 (D.C.Cir.1983) ("Also, even if a fact—such as the existence of such a liaison—is the subject of widespread media and public speculation, its official acknowledgment by an authoritative source might well be new information that could cause damage to the national security. Unofficial leaks and public surmise can often be ignored by foreign governments that might perceive themselves to be harmed by disclosure of their cooperation with the CIA, but official acknowledgment may force a government to retaliate.").
The information sought by Plaintiffs directly "implicat[es] national security, a uniquely executive purview." Ctr. for Nat'l Sec. Studies v. DOJ, 331 F.3d 918, 926-27 (D.C.Cir.2003); see also Larson, 565 F.3d at 865 ("Today we reaffirm our deferential posture in FOIA cases regarding the `uniquely executive purview' of national security."). Since the United States is at war in Afghanistan against a guerrilla enemy disassociated from any nation or state, it surprises no one that U.S. information concerning its enemies comes predominately from the intelligence community and is classified and closely guarded to protect sources, covert actions and operations, U.S. agents, related intelligence activities and methods, and any workings with foreign governments and foreign agencies. While Plaintiffs may hold a general knowledge of the existence and use of drones, that knowledge does not mean that the underlying intelligence efforts that reveal and guide weapons to targets are somehow unprotected under FOIA and open to any requester.
In reviewing the CIA's basis for anticipating harm from a non-Glomar response, the "test is not whether the court personally agrees in full with the CIA's evaluation of the danger—rather, the issue is whether on the whole record the Agency's judgment objectively survives the test of reasonableness, good faith, specificity, and
More to the point, leaving hostile groups guessing as to the CIA's possible interest or involvement in, or control over, drone strikes could itself be of eminent benefit. See Military Audit Project, 656 F.2d at 743-45 (noting that, despite widespread speculation, the lack of an authoritative acknowledgment of a covert project's actual purpose could itself prove beneficial by leaving foreign agencies with "lingering doubts whether some other purpose motivated the project"); Frugone, 169 F.3d at 775 (acknowledging CIA's asserted benefit of Glomar response that by denying it had records on a subject it "would lessen the burden facing a foreign intelligence agency attempting to track the CIA's covert activities abroad"). The CIA has met its burden of showing that the release of any acknowledgment of responsive records could damage national security; FOIA "bars the courts from prying loose from the government even the smallest bit of information that is properly classified or would disclose intelligence sources or methods." Afshar, 702 F.2d at 1130.
In short, the CIA has convinced the Court that FOIA Exemptions 1 and 3 apply to any records it might possibly have that are sought by Plaintiffs and that its Glomar response was appropriate. The CIA's motion for summary judgment [Dkt. # 15] will be granted, and Plaintiffs' motion for partial summary judgment [Dkt. # 21] will be denied. A memorializing Order accompanies this Memorandum Opinion.
The Second Circuit explained, "Here, although the public is aware that the TSP exists, the government has found it necessary to keep undisclosed the details of the program's operations and scope—the subject of plaintiffs' FOIA request in this case. The fact that the public is aware of the program's existence does not mean that the public is entitled to have information regarding the operation of the program, its targets, the information it has yielded, or other highly sensitive national security information that the government has continued to classify. Indeed, the fact that the TSP's existence has been made public reinforces the government's continuing stance that it is necessary to keep confidential the details of the program's operations and scope." Id. at 70. The Circuit upheld the Glomar response and held that "an agency may issue a Glomar response to FOIA requests seeking information obtained under a `publicly acknowledged' intelligence program such as the Terrorist Surveillance Program at least when the existence of such information has not already been publicly disclosed." Id. at 77. Similarly, even if Director Panetta had confirmed that the drone program exists, the statements offered by Plaintiffs did not specifically acknowledge that the CIA is involved directly or indicate whether the CIA has responsive records.
