ROSEMARY M. COLLYER, United States District Judge
The Central Intelligence Agency (CIA) engages in covert actions in foreign countries on behalf of the United States and, by necessity, practice, and statute, keeps its activities secret. The American Civil Liberties Union and the American Civil Liberties Union Foundation (collectively ACLU) are concerned about CIA activities overseas. Relying on the Freedom of Information Act, ACLU requested all CIA records pertaining to the United States' use of drone strikes to carry out targeted killings of alleged Islamist terrorists overseas. CIA initially provided a Glomar response to ACLU, i.e., it refused to confirm or deny that CIA had such records, which this Court approved. See ACLU v. Dep't of Justice, 808 F.Supp.2d 280 (D.D.C.2011) (Drones I). Thereafter various government officials made public statements about a U.S. operational role in drone strikes. The D.C. Circuit reversed and ordered CIA to begin the FOIA process anew. See ACLU v. CIA, 710 F.3d 422, 430 (D.C.Cir.2013) (Drones II).
On remand, ACLU narrowed its request, and CIA searched for and acknowledged the existence of twelve legal memoranda and thousands of classified intelligence products responsive to the narrowed request. CIA released a redacted version of a classified DOJ White Paper, but has withheld the other eleven legal memoranda and all of the intelligence products on the basis that disclosing these records would compromise classified, statutorily-protected, and privileged information. ACLU objects to CIA's response and asserts that some records must be released, specifically those records that (1) contain information that has already been officially acknowledged; (2) contain legal analysis or statistical or factual information that is not intertwined with classified intelligence information; and (3) have not been shown by CIA to be subject to a privilege.
Both parties move for summary judgment. For the reasons set forth below, the Court will grant CIA's Motion for Summary Judgment and deny ACLU's Cross-Motion for Summary Judgment.
In September 2001, Congress authorized the use of military force against enemies of
In a January 13, 2010 letter,
Jan. 13, 2010 FOIA Request at 5-8 (emphasis omitted).
CIA responded to the Jan. 13, 2010 FOIA Request on March 9, 2010, stating that "the CIA [could] neither confirm nor deny the existence or nonexistence of records responsive to [ACLU's] request." Cole Decl., Ex. B (Mar. 9, 2010 CIA Response). CIA stated 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."
CIA moved for summary judgment on October 1, 2010, arguing that it could neither confirm nor deny the existence of responsive records. ACLU opposed, citing inter alia, a May 18, 2009 response to a question by then-CIA Director Leon J. Panetta after a speech, about the United States' use of drone strikes in Pakistan. Director Panetta responded:
Pl. Opp'n to CIA 1st Mot. [Dkt. 20], Declaration of Alexander Abdo, Ex. B (May 18, 2009 Panetta Remarks at the Pacific Council on International Policy) at 10. ACLU also quoted from an interview Director Panetta gave to the Washington Post. Id. Ex. C at 1 ("In an interview with the Washington Post, Mr. Panetta described the drone strikes in Pakistan as `the most aggressive operation that CIA has been involved in in our history.'") (quoting Joby Warrick & Peter Finn, Al-Qaida Crippled as Leaders Stay in Hiding, CIA Chief Says, Wash. Post, Mar. 17, 2010).
This Court granted CIA's Motion for Summary Judgment on September 9, 2011, finding that CIA's Glomar response was
Id. at 294 (citing Wilner v. NSA, 592 F.3d 60, 70 (2d Cir.2009) (other citations omitted)). This Court noted that "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." Id. at 296 (citing Public Citizen v. Dep't of State, 11 F.3d 198, 201 (D.C.Cir.1993)). This Court also ruled that CIA's Glomar response was independently authorized under FOIA Exemption 1 based on Executive Order 13526, as well as the potential damage to national security that could occur by providing insight into CIA's foreign intelligence activities. Id. at 298-301.
ACLU filed its notice of appeal on November 9, 2011. Thereafter, on January 30, 2012, President Obama appeared on a live internet video forum, and stated:
President Obama Hangs out with America, White House Blog (Jan. 30, 2012), http://www.whitehouse.gov/blog/2012/01/30/president-obama-hangs-out-america (last visited June 18, 2015); The White House, Your Interview with the President — 2012, YouTube, at 28:37-29:23 (Jan. 30, 2012), http://www.youtube.com/watch?v=eeTj5q MGTAI; see id. at 26:20-30:18 (President Obama Hangout) (last visited June 18, 2015).
On April 20, 2012, then-Assistant to the President for Homeland Security and Counterterrorism John Brennan remarked:
John O. Brennan, The Ethics and Efficacy of the President's Counterterrorism Strategy, Wilson Center (Apr. 30, 2012), http://www.wilsoncenter.org/event/the-efficacy-and-ethics-us-counterterrorism-strategy (last visited June 18, 2015).
The D.C. Circuit reversed this Court on March 15, 2013. See Drones II, 710 F.3d at 434. The Circuit noted that ACLU's FOIA request was not limited to information about drones operated by CIA, but more broadly sought records pertaining to the use of drones by either CIA or the Armed Forces. Id. at 428. The Circuit held that the Government had acknowledged officially that CIA has an "intelligence interest" in drone strikes. Id. at 430. Taking judicial notice of the statements made by President Obama and Mr. Brennan, see id. at 431 n.10, the D.C. Circuit concluded that, "[g]iven these official acknowledgements ... it is neither logical nor plausible for the CIA to maintain that it would reveal anything not already in the public domain to say that the Agency `at least has an intelligence interest' in such strikes,'" id. at 430 (quoting Cole Decl. ¶ 12); see also id. at 431 ("In short, although the President and Messrs. Brennan and Panetta did not say that the CIA possesses responsive documents, what they did say makes it neither `logical' nor `plausible' to maintain that the Agency does not have any documents relating to drones.").
The Circuit remanded for this Court to determine "`whether the contents — as distinguished from the existence — of the officially acknowledged records may be protected from disclosure by Exemptions 1 and 3.'" Id. at 432 (quoting Wolf v. CIA, 473 F.3d 370, 380 (D.C.Cir. 2007)). The Circuit instructed that, "with the failure of the CIA's broad Glomar response, the case must now proceed to the filing of a Vaughn index
The Circuit also addressed the propriety of a "no number, no list" response, by which an agency acknowledges the existence of responsive documents, but declines to further describe or enumerate them or provide any other information.
After Drones II, the Executive Branch continued to declassify and disclose previously-classified information. See CIA 2nd Mot. [Dkt. 49], Declaration of Martha Lutz (Lutz Decl. I) ¶¶ 15-16. On May 22, 2013, Attorney General Eric Holder wrote to Senator Patrick J. Leahy, Chairman of the Senate Judiciary Committee, regarding counterterrorism operations. Id. Declaration of Amy Powell (Powell Decl.), Ex. C (May 22, 2013 Letter from Holder to Leahy). Attorney General Holder wrote:
Id. at 1-2.
Further, on May 23, 2013, President Obama himself disclosed that Anwar al-Aulaqi and three other U.S. citizens were killed in lethal drone operations overseas. See Powell Decl., Ex. D (May 23, 2013 Remarks by the President at the National Defense University) at 4 (noting that there was "one instance when [the United States] targeted ... Anwar Awlkaki [sic]," and that the President "authorized the declassification of this action, and the deaths of three other Americans in drone strikes, to facilitate transparency and debate on this issue and to dismiss some of the more outlandish claims that have been made").
The analogous FOIA litigation in New York, referenced above, was brought by ACLU and the New York Times in the Southern District of New York, seeking records from multiple agencies regarding drone strikes on U.S. citizens. See New York Times Co. v. Dep't of Justice, No. 11-cv-9336 (CM), 2011 WL 6371820 (S.D.N.Y. filed Dec. 20, 2011), Am. Civil Liberties Union v. Dep't of Justice, No. 12-cv-794 (CM), 2012 WL 300005 (S.D.N.Y filed Feb. 1, 2012). The District Court granted summary judgment in favor of the government, approving CIA's proffered "no-number no-list" response to the parties' FOIA requests, because details about the records, including their nature and number, had not been waived by official public acknowledgment. See N.Y. Times Co. v. Dep't of Justice, 915 F.Supp.2d 508, 550-53 (S.D.N.Y.2013). On appeal, the Second Circuit affirmed in part, reversed in part, and remanded after concluding that the government had officially "identified CIA as an agency that had an operational role in targeted drone killings." See N.Y. Times Co. v. Dep't of Justice, 756 F.3d 100, 122, 124 (2d Cir.2014). In addition to ordering the release of a portion of an Office of Legal Counsel opinion, it held that CIA's no number, no list response was "insufficiently justified" and ordered CIA
After remand,
CIA 3rd Mot. [Dkt. 67-1] at 8 n.4. Proceedings continue before the U.S. District Court of the Southern District of New York.
In this case, on remand from the D.C. Circuit, CIA filed a second motion for summary judgment on August 9, 2013, Dkt. 49, which relied on a "no number, no list" response to ACLU's FOIA request. Subsequently, in light of the Second Circuit's decision, CIA withdrew its second motion for summary judgment and the parties conferred on how to proceed. See Status Report [Dkt. 62]. Based on those discussions, ACLU amended its FOIA request, limiting it to two categories of items:
CIA Notice [Dkt. 73] at 1. ACLU agreed to exclude any legal memoranda being considered in the analogous FOIA proceedings in the Southern District of New York. Id. at 2. In addition, "[d]uring the negotiations between the parties, the ACLU was advised the CIA possessed additional materials about U.S. Government strikes that was not routinely compiled for analytical purposes." Id. However, "the parties agreed that only the four specific types of intelligence products would be subject to the litigation." Id. ACLU filed no response or objection to the CIA's clarifying Notice.
On November 25, 2014, CIA filed a third motion for summary judgment, Dkt. 67, acknowledging that its search yielded records responsive to ACLU's narrowed request. In total, CIA identified twelve documents responsive to ACLU's request for legal memoranda and thousands of intelligence products responsive to the four types of intelligence products covered by ACLU's request. See CIA 3rd Mot., Declaration of Martha M. Lutz (Lutz Decl. II) [Dkt. 672] ¶¶ 8, 9. CIA asserts that, with one exception, "disclosure of these documents would compromise classified, statutorily-protected, and privileged information."
On February 12, 2014, ACLU filed a Notice of Supplemental Authority for the proposition that CIA's role in drone strikes has now been officially and publicly acknowledged. See Notice of Supp. Auth. [Dkt. 56] (Supp.Auth.). ACLU quoted a news article concerning an exchange between Director of National Intelligence (DNI) James Clapper and Senator Bill Nelson during a hearing of the Senate Armed Services Committee:
Supp. Auth. at 1.
CIA contends that it is entitled to judgment as a matter of law because there is no genuine dispute as to any material fact. See 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). 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, a 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 "[t]he mere existence of a
In a FOIA case, a district court decides de novo whether an agency properly withheld information under a claimed exemption. Mead Data Cent., Inc. v. Dep't of Air Force, 566 F.2d 242, 251 (D.C.Cir.1977). "The underlying facts are viewed in the light most favorable to the [FOIA] requester," Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C.Cir. 1983), and the exemptions are narrowly construed, FBI v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982).
FOIA cases are typically and appropriately decided on motions for summary judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir.1993); Rushford v. Civiletti, 485 F.Supp. 477, 481 n. 13 (D.D.C. 1980), aff'd, Rushford v. Smith, 656 F.2d 900 (D.C.Cir.1981). In a FOIA case, a district court may award summary judgment solely on the basis of information provided by the agency in affidavits when the affidavits 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). Affidavits submitted by the agency to demonstrate the adequacy of its response are presumed to be in good faith. Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.Cir.1981). An agency must demonstrate that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt" from FOIA's requirements. Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1978) (internal quotation marks and citation omitted). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears `logical' or `plausible.'" Larson v. Dep't of State, 565 F.3d 857, 862 (D.C.Cir.2009) (quoting Wolf, 473 F.3d at 374-75).
FOIA also requires that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt." 5 U.S.C. § 552(b)(9); see also Oglesby v. Dep't of Army, 79 F.3d 1172, 1176 (D.C.Cir.1996). Reasonably segregable information — that is, information that can be separated from the exempt portions of a document — must be produced unless the non-exempt portions are "inextricably intertwined with exempt portions." Trans-Pacific Policing Agreement v. Customs Serv., 177 F.3d 1022, 1027 (D.C.Cir.1999); Juarez v. Dep't of Justice, 518 F.3d 54, 61 (D.C.Cir.2008) ("[D]ocuments may be withheld in their entirety when non-exempt portions are inextricably intertwined with exempt portions.") (internal quotations omitted). A district court has "`an affirmative duty to consider the segregability issue sua sponte.'" Id. at 60.
The question is whether ACLU can obtain certain legal memoranda concerning the U.S. Government's use of drone strikes and four type of records "routinely compiled by the CIA for analytical purposes containing charts or compilations about U.S. Government strikes sufficient to show" the detailed information requested on covert government actions. See CIA Notice at 1.
CIA has invoked FOIA Exemptions 1, 3, and 5 to justify its withholding of records. ACLU maintains that CIA has improperly withheld information that has already been officially disclosed and that CIA has not justified any of the cited FOIA Exemptions.
CIA informed ACLU that its search yielded twelve legal memoranda and thousands of intelligence products. See Lutz Decl. II ¶¶ 8, 9. CIA did not prepare a traditional Vaughn Index, listing or describing the responsive records. ACLU does not request that CIA supplement its response with a descriptive Vaughn index. Rather, the CIA has submitted a distinctly modified Vaughn Index that addresses each kind of requested document — (1) legal memoranda and 2) four types of intelligence products that contain charts or compilations of U.S. drone strikes — and the bases for their withholding. Although more fulsome than a bare-bones response that "we cannot tell you the number of documents or list them," CIA was not more forthcoming as regards the intelligence products.
The D.C. Circuit recognized that a no number, no list response could legitimately be lodged on remand, but stressed that this Court should carefully scrutinize CIA's proffered reasons. See Drones II, 710 F.3d at 433 (ruling that a no number/no list response "would only be justified in unusual circumstances, and only by a particularly persuasive affidavit"). Based on CIA's limited disclosures, this guidance from the Circuit, and the information in the Lutz Declarations, the Court finds that CIA's response to ACLU's revised FOIA request has been fully explained and adequately justified.
Under Exemption 1, FOIA does not require the production of records 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). CIA relies upon Executive Order 13526 (E.O. 13526), 75 Fed.Reg. 707 (Dec. 29, 2009), which governs the classification and protection of national security information, to withhold the legal memoranda, other than the released portions of the DOJ White Paper, and all of the responsive intelligence products. See Lutz Decl. II ¶¶ 24, 25. Information can be properly classified under E.O. 13526 if four requirements are met: (1) an original classification authority has classified the information; (2) the United States Government owns, produces, or controls the information; (3) the information pertains to one or more of eight protected categories listed in Section 1.4 of the E.O.; 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. E.O. 13526 § 1.1(a).
ACLU objects only to CIA's statements that the withheld records come under one or more of eight protected categories listed in Section 1.4 of E.O. 13526. CIA argues that the withheld records fall into two of those categories: (1) "intelligence activities (including covert action), intelligence sources or methods, or cryptology" and (2) "foreign relations or foreign activities of the United States, including confidential sources." CIA 3rd Mot. at 18 (citing Exec. Order 13526 § 1.4(c), (d)). Specifically, CIA maintains that the legal memoranda, including the redacted portions of the DOJ White Paper, concern classified intelligence activities, sources, and methods, and that the redacted portions of the DOJ White Paper, which discuss a contemplated CIA operation in Yemen, and the intelligence products, which include information about U.S. government drone strikes, concern the foreign relations or foreign activities of the United States. Id. (citing Lutz Decl. II ¶¶ 6, 9, 23, 25).
ACLU's objection is presented in three parts. First, ACLU contends that the legal analysis in the memoranda is not an intelligence activity, source or method, according to the ordinary use of those terms, and therefore cannot be withheld under Exemption 1 because it does not fall within a protected category listed in Section 1.4 of E.O. 13526. See Opp'n at 25-26. Second, it argues that if CIA can justify withholding redacted portions of the DOJ White Paper simply because those portions implicate foreign activities, CIA's position is so expansive as to render CIA exempt from the FOIA altogether. Id. at 26 n.32. Third, ACLU argues that CIA concedes that "strike metadata" is not itself an intelligence source or method based on Ms. Lutz's statement that "[t]he information contained in these intelligence products would reveal the sources and methods of
Contrary to ACLU's argument, legal analysis need not constitute an intelligence activity, source, or method to be protected from disclosure under Exemption 1. Section 1.4 of E.O. 13526 directs that "[i]nformation shall not be considered for classification unless it ... pertains to... intelligence activities (including covert action), intelligence sources or methods." See E.O. 13526 § 1.4 (emphasis added). For something to pertain to something else, it must be related or connected to such a thing. See Pertain Definition, Merriam-Webster Dictionary available at http://www.merriam-webster.com/dictionary/pertain (last visited June 18, 2015). Thus, a legal analysis need not constitute an intelligence activity, source, or method by itself to warrant protection so long as it pertains to an intelligence activity, source, or method. Here, CIA has withheld legal memoranda responsive to ACLU's request for legal memoranda that "concern[] the U.S. Government's use of armed drones to carry out premeditated killings." CIA Notice at 1. ACLU does not contend that drone strikes are not an intelligence activity or method (or possibly reveal sources), nor could it. Thus, it is entirely logical and plausible that the legal analyses in the withheld memoranda pertain to intelligence activities, sources, and methods. See Larson, 565 F.3d at 862 ("Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears `logical' or `plausible.'") (internal citation omitted).
ACLU's sweeping assertion that CIA can exempt itself from FOIA simply by linking any kind of record to foreign activities is unfounded. The argument overlooks the three other classification requirements of E.O. 13526 (none of which ACLU contests here), including that CIA demonstrate that the disclosure of withheld records "could reasonably be expected to cause identifiable or describable damage to the national security." E.O. 13526 § 1.4. These additional requirements express clear limitations on CIA's ability to rely on E.O. 13526 when invoking Exemption 1. Thus, ACLU's objection to CIA's withholding of redacted portions of the DOJ White Paper does not stand. Ms. Lutz explains that the redacted portions of the White Paper "discuss[] a contemplated CIA operation in a foreign country — Yemen." Lutz Decl. II ¶ 23. The Court finds that this information clearly falls within Sections 1.4(c) and (d) of E.O. 13526 because it relates to intelligence activities and foreign activities of the United States. See E.O. 13526 § 1.4
ACLU insists that it only seeks "factual information" from the four kinds of intelligence products that contain charts or compilations of U.S. drone strikes, not anything that would reveal an intelligence activity, source, or method. To the contrary, ACLU seeks explicit details on U.S. drone strikes that would be "sufficient to show the identity of the intended targets, assessed number of people killed, dates, status of those killed, agencies involved, the location of each strike, and the identities of those killed if known." CIA Notice at 1. Such details could reveal the scope of the drone program, its successes and limitations, the "methodology behind the assessments and the priorities of the Agency" and more. See Lutz Decl. II ¶ 25. The Court has no doubt that this kind of detail would reveal intelligence activities, sources, and methods and is properly protected under Exemption 1.
CIA alternately designated the intelligence products containing charts and compilations as relating to the "foreign relations and foreign activities of the United
The Court concludes that CIA has sustained its burden of showing that all the documents at issue were properly withheld from disclosure under FOIA Exemption 1. See Larson, 565 F.3d at 865 ("If an agency's statements supporting exemption contain reasonable specificity of detail as to demonstrate that the withheld information logically falls within the claimed exemption and evidence in the record does not suggest otherwise, ... the court should not conduct a more detailed inquiry to test the agency's judgment and expertise or to evaluate whether the court agrees with the agency's opinions.").
FOIA Exemption 5 protects from disclosure "inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). This exemption encompasses material that is protected under the deliberative process privilege, the attorney-client privilege, and the presidential communications privilege. Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 862 (D.C.Cir.1980); see also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) (Exemption 5 includes all documents "normally privileged in the civil discovery context."); Baker & Hostetler LLP v. Dep't of Commerce, 473 F.3d 312, 321 (D.C.Cir. 2006) (same).
The deliberative process privilege protects records "reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." NLRB, 421 U.S. at 150, 95 S.Ct. 1504. It also covers "recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency." Coastal States, 617 F.2d at 866. To qualify for withholding, material must be both predecisional and deliberative. Judicial Watch, Inc. v. Dep't of Energy, 412 F.3d 125, 129 (D.C.Cir.2005).
Petroleum Info. Corp. v. Dep't of Interior, 976 F.2d 1429, 1434 (D.C.Cir.1992) (alteration in original) (citations and internal quotation marks omitted). These documents are protected from release to promote "the quality of agency decisions by protecting open and frank discussion among those
The attorney-client privilege protects "confidential communications from clients to their attorneys, as well as communications from attorneys to their clients containing confidential information supplied by the client." Am. Imm. Council v. Dep't of Homeland Sec., 950 F.Supp.2d 221, 243 (D.D.C.2013) (citing Tax Analysts v. I.R.S., 117 F.3d 607, 618 (D.C.Cir.1997)). The presidential communications privilege is a "presumptive privilege for [p]residential communications," United States v. Nixon, 418 U.S. 683, 708, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), that "preserves the President's ability to obtain candid and informed opinions from his advisors and to make decisions confidentially." Loving v. Dep't of Def., 550 F.3d 32, 37 (D.C.Cir.2008). The privilege protects those "documents or other materials that reflect presidential decisionmaking and deliberations and that the President believes should remain confidential," and, once the privilege is invoked, the documents become presumptively privileged. In re Sealed Case, 121 F.3d 729, 744 (D.C.Cir. 1997). Further, unlike the deliberative process privilege, which is also encompassed under Exemption 5, the presidential communications privilege "applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones." Id. at 745. Along with protecting communications that "directly involve" the President, see Loving, 550 F.3d at 39 (quoting Judicial Watch v. Dep't of Justice, 365 F.3d 1108, 114 (D.C.Cir.2004)), the privilege also protects
In re Sealed Case, 121 F.3d at 752.
CIA justifies withholding the legal memoranda under the deliberative process, attorney-client, and presidential communication privileges. See CIA 3rd Mot. at 24-28.
When "information has been `officially acknowledged,' its disclosure may be compelled even over an agency's otherwise valid exemption claim." Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C.Cir. 1990). 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 v. DoD, 628 F.3d 612, 620-21 (D.C.Cir.2011); see also Afshar v. Dep't of State, 702 F.2d 1125, 1133 (D.C.Cir. 1983). The D.C. Circuit has cautioned that "`[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.'" ACLU v. DoD, 628 F.3d at 621 (quoting Wolf, 473 F.3d at 378).
ACLU argues that the government has officially acknowledged basic facts about the drone program and information about the program's legal basis; therefore, ACLU concludes that some of the records CIA seeks to withhold must be released because the government has waived any FOIA exemptions with regard to such records. See Opp'n at 19-25. CIA denies that any of the withheld records has been officially acknowledged and dismisses ACLU's argument as speculative. See Reply at 10-11 (citing Lutz Decl. II ¶¶ 22-25).
Pursuant to its revised FOIA request, ACLU seeks "records routinely compiled by the CIA for analytical purposes containing charts or compilations about U.S. Government strikes sufficient to show the identity of the intended targets, assessed number of people killed, dates, status of those killed, agencies involved, the location of each strike, and the identities of those killed if known." CIA Notice at 1 (emphasis added). ACLU argues that the government has officially acknowledged basic facts about U.S. involvement in drone strikes: (1) "[t]he government has acknowledged that it uses drones to carry out targeted killings overseas ... in Yemen, Pakistan, and Somalia;" (2) "[t]he government has acknowledged that both the DOD and CIA have an intelligence interest in the use of drones to carry out targeted killings;" (3) "[t]he government has acknowledged that both the DOD and the CIA have an operational role in drone strikes;" (4) "[t]he government has acknowledged that Anwar al-Aulaqi was targeted, and that U.S. drone strikes have killed two other U.S. citizens in Yemen;" and (5) "[t]he government has officially disclosed the bases on which the government placed Anwar al-Aulaqi on the `terrorist list' and determined that al-Aulaqi was a legitimate target of lethal force." Opp'n at 20-22 (emphasis in original).
Many of these allegedly disclosed facts are not relevant to the immediate FOIA request. Whether the government has acknowledged that CIA has an intelligence interest in drone strikes or an operational role in drone strikes will not aid ACLU. At best, these alleged disclosures identify the general nature of CIA's connection to drone strikes. By contrast, ACLU has requested granular details about every drone strike recorded on CIA charts or compilations. See CIA Notice at 1. Further, ACLU did not request information regarding the factual basis for the government's decision to place Anwar al-Aulaqi on the "terrorist list" or the government's determination that he was a legitimate target of lethal force. See id. Because none of the information requested by ACLU matches these alleged factual disclosures, such disclosures do not constitute a waiver of the FOIA exemptions validly invoked here. See ACLU v. DoD, 628 F.3d at 620 ("information requested must match the information previously disclosed").
ACLU also incorrectly cites Eric Holder's May 22, 2013 letter to Senator Patrick Leahy to support its claim that the government has officially acknowledged that U.S. drone strikes were responsible for the deaths of certain U.S. citizens. Mr. Holder wrote:
May 22, 2013 Letter from Holder to Leahy at 1-2. A careful reading of the letter shows that Mr. Holder never stated that these individuals were killed by drone strikes. As to their cause of death, Mr. Holder stated that the individuals were killed by "U.S. counterterrorism operations." Id. Mr. Holder's statements about counterterrorism operations plainly do not "match" the specific information
With respect to the remaining alleged disclosures, ACLU attempts to string together snippets of facts from various sources in the hopes that such information collectively is "as specific as" and "matches" the information that has been withheld. This Circuit's case law demonstrates that such an approach cannot satisfy the rigorous demands of the official acknowledgment test. In Public Citizen v. Dep't of State, 11 F.3d 198 (D.C.Cir.1993), the FOIA plaintiff sought documents relating to a meeting between the then-U.S. Ambassador to Iraq and then-President of Iraq Saddam Hussein. Id. at 199. Because the Ambassador testified before Congress about the meeting, the plaintiff argued that the State Department had waived any FOIA exemption for the requested records consisting of the Ambassador's post-meeting memoranda, accounts of the meeting, and her recommendations to State Department officials. Id. at 200-01. The Circuit rejected the plaintiff's argument because it did not "meet Afshar's requirement that it show that [the Ambassador's] testimony was `as specific as' the documents it seeks in this case, or that her testimony `matches' the information contained in the documents." Id. at 203. "Even if her testimony effected `partial disclosures of classified information' contained in the requested documents," the Circuit concluded that "those disclosures did not result in waiver because they did not precisely track the records sought to be released." Assassination Archives and Research Center v. CIA, 334 F.3d 55, 60 (D.C.Cir.2003) (discussing and citing Public Citizen, 11 F.3d at 203-04.).
The FOIA plaintiff in Assassination Archives & Research Ctr. v. CIA sought release of a CIA-prepared multivolume compendium of information on "Cuban Personalities," which included "personality profiles of, or biographic data on, a number of Cuban individuals." 334 F.3d at 56. The plaintiff argued that CIA waived any applicable FOIA exemption because the biographies of several Cuban nationals had been released under the John F. Kennedy Assassination Records Collection Act (JFK Act), codified at 44 U.S.C. § 2107 note. Id. at 59. The plaintiff proffered the declaration of a University of Maryland associate professor who stated, "[a] very high percentage of this volume of documents concerned Cuba, Cuban exiles and Cuban exile organizations and that, in his judgment, the overwhelming majority of Cuban personalities in whom the CIA has had an interest have been disclosed under the JFK Act." Id. at 60-61 (international quotation marks omitted). The Circuit acknowledged that "it may be that some information disclosed pursuant to the JFK Act is included in the Compendium," but nonetheless concluded that the plaintiff had not met its burden to "show that information duplicates the contents of the Compendium." Id. at 60. The Circuit emphasized that the professor's declaration was deficient because it "made no specific showing that any of the JFK Act disclosures revealed information that is as specific as and matches that included in the Compendium." Id. at 61 (internal quotation marks omitted).
As with the FOIA plaintiffs in Public Citizen and Assassination Archive, ACLU has merely pointed to alleged disclosures of vaguely similar information, but has failed to identify officially disclosed information that "precisely track[s]" or "duplicates" the information it has requested. See Assassination Archive, 334 F.3d at 60. ACLU has identified public statements regarding
The Court concludes that ACLU has not cleared the "high hurdle" of demonstrating that any of government statements to which it points is as specific as the details on the charts and compilations it seeks, or that such statements match the withheld information. See Pub. Citizen v. Dep't of
In response to ACLU's request for "final legal memoranda (as well as the latest version of draft legal memoranda which were never finalized) concerning the U.S. Government's use of armed drones to carry out premeditated killings," CIA Notice at 1, CIA released portions of the DOJ White Paper, which "discusses the legal basis upon which CIA could use lethal force in Yemen against a U.S. citizen," Anwar al-Aulaqi. Lutz Decl. II ¶ 22. Beyond the DOJ White Paper, CIA "determined that, based on [a] page-by-page, line-by-line review of the record, some information in the DOJ Classified White Paper remains currently and properly classified" and that "the redacted information goes beyond what has been publicly disclosed." Id. ¶¶ 22-23. Ms. Lutz affirmed that there has been no official acknowledgment of the remaining legal memoranda. Id. ¶ 24.
ACLU argues that CIA has waived its FOIA exemptions as to some of the withheld legal memoranda, or portions thereof, because the government has already disclosed its analysis of 18 U.S.C. § 1119 (the statute that makes it a crime for "a national of the United States, [to] kill [] or attempt[] to kill a national of the United States while such national is out-side the United States but within the jurisdiction of another country"); 18 U.S.C. § 956(a) (a statute that criminalizes conspiracy to commit murder abroad); 18 U.S.C. § 2441(a) (a statute that makes it a crime for a member of the U.S. armed forces or a U.S. national to "commit[] a war crime"); E.O. 12333 (an assassination ban); and its constitutional analysis. See Opp'n at 22-24. ACLU also contends that the government has publicly expressed its commitment to ensuring that any use of lethal force by the U.S. complies with fundamental law of war principles. See id. Because CIA did not provide any description of the withheld legal memoranda in a traditional Vaughn index, ACLU requests the Court to review the legal memoranda in camera to determine whether any must be released because they contain information that has been officially acknowledged. See Opp'n at 32. A district court has broad discretion to decline to conduct an in camera review of withheld materials. See Boyd v. Criminal Div. of U.S. Dep't of Justice, 475 F.3d 381, 391 (D.C.Cir.2007). Based on its careful review of the classified Lutz Declaration, which contains detailed descriptions of the legal memoranda, the Court concludes that ACLU has not met its burden to show that there has been official acknowledgment of any of the withheld legal memoranda. Therefore, CIA has not waived its right to invoke the FOIA Exemptions requiring that the eleven legal memoranda and the redacted portions of the DOJ White Paper be withheld and the Court declines to review them in camera. See ACLU v. DoD, 628 F.3d at 620-21.
Even if an agency properly withholds responsive records under a FOIA exemption, it nevertheless must disclose any non-exempt information that is "reasonably segregable." 5 U.S.C. § 552(b); Mead Data Cent., 566 F.2d at
ACLU requests that the Court direct CIA to segregate and disclose the particular factual information it requested, i.e., the "identity of the intended targets, assessed number of people killed, dates, status of those killed, agencies involved, the location of each strike, and the identities of those killed if known," Lutz Decl. II ¶ 6. See Opp'n at 32. CIA explains that it conducted a page-by-page and line-by-line review of the materials responsive to ACLU's request. See Lutz Decl. II ¶ 31. CIA released portions of the DOJ White Paper and otherwise "determined that there is no reasonably segregable, non-exempt portions of documents that can be released without potentially compromising classified information, intelligence sources and methods, and/or material protected by privilege." Id. The three Lutz Declarations provide a reasonably detailed justification that any non-exempt material cannot be segregated and released. Moreover, the Court concludes that any isolated words or phrases that might not be redacted for release would be meaningless. The Court finds that CIA has demonstrated that it has not withheld any segregable, non-exempt materials and therefore denies ACLU's request that it order CIA to do so.
For the reasons set forth above, the Court will grant CIA's Motion for Summary Judgment and deny ACLU's Cross-Motion for Summary Judgment. A memorializing Order accompanies this Opinion.
See Wash. Po. Article.
Press Secretary Kirby acknowledged that the Special Operations Forces — a component of the Department of Defense's United States Special Operations Command — were involved in the attack, but did not reference CIA. He did not state that the information he relayed had been or would be maintained in any chart or compilation by any agency, much less CIA. Because Press Secretary Kirby made no link between CIA and the Mogadishu strike, it is entirely speculative whether the identified details of the strike are contained in any of the withheld CIA records. The briefing was too far afield from CIA to constitute a waiver of the applicable FOIA exemptions. ACLU v. DoD, 628 F.3d at 621.
