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Case TitleULLAH et al v. CENTRAL INTELLIGENCE AGENCY
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2018cv02785
Date Filed2018-11-29
Date ClosedOpen
JudgeJudge James E. Boasberg
PlaintiffOBAID ULLAH
PlaintiffAMERICAN CIVIL LIBERTIES UNION
PlaintiffAMERICAN CIVIL LIBERTIES UNION FOUNDATION
Case DescriptionThe American Civil Liberties Union, on behalf of Obaid Ullah, the nephew of Gul Rahman, an Afghani who was detained and tortured to death by the CIA in Pakistan in 2002, submitted a FOIA request to the CIA for records concerning the disposition and location of Rahman's body. The ACLU also requested expedited processing and a fee waiver. The CIA acknowledged receipt of the request and denied the ACLU's request for expedited processing. After hearing nothing further from the agency, the ACLU filed suit.
Complaint issues: Failure to respond within statutory time limit, Public Interest Fee Waiver, Litigation - Attorney's fees

DefendantCENTRAL INTELLIGENCE AGENCY
DefendantCENTRAL INTELLIGENCE AGENCY
Washington, DC 20505
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Opinion/Order [22]
FOIA Project Annotation: The Freedom of Information Act is viewed by open government advocates as a vital tool for ensuring government accountability. The ability to request any agency records and to require agencies to provide such records subject to limited exemptions, FOIA allows requesters to explore the way in which agencies implement legislative and executive directives and the success with which agencies are performing their statutory functions. However, although vast areas of government information are potentially available under FOIA, it often falls short when asked to resolve wrenchingly emotional issues involving the fate of individuals whose disappearances are due either to government employment or government actions. These cases often involve legitimately important national security concerns, or concerns over privacy, but to see instances in which the government refuses to admit what happened to covert operatives during the Cold War, or to inform individuals who were born to women abroad because of a relationship with a U.S. serviceman that to identify their fathers would invade the serviceman's privacy, are important emotional real-life matters that cannot readily be resolved through a FOIA request. Judge James Boasberg was faced with such a situation recently when he was asked to resolve a FOIA dispute between Obaid Ullah, the representative of the estate of Gul Rahman, an Afghan citizen who died in 2002 in an overseas detention center run by the CIA, and the agency. Boasberg observed that "almost two decades later, the whereabouts of his corpse remains unknown. Plaintiffs Obaid Ullah " the representative of Rahman's estate " and the American Civil Liberties Union now seek this Court's enforcement of their FOIA request for information about what happened after his death." Although the CIA has admitted that Rahman died while in its custody as the result of mistreatment, it has never officially informed Rahman's family of his death or returned his body to them. Trying to discover what happened to Rahman's body, Ullah and the ACLU submitted a FOIA request. The agency identified 38 responsive records and produced nine of the documents in part and withheld the remaining 29 in full. The CIA later determined that three of the documents withheld in full were not responsive. The agency justified withholding the documents under Exemption 1 (national security), Exemption 3 (other statutes), Exemption 5 (privileges), Exemption 6 (invasion of privacy), Exemption 7(C) (invasion of privacy concerning law enforcement records), and Exemption 7(D) (confidential sources). Boasberg explained that "the CIA acknowledges that the produced documents in their current redacted forms do not reveal the disposition or location of Rahman's body or any official policy the Agency has adopted with regard to the disposal of bodies. Frustrated in their pursuit of this specific information, Plaintiffs then informed Defendant of their intent to challenge the asserted withholdings." In response to Ullah and the ACLU's challenge to whether information could be segregated and disclosed, Boasberg decided to view the records in camera. Boasberg began by indicating that "as an initial matter, the Court pauses to note the narrow range of the existing dispute between the parties. Plaintiffs do not contest the adequacy of the CIA's search itself or its withholdings under FOIA Exemptions 6, 7(C), and 7(D). While they ostensibly challenge the Agency's withholdings under Exemption 1, 3, and 5, the CIA has not justified any withholdings exclusively under Exemption 5. Instead, all documents and portions of documents for which the Agency has claimed Exemption 5 are also covered by Exemption 1 or 3 (and generally both)." As a result, Boasberg observed that "the Court therefore will consider only whether the CIA properly justified its claimed withholdings under Exemption 1 and 3, as well as whether it has satisfied its burden of demonstrating that no additional information is segregable and thus can be released." Turning to Exemption 1, Boasberg explained that "generally, an agency invoking Exemption 1 must make both a procedural and substantive showing " namely, that it both 'complies with classification procedures established by the relevant executive order and withholds only such material as conforms to the order's substantive criteria for classification.' In this case, however, Plaintiffs challenge only the CIA's substantive showing. In particular, they principally question whether the release of the withheld information 'could be expected to cause exceptionally grave damage to national security.'" Although Ullah and the ACLU criticized the CIA's affidavit defending its exemption claims, Boasberg noted that "in as much detail as [the agency] deems possible, [the agency affidavit] explains why disclosure of the information sought by Plaintiffs would harm national-security interests." He indicated that the activities the agency described in its affidavit "are 'highly sensitive' and their disclosure 'could impair the effectiveness of the CIA's intelligence collection.'" Ullah and the ACLU complained that innocent details such as the dates of Rahman's detention could not possibly be legitimately classified as national-security information. Boasberg disagreed, noting that "as a threshold matter, this Circuit's FOIA caselaw cautions strongly against second-guessing the Government's discretionary decisions in matters of national security. . .[C]ourts have consistently rejected attacks on the Government's invocation of Exemption 1 when faced with substantially similar affidavits and contested records as those at issue here." Boasberg then explained that "this is not to suggest that Exemption 1 embodies an anti-disclosure talisman that the Government can wield whenever it so desires. Instead, the Court bases its conclusion on a variety of specific factors beyond the sensitive nature of the records at issue: the explanation provided by [the agency's affidavit], the context supplied by the unredacted records, and the Court's own in camera review of the Government's withholdings. All told, the CIA's 'logical' assessment is not 'called into question by contradictory evidence in the record or by evidence of agency bad faith.''' Boasberg accepted the CIA's assertion that even the date of Rahman's detention needed to be protected. He rejected Ullah and the ACLU's argument that because it was public knowledge that the CIA had operated in Afghanistan during 2002, such details should be disclosed. Instead, he pointed out that "plaintiffs' argument that the withheld information has already been disclosed that the CIA operated generally throughout Afghanistan in 2002 therefore misses the point entirely. Indeed, the year 2002 is not even redacted from the produced documents. Instead, specific dates and locations appear to be redacted " a conclusion confirmed by this Court's in camera review." Boasberg added that "this Court has previously embraced 'the intuitive proposition that official disclosure of information already in the public realm can nevertheless affect national security.' The 'mere fact' that some similar information about CIA operations may be in the public domain does not 'eliminate the possibility that further disclosure may cause harm.'" Boasberg pointed out that disclosed portions of an Inspector General's report provided many grisly details about Rahman's treatment. He observed that "plaintiffs are therefore not in the dark regarding the circumstances surrounding Rahman's death, even as they understandably continue to seek more information on that subject." Recognizing how unsatisfactory that conclusion was for Rahman's family, Boasberg indicated that the plaintiffs "have access to the broad strokes of a grisly portrait of Rahman's death but seek the fine contours: more specific information as to the location of his remains and the process surrounding their disposal. Yet disclosing those details would officially acknowledge the specifics of an undisclosed CIA operation, the geographic position of a CIA facility, and the identities of any involved foreign partners. This Court simply cannot force the CIA to" disclose "its foreign partners, and its 'methods and resources.'" Boasberg also indicated that the Exemption 3 statutes cited by the CIA were equally applicable to the withheld records.
Issues: Exemption 1 - Harm to national security, Exemption 3 - Statutory prohibition of disclosure
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2018-11-291COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090-5813414) filed by OBAID ULLAH, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, AMERICAN CIVIL LIBERTIES UNION. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(Ladin, Dror) (Entered: 11/29/2018)
2018-11-292LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Ladin, Dror) (Entered: 11/29/2018)
2018-11-29Case Assigned to Judge James E. Boasberg. (zef, ) (Entered: 11/29/2018)
2018-11-293SUMMONS (3) Issued Electronically as to All Defendants, U.S. Attorney and U.S. Attorney General. (Attachments: # 1 Notice and Consent)(zef, ) (Entered: 11/29/2018)
2019-01-044ENTERED IN ERROR.....RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. CENTRAL INTELLIGENCE AGENCY served on 12/10/2018 (Ladin, Dror); Modified on 1/8/2019 (tth). (Entered: 01/04/2019)
2019-01-045ENTERED IN ERROR.....RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 12/12/2018. (Ladin, Dror); Modified on 1/8/2019 (tth). (Entered: 01/04/2019)
2019-01-046ENTERED IN ERROR.....RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 12/10/2018. Answer due for ALL FEDERAL DEFENDANTS by 1/9/2019. (Ladin, Dror); Modified on 1/8/2019 (tth). (Entered: 01/04/2019)
2019-01-077Unopposed MOTION to Stay in Light of Lapse in Appropriations by CENTRAL INTELLIGENCE AGENCY (Schaefer, Daniel) (Entered: 01/07/2019)
2019-01-07MINUTE ORDER GRANTING 7 Motion to Stay. So ORDERED by Judge James E. Boasberg on 1/7/2019. (lcjeb1) (Entered: 01/07/2019)
2019-01-078NOTICE of Appearance by Arthur B. Spitzer on behalf of AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, OBAID ULLAH (Spitzer, Arthur) (Entered: 01/07/2019)
2019-01-08NOTICE OF CORRECTED DOCKET ENTRY: re 4 Summons Returned Executed as to Federal Defendant, 6 Summons Returned Executed in FOIA as to U.S. Attorney, 5 Summons Returned Executed as to U.S. Attorney General was entered in error and counsel was instructed to refile said pleading. Date of execution was not provided. (tth) (Entered: 01/08/2019)
2019-01-109RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. CENTRAL INTELLIGENCE AGENCY served on 12/12/2018 (Attachments: # 1 Exhibit Proof of Delivery)(Ladin, Dror) (Entered: 01/10/2019)
2019-01-1010RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 12/10/2018. Answer due for ALL FEDERAL DEFENDANTS by 1/9/2019. (Attachments: # 1 Exhibit Proof of Delivery)(Ladin, Dror) (Entered: 01/10/2019)
2019-01-1011RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 12/10/2018. (Attachments: # 1 Exhibit Proof of Delivery)(Ladin, Dror) (Entered: 01/10/2019)
2019-02-06MINUTE ORDER: The Court ORDERS that Defendants shall respond to the Complaint by February 27, 2019. So ORDERED by Judge James E. Boasberg on 2/6/2019. (lcjeb1) (Entered: 02/06/2019)
2019-02-06Set/Reset Deadlines: Answer due by 2/27/2019 (lsj) (Entered: 02/06/2019)
2019-02-2712NOTICE of Appearance by Daniel Patrick Schaefer on behalf of CENTRAL INTELLIGENCE AGENCY (Schaefer, Daniel) (Entered: 02/27/2019)
2019-02-2713ANSWER to Complaint by CENTRAL INTELLIGENCE AGENCY.(Schaefer, Daniel) (Entered: 02/27/2019)
2019-02-27MINUTE ORDER: The Court ORDERS that the parties shall confer and submit a joint proposed briefing schedule by March 13, 2019. So ORDERED by Judge James E. Boasberg on 2/27/2019. (lcjeb1) (Entered: 02/27/2019)
2019-02-27Set/Reset Deadlines: Joint Proposed Briefing Schedule due by 3/13/2019. (znbn) (Entered: 02/28/2019)
2019-03-1314Joint STATUS REPORT and Proposed Briefing Schedule by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, OBAID ULLAH. (Ladin, Dror); Modified event and text on 3/14/2019 (tth). (Entered: 03/13/2019)
2019-03-14MINUTE ORDER ADOPTING Defendant's Proposed Schedule in 14 Joint Status Report and Proposed Schedules. The Court ORDERS that 1) Defendant shall complete its search and processing of records and issue a final response to Plaintiffs FOIA request on or before May 31, 2019; and 2) the parties shall file a further joint status report on or before June 14, 2019. So ORDERED by Judge James E. Boasberg on 3/14/2019. (lcjeb1) (Entered: 03/14/2019)
2019-06-1415Joint STATUS REPORT by CENTRAL INTELLIGENCE AGENCY. (Attachments: # 1 Text of Proposed Order)(Schaefer, Daniel) (Entered: 06/14/2019)
2019-06-17MINUTE ORDER ADOPTING the parties' 15 Joint Status Report and Proposed Briefing Schedule. The Court ORDERS that: 1) Defendant shall file its motion for summary judgment on or before September 5, 2019; 2) Plaintiffs shall file their opposition on or before October 7, 2019; and 3) Defendant shall file its reply on or before October 21, 2019. So ORDERED by Judge James E. Boasberg on 6/17/2019. (lcjeb1) (Entered: 06/17/2019)
2019-06-17Set/Reset Deadlines: Summary Judgment motions due by 9/5/2019. Response to Motion for Summary Judgment due by 10/7/2019. Reply to Motion for Summary Judgment due by 10/21/2019. (lsj) (Entered: 06/17/2019)
2019-09-0316Consent MOTION for Extension of Time to File Motion for Summary Judgment by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Text of Proposed Order)(Schaefer, Daniel) (Entered: 09/03/2019)
2019-09-03MINUTE ORDER GRANTING Consent 16 Motion for Extension of Time. The Court ORDERS that (1) Defendant shall file its motion for summary judgment on or before September 26, 2019; (2) Plaintiffs shall file their opposition on or before October 28, 2019; and (3) Defendant shall file its reply on or before November 12, 2019. So ORDERED by Judge James E. Boasberg on 09/3/2019. (lcjeb1) (Entered: 09/03/2019)
2019-09-03Set/Reset Deadlines: Summary Judgment motions due by 9/26/2019. Response to Motion for Summary Judgment due by 10/28/2019. Reply to Motion for Summary Judgment due by 11/12/2019. (znbn) (Entered: 09/04/2019)
2019-09-2617MOTION for Summary Judgment by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Exhibit 1, # 4 Text of Proposed Order)(Schaefer, Daniel) (Entered: 09/26/2019)
2019-10-2818Memorandum in opposition to re 17 MOTION for Summary Judgment filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, OBAID ULLAH. (Attachments: # 1 Statement of Genuine Issues, # 2 Declaration of Dror Ladin, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Text of Proposed Order)(Ladin, Dror) (Entered: 10/28/2019)
2019-11-0819Consent MOTION for Extension of Time to File Response/Reply as to 17 MOTION for Summary Judgment by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Text of Proposed Order)(Schaefer, Daniel) (Entered: 11/08/2019)
2019-11-08MINUTE ORDER: The Court GRANTS Defendant's 19 Motion for Extension of Time and ORDERS that Defendant shall file its Reply in support of its Motion for Summary Judgment by November 19, 2019. So ORDERED by Judge James E. Boasberg on 11/8/2019. (lcjeb1) (Entered: 11/08/2019)
2019-11-08Set/Reset Deadlines: Reply to Motion for Summary Judgment due by 11/19/2019. (znbn) (Entered: 11/08/2019)
2019-11-1920REPLY to opposition to motion re 17 MOTION for Summary Judgment filed by CENTRAL INTELLIGENCE AGENCY. (Attachments: # 1 Exhibit 2, # 2 Exhibit 3)(Schaefer, Daniel) Modified on 11/20/2019 to correct date filed (jf). (Entered: 11/20/2019)
2019-12-12MINUTE ORDER: The Court ORDERS that by December 16, 2019, the Government shall provide the Court clean and redacted copies (with specific exemptions noted) of all withheld documents for in camera review. So ORDERED by Judge James E. Boasberg on 12/12/2019. (lcjeb1) (Entered: 12/12/2019)
2019-12-12Set/Reset Deadlines: Government shall provide the Court clean and redacted copies (with specific exemptions noted) of all withheld documents for in camera review by 12/16/2019. (nbn) (Entered: 12/13/2019)
2020-01-1621ORDER GRANTING Defendant's 17 Motion for Summary Judgment. The Court ORDERS that Defendant's Motion for Summary Judgment is GRANTED and Judgment is ENTERED in favor of Defendant. Signed by Judge James E. Boasberg on 1/16/2020. (lcjeb1) (Entered: 01/16/2020)
2020-01-1622MEMORANDUM OPINION re: 21 Order on Defendant's Motion for Summary Judgment. Signed by Judge James E. Boasberg on 1/16/2020. (lcjeb1) (Entered: 01/16/2020)
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