Case Detail
| Case Title | LEOPOLD et al v. CENTRAL INTELLIGENCE AGENCY | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| District | District of Columbia | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| City | Washington, DC | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Number | 1:2017cv02176 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Filed | 2017-10-19 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Closed | 2019-03-29 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Judge | Judge Rudolph Contreras | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Plaintiff | JASON LEOPOLD | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Plaintiff | BUZZFEED, INC. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Description | Reporter Jason Leopold submitted a FOIA request to the CIA for records concerning payments made by the agency to Syrian rebels fighting Assad. Leopold argued that a tweet from President Trump critical of a Washington Post article about the payments constituted public acknowledgment of the payments. Leopold also requested a fee waiver and inclusion in the news media fee category. The agency acknowledged receipt of the request, but after hearing nothing further from the agency, Leopold filed suit. Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Defendant | CENTRAL INTELLIGENCE AGENCY | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Documents | Docket Complaint Complaint attachment 1 Complaint attachment 2 Opinion/Order [23] FOIA Project Annotation: One of the perhaps unexpected consequences of President Donald Trump's characteristic shoot-from-the-hip style of public pronouncements has been a surfeit of misleading statements the legal significance of which courts continue to wrestle in real time. Although Trump constantly says things in public that no previous President would ever have said aloud, trying to use his statements as the basis for public acknowledgement of anything has proven to be a much more difficult task than Trump critics might have expected. While courts have agreed that what Trump says or writes in public constitute public documents, judges have usually concluded that such statements have no credible factual basis on which they could be considered a public acknowledgment of the underlying substance of any of his pronouncements. The most recent example comes in Judge Rudolph Contreras' ruling in a case brought by Buzzfeed journalist Jason Leopold alleging that Trump had acknowledged a covert CIA program to pay Syrian rebels in a tweet. Contreras noted that "because the Court finds that the President has not revealed the existence of a CIA-led program to arm Syrian revels, it grants the CIA's motion for summary judgment and denies Buzzfeed's cross-motion." Leopold's request was submitted to the CIA as a result of Trump's tweet and an interview with the Wall Street Journal in which he criticized a report a few days earlier in the Washington Post that the CIA was terminating a covert program to arm Syrian rebels fighting against the government of Bachar Al-Assad. In his tweet, he criticized the Post for getting the facts wrong, but in the Wall Street Journal interview he claimed that the program was terminated because weapons were being funneled to al-Qaida. In a discussion with Fox News national security reporter Catherine Herridge at the 2017 Aspen Security Forum, General Raymond Thomas, commander of the U.S. Special Operations Command, was asked about why the program was terminated. Based on Trump's statements, Leopold requested records about the program, arguing that it had now been publicly acknowledged. The CIA told Leopold that it would respond to the part of his request for records related to Trump's tweet, but that it was invoking a Glomar response neither confirming nor denying the existence of records as to whether the CIA had such a program under Exemption 1 (national security) and Exemption 3 (other statutes). Contreras pointed out that the official acknowledgment test as laid out by the D.C. Circuit in Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990) required a plaintiff to show that disputed information was as specific as information previously disclosed, that the disputed information matched the information previously disclosed, and that the information had been made public through an official and documented disclosure. Leopold argued that the Fitzgibbon standard had been modified by ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013), in which the D.C. Circuit had ruled that the CIA could not invoke a Glomar response because enough information had already been officially acknowledged that it was implausible for the agency to claim that it had no records on the subject of drones. While plaintiffs have argued that ACLU modified the Fitzgibbon test, it is probably more appropriate to say that ACLU created an exception to Fitzgibbon in the very limited circumstances involved. Contreras recognized this distinction. He observed that "the reasoning of the Fitzgibbon line of cases and of ACLU is not necessarily at odds. ACLU's admonition that an agency's Glomar response must be 'logical or plausible' and focus on reviewing the fiction of deniability from the perspective of a reasonable person did not displace Fitzgibbon's three-part test, which the circuit has used in official acknowledgement cases since ACLU. Rather, having determined that the information sought had already been officially acknowledged, the circuit in ACLU found, applying the 'logical and plausible' standard under which all agency invocation of exemptions are reviewed, that the CIA had not met its burden to issue a Glomar response." He added that "ACLU made clear that records are also officially acknowledged when 'the substance of an official statement and the context in which it is made permits the inescapable inference that the requested records in fact exist. In essence, while leaving intact the requirement that the information sought be as specific as, and match, the information disclosed, ACLU recognized that courts can infer such a disclosure when the statement does not explicitly disclose the information but leaves no doubt as to its existence." Relying on ACLU, Leopold argued that Trump's statements, combined with Thomas's confirmation of the existence of the program, created an inference that because the program had been acknowledged it must have been run by the CIA because it was the only agency capable of doing so. Contreras indicated that this inference went too far. He pointed out that "Buzzfeed does not explain how the tweet reveals the existence of a CIA program of payments to Syrian rebels â€" nor can it." He noted that "without taking a position as to what program, if any, the tweet may have officially acknowledged, the Court agrees [that] the President's tweet did not mention the CIA or create any inference that such a program would be linked to or run by the CIA. The President might have acknowledged the existence of 'massive, dangerous, and wasteful' payments to Syrian rebels, but he did not mention from which branch of government such payments would have originated." As has been the case in most previous litigation involving whether Trump's tweets actually are based on anything factual, Contreras indicated that "the President's characterization of the facts in the [Washington Post] article as 'fabricated' negates any inference that can be drawn from it as to the source of the payments. Because the article asserts that the program was a CIA program, Buzzfeed assumes that the President acknowledged as much, and that his reference to fabricated facts in the article necessarily concerned the details of the program rather than its origin. The Court cannot make such an assumption. At most, the tweet revealed that multiple payments were made by the government to Syrian rebels, that the President ended those payments, and that the Washington Post incorrectly reported on the payments." Contreras also rejected Leopold's claim that Trump's statement, combined with Thomas's statement, provided a sufficient inference that the CIA had been involved in the payments to Syrian rebels. Instead, he pointed out that "Buzzfeed strictly asks for documents relating to 'CIA payments.' Buzzfeed's request does not implicate any intelligence interest the CIA may have in any program run by other government components, so the Court cannot infer that documents responsive to Buzzfeed's request exist."
Issues: Determination - Glomar response | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| User-contributed Documents | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
 Docket Events (Hide) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
