Case Detail
| Case Title | JUDICIAL WATCH, INC. v. U.S. DEPARTMENT OF DEFENSE | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| District | District of Columbia | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| City | Washington, DC | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Number | 1:2011cv00890 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Filed | 2011-05-13 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Closed | 2012-04-27 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Judge | Judge James E. Boasberg | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Plaintiff | JUDICIAL WATCH, INC. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Defendant | U.S. DEPARTMENT OF DEFENSE | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Defendant | CENTRAL INTELLIGENCE AGENCY | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Appeal | D.C. Circuit 12-5137 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Documents | Docket Complaint Complaint attachment 1 Opinion/Order [27] FOIA Project Annotation: In a decision that has undertones of the kind of hot potato issue that was dumped in his lap, Judge James Boasberg has ruled that the CIA properly classified all photos and video taken during and after the raid which resulted in the death of Osama bin Laden. He also ruled that although the Defense Department found no responsive records, it conducted an adequate search. The case involved a May 2, 2011 request from Judicial Watch to Defense for any video taken during or after the bin Laden raid. Judicial Watch followed up with a May 4, 2011 request to the CIA for the same records. After Defense indicated it could not process the request within 20 days, Judicial Watch filed suit against the agency. It amended its complaint to include the CIA after that agency also indicated it could not process the request within the statutory time limit. Defense searched three officesâ€"the Office of the Joint Chiefs of Staff, the U.S. Special Operations Command, and the Department of the Navy. Its search located no responsive records. However, the CIA found 52 responsive records, but withheld them all under Exemption 1 (national security) and Exemption 3 (other statutes). Judicial Watch argued the Defense Department's search was inadequate and that the CIA had committed both procedural and substantive errors in invoking Exemption 1. Boasberg, however, rejected both arguments. Boasberg addressed DOD's search first. The agency's affidavit explained that a single officer at OCJCS maintained all documents on the bin Laden operation and he searched all hard-copy records and the only computer used to store electronic records. The email files of Chief of the Joint Staff Adm. Mike Mullen were also searched. Special Command searched all hard copy and electronic records, including emails from May 1 â€" through May 31. Finally, because bin Laden's body was buried at sea from the Navy aircraft carrier USS Carl Vinson, the ship's records were also searched. That search confirmed that no USS Carl Vinson personnel took photographs or videos of the burial and that there were no email discussions on the ship's computer system. Judicial Watch challenged the search on three grounds. First, it contended DOD had failed to search the Office of the Secretary. Judicial Watch pointed out that press reports indicated Secretary Robert Gates had advised President Obama about whether or not to release post mortem photos of bin Laden and argued that it was inconceivable that DOD did not have copies of the photographs. But Boasberg replied that "even if Secretary Gates gave such advice, it does not necessarily follow that he ever saw the photos. And even if he did see them, that does not mean that he actually possessed them and also retained them in his office. Plaintiff's speculation that Secretary Gates must have kept copies of these classified records is just that: speculation. . . [S]uch bald conjectures do not undermine the agency's position." Judicial Watch indicated that DOD had failed to search the Joint Worldwide Intelligence Communications System, which allows Defense to transmit classified information to the Department of State. Since the press had reported that Secretary of State Hillary Clinton also advised Obama about the disclosure of the photos, Judicial Watch argued that it was highly likely the photos had been transmitted between the two agencies. Rejecting that contention, Boasberg noted that "again, Judicial Watch would have the Court infer from the media's reports that Secretary Clinton advised President Obama concerning the photographs' release that she in fact possessed copies of those photographsâ€"or, more specifically, that she viewed them through JWICS. As with Secretary Gates, however, this inference is entirely unsupported by evidence." Judicial Watch argued that the DOD affidavit did not specifically state that the agency searched for photographs or videos taken after the SEALS left Pakistan with bin Laden's body. Rejecting the claim, Boasberg indicated that "more broadly, [the agency's affidavit] repeatedly explains that the searches of the various components revealed no 'responsive' records. Because Judicial Watch requested all photographs and videos 'taken during and/or after' the operation in Pakistan, [the agency's] statements that no responsive records were located clearly includes those records 'created subsequent to the completion of the intelligence mission within Pakistan.' Judicial Watch cannot seriously argue otherwise." Boasberg added that "it should be emphasized that this case was not a request for some broadly defined class of documents the existence and whereabouts of which the agency was likely unaware and that might be maintained in any number of records systems. On the contrary, Judicial Watch's request related to a discrete set of extraordinarily high-profile records. . .If DOD has possession of these records, the relevant individuals are well aware of that fact." Because the CIA admitted to having 52 photos, Boasberg turned next to the question of whether or not they were protected by Exemption 1 or Exemption 3. He noted that since "the agency has properly withheld the photographs and/or video recordings of bin Laden's body pursuant to Exemption 1, [the court] will grant summary judgment without reaching the question of Exemption 3's applicability." Judicial Watch argued the CIA had failed to identify the individual who originally classified the photos. But the agency identified two individuals, both of whom had original classification authority, who had derivatively classified the photos. Because there was no doubt that the two individuals had properly derivatively classified the photos, Boasberg pointed out that "even if there had been some procedural defect in the original classification, it was cured by proper derivative classification and by [the two individuals'] subsequent reviews. Second, even if no cure had taken place, any hypothetical defect would not require that the documents be released so long as it did not undermine the agency's assessment of the substantive criteria for classification." He added that "where. . .the individual who conducts the derivative classification himself has original classification authority, and where two additional individuals with original classification authority review the classified records and attest to their compliance with EO's procedural and substantive requirements, speculative defects in the original classification procedure are immaterial." Judicial Watch also claimed the agency had failed to indicate the date on which the classification occurred, making it impossible to determine if the photos might have been classified after Judicial Watch's FOIA request. Boasberg dismissed the claim, noting that "the CIA received [Judicial Watch's] FOIA request, which was dated May 4, 2011, on May 5. Even according to Plaintiff's own timeline, however, classification occurred before then. Indeed, the formal announcement that the records would not be released came on May 4. Judicial Watch's suggestion that the operative date is May 3, the day DOD received its request, rather then the day the CIA received its request, moreover is flawed, since the request at issue was made to the CIA." The agency had classified the photos based on the exceptions in the Executive Order 13526 on Classification pertaining to military plans, intelligence activities, and foreign relations or foreign activities. Judicial Watch argued that, while some of the exceptions applied to various records, none of them applied to all the records. While he agreed that the military plans exception or the intelligence exception did not apply to every photo, Boasberg indicated that "it is patently clear, however, that all fifty-two recordsâ€"which, by the terms of Judicial Watch's own request, depict bin Laden during and after the May 1, 2011, operation in Abbottabad, Pakistanâ€"pertain to the 'foreign activities of the United States. . .Given that the records in question 'were the product of a highly sensitive, overseas operation that was conducted under the direction of the CIA,' no further information is required to conclude that each of them 'pertains'â€"notably, not a very demanding verbâ€"to the United States' foreign activities." Boasberg then assessed whether the agency had sufficiently made its case as to whether disclosure of the photos would harm national security. He noted that "while Judicial Watch expresses concern that deferring to an agency's assessment of generalized risks related to potential propagandizing and the inflammation of anti-American sentiment opens the door to potentially unlimited withholdings, such justifications will only pass muster where, as here, they are sufficiently detailed and both plausible and logical. If the risks [the agency's affidavits] anticipate are speculative, such is the nature of risk. . .The United States captured and killed the founding father of a terrorist organization that has successfullyâ€"and with tragic resultsâ€"breached our nation's security in the past. [The agency's] testimony that the release of images of his body could reasonably be expected to pose a risk of grave harm to our future national security is more than mere speculation. While al Qaeda may not need a reason to attack us, that does not mean no risk inheres in giving it further cause to do so." Boasberg concluded that "the Court is also mindful that many members of the public would likely desire to see images of this seminal event. . .Yet, it is not this Court's decision to make in the first instance. In the end, while this may not be the result Plaintiff or certain members of the public would prefer, the CIA's explanation of the threat to our national security that the release of these records could cause passes muster."
Issues: Exemption 1 - Properly classified, Exemption 1 - Harm to national security | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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