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Boening v. Central Intelligence Agency

September 30, 2008

FRANZ BOENING, PLAINTIFF,
v.
CENTRAL INTELLIGENCE AGENCY, DEFENDANT.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

Plaintiff Franz Boening brings this suit against the Central Intelligence Agency ("CIA" or "Agency"), alleging that the CIA violated the First Amendment of the United States Constitution and the Administrative Procedure Act, ("APA"), 5 U.S.C. § 701 et seq., by denying him permission to publish, as written, a Memorandum Plaintiff authored. The CIA contends that Plaintiff is barred from publishing the Memorandum, known as the "M Complaint," because it contains classified information. The CIA moves to dismiss Plaintiff's APA claims and moves for summary judgment on Plaintiff's First Amendment claim. Plaintiff cross moves for summary judgment, or in the alternative, requests discovery pursuant to Federal Rule of Civil Procedure 56(f). Plaintiff has also filed a Motion to Compel. Upon consideration of the Motions, the responses and replies thereto, the applicable law, and this Court's in camera review of the classified documents at issue, the Court hereby GRANTS Defendant's Motion to Dismiss Plaintiff's APA claims, GRANTS Defendant's Motion for Summary Judgment on the First Amendment Claim, DENIES Plaintiff's Cross-Motion for Summary Judgment and Request for Discovery, and DENIES Plaintiff's Motion to Compel.

I. BACKGROUND

Plaintiff was employed by the CIA from 1980 until his voluntary retirement on August 13, 2005. On May 10, 2001, Plaintiff submitted a memorandum ("Memorandum" or "M Complaint") with three annexes and a bibliography to the CIA's Office of Inspector General ("OIG") as a whistleblower complaint for review as an "urgent concern" under section 17(d)(5) of the CIA Act, 50 U.S.C. § 403q(d)(5). The Memorandum "sought to detail perceived violations of the law committed by the CIA." Compl. ¶ 6. Plaintiff contends "the CIA maintained a special relationship with a foreign individual who committed unlawful human rights violations and criminal acts with the knowledge of the CIA, and that despite other federal agencies expressing interest in seeing this person arrested the CIA preferred that such an action not take place." Id. ¶ 7.

The OIG determined that the Memorandum did not represent an "urgent concern." The Information Review Officer of the Directorate of Operations ("DO/IRO"), who possessed original classification authority, subsequently reviewed the Memorandum and placed brackets around the portions that he deemed classified. Def.'s Statement of Facts ¶ 4. Plaintiff challenged the Agency's determination that the Memorandum was classified by filing a classification challenge under Executive Order 12958, as amended, with the Agency Release Panel ("ARP"), the entity tasked with adjudicating complaints that the Agency has improperly classified official CIA documents. Def.'s Statement of Facts ¶ 5.

The Agency determined that Plaintiff's Memorandum was not properly subject to a classification challenge under the Executive Order, however, because whistleblower complaints are personal writings, and not official Agency documents. Def.'s Supp. Mem. at 1. Accordingly, the ARP informed Plaintiff that it had no authority to consider Plaintiff's challenge and he should submit his Memorandum to the Publication Review Board ("PRB") for prepublication review as a "nonofficial" publication. Id. at 1-2. Plaintiff appealed the ARP's decision to the Interagency Security Classification Appeals Panel ("ISCAP"). Def.'s Statement of Facts ¶ 7. In a letter dated February 4, 2004, the ISCAP Executive Director informed Plaintiff that he could not challenge the Memorandum's classification because he was not an "authorized holder" of the information. Id. "Nevertheless, [the ISCAP Executive Director] exercised his own independent authority to consider such a classification challenge and determined that the CIA properly classified the Memorandum." Id.

On November 22, 2004, Plaintiff submitted his Memorandum to the PRB "for the purposes of potential public dissemination." Compl. ¶ 5; see also Def.'s Statement of Facts ¶ 8. In a letter dated January 5, 2006, the Chairman of the PRB notified Plaintiff that he could not publish the Memorandum as written and that if he wished to publish his Memorandum, Plaintiff would need to rewrite it "outside of the government memo format stating in [his] own words what [he] desire[s] to communicate," and that he would have to provide "specific, open source citations (author, title, source, date, page) for the statements [he] wish[es] to make." Def.'s Statement of Facts ¶ 9 (quoting Ex. E of Scott A. Koch Declaration ("Koch Decl.")). The Chairman specifically instructed Plaintiff that the required citations "must be placed in the body of the text linked to specific sentences and paragraphs." Id.

Defendant contends that Plaintiff failed to make the necessary changes, prompting the PRB to make a final decision denying Plaintiff permission to publish the document in its present form. The CIA determined that Plaintiff's Memorandum contains information that:

(a) has been classified by officials with original classification authority, including Ralph S. DiMaio and the DO/IRO (who initially reviewed the Memorandum), see Unclassified DiMaio Decl. ¶ 3;

(b) remains under the control of the CIA, Id. ¶ 10;

(c) falls within at least one of three of the categories of classified information under § 1.4 of Executive Order 12,958, as amended, including: (i) § 1.4(b) (foreign government information); (ii) § 1.4(c) (information concerning intelligence activities, sources, or methods; and (iii) § 1.4(d) (information concerning foreign relations or foreign activities of the United States, including confidential sources), see Unclassified DiMaio Decl. ¶¶ 11, 14; and

(d) if disclosed, could reasonably be expected to cause serious damage to the national security. Id. ¶ 12.

Def.'s Statement of Facts ¶ 14. The PRB informed Plaintiff that if he wished to publish his Memorandum he would have to "(1) delete specific information identified by the PRB, and (2) include a disclaimer stating that his writings constitute his own opinions and do not represent the views of the Agency or the U.S. Government." Id. ¶ 10 (citing Ex. F of Koch Decl.).

Plaintiff emailed the PRB on June 29, 2006 stating his Memorandum was based on open sources and challenged the PRB's conclusion that the subject of his Memorandum could not be mentioned by name. Def.'s Statement of Facts ¶ 11 (citing Koch Decl. ¶ 36). The Chairman of the PRB responded on June 30, 2006 that Plaintiff could still "get his message out" if he would rewrite his Memorandum "in a different format, outside the official-looking memo type one it currently is in" and if he would "attribute those statements to open sources." Id. ¶ 12 (citing Koch Decl. ¶ 37). On August 11, 2006, the PRB again wrote to Plaintiff informing him that that the ...


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