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Judicial Watch, Inc v. U.S. Department of Defense

April 26, 2012

JUDICIAL WATCH, INC.,
PLAINTIFF,
v.
U.S. DEPARTMENT OF DEFENSE, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION

A picture may be worth a thousand words. And perhaps moving pictures bear an even higher value. Yet, in this case, verbal descriptions of the death and burial of Osama Bin Laden will have to suffice, for this Court will not order the release of anything more.

On the evening of May 1, 2011, President Barack Obama announced to the world that the United States had conducted an operation that resulted in the death of Bin Laden, the leader of the terrorist organization al Qaeda. The very next day, Plaintiff Judicial Watch submitted a Freedom of Information Act request to Defendant Department of Defense seeking any photographs and video recordings of Bin Laden taking during or after that operation. Judicial Watch sent a similar request to Defendant Central Intelligence Agency a few days later. After both DOD and the CIA advised that they would be unable to process the requests within the time permitted under the statute, Plaintiff filed suit.

Both agencies have since issued final responses to Plaintiff's requests. After searching the components that it determined were most likely to possess the sought-after records, DOD turned up nothing responsive to Judicial Watch's request. The CIA, however, located fifty-two responsive records, all of which it withheld. Specifically, the agency claimed that the photographs and/or video recordings of Bin Laden's death and burial were exempt from disclosure under FOIA Exemptions 1 and 3, the exemptions for classified materials and for information specifically exempted by other statutes.

Both sides now seek summary judgment. Plaintiff claims that DOD did not conduct an adequate search. In addition, it challenges the level of generality at which the CIA described the fifty-two responsive records and contends that the agency has not demonstrated that each record may be properly withheld under either claimed exemption. For their part, Defendants maintain that DOD's search was sufficient and that the CIA has provided adequate support for its withholdings.

Defendants' arguments carry the day. The affidavits they have provided are sufficient to establish that DOD conducted an adequate search for responsive records and that the records identified by the CIA were classified materials properly withheld under Exemption 1. The Court declines Plaintiff's invitation to substitute its own judgment about the national-security risks inherent in releasing these records for that of the executive-branch officials who determined that they should be classified. The Court, accordingly, will grant Defendants' Motion and deny Plaintiff's.

I.Background

On May 1, 2011 (May 2, 2011, in Pakistan's time zone), American forces captured and killed Osama Bin Laden at his compound in Abbottabad, Pakistan. See Transcript of President Obama's May 1, 2011, Remarks, available at http://www.whitehouse.gov/the-press-office/2011/05/02/remarks-president-osama-bin-laden. Executive officials have confirmed that the team then took custody of Bin Laden's body and transported it to the aircraft carrier USS Carl Vinson in the North Arabian Sea. See, e.g., Pl.'s Mot. & Opp., Declaration of Michael Bekesha, Exh. D (Press Briefing by Press Secretary Jay Carney, May 3, 2011) at 2. There, "[t]he deceased's body was washed and then placed in a white sheet." Bekesha Decl., Exh. B (DOD Background Briefing with Senior Defense Officials from the Pentagon and Senior Intelligence Officials by Telephone on U.S. Operations Involving Osama Bin Laden, May 2, 2011) at 1. Religious remarks were read, and the prepared body was placed in weighted bag and onto a flat board. See id. As the board was tipped up, Bin Laden's body slipped into the sea. See id.

Shortly after the President's announcement, the media began to report that the government had taken photographs of Bin Laden's body in the aftermath of the raid. See, e.g., Bekesha Decl., Exh. A (Stacia Deshishku, "Even More Details on the OBL Photos," CNN, May 3, 2011). This was confirmed by White House officials, see, e.g., Bekesha Decl., Exh. C (Press Briefing by Jay Carney and Assistant to the President for Homeland Security and Counterterrorism John Brennan, May 2, 1011) at 4-5, who suggested that, as of May 3, no decision had yet been made concerning whether the photographs would be released. See id.; Press Briefing by Jay Carney, May 3, 2011, at 2-3. In particular, Press Secretary Carney expressed concern about "the sensitivities involved" in releasing the images and the potential that doing so "could be inflammatory." Press Briefing by Jay Carney, May 3, 2011, at 3. CIA Director Leon Panetta, however, was more confident "that ultimately a photograph would be presented to the public." Bekesha Decl., Exh. E ("Leon Panetta Talks About Whether or not a Photo of Osama Bin Laden Will Be Released to the Public," NBC Nightly News, May 3, 2011) at

1. On May 4, Carney announced that "the President ha[d] made the decision not to release any of the photographs of the deceased Osama bin Laden." Bekesha Decl., Exh. F (Press Briefing by Jay Carney, May 4, 2011) at 1. The President himself later explained this decision, emphasizing the "national security risk" involved and stating that the photos might serve "[a]s a propaganda tool" or "an incitement to additional violence." Interview with President Obama, 60 Minutes, May 8, 2011, transcript available at http://www.cbsnews.com/8301-504803_162-20060530-10391709.html.

By letter dated May 2, 2011, Judicial Watch, "a non-profit, educational foundation," Am. Compl., ¶ 3, submitted a FOIA request to DOD for "all photographs and/or video recordings of Osama (Usama) Bin Laden taken during and/or after the U.S. military operation in Pakistan on or about May 1, 2011." See Def.'s Mot., Declaration of William Kammer, Exh. 1 (Letter from Michael Bekesha, May 2, 2011). DOD's Office of Freedom of Information (OFOI) received it the following day. See Kammer Decl., ¶ 3. By letter dated May 9, 2011, OFOI acknowledged receipt of the request, but advised that it would be "unable to make a release determination . . . within the 20-day statutory time period" and that the 10-day extensions provided for by FOIA would also not provide sufficient time for the agency to complete processing. See Kammer Decl., Exh. 2 (Letter from Paul Jacobsmeyer, May 9, 2011).

On May 4, Judicial Watch submitted a substantively identical FOIA request to the CIA. See Def.'s Mot., Declaration of John Bennett, Exh. A (Letter from Michael Bekesha, May 4, 2011). The CIA received it the following day, May 5. See Bennett Decl., ¶ 5. By letter dated May 23, the CIA acknowledged receipt of the request and advised Judicial Watch that, in light of "[t]he large number of FOIA requests the CIA receives," it would be "unlikely that [the agency could] respond within the 20 working days the FOIA requires." Bennett Decl., Exh. B (Letter from Susan Viscuso, May 23, 2011).

Seeking to compel the agency to process its request and release all non-exempt responsive records within the timeframe mandated by the statute, Judicial Watch filed suit against DOD on May 13, 2011. A few weeks later, it filed an Amended Complaint that added the CIA as a Defendant. Both agencies have in the meantime finished processing Plaintiff's requests.

In attempting to locate responsive records, DOD's OFOI first determined that the DOD components most likely to have the records Plaintiff was seeking were the Office of the Joint Chiefs of Staff (OCJCS), the U.S. Special Operations Command (USSOCOM), and the Department of the Navy. See Kammer Decl., ¶ 4. Officers then proceeded to search those files and electronic record-storage systems within these three components in which they believed responsive records might plausibly be found. See id., ¶¶ 5-8. DOD ultimately located no records responsive to Judicial Watch's request. See id.

The CIA's search was more fruitful. The agency conducted a search of those "components most likely to have records related to the 1 May 2011 operation" -- a determination made easier by "the nature of the operation and the close proximity in time between the operation and Plaintiff['s] FOIA request." See Bennett Decl., ¶ 10. Fifty-two unique responsive records were located. See id., ¶ 11. The records are described by John Bennett, Director of the CIA's National Clandestine Service (NCS), as follows:

These records are photographs and/or video recordings taken of [Bin Laden] on or about 1 May 2011, the day that the United States conducted an operation that resulted in his death. These records contain post-mortem images of [Bin Laden]'s body. As a result, many of them are quite graphic, as they depict the fatal bullet wound to [Bin Laden]'s head and other similarly gruesome images of his corpse. Many of the images were taken inside of [Bin Laden]'s compound in Abbottabad, Pakistan, in which he was killed, while others were taken as his corpse was being transported from the Abbottabad compound to the location where he was ultimately buried at sea. Several other images depict the preparation of his body for burial as well as the burial itself. Some of the responsive photographs were taken so that the CIA could conduct a facial recognition analysis in order to confirm that the body of the deceased individual was that of [Bin Laden].

Id.

But all of these photographs and/or videos, the CIA claims, are beyond FOIA's reach. See id., ¶¶ 12-36. Specifically, Bennett averred both that the records in question are classified materials exempt from disclosure under FOIA Exemption 1 and that they are exempted from disclosure by other statutes and, accordingly, fall within the ambit of Exemption 3. See id., ¶¶13-35. With respect to Exemption 1, Bennett stated not merely that the responsive records are in fact classified, but also that they were properly classified -- i.e., that they met the procedural and substantive criteria for classification set forth under Executive Order (EO) 13526. See id., ¶¶ 13-22. His statement concerning EO 13526's procedural criteria is buttressed by the declaration of Elizabeth Culver, the Information Review Officer for the NCS. See generally Def.'s Opp. & Reply, Decl. of Elizabeth Culver. With regard to the Order's substantive requirements, Bennett's averments are supplemented by the declarations of Robert Neller, the Director of Operations, J-3, on the Joint Staff at the Pentagon, and William McRaven, Commander of the USSOCOM. See generally Def.'s Mot., Decl. of Robert Neller; Def's Mot., Decl. of William McRaven.

Both parties now seek summary judgment.

II.Legal Standard

Summary judgment may be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record." Fed. R. Civ. P. 56(c)(1)(A). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[A] material fact is 'genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party" on an element of the claim. Liberty Lobby, Inc., 477 U.S. at 248. Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

FOIA cases typically and appropriately are decided on motions for summary judgment. Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v. United States Agency for Int'l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In a FOIA case, the Court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they 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). Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).

III.Analysis

Congress enacted FOIA in order to "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976) (quoting Rose v. Dep't of Air Force, 495 F.2d 261, 263 (2d Cir. 1974)) (internal quotation marks omitted). The statute provides that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . , shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(4)(B); DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989). "Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary and capricious, the FOIA expressly places the burden 'on the agency to sustain its action' and directs the district courts to 'determine the matter de novo.'" Reporters Comm., 489 U.S. at 755 ...


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