United States District Court, District of Columbia
JASON LEOPOLD, et al. Plaintiffs,
v.
CENTRAL INTELLIGENCE AGENCY, Defendant.
Re
Document Nos. 14, 16
MEMORANDUM OPINION GRANTING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT; DENYING PLAINTIFFS' CROSS MOTION
FOR SUMMARY JUDGMENT
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
I.
INTRODUCTION
In this
case under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, plaintiffs
Buzzfeed and Buzzfeed reporter Jason Leopold (together,
“Buzzfeed”) seek to obtain records of the Central
Intelligence Agency (“CIA”) relating to an
alleged covert CIA program to arm Syrian rebels. Buzzfeed
also seeks CIA records referencing a tweet by President
Donald J. Trump that allegedly revealed the existence of the
program. The CIA has now moved for summary judgment, arguing
that it has properly refused to disclose the existence or
absence of records relating to the alleged covert program (a
so-called “Glomar response”), and that
it has conducted an adequate search for, and performed
adequate redactions when releasing, agency records relating
to the presidential tweet. Buzzfeed cross-moves for summary
judgment solely on the issue of whether the Glomar
response was appropriate, arguing that the President's
tweet has already made the existence of the program public.
Because the Court finds that the President has not revealed
the existence of a CIA-led program to arm Syrian
rebels, it grants the CIA's motion for summary judgment
and denies Buzzfeed's cross motion.
II.
BACKGROUND
A.
The Washington Post Article and Subsequent Trump
Administration Comments
The
facts underlying this case can be summarized in a few
paragraphs. On July 19, 2017, the Washington Post published
an article describing the Trump administration's
termination, a month earlier, of an alleged covert CIA
program to arm rebels to the government of Bachar Al-Assad in
Syria. Greg Jaffe & Adam Entous, Trump Ends Covert
CIA Program to Arm Anti-Assad Rebels in Syria, a Move Sought
by Moscow, Washington Post, July 19, 2017, Pls.'
Cross Mot. Summ. J. Ex. 1, at 2, ECF No. 16-2;[1] Pls.'
Statement of Material Facts (“SMF”) ¶ 1, ECF
No. 16-3; Def.'s Resp. Pls.' SMF ¶ 1, ECF No.
18-1.
Two
days later on July 21, 2017, General Raymond Thomas, the
commander of the United States Special Operations Command-the
U.S. command overseeing special operations forces of the U.S.
Army, Marine Corps, Navy, and Air Force, see 10
U.S.C. § 167-was asked about the program's
termination at the 2017 Aspen Security Forum. See
Excerpts from General Raymond Thomas's Statements at the
2017 Aspen Security Forum, July 21, 2017, Pls.' Cross
Mot. Ex. 2, at 7; Pls.' SMF ¶ 8; Def.'s Resp.
Pls.' SMF ¶ 8. Catherine Herridge, Fox News's
chief intelligence correspondent, asked whether “it
[was General Thomas's] assessment that this was done to
create favor with Russia, or that it was not an effective
program.” Excerpts from Gen. Thomas's Statements 7.
General Thomas responded:
Absolutely-absolutely not in my-at least from what I know
about that program and the decision to end it. Absolutely not
a SOP to the Russians. It was I think based on assessment of
the nature of the program, what we're trying to
accomplish, the viability of it going forward, and a tough,
tough decision. I mean we're all reading the editorials
now of are we leaving people at the altar, you know, people
have we manned and equipped, but they're-it is so much
more complex than even I can describe, and again that's
not necessarily an organization that I've been affiliated
with, but a sister-a parallel activity that was-that had a
tough, you know, some would argue impossible mission based on
the approach we took. It might have been scoped too narrowly
or not empowered sufficiently. I don't know enough about
it to criticize it in that direction, but it had a tough road
to hope.
Id.
On July
24, 2017, the President tweeted from his Twitter account
@realDonaldTrump that “[t]he Amazon Washington Post
fabricated the facts on my ending massive, dangerous, and
wasteful payments to Syrian rebels fighting Assad.”
@realDonaldTrump, Twitter (July 25, 2017, 07:23 PM),
https://twitter.com/realdonaldtrump/status/889672374458646528.
Finally,
on July 25, 2017, President Trump was interviewed by the Wall
Street Journal (“WSJ”). Pls.' SMF ¶ 10;
Def.'s Resp. Pl's SMF ¶ 10. In the course of
discussing intelligence leaks in his administration,
President Trump referenced an unnamed Washington Post story
about a weapons program in Syria:
Trump: I'm talking about intelligence leaks. I'm
talking like the story about Syria that was in The New York
Times the other day. I'm-which by the way, was a decision
made by people, not me. But, you know, they wrote it 100-it
was in the -
WSJ: The Post, I thought. It was in the Washington Post.
Trump: It was in The Washington Post. That was not something
that I was involved in, other than they did come and they
suggested. It turns out it's-a lot of al-Qaida we're
giving these weapons to. You know, they didn't write the
truthful story, which they never do. So all of those things
are very important. But, no, I'm very disappointed in the
fact that the Justice Department has not gone after the
leakers. And they're the ones that have the great power
to go after the leakers, you understand. So-and I'm very
disappointed in Jeff Sessions.
Excerpts
from President Donald Trump's Interview with the Wall
Street Journal, July 25, 2017, Pls.' Cross Mot. Ex. 3, at
9.
B.
Procedural History
On
September 12, 2017, Buzzfeed submitted a six-part FOIA
request to the CIA. Compl. ¶ 10, ECF No. 1. Five of the
six subparts in the request were directed at records related
to an alleged program of CIA payments to Syrian rebels
fighting the Assad government. Id. Part one sought
the “studies, memos, assessments, and intelligence
products, mentioning or referring to CIA payments to Syrian
rebels fighting Assad.” Id. Part two sought
“[a]ny and all emails mentioning or referring to”
such payments. Id. Part three sought “[a]ny
and all correspondence to or from a member of Congress or a
Congressional Committee mentioning or referring to”
such payments. Id. Part five sought “any and
all records mentioning or referring to the ending of the
CIA's payments.” Id. And finally, part six
sought “records authorizing the CIA to make payments to
Syrian rebels, ” including any
“‘FINDING' authorized by President Barack
Obama.” Id. Part four of the request, on the
other hand, sought records related to the July 24, 2017
tweet, with Buzzfeed requesting “[a]ny and all records
that mentions or refers to the July 24, 2017 [tweet] by
President Donald Trump.” Id.
Although
the CIA acknowledged receipt of Buzzfeed's request on
September 14, 2017, id. ¶ 12, it failed to
respond to the request, id. ¶ 13. On October
19, 2017, Buzzfeed filed suit. See generally Id. On
December 18, 2017, the parties filed a stipulation regarding
the scope of the FOIA request, with Buzzfeed agreeing to
restrict its request to exclude any documents obtained or
created by the CIA in connection with the litigation of a
FOIA case involving a substantially similar FOIA request,
New York Times Co. v. CIA, 17-cv-6354 (ALC)
(S.D.N.Y.). Stipulation 1, ECF No. 10. And on February 1,
2018, the parties represented that the CIA had issued a
Glomar response with respect to the entire request
pursuant to FOIA Exemptions 1 and 3, but that it would be
conducting a search for records responsive to part 4 of the
request that referenced the presidential tweet but did not
implicate the alleged covert CIA program. Joint Status Report
1-2 (Feb. 1, 2018), ECF No. 12. The parties further
represented that they had agreed to restrict the search to
e-mail records in five CIA offices: the Office of the
Director, Office of the Deputy Director, Office of the Chief
Operating Officer, Office of General Counsel, and Office of
Public Affairs. Id. at 2. The limited search
uncovered two responsive e-mails, which the CIA redacted and
produced to Buzzfeed on April 17, 2018. Def.'s SMF
¶¶ 11-13, ECF No. 14-1; Pls.' Resp. Def.'s
SMF ¶ 11-13, ECF No. 15-3.
The CIA
moved for summary judgment on May 4, 2018, arguing both that
its Glomar response to the request was valid and
that the limited search for responsive, non-exempt records it
conducted in response to part 4 of the request was adequate.
Def.'s Mem. Supp. Summ. J. 1-2, ECF No. 14. On June 4,
2018, Buzzfeed filed both an opposition to the motion and its
own cross motion for summary judgment. Pls.' Mem.
Opp'n, ECF No. 15; Pls.' Mem. Supp. Cross Mot. Summ.
J., ECF No. 16. On July 11, 2018, the CIA filed its
opposition to the cross motion and reply. Def.'s Mem.
Opp'n, ECF No. 18; Def's Reply, ECF No. 19. And
Buzzfeed filed its reply on August 6, 2018. Pls.' Reply,
ECF No. 20. The cross motions are now ripe for review.
III.
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