Leopold v. Central Intelligence Agency

         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. ...