MEMORANDUM OPINION
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
Denying
Defendants' Motion for Summary Judgment; Granting
Plaintiffs' Motion for Summary Judgment
This
case is closely related to Leopold v. CIA
(“Leopold I”), 380 F.Supp.3d 14 (D.D.C.
2019), which was decided by this Court less than a year ago.
Both cases were brought under the Freedom of Information Act
(“FOIA”) and concern FOIA requests made by
journalist Jason Leopold and Buzzfeed, Inc (together,
“Buzzfeed”). The requests in Leopold I
and in this litigation are similar and both seek, generally,
Central Intelligence Agency (“CIA” or “the
Agency”) records relating to an alleged covert
government program to arm Syrian rebels as well as CIA
records referencing a tweet by President Donald J. Trump that
allegedly revealed the existence of the program. At this
stage, this case only concerns the former category of
records. The CIA has moved for summary judgment, arguing, as
it did in Leopold I, that it properly refused to
disclose the existence or absence of records relating to the
alleged covert program (a so-called “Glomar
response”). Last time, generally, the ACLU sought
records of CIA payments to Syrian rebel groups, and this
Court granted summary judgment to the Agency, largely because
even though the President's tweet had revealed the
existence of payments to rebel groups, it had not revealed
that the CIA, specifically, had made them. See Id.
at 24-26. The key difference this time around is that
Buzzfeed has made its requests broader. Now, instead of
asking for records of CIA payments, they simply seek
records of “payments, ” without suggesting that
the payments came from the CIA. With the question broadened
in this way, it is now implausible for the CIA to claim that
it cannot say one way or another whether it has any records
concerning these payments. Undoubtedly, wherever the payments
were coming from, the CIA must have some intelligence
awareness of them. Accordingly, the CIA's motion is
denied, the Plaintiffs' motion is granted, and the agency
is ordered to search for responsive documents.
I.
FACTUAL BACKGROUND
The
facts of Leopold I provide important background for
the FOIA request at issue and for the legal arguments
presented by both parties. Accordingly, in recounting the
background of this case, the Court will also review some of
the history and the substance of Leopold I.
On July
19, 2017, the Washington Post published an article describing
the Trump Administration's termination, a month earlier,
of what the article described as a covert CIA program to arm
rebels to the government of Bachar Al-Assad in Syria. Greg
Jaffee & 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, ECF No. 12-3 at 2- 5; Def.'s
Statement of Material Facts (“Def. SMF”) ¶
2, ECF No. 10-3; Pls.' Resp. to Def.'s SMF ¶ 2,
ECF No. 11-2. Five days later, 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 24, 2017, 7:23
PM), https://twitter.com/realdonaldtrump/
status/889672374458646528. In an interview with the Wall
Street Journal the next day, the President referenced
“the story about Syria . . . the other day” and
said that it “was a decision made by people, not me. .
. . 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.”
Excerpts from President Donald Trump's Interview with the
Wall Street Journal, July 25, 2017, Cross-MSJ Ex. 2, ECF No.
12-3 at 5.
On
September 12, 2017, Buzzfeed submitted to the CIA the FOIA
request that would become the subject of Leopold I.
Leopold I, 380 F.Supp.3d at 19. There were six
subparts to the request. Id. Five sought, generally,
“records related to an alleged program of CIA payments
to Syrian rebels fighting the Assad government.”
Id. Part four of the request sought “any and
all records that mentions or refers to the July 24, 2017
[tweet] by President Donald Trump.” Id. at 20
(quoting Compl. ¶ 10, Leopold I, 380 F.Supp.3d
14, ECF No. 1 [hereinafter “Leopold I
Compl.”]). When the CIA failed to respond to the
request, Buzzfeed filed suit on October 19, 2017.
Id. The parties agreed that the request would be
restricted to exclude records produced as part of the
CIA's response to a similar FOIA case. Id. Then,
on February 1, 2018 the parties informed the Court 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. Id. This limited search resulted in the
production to Buzzfeed of two emails, in redacted form.
Id. “The CIA moved for summary judgment . . .
arguing both that its Glomar response to the request
was valid and that the limited search” was an adequate
response to part four of the request. Id. Buzzfeed
filed a cross-motion for summary judgment, id.,
arguing “that the CIA's Glomar response
[was] improper because President Trump officially
acknowledged the existence of a covert CIA program of
payments to Syrian rebels in his July 24, 2017 tweet, ”
id. at 22.
The
Court granted summary judgment to the CIA and denied it to
Buzzfeed. Id. at 30. The Court found first,
“that the tweet alone [was] not sufficiently precise to
constitute an official acknowledgment of a CIA program of
payments to Syrian rebels.” Id. at 24.
Assuming the tweet had officially acknowledged some
program, it made no mention of the CIA. See Id. at
24 & n.3. Although the Jaffee and Entous article alleging
a covert CIA program had come out a few days prior, the tweet
did not reference the Jaffee and Entous article specifically,
and it suggested that the Washington Post had gotten the
facts wrong. Id. at 24-25. “[T]he
President's characterization of the facts in the article
as ‘fabricated' negates any inference that can be
drawn from it as to the source of the payments, ” the
Court said, and Buzzfeed recognized that the Department of
Defense could also plausibly have been behind the payments.
Id. at 25 & n.5. The CIA's Glomar
response was thus appropriate, “under Exemption 1
because revealing whether or not the agency operates a covert
program of payments to Syrian rebels would disclose
classified material, ” and under Exemption 3 because,
as the CIA represented, “[t]he fact of whether or not
the CIA is, or has, exercised covert action authorities
constitutes a protected intelligence source or method.”
Id. at 27, 28 (quotations omitted). The limited
search for items responsive to part 4 of the request was also
adequate. Id. at 28.
On July
2, 2018, while Leopold I was being litigated, but
before this Court issued a decision on summary judgment,
Buzzfeed submitted the FOIA request at issue in this case.
Def. SMF ¶ 1, ECF No. 10-3; Pls.' Resp. to
Def.'s SMF ¶ 1, ECF No. 11-2. Buzzfeed requested the
following nine categories of records from the CIA:
1. Any and all studies, memos, assessments, and intelligence
products referring to payments to Syrian rebels fighting
Assad;
2. Any and all emails mentioning or referring to payments to
Syrian rebels fighting Assad;
3. Any and all correspondence to or from a member of Congress
or a Congressional Committee mentioning or referring to
payments to Syrian rebels fighting Assad;
4. Any and all records that mention or refer to the July 24,
2017 [tweet] by President Donald Trump:
https://twitter.com/realDonaldTrump/status/
88967237445864528. The tweet states: “The Amazon
Washington Post fabricated the facts on my ending massive,
dangerous, and wasteful payments to Syrian rebels fighting
Assad ..... ”;
5. Any and all records mentioning or referring to the ending
of payments to Syrian rebels fighting Assad; and
6. Any and all records authorizing payments to Syrian rebels
fighting Assad. This request includes, but is not limited to,
the “FINDING” ...