Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Leopold v. Central Intelligence Agency

United States District Court, District of Columbia

November 7, 2019

JASON LEOPOLD and, BUZZFEED, INC., Plaintiffs,
v.
CENTRAL INTELLIGENCE AGENCY, Defendant.

          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” ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.