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Knight First Amendment Institute at Columbia University v. Central Intelligence Agency

United States District Court, District of Columbia

January 6, 2020

KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, et al ., Plaintiffs,
v.
CENTRAL INTELLIGENCE AGENCY, et al ., Defendants.

          MEMORANDUM OPINION

          TREVOR N. McFADDEN, U.S.D.J.

         This case stems from the murder and dismemberment of Jamal Khashoggi inside the Saudi Arabian consulate in Istanbul. While his fiancée waited outside for his return with their marriage papers, members of a hit squad dispatched from Riyadh lay in wait in a consular office inside. He was never seen again.

         Turkish intelligence captured audio of Khashoggi's last moments. After the consular staff escorted him inside, the assailants pressured him to return to Saudi Arabia. When he refused, there was a struggle as his killers hooded him in plastic and strangled him. Then they dismembered his body with a surgical bone saw. Later, surveillance footage captured Saudi agents transporting his remains in plastic bags and a suitcase. A body double dressed in Khashoggi's clothes left a false trail out of the consulate, the final piece laid in the premeditated attack.

         The trail soon proved false, and the evidence pointed to disappearance at the hands of Saudi officials, frequent targets of the slain journalist's criticism. Intelligence agencies, governments, and reporters quickly confirmed the worst. A U.N. Special Rapporteur convened an investigation.[1] The State Department informed the press that “the United States had no advanced knowledge” of his disappearance.[2] Congress demanded to know how much the Saudi government knew about the disappearance of this U.S. resident last seen entering its consulate.[3]Everything, the CIA said. Senators left a classified briefing certain that the Saudi Arabian Crown Prince directed the killing.[4] The State Department publicly designated 16 Saudi Arabian officials as ineligible to enter the United States because of their roles in this “significant corruption or gross violation[] of human rights.”[5] The Treasury Department issued sanctions against those 16, plus the consul general.[6]

         Shortly after his disappearance, the Knight First Amendment Institute (“Knight Institute”) sought from the CIA, FBI, NSA, and Office of the Director of National Intelligence (collectively, the “Intelligence Agencies”) records related to the Intelligence Community's “duty to warn” Khashoggi of the attack. The Committee to Protect Journalists (“CPJ”) then sent a nearly identical request. When the Intelligence Agencies did not respond, Knight Institute and the CPJ sued under the Freedom of Information Act (“FOIA”) to force the release of records. But still the Intelligence Agencies would not acknowledge the existence of any relevant documents.

         The parties have cross-moved for summary judgment, now ripe for decision. Even in appalling cases such as this, the law recognizes that our Government needs secrecy to discover what others do in secret. Because the requested records are exempt from FOIA's disclosure requirements, the Court will grant summary judgment to the Intelligence Agencies.

         I.

         Any element of the Intelligence Community “that collects or acquires credible and specific information indicating an impending threat of intentional killing, serious bodily injury, or kidnapping, ” must warn the intended victim “in a timely manner while protecting sources and methods.” Intelligence Community Directive 191 (“Directive 191”) ¶¶ E.1, F.1. (Office of the Dir. of Nat'l Intel. Jul. 21, 2015).

         Under FOIA, 5 U.S.C. § 552, Knight Institute and the CPJ requested all Intelligence Agency records related to Directive 191 and the duty to warn Khashoggi. See Am. Compl. ¶¶ 15-17, ECF No. 17. They also requested records of disputes the other agencies referred to Office of the Director of National Intelligence (“ODNI”) about the duty to warn or how to communicate threat information. See id. ¶ 18.[7]

         The Intelligence Agencies responded with what are known as “Glomar responses:” refusals to confirm or deny the existence of the requested records.[8] See, e.g., Joint Status Report (Mar. 1, 2019), ECF No. 25. Knight Institute subsequently voluntarily dismissed its claims, leaving the CPJ as the sole plaintiff. See Stipulation of Dismissal, ECF No. 29; Minute Order (Jul. 19, 2019). The State Department was originally also listed as a defendant, but the CPJ dismissed State from the case shortly after Knight Institute dropped out. See Motion to Dismiss, ECF No. 30; Minute Order (Jul. 30, 2019).

         The remaining defendants filed for Summary Judgment, arguing that FOIA exemptions 1 and 3 prevent the disclosure of the very existence vel non of the requested records. Defs.' Mot. for Summ. J. (“Defs.' Mot.”) 2, ECF No. 34-1; 5 U.S.C. § 552(b)(1), (3). The CPJ then filed a cross-motion, arguing against the exemptions and that the State Department's denial of advance warning about Khashoggi's disappearance “constitutes an official acknowledgment by the Government that records responsive to CPJ's FOIA requests do not exist, and thereby waives the Government's ability to invoke Glomar.” Pl.'s Cross-Mot. for Summ. J. (“Pl.'s Cross-Mot.”) 21, 23, ECF No. 37-1; see Press Briefing, Dep't of State, supra, note 2.

         II.

         The general rule under FOIA is that government agencies “must acknowledge the existence of information responsive to a FOIA request and provide specific, non-conclusory justifications for withholding that information.” Roth v. U.S. Dep't of Justice, 642 F.3d 1161, 1178 (D.C. Cir. 2011). This is so because FOIA exists as “a means for citizens to know what their Government is up to.” Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171-72 (2004) (cleaned up).

         The Glomar line of FOIA cases stands as an exception to that general rule. ACLU v. CIA, 710 F.3d 422, 426 (D.C. Cir. 2013).[9] In a Glomar response, an agency may “refuse to confirm or deny the existence of records, ” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007), when doing so “would itself cause harm cognizable” under FOIA, Roth, 642 F.3d at 1178. In other words, FOIA protects “the existence vel non” of the records. Wolf, 473 F.3d at 379. And agencies commonly invoke Glomar responses when ...


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