Knight First Amendment Institute at Columbia University v. CIA ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 12, 2021 Decided August 27, 2021
No. 20-5045
KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA
UNIVERSITY,
APPELLEE
COMMITTEE TO PROTECT JOURNALISTS,
APPELLANT
v.
CENTRAL INTELLIGENCE AGENCY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-02709)
Alexandra P. Swain argued the cause for appellant. With
her on the briefs were Jeremy Feigelson and Timothy K.
Beeken.
Bruce D. Brown and Katie Townsend were on the brief for
amici curiae the Reporters Committee for Freedom of the
Press, et al. in support of appellant.
2
David A. Schulz and Mara Gassmann were on the brief for
amici curiae Human Rights Watch, et al. in support of
appellant.
Sharon Swingle, Assistant Director, U.S. Department of
Justice, argued the cause for appellees. On the brief were
Jeffrey Bossert Clark, Acting Assistant Attorney General, and
H. Thomas Byron III and Sonia Carson, Attorneys.
Before: MILLETT, KATSAS, and WALKER, Circuit Judges.
Opinion for the Court filed by Circuit Judge KATSAS.
KATSAS, Circuit Judge: Jamal Khashoggi, a prominent
Saudi journalist, was murdered in a Saudi consulate in 2018,
apparently on orders of the Saudi Crown Prince. Under the
Freedom of Information Act, the plaintiffs here sought records
about whether four United States intelligence agencies knew,
before the murder, of an impending threat to Khashoggi. The
agencies refused to confirm or deny whether they have any
responsive records, on the ground that the existence or
nonexistence of such records is classified information. We
consider whether FOIA permitted this response.
I
FOIA generally requires federal agencies to disclose their
records upon request, 5 U.S.C. § 552(a)(3)(A), subject to nine
exemptions. Exemption 1 covers matters that are “specifically
authorized under criteria established by an Executive order to
be kept secret in the interest of national defense or foreign
policy” and are “properly classified pursuant to such Executive
order.” Id. § 552(b)(1). The relevant executive order permits
classification of information that “could reasonably be
expected to cause identifiable or describable damage to the
3
national security” if disclosed, and that “pertains to” either
“intelligence activities” or “intelligence sources or methods.”
Exec. Order No. 13,526 § 1.4(c), 75 Fed. Reg. 707, 709 (Dec.
29, 2009).
To claim a FOIA exemption, an agency ordinarily must
“acknowledge the existence of information responsive to a
FOIA request and provide specific, non-conclusory
justifications for withholding that information.” Roth v. DOJ,
642 F.3d 1161, 1178 (D.C. Cir. 2011). But if “the fact of the
existence or nonexistence of agency records” itself falls within
a FOIA exemption, the agency may “refuse to confirm or deny
the existence” of the requested records. Wolf v. CIA, 473 F.3d
370, 374 (D.C. Cir. 2007) (cleaned up). This is now known as
a Glomar response, after the Central Intelligence Agency
successfully refused to confirm or deny whether it had records
about a ship called the Glomar Explorer. See Phillippi v. CIA,
546 F.2d 1009 (D.C. Cir. 1976). In considering a Glomar
response, courts apply the “general exemption review
standards established in non-Glomar cases.” Wolf, 473 F.3d at
374. An agency thus bears the burden to sustain a Glomar
response. 5 U.S.C. § 552(a)(4)(B).
If an agency has “officially acknowledged otherwise
exempt information through prior disclosure,” it has “waived
its right to claim an exemption with respect to that
information.” ACLU v. CIA, 710 F.3d 422, 426 (D.C. Cir.
2013). A plaintiff urging official acknowledgment must point
to “specific information in the public domain that appears to
duplicate that being withheld.” Id. at 427 (quoting Wolf, 473
F.3d at 378). The prior disclosure must match the information
requested, must be as specific, and must have been “made
public through an official and documented disclosure.”
Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). To
constitute official acknowledgment in the Glomar context, the
4
prior disclosure must confirm the existence or nonexistence of
records responsive to the FOIA request. ACLU, 710 F.3d at
427.
II
A
Jamal Khashoggi, a Saudi national and United States
resident, frequently and prominently criticized the Saudi
government. On October 2, 2018, Khashoggi visited the Saudi
consulate in Istanbul to obtain documents for his upcoming
marriage. Inside the consulate, fifteen assailants injected him
with a sedative, suffocated him to death, and dismembered his
corpse with a bone saw. The murder provoked international
outrage. The CIA and the United Nations both investigated it. 1
On December 4, 2018, the CIA briefed Senate leaders. Shortly
thereafter, Congress passed a joint resolution stating its belief
that the Saudi Crown Prince had ordered the murder.
Soon after the murder, a State Department spokesman
fielded questions at a press conference. A reporter asked
whether “the U.S. had intelligence, overheard or intercepted
communications, suggesting that there was a threat to Mr.
Khashoggi.” The spokesman responded: “[A]lthough I cannot
comment on intelligence matters, I can say definitively the
United States had no advanced knowledge of Jamal
Khashoggi’s disappearance.” Press Briefing, Dep’t of State
(Oct. 10, 2018), 2017-2021.state.gov/briefings/department-
press-briefing-october-10-2018. Asked a second time whether
1
We base our account of Khashoggi’s death on findings from
the United Nations investigation. See Human Rights Council, Annex
to the Report of the Special Rapporteur on Extrajudicial, Summary
or Arbitrary Executions: Investigation into the Unlawful Death of
Mr. Jamal Khashoggi, U.N. Doc. A/HRC/41/CRP.1 (June 19, 2019).
5
“you” had prior knowledge of a threat, the spokesman
answered that “we” had no such knowledge. Id. Asked a third
time whether “the administration” had prior knowledge, the
spokesman answered: “[A]lthough I can’t go into intelligence
matters, I can definitively say that we had no knowledge in
advance of Mr. Khashoggi’s disappearance.” Id.
B
This case concerns a FOIA request for records bearing on
whether the intelligence community had prior knowledge of the
threat. The intelligence community includes eighteen
executive agencies that “conduct intelligence activities
necessary for the conduct of foreign relations and the
protection of the national security of the United States.” Exec.
Order No. 12,333 § 1.4, 46 Fed. Reg. 59,941, 59,943 (Dec. 4,
1981); see also 50 U.S.C. § 3003(4) (listing intelligence-
community agencies). The Director of National Intelligence is
the head of the intelligence community, id. § 3023(b)(1), and
so may direct how the community “carries out its mission,”
DiBacco v. U.S. Army, 795 F.3d 178, 198 (D.C. Cir. 2015).
Exercising that authority, the Director promulgated
Intelligence Community Directive 191. Under that Directive,
any intelligence-community agency that “acquires credible and
specific information indicating an impending threat of
intentional killing, serious bodily injury, or kidnapping … shall
have a duty to warn the intended victim.” Intelligence
Community Directive 191, § E.1 (July 21, 2015). Each
intelligence agency must “document and maintain records”
regarding “duty to warn actions” such as the “method, means,
and substance of any warning given.” Id. § F.13.
The Knight First Amendment Institute at Columbia
University and the Committee to Protect Journalists (CPJ)
submitted FOIA requests for records relating to Khashoggi. On
6
October 19, 2018, Knight sent requests to the Department of
State and four intelligence-community agencies—the CIA, the
Office of the Director of National Intelligence, the National
Security Agency, and the Federal Bureau of Investigation.
From each of the five agencies, Knight requested “[a]ll records
concerning the duty to warn under Directive 191 as it relates to
Jamal Khashoggi.” J.A. 31. CPJ then filed an identical request.
After receiving no response, Knight and CPJ sued.
The intelligence agencies issued Glomar responses. They
asserted that the existence or nonexistence of responsive
records is classified information protected by Exemption 1.2
Each agency gave essentially the same justification for the
Glomar response: The existence of responsive records would
signal that the agency had acquired credible and specific
information of an impending threat to Khashoggi—i.e., that the
agency had an intelligence interest in, and the ability to learn
in advance about, the plot to murder the journalist. In turn, that
could expose intelligence activities, sources, and methods. On
the other hand, the nonexistence of responsive records would
signal a blind spot in United States intelligence.
Knight voluntarily dismissed its claims, and CPJ dismissed
its claims against the State Department. The remaining
parties—CPJ and the four intelligence agencies—cross-moved
for summary judgment. The district court upheld the agencies’
Glomar responses and granted them summary judgment.
Knight First Amend. Inst. at Colum. Univ. v. CIA, 424 F. Supp.
3d 36, 42–46 (D.D.C. 2020).
2
The intelligence agencies also invoked Exemption 3 of FOIA,
which covers matters that are exempted from disclosure by certain
statutes. 5 U.S.C. § 552(b)(3). Because we uphold the Glomar
responses under Exemption 1, we need not address Exemption 3.
7
III
CPJ raises two arguments on appeal. First, it contends that
the State Department officially acknowledged that no
responsive records exist, thus precluding the intelligence
agencies from making a Glomar response. Second, on the
merits, it argues that Exemption 1 does not cover the existence
or nonexistence of responsive records. Our standard of review
is de novo. Wolf, 473 F.3d at 374.
A
We begin with the question of official acknowledgement.
An agency waives any right to make a Glomar response by
disclosing whether responsive records exist. ACLU, 710 F.3d
at 426. Once an agency makes such an acknowledgment,
“there is no value in a Glomar response. The secret is out.”
Leopold v. CIA, 987 F.3d 163, 167 n.5 (D.C. Cir. 2021).
To establish official acknowledgment, a plaintiff must
identify information in the public domain that (1) matches the
information requested, (2) is as specific, and (3) has “been
made public through an official and documented disclosure.”
Fitzgibbon, 911 F.2d at 765. CPJ invokes the State
Department’s assertion that “the United States” had no advance
knowledge of Khashoggi’s “disappearance” or of a threat to his
life. Without prior knowledge of an impending threat to
Khashoggi, CPJ reasons, the intelligence agencies could have
had neither a duty to warn Khashoggi under Directive 191 nor
any records related to the duty. For the sake of argument, we
will assume that the State Department’s assertion that the
United States had no prior knowledge of the attack matched an
assertion that the intelligence agencies have no responsive
records, and that it did so with the requisite degree of
specificity. We will further assume that statements made in a
press conference are sufficiently formal and considered to
8
constitute “official” acknowledgment by the agency making
the statements. Nonetheless, we agree with the intelligence
agencies that an official acknowledgment by the State
Department cannot bind them.
We do not “deem ‘official’ a disclosure made by someone
other than the agency from which the information is being
sought.” Frugone v. CIA, 169 F.3d 772, 774 (D.C. Cir. 1999).
This is because, particularly “in the arena of intelligence and
foreign relations,” a statement made by “one in a position to
know” is given unique meaning and weight. Fitzgibbon, 911
F.2d at 765 (cleaned up). While information from outside an
agency may be viewed as “possibly erroneous,” confirmation
by the agency itself “would remove any lingering doubts.”
Frugone, 169 F.3d at 774–75 (cleaned up); see also Ameziane
v. Obama, 699 F.3d 488, 492 (D.C. Cir. 2012) (absent
confirmation, foreign adversaries “would be left guessing”).
Confirmation from within an intelligence agency also could
have “an adverse effect on our relations with other countries,”
who “might perceive themselves to be harmed by disclosure of
their cooperation” with United States intelligence. Afshar v.
Dep’t of State, 702 F.2d 1125, 1131 (D.C. Cir. 1983) (cleaned
up).
For these reasons, we have framed a general rule that
“[d]isclosure by one federal agency does not waive another
agency’s right to assert a FOIA exemption.” Mobley v. CIA,
806 F.3d 568, 583 (D.C. Cir. 2015). Frugone is our leading
case on this point. There, the Office of Personnel Management
had officially acknowledged that the plaintiff formerly worked
as a covert CIA employee, yet we upheld the CIA’s Glomar
response to a FOIA request for his personnel records. 169 F.3d
at 774–75. We stressed the “untoward consequences that could
ensue” if the CIA were “required either to confirm or to deny
statements made by another agency.” Id. at 775. For example,
9
a CIA admission that it had employed the plaintiff, a Chilean
resident, “could cause greater diplomatic tension between
Chile and the United States than do the informal, and possibly
erroneous, statements already made by the OPM.” Id.Alternatively, a CIA denial that it had employed the plaintiff
“would lessen the burden facing a foreign intelligence agency
attempting to track the CIA’s covert activities abroad.” Id.Either way, the CIA’s own authoritative statement would cause
greater diplomatic or security perils than statements by another
agency on the same matter. We thus held that “only the CIA
can waive its right to assert an exemption to the FOIA.” Id.We have applied this rule in various cases and contexts. In
Moore v. CIA, 666 F.3d 1330 (D.C. Cir. 2011), we agreed with
the district court that “the FBI lacked the authority to make an
official acknowledgment on behalf of the CIA.” Id. at 1332.
Likewise, in Military Audit Project v. Casey, 656 F.2d 724(D.C. Cir. 1981), we held that disclosures by the National
Science Foundation about the Glomar Explorer did not bar the
CIA from invoking Exemption 1 to withhold documents about
the vessel. Id. at 742–45. We have also rejected attempts to
establish an agency’s official acknowledgement based on
disclosures by Congress, see Fitzgibbon, 911 F.2d at 766;
Salisbury v. United States, 690 F.2d 966, 971 (D.C. Cir. 1982),
the media, EPIC v. NSA, 678 F.3d 926, 933 n.5 (D.C. Cir.
2012), the agency’s former employees, Afshar, 702 F.2d at
1133; Phillippi v. CIA, 655 F.2d 1325, 1330–31 (D.C. Cir.
1981), and foreign governments, Mobley, 806 F.3d at 583.
We have recognized one limited exception to the general
rule: if a public disclosure is “made by an authorized
representative of the agency’s parent,” it is “official” as to the
subordinate agency. ACLU, 710 F.3d at 429 n.7. We have
applied this exception in two situations. First, a disclosure by
one component of an executive department may bind “another
10
component within” the same department. Marino v. DEA, 685
F.3d 1076, 1082 (D.C. Cir. 2012). So, if a Department of
Justice prosecutor introduces certain records as evidence in
court, other DOJ components may not claim FOIA exemptions
as to those records. See id.; Davis v. DOJ, 968 F.2d 1276,
1279–82 (D.C. Cir. 1992). Second, the President, as the “head”
of the entire Executive Branch, Trump v. Vance, 140 S. Ct.
2412, 2425 (2020); U.S. Const. Art. II § 1, cl. 1, may make
official acknowledgments binding on its agencies. ACLU, 710
F.3d at 429 n.7.
This exception does not apply here. For one thing, the
State Department is not a parent to any of the defendant
intelligence agencies: the FBI is a component of the
Department of Justice, see 28 U.S.C. § 531; the NSA is a
component of the Department of Defense, see Memorandum
from Harry S. Truman to the Secretary of State and the
Secretary of Defense (Oct. 24, 1952); and neither the ODNI nor
the CIA has a parent agency. Nor can the State Department be
considered an “authorized representative” of the President for
purposes of this exception. Though the State Department is
authorized to act for the President in the sense that it “wield[s]
executive power on his behalf,” Seila Law LLC v. CFPB, 140
S. Ct. 2183, 2191 (2020), the same can be said of all executive
agencies. If that were enough to allow one agency to make
official acknowledgments binding on another, then the
exception would entirely swallow up the rule.
CPJ urges a different approach. Although the State
Department is outside the chain-of-command of the other four
agencies, CPJ seeks to link all of them through the intelligence
community. One State Department component—its Bureau of
Intelligence and Research—is a member of the intelligence
community. 50 U.S.C. § 3003(4)(I). In turn, the intelligence
community is an “integrated” group of agencies, Exec. Order
11
13,470 § 1.7, 73 Fed. Reg. 45,325, 45,333 (July 30, 2008), that
“relies heavily on collaboration” among its members, Mission,
Intel.gov, www.intelligence.gov/mission. The FOIA request at
issue concerns a duty to warn imposed on all intelligence-
community agencies. Intelligence Community Directive 191,
§ B.1. And the State Department’s public statement purported
to speak on behalf of the entire United States. In these
circumstances, CPJ urges us to attribute the statement to the
entire intelligence community.
We decline to extend official acknowledgement so far.
For one thing, CPJ’s theory cannot be reconciled with our
precedent. In Moore, we addressed a FOIA request to the FBI
and CIA for records concerning a suspected member of the
Icelandic Communist Party. 666 F.3d at 1331. The FBI had
responded by releasing a report with “CIA-originated
information” redacted, yet the CIA still issued a Glomar
response. Id. at 1332. Both agencies were members of the
intelligence community, the subject of the FOIA request was a
matter of their shared responsibility, and the disclosure by one
agency spoke to information presumably within the other’s
possession. Yet we agreed with the district court that “the FBI
lacked the authority to make an official acknowledgment on
behalf of the CIA,” id., and we reiterated our holding in
Frugone that “only the CIA can waive its right to assert an
exemption to the FOIA,” see id. at 1333 n.4. To be sure, the
plaintiff in Moore did not present the exact theory pressed here
by CPJ. But we did hold that one intelligence agency cannot
officially acknowledge a matter for another, and “the same
issue presented in a later case in the same court should lead to
the same result.” LaShawn A. v. Barry, 87 F.3d 1389, 1393
(D.C. Cir. 1996) (cleaned up).
In any event, we reject CPJ’s argument to the extent it is
not foreclosed by precedent. Even putting Moore aside, CPJ’s
12
theory would substantially expand official acknowledgment.
As explained above, we have given effect to acknowledgments
only within the same executive Department or by the President.
But under CPJ’s theory, any Department with a component
agency in the intelligence community could bind all the
intelligence agencies with generalized statements about what
“the United States” knows or does not know. Departments
with intelligence-community components include Defense,
Energy, Homeland Security, Justice, Treasury, and State. See
50 U.S.C. § 3003(4). Intelligence-community agencies include
the CIA, NSA, ODNI, Defense Intelligence Agency, National
Geospatial-Intelligence Agency, and National Reconnaissance
Office, among many others. See id. We see little basis for a
rule permitting so many agencies to make official
acknowledgments extending across large swaths of the entire
Executive Branch.
Moreover, the rationale for not imputing statements by one
agency to another applies with greater force, not lesser, in the
intelligence context. Not surprisingly, many of our cases
rejecting cross-agency acknowledgment—including Frugone,
Moore, Fitzgibbon, Mobley, and Military Audit Project—have
involved the CIA. This case illustrates why. An official
statement about what “the United States” did not know, made
by an agency outside the intelligence community and with an
express disclaimer as to “intelligence matters,” is one thing.
An official statement about what the Central Intelligence
Agency did or did not know, made by the CIA itself, would be
quite another. Outside observers may ascribe more weight to
an authoritative statement by the CIA itself, and its
confirmation or denial may remove any lingering doubts and
create further diplomatic problems. See, e.g., Afshar, 702 F.2d
at 1130–31; Ameziane, 699 F.3d at 492.
13
For these reasons, we hold that the statements made by the
State Department spokesman do not foreclose the intelligence
agencies from asserting their Glomar responses.
B
The merits of the Glomar responses here turn on whether
Exemption 1 covers the question whether the four intelligence
agencies have documents responsive to CPJ’s FOIA request.
Exemption 1 permits agencies to withhold properly classified
information, 5 U.S.C. § 552(b)(1), which includes information
pertaining to intelligence activities, sources, or methods if
disclosure “could reasonably be expected” to harm national
security, Exec. Order No. 13,526 § 1.4, 75 Fed. Reg. at 709.
Agencies may carry their burden of proof through
declarations explaining why a FOIA exemption applies. See
Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1178 (D.C. Cir.
1996). Summary judgment is warranted if the declarations
justify the nondisclosure “with reasonably specific detail” and
are “not controverted by either contrary evidence in the record
nor by evidence of agency bad faith.” Miller v. Casey, 730 F.2d
773, 776 (D.C. Cir. 1984) (cleaned up). Moreover, in the
national-security context, “courts must accord substantial
weight to an agency’s affidavit concerning the details of the
classified status of the disputed record.” Wolf, 473 F.3d at 374(cleaned up); see Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d
918, 927 (D.C. Cir. 2003) (CNSS) (“the judiciary owes some
measure of deference to the executive in [FOIA] cases
implicating national security, a uniquely executive purview”).
In this context, an agency declaration “will always be
speculative to some extent, in the sense that it describes a
potential future harm,” so the agency’s “justification for
invoking a FOIA exemption is sufficient if it appears logical or
plausible.” Wolf, 473 F.3d at 374–75 (cleaned up).
14
Here, the intelligence agencies have logically and
plausibly explained why the existence or nonexistence of
responsive records is classified information. The four
declarations express the same concerns. The existence of
responsive records would show that the United States had an
intelligence interest in, and the ability to gather information
about, a particular person (Khashoggi) at a particular time
(shortly before his murder), which could tend to reveal against
whom and how surveillance might have been conducted.
ODNI Decl. at 9–10 (J.A. 69–70); NSA Decl. at 9 (J.A. 92);
CIA Decl. at 18–19 (J.A. 124–25); FBI Decl. at 9–10 (J.A.
158–59). For example, “if a particular individual who is the
target of IC surveillance mentioned Mr. Khashoggi and very
specific information about him (e.g. an intent to harm Mr.
Khashoggi) when that individual was using a particular method
of communication, that individual would learn that they were
being surveilled during a specific period of time and what
method the IC was using to surveil them.” ONDI Decl. at 10
(J.A. 70). On the other hand, the non-existence of responsive
records would show a “blind spot” in United States
intelligence, CIA Decl. at 19 (J.A. 125)—i.e., “a lack or dearth
of underlying intelligence information” reflecting “gaps in IC
capabilities, the success of evasive tactics taken by adversaries,
and/or IC intelligence collection priorities,” NSA Decl. at 9
(J.A. 92). Either response “would be of great interest to
adversaries,” who “continually gather details regarding the
[IC’s] specific intelligence capabilities, authorities, and
interests” and “attempt to use this information to their
advantage.” CIA Decl. at 19 (J.A. 125). For these reasons,
revealing whether responsive documents exist would
“reasonably be expected to result in at least serious damage to
national security.” ODNI Decl. at 9 (J.A. 69).
CPJ disputes the “logical or plausible” standard. It cites
cases stating that a Glomar response is appropriate only where
15
confirming or denying the existence of responsive records
“would”—not could—“itself cause harm cognizable under an
FOIA exception,” ACLU, 710 F.3d at 426 (cleaned up), as well
as one out-of-circuit case stating that Glomar responses require
“a particularly persuasive affidavit,” Florez v. CIA, 829 F.3d
178, 182 (2d Cir. 2016) (cleaned up). CPJ argues the
intelligence agencies therefore must show that confirming the
existence or nonexistence of responsive records “would
necessarily harm national security in every reasonably
plausible circumstance.” Reply Br. at 21.
CPJ’s legal analysis is flawed in several respects. To
begin, it reads too much into our passing use of “would.” None
of the cited cases mentions or turns on the difference between
“would” and “could.” But those same cases do make clear that,
in the Glomar context, “courts apply the general exemption
review standards established in non-Glomar cases.” ACLU,
710 F.3d at 426 (quoting Wolf, 473 F.3d at 374). In non-
Glomar cases, the applicability of Exemption 1 turns on
whether disclosure of the record at issue “could reasonably be
expected” to harm national security. Exec. Order No. 13,526
§ 1.4, 75 Fed. Reg. at 709 (emphasis added). Moreover, in the
national-security context, our precedents assess only whether
the government’s prediction of harm appears logical or
plausible, taking into account the deference due to the
Executive Branch in this area. See, e.g., ACLU, 710 F.3d at
427; Wolf, 473 F.3d at 374–75; CNSS, 331 F.3d at 926–28.
CPJ further contends that, if the intelligence agencies
confirmed the existence of responsive records, foreign
adversaries would have no way of knowing exactly what the
records are or how they were acquired, and thus no reliable way
to make conclusions about sources and methods. We are
unpersuaded. For one thing, as the declarations lay out, the
mere fact that an intelligence agency was monitoring threats to
16
specific individuals by specific governments at specific times
would be useful information for foreign adversaries, even if the
information revealed nothing further about specific sources and
methods. Moreover, connections to specific intelligence
agencies would themselves be revealing. For example, the
NSA’s mission is to collect signals intelligence, NSA Decl. at
3 (J.A. 86); if it had responsive documents, that would tend to
reveal something about the collection of signals intelligence,
despite CPJ’s speculation that agency files might consist of
nothing more than anonymous tips or press accounts. In some
cases, confirmation might also tend to reveal even more about
sources and methods—if, for example, Khashoggi’s attackers
had used very specific channels of communication to carry out
their plot. See ODNI Decl. at 10 (J.A. 70). And even if targets
could not deduce with certainty that they had been surveilled,
a mere suspicion could induce them to take countermeasures.
See FBI Decl. at 9 (J.A. 158) (to be effective, intelligence
activities, methods, and sources must remain “unknown and
unsuspected” (emphasis added)). Furthermore, even if
confirming the existence of responsive records might not
always be harmful in cases like this one, CPJ does not dispute
that confirming the nonexistence of responsive records would
be harmful. Yet the agencies cannot pick and choose: if they
confirm the existence of responsive records in cases where they
exist, and issue Glomar responses in similar cases where no
responsive records exist, the Glomar response would
effectively signal confirmation that no responsive records
exist—and thus lose its value as this became apparent over
time. See ODNI Decl. at 10 (J.A. 70); NSA Decl. at 10–11
(J.A. 93–94). For all these reasons, we see nothing illogical or
implausible in the concerns raised by the intelligence agencies.
The agencies’ concerns here also track ones that we
credited in Wolf. There, the CIA issued a Glomar response to
a FOIA request for all records related to a deceased Colombian
17
politician. See 473 F.3d at 372. We credited concerns that
“confirming or denying an Agency interest in a foreign national
reasonably could damage sources and methods by revealing
CIA priorities, thereby providing foreign intelligence sources
with a starting point for applying countermeasures against the
CIA and thus wasting Agency resources.” Id. at 377. And we
did so without considering hypothetical scenarios like, for
example, the possibility that the existence of responsive
records might reflect nothing more than an anonymous tip or a
press clipping.
CPJ argues that the declarations here were not specific
enough to support the Glomar responses. We disagree. In the
national-security context, agency declarations need only
“explain[] the justifications for nondisclosure with reasonably
specific detail,” Freedom Watch, Inc. v. NSA, 783 F.3d 1340,
1344–45 (D.C. Cir. 2015) (cleaned up), which means enough
detail to permit “meaningful” judicial review, Campbell v.
DOJ, 164 F.3d 20, 30 (D.C. Cir. 1998). As our discussion
above makes clear, the agencies readily satisfied that modest
requirement. Moreover, we do not require a degree of
specificity that would itself possibly “compromise intelligence
methods and sources.” Military Audit Project, 656 F.2d at 751;
see Halperin v. CIA, 629 F.2d 144, 149 (D.C. Cir. 1980)
(intelligence agency need not show an “identifiable concrete
harm”). By demanding “specific details” about how particular
targets could infer that they had been surveilled, Appellant’s
Br. at 44, CPJ would have us disregard that settled principle.
CPJ further argues that the intelligence agencies have
taken inconsistent positions in different cases. It notes that, in
another case, the CIA and ODNI acknowledged that they could
not make a Glomar response to a FOIA request for records
relating to Khashoggi’s death. Open Soc’y Just. Initiative v.
CIA, 505 F. Supp. 3d 234, 241 (S.D.N.Y. 2020). But the
18
request in Open Society included records about the
acknowledged, after-the-fact investigation into Khashoggi’s
death conducted by the CIA. The request was thus far different
from one seeking the existence of duty-to-warn documents that
would indicate either prior knowledge of the threat to
Khashoggi or the absence of such knowledge. As CPJ itself
acknowledges, such prior knowledge “would only come via
intelligence sources.” Reply Br. at 9. And unlike the later
investigation and congressional briefing, no intelligence
agency has confirmed or denied any prior knowledge.
Finally, CPJ contends that the State Department’s press
statement that “the United States” had no prior knowledge of
Khashoggi’s “disappearance” undercuts the agencies’ Glomar
response even if it does not constitute an official
acknowledgment. But the agencies maintained their prediction
of future harm even after taking that press statement into
account. ODNI Decl. at 11 (J.A. 71); NSA Decl. at 11 (J.A.
94); CIA Decl. at 20–21 (J.A. 126–27); FBI Decl. at 10 (J.A.
159). This position was hardly illogical or implausible. For as
explained above, a press statement from an agency outside the
intelligence community, which expressly declined to
“comment on intelligence matters,” is far different from
confirmation (or denial) that a specific intelligence agency had
(or did not have) credible and specific information of an
impending threat to Khashoggi.
IV
The district court correctly concluded that the intelligence
agencies’ Glomar responses were valid under Exemption 1.
Affirmed.