Judicial Watch, Inc. v. United States Department of Defense , 715 F.3d 937 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 10, 2013 Decided May 21, 2013
No. 12-5137
JUDICIAL WATCH, INC.,
APPELLANT
v.
UNITED STATES DEPARTMENT OF DEFENSE AND CENTRAL
INTELLIGENCE AGENCY,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-00890)
Michael Bekesha argued the cause and filed the briefs for
appellant. Paul J. Orfanedes and James F. Peterson entered
appearances.
Robert M. Loeb, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Stuart Delery, Principal Deputy Assistant Attorney General,
Ronald C. Machen Jr., U.S. Attorney, and Matthew Collette,
Attorney.
Before: GARLAND, Chief Judge, ROGERS, Circuit Judge,
and EDWARDS, Senior Circuit Judge.
2
Opinion for the Court filed PER CURIAM.
PER CURIAM: Judicial Watch filed a Freedom of
Information Act request seeking disclosure by the Central
Intelligence Agency of 52 post-mortem images of Osama bin
Laden. The agency refused on the ground that the images were
classified Top Secret. Judicial Watch sued, and the district court
granted summary judgment for the agency. We affirm because
the images were properly classified and hence are exempt from
disclosure under the Act.
I
On May 1, 2011, President Obama announced that
American personnel had killed al Qaeda leader Osama bin
Laden in Abbottabad, Pakistan and buried his body at sea.
Shortly thereafter, Judicial Watch filed Freedom of Information
Act (FOIA) requests with the Department of Defense and the
Central Intelligence Agency (CIA) seeking any photographs or
videos depicting bin Laden “during and/or after the U.S. military
operation in Pakistan.” The Defense Department responded that
it had no such images. The CIA acknowledged that it had 52
responsive records, but said that it intended to withhold them
because they were classified Top Secret.1 Judicial Watch sued,
and the parties filed cross-motions for summary judgment.
1
After oral argument on this appeal, the CIA acknowledged that
it had located seven additional responsive records, which it withheld
on the same basis as the original 52 images. See Rule 28(j) Letter
from CIA Counsel (filed Feb. 15, 2013).
3
The Government supported its motion with three
declarations that are relevant on appeal.2 The first, a lengthy
declaration by John Bennett, Director of the CIA’s National
Clandestine Service, stated that all 52 responsive records
contained “post-mortem images of [bin Laden’s] body.”
Bennett Decl. ¶ 11. Many, he said, were “quite graphic” and
“gruesome” pictures displaying the bullet wound that killed bin
Laden; some showed bin Laden’s face in a way intended to
enable facial recognition analysis; and some documented the
transportation and burial of bin Laden’s corpse. Id. Bennett
attested that he had personally reviewed each image and
concluded that all of them were properly classified Top Secret
because, if disclosed, they could be expected to lead to
retaliatory attacks against Americans and aid the production of
anti-American propaganda. Id. ¶¶ 4, 12, 23. Bennett analogized
the bin Laden images to post-mortem photographs of al Qaeda
leader Abu Musab al-Zarqawi, which had been portrayed in
Pakistan as an “ad for jihad,” id. ¶ 26, and to images of abuse at
Abu Ghraib prison, which had been used “very effective[ly]” by
al Qaeda to recruit supporters and raise funds, id. ¶ 24. He said
that al Qaeda had already produced propaganda relating to bin
Laden’s death, and that its new leader had questioned whether
bin Laden had in fact received a proper burial at sea. Id. ¶ 25.
Bennett also noted that a subset of the records, including those
used to conduct facial recognition analysis, could enable foreign
intelligence services to infer certain CIA intelligence techniques.
Id. ¶ 29.
Lieutenant General Robert Neller, the Director of
Operations, J-3, on the Joint Staff at the Pentagon, affirmed that
2
A fourth declaration, filed by William Kammer, Chief of the
Department of Defense’s Freedom of Information Division, attested
that the Pentagon possessed no responsive records. Judicial Watch no
longer contests this point.
4
he, too, had personally reviewed the images. See Neller Decl.
¶ 2. Like Bennett, Neller believed that their release would “pose
a clear and grave risk of inciting violence and riots against U.S.
and Coalition forces,” and “expose innocent Afghan and
American civilians to harm.” Id. ¶ 6. Neller cited the fatal riots
that had followed both the publication of a Danish cartoon of the
Prophet Muhammad and an erroneous report that American
soldiers had desecrated the Koran. Id. ¶¶ 7-8. Neller believed
that a similar violent reaction could be expected to follow the
release of the bin Laden images. Id. ¶ 9.
Admiral William McRaven, Commander of the United
States Special Operations Command, submitted a third, partially
classified declaration.3 In the non-classified portions of the
declaration, McRaven attested, again on the basis of first-hand
review, that disclosure of some of the images would enable
identification of the special operations unit that participated in
the Abbottabad operation, thereby exposing its members and
their families to great risk of harm. McRaven Decl. ¶ 5. He
explained that other images would reveal classified methods and
tactics used in U.S. special operations. Id. ¶ 6. As a result, he
believed release “could reasonably be expected to cause harm to
the national security.” Id. ¶ 8.
In its cross-motion for summary judgment, Judicial Watch
argued that the CIA’s declarations failed to demonstrate either
substantive or procedural compliance with the criteria for
classification. With respect to the latter, Judicial Watch argued
that the declarations failed to identify the “original classification
authority” who had classified the records, or to attest that the
records had been properly marked. The CIA responded by filing
3
The CIA filed an unredacted version of the McRaven declaration
ex parte. We do not rely on the classified portions of the declaration
in this opinion.
5
a fourth declaration, written by Elizabeth Culver, the
Information Review Officer for the CIA’s National Clandestine
Service. Culver explained that the images had initially been
“derivatively classified” by a CIA official in accordance with
the criteria set out in a classification guide written by the CIA’s
Director of Information Management. Culver Decl. ¶ 8. At the
time Director Bennett had filed his declaration, the records each
contained the marking “Top Secret.” Id. ¶ 7. Since then, “out
of an abundance of caution,” other markings had been added to
the records, including the identity of the derivative classifier,
citations to the classification guide and the reasons for
classification, and the applicable declassification instructions.
Id. Culver said she had confirmed, after personally reviewing
the records, that each now contained all the required
classification markings. Id.
On the basis of these declarations, the district court
concluded that the CIA had sustained its burden of showing that
the images of bin Laden satisfied the substantive and procedural
criteria for classification. See Judicial Watch, Inc. v. U.S. Dep’t
of Def., 857 F. Supp. 2d 44, 52 (D.D.C. 2012). The CIA’s
declarations, the court said, gave a “plausible” and “logical”
account of the harm to national security that might result from
the release of these images. Id. at 63. While the record left
uncertain whether the images had been classified according to
proper procedures at the time Judicial Watch made its FOIA
request, the court said the declarations submitted by Bennett and
Culver demonstrated that the agency had since remedied
whatever procedural defects might have existed. Id. at 57-58.
Accordingly, the court held that the CIA had properly withheld
6
these records under FOIA Exemption 1.4 Id. at 63-64. Judicial
Watch appealed.
II
FOIA requires agencies to disclose records on request
unless one of nine exemptions applies. See Milner v. Dep’t of
the Navy, 131 S. Ct. 1259, 1262 (2011). Exemption 1, which the
CIA invokes in this case, permits agencies to withhold records
that are “(A) specifically authorized under criteria established by
an Executive order to be kept secret in the interest of national
defense or foreign policy and (B) are in fact properly classified
pursuant to such Executive order.” 5 U.S.C. § 552(b)(1).
Agencies may establish the applicability of Exemption 1 by
affidavit (or declaration). See ACLU v. U.S. Dep’t of Def., 628
F.3d 612, 619 (D.C. Cir. 2011). We accord such an affidavit
“substantial weight”: so long as it “describes the justifications
for withholding the information with specific detail,
demonstrates that the information withheld logically falls within
the claimed exemption, and is not contradicted by contrary
evidence in the record or by evidence of the agency’s bad faith,
. . . summary judgment is warranted on the basis of the affidavit
alone.” Id. (internal quotation marks omitted); see Larson v.
Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009); Wolf v. CIA,
473 F.3d 370, 374-75 (D.C. Cir. 2007); Miller v. Casey, 730
F.2d 773, 776 (D.C. Cir. 1984). “Ultimately, an agency's
justification for invoking a FOIA exemption is sufficient if it
appears ‘logical’ or ‘plausible.’” ACLU, 628 F.3d at 619
(quoting Larson, 565 F.3d at 862 (quoting Wolf, 473 F.3d at
374–75)).
4
The district court did not address the agency’s alternative
argument that some of the images could be withheld under FOIA
Exemption 3. See Judicial Watch, 857 F. Supp. 2d at 55; 5 U.S.C.
§ 552(b)(3). We also do not reach that question.
7
Executive Order No. 13,526, 75 Fed. Reg. 707 (Dec. 29,
2009), the operative classification order under Exemption 1, sets
forth both substantive and procedural criteria for classification.
See, e.g., Lesar v. U.S. Dep’t of Justice, 636 F.2d 472, 481 (D.C.
Cir. 1980) (explaining that the Executive Order’s substantive
and procedural criteria must be satisfied for an agency to
properly invoke Exemption 1); H.R. REP. NO. 93-1380, at 228-
29 (1974) (same). The Order’s substantive criteria, as relevant
here, are twofold. First, classified information must pertain to
at least one of eight subject-matter classification categories. See
Exec. Order No. 13,526, §§ 1.1(a)(3), 1.4. Second, disclosure
of that information must reasonably be expected to cause some
degree of harm to national security -- in the case of Top Secret
information, “exceptionally grave” harm -- that is identifiable or
describable. See id. §§ 1.1(a)(4), 1.2(a)(1), 1.4. The Order also
establishes two pertinent procedural requirements. Information
may be classified only by an individual with original or
derivative classification authority. See id. §§ 1.1(a)(1), 2.1.
And classified documents must be marked with several pieces
of information, including the identity of the classifier and
instructions for declassification. See id. §§ 1.6, 2.1(b).
Judicial Watch raises both substantive and procedural
challenges to the CIA’s classification decision. We consider
each in turn.
A
Turning first to the substantive question, it is indisputable
that the images at issue fall within the Executive Order’s
subject-matter limits. At least some of the images “pertain[] to
. . . intelligence activities (including covert action), [or]
intelligence sources or methods,” Exec. Order No. 13,526,
§ 1.4(c), and all 52 images plainly “pertain[] to . . . foreign
activities of the United States,” id. § 1.4(d). As the district court
8
observed, “pertains” is “not a very demanding verb.” Judicial
Watch, 857 F. Supp. 2d at 60. And every image at issue
documents events involving American military personnel
thousands of miles outside of American territory.
There is also no doubt that the declarations of Director
Bennett and Admiral McRaven establish the requisite level of
harm -- the second substantive limit on classification -- for a
great many of the images. The photographs used to conduct
facial recognition analysis could reasonably be expected to
reveal classified intelligence methods. See Bennett Decl. ¶ 29;
Judicial Watch Br. 12-13 (conceding the point). The images
displaying members of the special operations unit that conducted
the raid could reasonably be expected to endanger those
personnel. See McRaven Decl. ¶¶ 3, 5. These are valid grounds
for classification under our precedents. See, e.g., Miller, 730
F.2d at 775-77; Halperin v. CIA, 629 F.2d 144, 148-50 (D.C.
Cir. 1980). Furthermore, Judicial Watch does not appear to
seriously question the CIA’s contention that the most “graphic”
and “gruesome” of the remaining images -- those displaying the
bullet wound to bin Laden’s head -- merit classification because
of the danger that their release would lead to violence against
American interests. See Judicial Watch Reply Br. 2, 8-9. In any
event, the rationale for withholding less graphic and gruesome
images of bin Laden (discussed below) would apply a fortiori to
these images.
Judicial Watch correctly focuses instead on the most
seemingly innocuous of the images: those that depict “the
preparation of [bin Laden’s] body for burial” and “the burial
itself,” Bennett Decl. ¶ 11. See Judicial Watch Reply Br. 1.
Judicial Watch contends it is unlikely that the disclosure of those
images would cause any damage, let alone exceptionally grave
damage, to U.S. national security. It argues that al Qaeda and its
affiliates “do not need a specific reason to incite violence,” and
9
that any claim that individuals would engage in violence upon
seeing such images is mere speculation. Judicial Watch Br. 23-
24.
As the district court rightly concluded, however, the CIA’s
declarations give reason to believe that releasing images of
American military personnel burying the founder and leader of
al Qaeda could cause exceptionally grave harm. See Judicial
Watch, 857 F. Supp. 2d at 62. General Neller’s declaration
describes prior instances in which reasonably analogous
disclosures have led to widespread and fatal violence in the
Middle East, some of it directed at U.S. interests. The
publication of a Danish cartoon of the Prophet Muhammad led
to hundreds of injuries and deaths, as well as to an attack on a
U.S. airbase in Afghanistan. See Neller Decl. ¶ 8. Likewise, an
erroneous article in Newsweek, alleging that American soldiers
had desecrated the Koran, led to eleven deaths and many injuries
during protests against the United States in Afghanistan and
Egypt. Id. ¶ 7. Director Bennett’s declaration gives plausible
reason to believe that a comparable reaction would follow the
release of post-mortem images of bin Laden, “including images
of his burial.” Bennett Decl. ¶ 27. Bennett explains that al
Qaeda has already devoted attention to the “so-called
‘martyrdom’” of bin Laden and has specifically “attacked the
United States’ assertions that [he] received an appropriate
Islamic burial at sea.” Id. ¶ 25. Bennett also notes that releasing
the images of the burial at sea “could be interpreted as a
deliberate attempt by the United States to humiliate” bin Laden.
Id. ¶ 27. Together, these declarations support their declarants’
determinations that releasing any of the images, including the
burial images, could reasonably be expected to trigger violence
and attacks “against United States interests, personnel, and
10
citizens worldwide.” Neller Decl. ¶ 9; see id. ¶ 6; Bennett Decl.
¶¶ 25, 27.5
Judicial Watch protests that the government’s declarations
show nothing more than that release of the images may cause
“some individuals who do not like the United States” to commit
violence overseas, and that the courts should not succumb to this
kind of blackmail. Judicial Watch Br. 21-22. First, it is
important to remember that this case does not involve a First
Amendment challenge to an effort by the government to
suppress images in the hands of private parties, a challenge that
would come out quite differently. Cf. Forsyth Cnty. v.
Nationalist Movement, 505 U.S. 123, 134-35 (1992) (“Speech
cannot be . . . banned, simply because it might offend a hostile
mob.”). Rather, it is a statutory challenge, in which the sole
question is whether the CIA has properly invoked FOIA
Exemption 1 to authorize withholding images in its own
possession. Cf. Afshar v. Dep’t of State, 702 F.2d 1125, 1131
(D.C. Cir. 1983) (permitting the withholding of documents
under FOIA where release “may force a [foreign] government
to retaliate”). Second, this is not a case in which the declarants
are making predictions about the consequences of releasing just
any images. Rather, they are predicting the consequences of
releasing an extraordinary set of images, ones that depict
American military personnel burying the founder and leader of
5
For the same reasons, these declarations support the agency’s
determination that releasing the images of bin Laden would cause
harm notwithstanding its prior “written descriptions of the event,”
Judicial Watch Reply Br. 10. See ACLU, 628 F.3d at 625 (“[W]e have
repeatedly rejected the argument that the government’s decision to
disclose some information prevents the government from withholding
other information about the same subject.”); Wolf, 473 F.3d at 378
(permitting withholding notwithstanding “the fact that information
exists in some form in the public domain”).
11
al Qaeda. Third, the declarants support those predictions not
with generalized claims, but with specific, reasonably analogous
examples. Finally, it is undisputed that the government is
withholding the images not to shield wrongdoing or avoid
embarrassment, see Exec. Order No. 13,526, § 1.7(a), but rather
to prevent the killing of Americans and violence against
American interests. Indeed, because the CIA’s predictions of
the violence that could accompany disclosure of the images
provide an adequate basis for classification, we do not rely upon
or reach the agency’s alternative argument that the images may
be classified on the ground that their disclosure would facilitate
anti-American propaganda. See ACLU, 628 F.3d at 624
(declining to decide whether classification on that ground is
proper).
As we have said before, “any affidavit or other agency
statement of threatened harm to national security will always be
speculative to some extent.” Id. at 619 (citation omitted). Our
role is to ensure that those predictions are “‘logical’ or
‘plausible.’” Id. (quoting Larson, 565 F.3d at 862). We agree
with the district court that the CIA’s declarations in this case
cross that threshold. See Judicial Watch, 857 F. Supp. 2d at 62.
B
An agency may withhold records under Exemption 1 only
if they are “classified in accordance with the procedural criteria
of the governing Executive Order as well as its substantive
terms.” See Lesar, 636 F.2d at 483. On appeal, Judicial Watch
argues that the CIA failed to follow proper procedures in two
respects.
First, Judicial Watch argues that the images at issue were
not classified until after the CIA received its FOIA request,
thereby triggering special procedural requirements that Judicial
12
Watch alleges were not followed. See Exec. Order No. 13,526,
§ 1.7(d) (providing that previously undisclosed information may
be classified after an agency has received a FOIA request “only
if such classification . . . is accomplished on a document-by-
document basis with the personal participation or under the
direction of the agency head, deputy agency head, or the senior
agency official designated under [a section of] this order”). But
Judicial Watch’s factual premise is mistaken, as the CIA has
averred that the images were in fact classified before it received
the appellant’s FOIA request, see Culver Decl. ¶ 7 n.1; CIA Br.
52; Oral Arg. Recording at 28:50-29:20, and there is no
evidence to the contrary.
Second, Judicial Watch argues that the images do not
contain all of the proper classification markings because they
fail to name the person with “original classification authority”
who first classified them. See Exec. Order No. 13,526,
§ 1.6(a)(2). The Culver declaration, which the agency clarified
at oral argument, explains the CIA’s position: the records were
not initially classified by someone with original classification
authority, but rather by an individual who “derivatively”
classified the records by “apply[ing] classification markings
. . . as directed by a classification guide.” Culver Decl. ¶ 8;
Exec. Order No. 13,526, § 2.1(a); see Oral Arg. Recording at
21:30-23:10. Accordingly, the CIA says, the only original
classification authority identified on the records was the
classification guide itself. See Culver Decl. ¶¶ 7-8; Oral Arg.
Recording at 23:05-08.
Although this explanation may account for why the CIA did
not mark the documents with the name of a person possessing
original classification authority, it raises a separate problem.
Even if the CIA is right that documents can be derivatively
classified and marked in this way -- and we express no view on
the matter -- we cannot determine whether derivative
13
classification of the images was proper without some description
of the classification guide on which the derivative classifier
purportedly relied. Yet in this case, the CIA has provided no
description of the guide’s provisions, not even a general
description, that would permit us to determine whether the
derivative classification was properly based on the guide. Cf.
Wilson v. McConnell, 501 F. Supp. 2d 545, 553 (S.D.N.Y. 2007)
(concluding that the derivative classification of a document was
proper by examining specific provisions of a CIA classification
guide that the agency had provided to the court). Hence, we
cannot determine whether the derivative classifier misapplied
the guide, or whether the guide’s instructions were so vague as
to operate as no constraint at all.
In some cases, an agency’s silence on such a matter would
merit a remand requiring an agency official to review the
documents and file an additional affidavit, or, in rare cases,
requiring the district court to review the documents in camera.
Cf. Allen v. CIA, 636 F.2d 1287, 1292 (D.C. Cir. 1980); Lesar,
636 F.2d at 485; Halperin v. Dep’t of State, 565 F.2d 699, 707
(D.C. Cir. 1977). In this case, however, we already have a
declaration from Director Bennett, who has original
classification authority, see Bennett Decl. ¶ 18, averring that he
reviewed the images and determined that they were correctly
classified Top Secret, id. ¶ 27. Accordingly, because the
“affidavits clearly indicate that the documents fit within the
substantive standards of [the] Executive Order,” and because the
Bennett declaration removes any doubt that a person with
original classification authority has approved the classification
decision, any failure relating to application of the classification
guide would not “reflect adversely on the agency’s overall
classification decision.” Lesar, 636 F.2d at 484, 485.
Therefore, no further steps are required for us to determine that
withholding the images was warranted. See id.
14
III
For the foregoing reasons, the judgment of the district court
is
Affirmed.