UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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AMERICAN CIVIL LIBERTIES,

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UNION, et al.,

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Plaintiffs,

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v.

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DEPARTMENT OF JUSTICE, et al., )

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Defendants.

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Civil Action No. 10-0436 (RMC)

MEMORANDUM OPINION Alarmed at the reported use of unmanned drones to kill selected human targets in Pakistan, Afghanistan, and elsewhere, the American Civil Liberties Union and the American Civil Liberties Union Foundation submitted identical broad requests under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to the Central Intelligence Agency, the Department of Defense, the Department of State, the Department of Justice, and DOJ’s Office of Legal Counsel for records documenting the alleged practice. When the CIA refused to admit or deny that it had any relevant records, and therefore denied the FOIA request, Plaintiffs sued and cited public comments by Leon E. Panetta, former CIA Director, to support their argument that CIA use of drones has been officially acknowledged and that a program of drone strikes is not an intelligence activity, source or method protectable from disclosure under FOIA Exemptions 1 and 3. Plaintiffs read the FOIA exemption for intelligence gathering too narrowly and Mr. Panetta’s comments too broadly. Whether or not the CIA has any relevant records, that fact is exempt from disclosure under FOIA. Summary judgment will be granted to the CIA.

I. FACTS Plaintiffs ACLU and ACLU Foundation followed the customary path before bringing this dispute to court. The background facts are uncontested and are taken from the declaration of Mary Ellen Cole, Information Review Officer for the CIA. See CIA’s Mot. for Summ. J. [Dkt. # 15] (“CIA Mem.”), Ex. 1 (Declaration of Mary Ellen Cole (“Cole Decl.”)). In a letter to the CIA’s Information and Privacy Coordinator on January 13, 2010 (incorrectly dated as January 13, 2009), Plaintiffs submitted a FOIA request seeking “records pertaining to the use of unmanned aerial vehicles (‘UAVs’)—commonly referred to as ‘drones’ and including the MQ-1 Predator and MQ-9 Reaper—by the CIA and the Armed Forces for the purpose of killing targeted individuals.” Cole Decl., Ex. A (Jan. 13, 2010 FOIA Request) (“FOIA Request”) at 2. In particular, Plaintiffs were seeking “information about the legal basis in domestic, foreign, and international law for the use of drones to conduct targeted killings.” Id. By letter dated March 9, 2010, the CIA issued a final response to Plaintiffs’ request, stating that “the CIA can neither confirm nor deny the existence or nonexistence of records responsive to your request.” Id., Ex. B (Mar. 9, 2010 CIA Response). The CIA explained that the “fact of the existence or nonexistence of requested records is currently and properly classified and is intelligence sources and methods information that is protected from disclosure by section 6 of the CIA Act of 1949, as amended.” Id. The CIA cited FOIA Exemptions 1 and 3 as the basis for its response. Id. Plaintiffs appealed this denial on April 22, 2010. Before the appeal was decided, Plaintiffs filed an amended complaint on June 1, 2010, adding the CIA as defendant.1 The CIA
1 Plaintiffs’ January 13, 2010 FOIA request was simultaneously submitted to the U.S. Department of Defense, Department of Justice, DOJ’s Office of Legal Counsel, Department of State, and CIA. Plaintiffs’ original complaint brought suit against the Departments of Defense, Justice, and
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thereafter closed the administrative appeal file.
Plaintiffs seek information on “drone strikes;” a term used by Plaintiffs (and the Court
for the sake of consistency) to mean the “targeted killing” of a human with a drone. Paraphrasing
the ten categories of information listed in the FOIA request, Plaintiffs seek records pertaining to:
1. The “legal basis in domestic, foreign and international law upon which unmanned aerial vehicles” can be used to execute targeted killings, including who may be targeted with this weapon system, where and why;
2. . . . .
3. The “selection of human targets for drone strikes and any limits on who may be targeted by a drone strike;”
4. “[C]ivilian casualties in drone strikes,” including measures to limit civilian casualties;
5. The “assessment or evaluation of individual drone strikes after the fact,” including how the number and identities of victims are determined;
6. “[G]eographical or territorial limits on the use of UAVs to kill targeted individuals;”
7. The “number of drone strikes that have been executed for the purpose of killing human targets, the location of each such strike, and the agency of the government or branch of the military that undertook each such strike;”
8. The “number, identity, status, and affiliation of individuals killed in drone strikes;”
9. “[W]ho may pilot UAVs, who may cause weapons to be fired from UAVs, or who may otherwise be involved in the operation of UAVs for the purpose of executing targeted killings,” including records pertaining to the involvement of CIA personnel, government contractors, or other non-military personnel, and;
10. The “training, supervision, oversight, or discipline of UAV operators and others involved in the decision to execute a targeted killing using a drone.”
Cole Decl., Ex. A (Jan. 13, 2010 FOIA Request) at 5–8 (emphasis omitted). In briefing, Plaintiffs
State; the amended complaint added the CIA as co-defendant. See Am. Compl. [Dkt. # 11]. In this Opinion, the Court addresses only Plaintiffs’ FOIA request for CIA records.
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abandoned their request of the CIA for information on category 2 and subcategory 1(B) as listed in the FOIA request, both of which concern records on the understanding, cooperation or involvement of foreign governments in drone strikes. See Pls.’ Opp’n & Cross-Mot. for Summ. J. [Dkts. ## 20, 21] (“Pls.’ Opp’n”) at 3.
II. LEGAL STANDARD Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgement as a matter of law.” FED. R. CIV. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted against a party who “after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255. A nonmoving party; however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252. Federal district courts have original jurisdiction over civil actions arising under federal statutes. See 28 U.S.C. § 1331. As Plaintiffs bring suit under FOIA, this Court has original jurisdiction. FOIA cases are typically and appropriately decided on motions for summary judgment. See, e.g., Rushford v. Civiletti, 485 F. Supp. 477, 481 n.13 (D.D.C. 1980); Reliant Energy Power Generation, Inc. v. FERC, 520 F. Supp. 2d 194, 200 (D.D.C. 2007). Jurisdiction in a FOIA case is dependent upon a showing that an agency has
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(1) improperly (2) withheld (3) agency records. U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989); United We Stand America, Inc. v. IRS, 359 F.3d 595, 598 (D.C. Cir. 2004). The agency bears the burden to demonstrate – not the requester to disprove – that it has not improperly withheld agency records. Tax Analysts, 492 U.S. at 142 n.3. This is consistent with the purpose of FOIA which was “enacted to facilitate public access to Government documents,” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991), in order “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976). “Consistently with this purpose, as well as the plain language of the Act, the strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents.” Ray, 502 U.S. at 173.
An agency may meet its burden solely on the basis of information provided in agency declarations that describe “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). “[C]onclusory affidavits that merely recite statutory standards, or are overly vague or sweeping will not, standing alone, carry the government’s burden.” Larson v. Dep’t of State, 565 F.3d 857, 864 (D.C. Cir. 2009). “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears logical or plausible.” Id. at 862 (internal quotation marks omitted). Further, the “court owes substantial weight to detailed agency explanations in the national security context.” King v. U.S. Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). A “defendant in a FOIA action is entitled to summary judgment if the defendant proves that it has fully discharged its obligations under the
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Act.” Reliant Energy, 520 F. Supp. 2d at 200. The exemptions under FOIA “cover not only the content of protected government
records but also the fact of their existence or nonexistence, if that fact itself properly falls within the exemption.” Larson, 565 F.3d at 861. Thus, an agency may refuse to confirm or deny the existence of responsive records – an answer commonly known as a Glomar response – when “to answer the FOIA inquiry would cause harm cognizable under an FOIA exception.” Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982); see also Larson, 565 F.3d at 861. A Glomar response takes its name from the Hughes Glomar Explorer, an oceanic research vessel at issue in the case that first authorized the government to refuse to confirm or deny the existence of records responsive to a FOIA request. See generally Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976).
III. ANALYSIS Neither side disputes the customary principles that govern FOIA requests to the CIA. In this matter, the CIA has invoked FOIA Exemptions 1 and 3 to justify its Glomar response. The CIA “invoked the Glomar response in this case because confirming or denying the existence or nonexistence of CIA records responsive to Plaintiffs’ FOIA request would reveal classified information that is protected from disclosure by statute. . . . [S]uch a response would implicate information concerning clandestine intelligence activities, intelligence sources and methods, and U.S. foreign relations and foreign activities.” Cole Decl. ¶ 12; see also ¶ 15 (“[T]he CIA asserted a Glomar response to Plaintiffs’ request because the existence or nonexistence of CIA records responsive to this request is a currently and properly classified fact, the disclosure of which reasonably could be expected to cause damage to the national security. What is classified is not just individual records themselves on a document-by-document basis, but also the mere fact of whether
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or not the CIA possesses responsive records that pertain to drone strikes.”). A. Exemption 3
FOIA Exemption 3 authorizes the withholding of agency records on subject-matters specifically exempted from disclosure by a non-FOIA statute, provided that such statute “(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). To properly invoke Exemption 3, the CIA “need only show that the statute claimed is one of exemption as contemplated by Exemption 3 and that the withheld material falls within the statute.” Larson, 565 F.3d at 865.
The CIA first points to the Central Intelligence Agency Act of 1949, as amended, 50 U.S.C. § 403-4 et seq. (“CIA Act”), which exempts the CIA from “any . . . law which require[s] the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency.” 50 U.S.C. § 403g. Secondly, the CIA proffers the National Security Act of 1947, as amended, 50 U.S.C. § 401 et seq. (the “NSA”), which mandates that the “Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure.” 50 U.S.C. § 403-1(i)(1). It is well-established that both statutory provisions cited by the CIA qualify as withholding statutes for purposes of Exemption 3. See, e.g., ACLU v. U.S. Dep’t of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011); Halperin v. CIA, 629 F.2d 144, 147 (D.C. Cir. 1980); Majed Subh v. CIA, 760 F. Supp. 2d 66, 70 (D.D.C. 2011).
1. Whether Drone Strikes Relate to “Functions” of CIA Personnel Under the CIA Act? The CIA claims it properly relies upon § 403g of the CIA Act to protect information
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relating to the “functions” of its personnel; that is, “information relating to its core functions – which plainly include clandestine intelligence activities, intelligence sources and methods and foreign liaison relationships.” Cole Decl. ¶ 41. Plaintiffs counter that the CIA presents an overbroad reading of CIA “functions” under the statute. To be sure, the D.C. Circuit has recognized that § 403g is not without limits: it does not sanction the CIA to “refuse to provide any information at all about anything it does” under the guise that such information pertains to personnel “functions.” Phillippi, 546 F.2d at 1015 n.14. The provision is designed primarily to shield the CIA from having to divulge “information about its internal structure.” Id. Accordingly, § 403g of the CIA Act offers a limited sanctuary from the CIA’s FOIA obligations because “[o]nly the specific information on the CIA’s personnel and internal structure that is listed in the statute will obtain protection from disclosure.” Baker v. CIA, 580 F.2d 664, 670 (D.C. Cir. 1978).
The CIA’s Information Review Officer responds that the CIA is “charged with carrying out a number of important functions on behalf of the United States, which include, among other activities, collecting and analyzing foreign intelligence and counterintelligence.” Cole Decl. ¶ 13. “A defining characteristic of the CIA’s intelligence activities is that they are typically carried out through clandestine means, and therefore they must remain secret in order to be effective.” Id. “In the context of FOIA, this means that the CIA must carefully evaluate whether its response to a particular FOIA request could jeopardize the clandestine nature of its intelligence activities or otherwise reveal previously undisclosed information about its sources, capabilities, authorities, interests, strengths, weaknesses, resources, etc.” Id.
“Hypothetically, if the CIA were to respond to this request by admitting that it possessed responsive records, it would indicate that the CIA was involved in drone strikes or at least
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had an intelligence interest in drone strikes – perhaps by providing supporting intelligence, as an example.” Id. ¶ 19. “In either case, such a response would reveal a specific clandestine intelligence activity or interest of the CIA, and it would provide confirmation that the CIA had the capability and resources to be involved in these specific activities.” Id. On the other hand, by revealing it had no responsive records, that fact “would indicate that the CIA had no involvement or interest in drone strikes.” Id. ¶ 21. “Such a response would reveal sensitive information about the CIA’s capabilities, interests, and resources that is protected from disclosure.” Id.
The fact of the existence or nonexistence of responsive information falls within the ambit of § 403g because whether the CIA cooperates with, is interested in, or actually directs drone strikes pertains to (possible) functions of CIA personnel. See Riquelme v. CIA, 453 F. Supp. 2d 103, 111 (D.D.C. 2006) (accepting CIA’s argument that FOIA request seeking information relating to CIA agents’ “activities, assistance, participation, involvement, and contacts” speaks to the “functions” of CIA agents, protected from disclosure under § 403g). Plaintiffs’ FOIA request – sent to multiple agencies – is clearly designed, at least in part, to determine which agencies, and its personnel, are involved in drone strikes and in what capacities. See FOIA Request at 4 (“Reports also suggest that in addition to Air Force and Special Forces personnel, non-military personnel including CIA agents are making targeting decisions, piloting drones, and firing missiles . . . [i]t appears, therefore, that lethal force is being exercised by individuals who are not in the military chain of command.”); id. at 5 (“It is unclear who may be targeted by a drone strike, how targets are selected . . . and who is making operational decisions about particular strikes.”); id. at 6 (seeking records regarding “whether drones can be used by the CIA . . . in order to execute targeted killings”); id. at 7 (requesting records “pertaining to the assessment or evaluation of individual drone strikes after the
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fact,” including how the performance of those operating and involved in drone strikes is assessed); id. at 8 (seeking records “pertaining to the involvement of CIA personnel” in drone strikes and the piloting and operation of drones).
The CIA affidavit, which is entitled to “substantial weight,” see Frugone v. CIA, 169 F.3d 772, 775 (D.C. Cir. 1999), asserts that disclosing the existence or nonexistence of responsive records could reveal the functions of CIA personnel, including their involvement or noninvolvement in drone strikes and any related intelligence interest in drone strikes. See Cole Decl. ¶¶ 19–21, 41. It could reveal functions of CIA personnel if, for instance, the CIA possessed records responsive to the target selection categories of the request, but not the post-strike analysis and evaluation categories, or if the CIA possessed records relevant to these categories but not to information on the training, supervision, oversight or discipline of drone operators. And if the CIA possessed no records responsive to these categories, it could reveal that CIA personnel were not performing any of these potential functions related to drone strikes.
The CIA declaration offers “reasonable specificity of detail rather than merely conclusory statements” and has not been “called into question by contradictory evidence in the record or by evidence of agency bad faith.” Halperin, 629 F.2d at 148. “If the agency’s statements meet this standard, the court is not to conduct a detailed inquiry to decide whether it agrees with the agency’s opinions; to do so would violate the principle of affording substantial weight to the expert opinion of the agency.” Id. In the end, the CIA is justifiably concerned that revealing the existence or nonexistence of records sought on the various topics sought by Plaintiffs could alone reveal information on the CIA’s internal structure and its capabilities and potential interests and involvement in/operation of the drone program. Although the matter is not entirely free from doubt,
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the Court is satisfied that the CIA has properly invoked § 403g of the CIA Act to withhold this fact under Exemption 3.
2. Whether Drone Strikes Relate to “Intelligence Sources or Methods” Under NSA? Whatever the ambit of § 403g of the CIA Act, the CIA correctly contends that its Glomar response is justified because the information sought by Plaintiffs relates to “intelligence sources and methods,” protected from disclosure under the NSA. 50 U.S.C. § 403-1(i)(1).2 Again, Plaintiffs challenge the information withheld as not properly falling within the coverage offered by the cited statute, here § 403-1(i)(1). Plaintiffs believe that CIA’s Glomar response must be rejected because a program that targets certain persons for death or incapacitation cannot be deemed a means of collecting intelligence, so that neither a source nor a method of intelligence gathering is implicated by the fact of whether CIA has responsive records. Instead, Plaintiffs argue that they simply seek basic information about the “scope, limits, oversight, and legal basis of this killing program.” Pls.’ Opp’n at 18. Plaintiffs attempt to cabin the realm of protectable “intelligence sources and methods” to a concept of “foreign intelligence” analogous to “securing all possible data pertaining to foreign governments or the national defense and security of the United States.” CIA v. Sims, 471 U.S. 159, 170 (1985) (internal quotation marks omitted). Sims explained that through the statutory predecessor to § 403-1(i)(1) of the NSA, Congress vested the Director of Central Intelligence3 with “very broad authority to protect all sources
2 Although § 403-1(i)(1) of the NSA provides that the “Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure,” the CIA may rely upon this statutory provision to withhold records under FOIA. See, e.g., Larson, 565 F.3d at 865.
3 Per § 403-1(i)(1), the “Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure.” The statutory precursors to § 403-1(i)(1), i.e., 50
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of intelligence information from disclosure” and “broad power to protect the secrecy and integrity
of the intelligence process.” 471 U.S. at 168–70. In focusing more on the definition of intelligence
“sources” than “methods,” the Supreme Court rejected the D.C. Circuit’s definition of “intelligence
sources” which was limited to sources requiring confidentiality as a condition of providing
information. Id. at 168. The Supreme Court explained:
The plain meaning of the statutory language, as well as the legislative history of the National Security Act, however, indicates that Congress vested in the Director of Central Intelligence very broad authority to protect all sources of intelligence information from disclosure. The Court of Appeals’ narrowing of this authority not only contravenes the express intention of Congress, but also overlooks the practical necessities of modern intelligence gathering – the very reason Congress entrusted this Agency with sweeping power to protect its “intelligence sources and methods.”
. . . . Section 102(d)(3) [of the NSA] specifically authorizes the Director of Central Intelligence to protect “intelligence sources and methods” from disclosure. Plainly the broad sweep of this statutory language comports with the nature of the Agency’s unique responsibilities. To keep informed of other nations’ activities bearing on our national security the Agency must rely on a host of sources. At the same time, the Director must have the authority to shield those Agency activities and sources from any disclosures that would unnecessarily compromise the Agency’s efforts.
Id. at 169–70.
Accordingly, the Supreme Court held the “‘plain meaning’ of § 102(d)(3) [codified
at § 403-1(i)(1)] may not be squared with any limiting definition that goes beyond the requirement
U.S.C. § 403-3(c)(7) and 50 U.S.C. § 403(d)(3), had previously entrusted the identical responsibility to the Director of Central Intelligence. Pursuant to the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, the newly-created Director of National Intelligence assumed the duties previously delegated to the Director of Central Intelligence, a position which then ceased to exist. See, e.g., Wolf v. CIA, 473 F.3d 370, 377 n.6 (D.C. Cir. 2007); Majed Subh, 760 F. Supp. 2d at 70 n.4. The CIA is now headed by the Director of the Central Intelligence Agency, who reports to the Director of National Intelligence.
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that the information fall within the Agency’s mandate to conduct foreign intelligence.” Sims, 471 U.S. at 169. “Congress simply and pointedly protected all sources of intelligence that provide, or are engaged to provide, information the Agency needs to perform its statutory duties with respect to foreign intelligence.” Id. at 169–70. Against a congressional backdrop “highlighting the requirements of effective intelligence operations,” id. at 172, the Court noted that Congress authorized the CIA to protect intelligence sources and methods to ensure “the most effective accomplishment of the intelligence mission related to the national security.” Id. (internal quotation omitted).
At first blush, there is force to Plaintiffs’ argument that a “targeted-killing program is not an intelligence program” in the most strict and traditional sense, the argument bolstered by the principle that FOIA exemptions are to be narrowly construed. See Public Citizen, Inc. v. Rubber Mfrs. Ass’n, 533 F.3d 810, 813 (D.C. Cir. 2008). Nonetheless, Plaintiffs seek too narrow a reading of the authority conferred by the NSA to protect “intelligence sources and methods.” The “Supreme Court has recognized the broad sweep of ‘intelligence sources’ warranting protection in the interest of national security.” Wolf v. CIA, 473 F.3d 370, 375 (D.C. Cir. 2007); see also Fitzgibbon v. CIA, 911 F.2d 755, 760–63 (D.C. Cir. 1990). Moreover, the Sims Court warned that limiting definitions of the NSA’s reach had “ignored[d] the realities of intelligence work, which often involves seemingly innocuous sources as well as unsuspecting individuals who provide valuable intelligence information.” Fitzgibbon, 911 F.2d at 760 (quoting Sims, 471 U.S. at 176). “Relying on this broad statutory authority, and mindful of ‘the practical necessities of modern intelligence gathering,’ [Sims, 471 U.S. at 169], the Supreme Court held that the proper reading of the statute is that ‘an intelligence source provides, or is engaged to provide, information the Agency needs to fulfill its statutory
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obligations.’” Fitzgibbon, 911 F.2d at 761 (quoting Sims, 471 U.S. at 177). The Court has no reason to second-guess the CIA as to which programs that may or
may not be of interest implicate the gathering of intelligence, see Wolf, 473 F.3d at 377 (“The Supreme Court gives even greater deference to CIA assertions of harm to intelligence sources and methods under the National Security Act.”). The CIA need only “demonstrate[] that the information withheld logically falls within the claimed exemption.” ACLU, 628 F.3d at 619; see also Fitzgibbon, 911 F.2d at 762 (explaining that in determining whether the material withheld “relates to intelligence sources and methods . . . we accord substantial weight and due consideration to the CIA’s affidavits”).
Ms. Cole declares that, “[i]ntelligence sources and methods are the basic practices and procedures used by the CIA to accomplish its mission. They can include human assets, foreign liaison relationships, sophisticated technological devices, collection activities, cover mechanisms, and other sensitive intelligence tools.” Cole Decl. ¶ 33. Knowing whether the CIA lacks or maintains records responsive to Plaintiffs’ FOIA request “would reveal a specific clandestine intelligence activity or interest of the CIA, and it would provide confirmation that the CIA had the capability and resources to be involved in these specific activities.” Id. ¶ 19. Responding to Plaintiffs’ request, the CIA argues, would reveal whether the CIA maintains an intelligence interest in, cooperates with, or directly operates a program of drone strikes. See id. ¶¶ 32–35, 40.
The CIA further explains that it “must do more than prevent explicit references to an intelligence source or method; it must also prevent indirect references to such a source or method.” Id. ¶ 35. By reviewing officially disclosed information about CIA capabilities, hostile groups “have the capacity and ability to gather information from myriad sources, analyze it, and deduce means and
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methods from disparate details to defeat the CIA’s collection efforts.” Id. “Thus, even seemingly innocuous, indirect references to an intelligence source or method could have significant adverse effects when juxtaposed with other publicly-available data.” Id.
“Because ‘the purpose of national security exemptions to the FOIA is to protect intelligence sources before they are compromised and harmed, not after,’ Halperin, 629 F.2d at 149, ‘the Director of Central Intelligence may protect all intelligence sources, regardless of their provenance.’” Wolf, 473 F.3d at 377 (quoting Fitzgibbon v. CIA, 911 F.2d 755, 762 (D.C. Cir. 1990)). Taking into account the deference owed the CIA’s declaration in the FOIA context, the Court finds the CIA’s justification for its concerns about unauthorized disclosure of intelligence sources or methods to be both “logical” and “plausible.” ACLU, 628 F.3d at 619 (quoting Larson, 565 F.3d at 862).
Lastly, Plaintiffs’ argument that a program of drone strikes cannot form the basis of, or involve, intelligence sources or methods also ignores the scope of the CIA’s specific authority to engage in activities beyond “traditional” intelligence gathering (however defined), such as intelligence activities and operations, covert operations, and foreign relations activities. Executive Order 12333, as amended, includes within the CIA’s mandate the requirement that it, inter alia, “[c]ollect . . ., analyze, produce, and disseminate foreign intelligence and counterintelligence;” “[c]onduct counterintelligence activities;” “[c]onduct covert action activities approved by the President;” “[c]onduct foreign intelligence liaison relationships;” and “[p]erform such other functions and duties related to intelligence as the Director [of the Central Intelligence Agency] may direct.” See United States Intelligence Activities, Executive Order No. 12333, 46 Fed. Reg. 59941 (Dec. 4, 1981), as amended by Further Amendments to Executive Order 12333, Executive Order No.
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13470, 73 Fed. Reg. 45325, § 1.7(a) (July 30, 2008); see also 50 U.S.C. § 403-4a(d) (authorizing the Director of the Central Intelligence Agency to, inter alia, “collect intelligence through human sources and by other appropriate means” and “perform such other functions and duties related to intelligence affecting the national security as the President or the Director of National Intelligence may direct”); id. § 403-4a(f) (directing the Director of the CIA to “coordinate the relationships between elements of the intelligence community and the intelligence or security services of foreign governments or international organizations on all matters involving intelligence related to the national security or involving intelligence acquired through clandestine means”).
The Supreme Court noted that the authority granted under the NSA “may not be squared with any limiting definition that goes beyond the requirement that the information fall within the Agency’s mandate to conduct foreign intelligence.” ACLU, 628 F.3d at 622 (quoting Sims, 471 U.S. at 169); see also Sims, 471 U.S. at 169–70 (“Congress simply and pointedly protected all sources of intelligence that provide, or are engaged to provide, information the Agency needs to perform its statutory duties with respect to foreign intelligence.”). It would surprise no one that the CIA may be authorized to engage in more than gathering facts around the world; the NSA’s grant of protection to “intelligence sources and methods” cannot be so limited. See, e.g, Riquelme, 453 F. Supp. 2d at 108–11 (finding agency’s Glomar response proper under Exemption 1 and 3 relating to “clandestine activities” including whether CIA engaged in activities related to the ascension of a general to power in a particular nation or participated in training of officers in the School of the Americas).
Confirming the existence or nonexistence of pertinent agency records on drone strikes could reasonably be expected to lead to the unauthorized disclosure of intelligence sources and/or
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methods. See Halperin, 629 F.2d at 147.4 The CIA has properly classified this fact under
§ 403-1(i)(1) of the NSA, as protected by FOIA Exemption 3.
B. Has the Agency Acknowledged the Existence of Records? Plaintiffs next contend that former CIA Director Leon J. Panetta has officially
admitted that some or all of the requested records exist so that they are no longer FOIA exempt.
When “information has been ‘officially acknowledged,’ its disclosure may be compelled even over
an agency’s otherwise valid exemption claim.” Fitzgibbon, 911 F.2d at 765. To be officially
acknowledged: “(1) the information requested must be as specific as the information previously
released; (2) the information requested must match the information previously disclosed; and (3) the
information requested must already have been made public through an official and documented
disclosure.” ACLU, 628 F.3d at 620–21. Moreover, as the D.C. Circuit “further explained in Wolf,
‘[p]rior disclosure of similar information does not suffice; instead, the specific information sought
by the plaintiff must already be in the public domain by official disclosure. This insistence on
exactitude recognizes the Government’s vital interest in information relating to national security and
foreign affairs.’” Id. at 621 (quoting Wolf, 473 F.3d at 378). Ultimately, the “fact that information
exists in some form in the public domain does not necessarily mean that official disclosure will not
4 Plaintiffs further argue that the fact that some documents may need to be redacted does not justify a blanket Glomar response, Pls.’ Opp’n at 18–19, which may be correct in most cases. The CIA responds that if it had to admit the existence of responsive records, and thereby be obligated to provide a Vaughn index – indicating the number and nature of withheld records – such disclosure alone would reveal the depth and breadth of the CIA’s possible involvement in the drone program. Cole Decl. ¶ 20. “If, for instance, the CIA possessed 10,000 responsive records, that might indicate a significant CIA involvement or interest in drone strikes whereas 10 responsive records might indicate minimal involvement or interest.” Id. “Similarly, disclosing the dates of the responsive records would provide a timeline of the CIA’s activities that could provide a roadmap to when and where the CIA is operating or not operating.” Id.
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cause harm cognizable under a FOIA exemption.” Wolf, 473 F.3d at 378. Plaintiffs bear the burden
of demonstrating that the information they seek has been officially acknowledged. See id.
This question is somewhat muddled by the CIA’s stated reason for its Glomar
response, which is essentially that to respond to the FOIA request would reveal whether or not the
CIA was involved or interested in drone strike operations, in any capacity. See Cole Decl. ¶¶ 19, 22.
Plaintiffs seize on this rationale and contend that it is no longer operative because of the following
statements by then-Director Panetta which arguably acknowledged CIA involvement in drone strikes.
For instance, on May 18, 2009, Director Panetta spoke before the Pacific Council on
International Policy, and during a question and answer session, the following exchange with Director
Panetta occurred:
Q. [Audience Member] You mentioned that you believe the strategy in Pakistan is working – the President’s strategy in Pakistan in the tribal regions, which is the drone – the remote drone strikes. You’ve seen the figures recently from David Kilcullen and others that the strikes have killed 14 midlevel operatives and 700 civilians in collateral damage. And his assessment as a counterinsurgency expert is it’s creating more anti-Americanism than it is disrupting al-Qaeda networks. . . . .
A. [Panetta] . . . On the first issue, obviously because these are covert and secret operations I can’t go into particulars. I think it does suffice to say that these operations have been very effective because they have been very precise in terms of the targeting and it involved a minimum of collateral damage. I know that some of the – sometimes the criticisms kind of sweep into other areas from either plane attacks or attacks from F-16s and others that go into these areas, which do involve a tremendous amount of collateral damage. And sometimes I’ve found in discussing this that all of this is kind of mixed together. But I can assure you that in terms of that particular area, it is very precise and it is very limited in terms of collateral damage and, very frankly, it’s the only game in town in terms of confronting and trying to disrupt the al-Qaeda leadership. . . . .
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Pls.’ Opp’n, Ex. B (Leon Panetta Remarks at the Pacific Council on International Policy (May 18,
2009)) at 9–10.
Contrary to Plaintiffs’ argument, these comments by Director Panetta did not
officially disclose the CIA’s involvement in the drone strike program. Responding to the
questioner’s perception of the drone strikes as the “President’s strategy in Pakistan,” Director Panetta
spoke generally of his knowledge of “covert and secret operations” in Pakistan and his assessment
that those operations had been precise with minimal collateral damage. Even if Director Panetta
were speaking squarely on the issue of drone strikes, he never acknowledged the CIA’s involvement
in such program. That Director Panetta acknowledged that such a program exists and he had some
knowledge of it, or that he was able to assess its success, is simply not tantamount to a specific
acknowledgment of the CIA’s involvement in such program, nor does it waive the CIA’s ability to
properly invoke Glomar. See, e.g., Wilner v. NSA, 592 F.3d 60, 70 (2d Cir. 2009) (“[A]n agency may
invoke the Glomar doctrine in response to a FOIA request regarding a publicly revealed matter.”)5;
5 In Wilner, the Second Circuit reviewed a FOIA request for records obtained under the Terrorist Surveillance Program (“TSP”), a clandestine program initiated after September 11, 2001, in which the National Security Agency intercepted international communications of people with known links to terrorist organizations without warrants or oversight by the Foreign Intelligence Surveillance Court. 592 F.3d at 65–66. Plaintiffs’ FOIA requests sought information from the Government on whether it had intercepted any of their communications, to which the Government provided a Glomar response. Id. at 64. Plaintiffs argued the Glomar response was improper because the Government had officially disclosed the existence of the TSP. The Circuit noted that the existence of the TSP had been officially acknowledged by President George W. Bush and former CIA Director Michael Hayden, but that the “specific methods used, targets of surveillance, and information obtained through the program have not been disclosed.” Id. at 69–70.
The Second Circuit explained, “Here, although the public is aware that the TSP exists, the government has found it necessary to keep undisclosed the details of the program’s operations and scope–the subject of plaintiffs’ FOIA request in this case. The fact that the public is aware of the program’s existence does not mean that the public is entitled to have information regarding the operation of the program, its targets, the information it has yielded, or other highly sensitive national
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Students Against Genocide v. Dep’t of State, 50 F. Supp. 2d 20, 25 (D.D.C. 1995) (“[T]here is
certainly no ‘cat out of the bag’ philosophy underlying FOIA so that any public discussion of
protected information dissipates the protection which would otherwise shield the information
sought.”); Phillippi v. CIA, 655 F.2d 1325, 1331 (D.C. Cir. 1981) (“There may be much left to hide,
and if there is not, that itself may be worth hiding.”).
Plaintiffs also quote selected statements from an interview Director Panetta gave to
the Washington Post, which was printed on March 17, 2010. The Court quotes a few paragraphs:
Relentless attacks against al-Qaida in the Pakistan tribal region appear to have driven Osama bin Laden and other top leaders deeper into hiding, leaving the organization rudderless and less capable of planning sophisticated operations, CIA Director Leon Panetta said Wednesday.
....
Panetta credited an increasingly aggressive campaign against al-Qaida and its Taliban allies, including more frequent strikes and better coordination with Pakistan, in a near-acknowledgment of the CIA’s war against extremists in Pakistan. He called it “the most aggressive operation that CIA has been involved in in our history.”
“Those operations are seriously disrupting al-Qaida,” Panetta said. “It’s pretty clear from all the intelligence we are getting that they are having a very difficult time putting together any kind of command and control, that they are scrambling. And that we really do have them on the run.”
security information that the government has continued to classify. Indeed, the fact that the TSP’s existence has been made public reinforces the government’s continuing stance that it is necessary to keep confidential the details of the program’s operations and scope.” Id. at 70. The Circuit upheld the Glomar response and held that “an agency may issue a Glomar response to FOIA requests seeking information obtained under a ‘publicly acknowledged’ intelligence program such as the Terrorist Surveillance Program at least when the existence of such information has not already been publicly disclosed.” Id. at 77. Similarly, even if Director Panetta had confirmed that the drone program exists, the statements offered by Plaintiffs did not specifically acknowledge that the CIA is involved directly or indicate whether the CIA has responsive records.
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The comments came as a senior U.S. intelligence official revealed new details of a March 8 killing of a top al-Qaida commander in the militant stronghold of Miram Shah in North Waziristan, in Pakistan’s autonomous tribal region. The al-Qaida official died in what local news reports described as a missile strike by an unmanned aerial vehicle. The CIA formally declines to acknowledge U.S. participation in such attacks inside Pakistan territory. Pls.’ Opp’n, Ex C (Mar. 17, 2010 Article “Al-Qaida Crippled as Leaders Stay in Hiding, CIA Chief Says) at 1. The Post story focused on relentless attacks targeting al-Qaida in Pakistan, and appeared to speak to the joint efforts of the military and non-military agencies of the U.S. Government (and perhaps even its allies) in the efforts against terrorism there. Director Panetta merely admitted that the CIA’s operations in Pakistan, left undefined, were the most aggressive ever undertaken by the CIA. While the story cited “more frequent strikes” as one example of the aggressive campaign waged in Pakistan, the reference is just as easily read to describe part of a larger campaign in Pakistan, in which the CIA played an undefined role. Furthermore, the article specified that the CIA formally declined to acknowledge U.S. participation in the use of unmanned aerial vehicles in Pakistan; it would be contradictory under the circumstances to read Director Panetta’s reference to the CIA operations as a specific reference to drone strikes. Plaintiffs argue that Director Panetta had gone “so far as to acknowledge the targets of particular strikes.” Pls.’ Opp’n at 12. In a Wall Street Journal article on the March 8, 2010 drone strike killing of Hussein al-Yemeni, Director Panetta commented, “We now believe that al-Yemeni, who was one of the top 20 [al Qaeda leaders], was one of those who was hit.” Director Panetta was also quoted as saying, “He is somebody who we believe was one of those who was involved in providing explosives for the Khost attack.” Id., Ex D (Mar. 18, 2010 Article “Drone Kills Suspect
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in CIA Suicide Bombing”) at 1. The article continued:
Killing Mr. al-Yemeni was very important to the CIA because of his status in al Qaeda and his involvement in the Khost attack, Mr. Panetta said. Mr Panetta didn’t speak directly to the circumstances of the death; the CIA doesn’t discuss covert action.
“Anytime we get a high value target that is in the top leadership of al Qaeda, it seriously disrupts their operations,” Mr. Panetta said. “No. 1 that we are not going to hesitate to go after them wherever they try to hide, and No. 2 that we are continuing to target their leadership.”
Id. at 2.
Similarly, in speaking with ABC News, Mr. Panetta echoed the comment, stating in
response to a question about the possible whereabouts of Osama bin Laden:
But having said that, the more we continue to disrupt Al Qaida’s operations, and we are engaged in the most aggressive operations in the history of the CIA in that part of the world, and the result is that we are disrupting their leadership. We’ve taken down more than half of their Taliban leadership, of their Al Qaida leadership. We just took down number three in their leadership a few weeks ago.
Id., Ex. E (June 27, 2010 Transcript of This Week “Jake Tapper Interviews CIA Director Leon
Panetta”) at 4.
Plaintiffs argue that these comments, together with other news stories, bar the CIA
from relying on a generalized Glomar response here; that the “fact underlying the CIA’s Glomar
response is identical to the fact officially acknowledged: that the CIA is involved in drone strikes.”
Pls.’ Opp’n at 15. Interesting as it is, Plaintiffs’ argument misperceives the applicable legal standard.
Whereas Director Panetta spoke generally, Plaintiffs fail to cite any official disclosure containing
the exact information sought by Plaintiffs. Director Panetta’s comments lacked a specific reference
to any particular CIA action except that the CIA was involved in undefined, aggressive operations
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in Pakistan. In all the statements cited by Plaintiffs, Director Panetta’s references to “we” or “our” could have just as easily referred to the joint efforts of all U.S. military and civilian resources dedicated in Afghanistan and Pakistan. The gist of the stories was that the U.S. had al-Qaida on the run and was disrupting its networks. Further, two of the statements cited by Plaintiffs stated specifically that the CIA did not officially speak to covert actions.
Ultimately, Plaintiffs attempt to impose an exactitude lacking in Director Panetta’s generalized statements. “We have noted, however, that ‘while the logic of FOIA postulates that an exemption can serve no purpose once information … becomes public, we must be confident that the information sought is truly public and that the requester receive no more than what is publicly available before we find a waiver.’” Students Against Genocide v. Dep’t of State, 257 F.3d 828, 836 (D.C. Cir. 2001) (quoting Cottone v. Reno, 193 F.3d 550, 555 (D.C. Cir. 1999)).
Here, Plaintiffs seek exactly what is not publicly available – an official CIA acknowledgment of the fact that it is or is not involved in the drone strike program. See Public Citizen v. Dep’t of State, 11 F.3d 198, 201 (D.C. Cir. 1993) (“FOIA plaintiffs cannot simply show that similar information has been released, but must establish that a specific fact already has been placed in the public domain.”). Even were the public to believe this to be a foregone conclusion, the statements cited by Plaintiffs demonstrate that the CIA has carefully and specifically refused to acknowledge any role or interest in such program. To the contrary of demonstrating public disclosure, the tenor, deliberate ambiguity, and explicit disclaimers of involvement in targeted attacks in the statements cited by Plaintiffs further illustrate this point. See Wolf, 473 F.3d at 378 (“The insistence on exactitude recognizes ‘the Government’s vital interest in information relating to national security and foreign affairs.’”) (quoting Public Citizen v. Dep’t of State, 11 F.3d 198, 203
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(D.C. Cir. 1993)). Even less can it be said that Director Panetta officially confirmed the existence of CIA
records on drone strikes – which the CIA argues is the relevant inquiry here. See Def.’s Opp’n at 14. “In the Glomar context, then, if the prior disclosure establishes the existence (or not) of records responsive to the FOIA request, the prior disclosure necessarily matches both the information at issue–the existence of records–and the specific request for that information.” Wolf, 473 F.3d at 379; see also Wilner, 592 F.3d at 70 (“An agency only loses its ability to provide a Glomar response when the existence or nonexistence of the particular records covered by the Glomar response has been officially and publicly disclosed.”). Certainly none of the comments by former Director Panetta on which Plaintiffs rely constituted an explicit admission “that a specific record exists.” Wilner, 592 F.3d at 70.
Plaintiffs submitted ten detailed requests for records, covering the gamut from the “legal basis” for drone strikes; the selection of human targets; civilian casualties; post-strike assessments; limits to the use of drones; the agency of government or branch of the military involved; the supervision, oversight, discipline, or training of drone operators and those involved in targeting decisions, and more. There is nothing in the various statements submitted by Plaintiffs which speaks to any records on these points; only by inference from former Director Panetta’s statements might one conclude that the CIA might have some kind(s) of documentation somewhere. Thus, even if former Director Panetta could be understood colloquially to have suggested some sort of CIA involvement in drone strikes, he neither referenced specific records nor referenced records that go to the exact requests posed by Plaintiffs.
Lastly, despite speculation or overt factual assertions of the CIA’s involvement in
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drone strikes rampant in the various articles cited in Plaintiffs’ briefs, the statements of journalists, “experts,” or even unofficial or unidentified sources (even were they CIA personnel) are not “official” disclosures by the CIA. See Frugone v. CIA, 169 F.3d 772, 774 (D.C. Cir. 1999); ACLU, 628 F.3d at 621 (explaining that a leaked report, not released pursuant to a government declassification process, could not be considered officially acknowledged). Ultimately, “[i]t is one thing for a reporter or author to speculate or guess that a thing may be so or even, quoting undisclosed sources, to say that it is so; it is quite another thing for one in a position to know of it officially to say that it is so.” ACLU, 628 F.3d at 621–22 (quoting Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362, 1370 (4th Cir. 1975)).
Plaintiffs fail to demonstrate that the CIA has officially acknowledged either the CIA’s involvement in a drone strike program or the existence or nonexistence of pertinent agency records. Plaintiffs’ arguments to the contrary, the CIA has not waived its ability to issue a broad Glomar response.
C. FOIA Exemption 1 FOIA Exemption 1 also authorizes the CIA’s Glomar response. Exemption 3 and 1 are independent exemptions; the “[p]roper invocation of, and affidavit support for, either Exemption, standing alone, may justify the CIA’s Glomar response.” Wolf, 473 F.3d at 375; see also Gardels, 689 F.2d at 1106. Although the Court need not consider the CIA’s invocation of Exemption 1 to affirm its Glomar response, already found proper under Exemption 3, see Larson, 565 F.3d at 862–63, the Court nonetheless considers the CIA’s reliance on Exemption 1 and finds it proper. Exemption 1 of FOIA protects matters that are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or
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foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1); see also Larson, 565 F.3d at 861. Executive Order 13526 governs the classification of national security information. See Classified National Security Information, Executive Order No. 13526, 75 Fed. Reg. 707 (Dec. 29, 2009) (“E.O. 13526”). Information can be properly classified under Executive Order 13526 if four requirements are met: (1) an original classification authority classifies the information; (2) the United States Government owns, produces, or controls the information; (3) the information falls within one or more of eight protected categories listed in section 1.4 of the Executive Order; and (4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in a specified level of damage to the national security, and the original classification authority is able to identify or describe the damage. Id. § 1.1(a). Executive Order 13526 expressly authorizes an agency to “refuse to confirm or deny the existence or nonexistence of requested records whenever the fact of their existence or nonexistence is itself classified under this order or its predecessors.” Id. § 3.6(a).
Mary Ellen Cole, the Information Review Officer for the CIA’s National Clandestine Service, holds original classification authority and has determined that “the existence or nonexistence of [responsive] records is a currently and properly classified fact” under the control of the U.S. Government. Cole Decl. ¶¶ 3, 5, 30. Ms. Cole explains that this fact is protected from disclosure by § 1.4(c) and (d) of the Executive Order, which permits the classification of information concerning “intelligence activities (including covert action), intelligence sources or methods, or cryptology,” and “foreign relations or foreign activities of the United States, including confidential sources,” respectively. Cole Decl. ¶ 30 (quoting E.O. 13526 § 1.4(c), (d)). Ms. Cole explains with sufficient detail that the unauthorized disclosure of the existence or nonexistence of records
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reasonably could be expected to result in specific and identifiable damage to the national security. Through Ms. Cole’s Affidavit, the CIA has sufficiently demonstrated that disclosure
of records sought by Plaintiffs would cause damage to national security by providing insight into the CIA’s intelligence activities, sources and methods, which are properly classifiable under § 1.4(c) of Executive Order 13526. The Court has already determined that the records sought pertain to “intelligence sources and methods” under the NSA; such analysis applies here as well. See infra Part III(A)(2); Military Audit Project, 656 F.2d at 736 n.39. Information on drone strikes is even easier to fit within the purview of intelligence activities. As the CIA states cogently, “Clandestine intelligence techniques, capabilities, or devices are valuable only so long as they remain unknown and unsuspected. Once an intelligence source or method (or the fact of its use in a certain situation) is discovered, its continued successful use by the CIA is seriously jeopardized.” Cole Decl. ¶ 34. The fact of whether or not the CIA has responsive records would reveal whether the CIA has an interest in, or can employ, drone technology. Id. ¶ 17. “That fact could be extremely valuable to the targets of CIA intelligence efforts, who could carry out their activities with the knowledge that the CIA would be unable to monitor their activities using that particular technology.” Id.
Independently, the CIA also demonstrates that the fact of whether or not the CIA maintains responsive records also implicates “foreign relations or foreign activities of the United States, including confidential sources.” E.O. 13526 § 1.4(d). Because the CIA’s operations are conducted almost exclusively outside the United States, they inherently involve foreign activities. See Cole Decl. ¶ 36. “Although it is generally known that the CIA conducts clandestine intelligence operations, identifying an interest in a particular matter or publicly disclosing a particular intelligence activity could cause the affected or interested foreign government to respond in ways that would
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damage U.S. national interests.” Id. ¶ 37. The CIA argues that to acknowledge officially whether it has responsive records could be construed by foreign governments as an affirmation that the CIA has operated undetected in their borders, or has taken intelligence operations against its citizens or residents, which could adversely affect U.S. relations with such nations. See id.; cf. Afshar v. Dep’t of State, 702 F.2d 1125, 1130–31 (D.C. Cir. 1983) (“Also, even if a fact – such as the existence of such a liaison – is the subject of widespread media and public speculation, its official acknowledgment by an authoritative source might well be new information that could cause damage to the national security. Unofficial leaks and public surmise can often be ignored by foreign governments that might perceive themselves to be harmed by disclosure of their cooperation with the CIA, but official acknowledgment may force a government to retaliate.”).
The information sought by Plaintiffs directly “implicat[es] national security, a uniquely executive purview.” Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 926–27 (D.C. Cir. 2003); see also Larson, 565 F.3d at 865 (“Today we reaffirm our deferential posture in FOIA cases regarding the ‘uniquely executive purview’ of national security.”). Since the United States is at war in Afghanistan against a guerrilla enemy disassociated from any nation or state, it surprises no one that U.S. information concerning its enemies comes predominately from the intelligence community and is classified and closely guarded to protect sources, covert actions and operations, U.S. agents, related intelligence activities and methods, and any workings with foreign governments and foreign agencies. While Plaintiffs may hold a general knowledge of the existence and use of drones, that knowledge does not mean that the underlying intelligence efforts that reveal and guide weapons to targets are somehow unprotected under FOIA and open to any requester.
In reviewing the CIA’s basis for anticipating harm from a non-Glomar response, the
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“test is not whether the court personally agrees in full with the CIA’s evaluation of the danger – rather, the issue is whether on the whole record the Agency’s judgment objectively survives the test of reasonableness, good faith, specificity, and plausibility in this field of foreign intelligence in which the CIA is expert and given by Congress a special role.” Gardels, 689 F.2d at 1105. The fact that the public may already speak freely of the existence of drones, or speculate openly that such a program may be directed in part or in whole by the CIA, does not emasculate the CIA’s warnings of harm were it forced to acknowledge officially the existence or nonexistence of requested records. Plaintiffs counter that because information on the program is “already in the public domain in whole or in part,” i.e., “it is no secret that the CIA uses drones to target and kill individuals,” that “no additional harm could reasonably be expected to flow from the CIA’s confirmation that it possesses records responsive to Plaintiffs’ FOIA request.” See Pls.’ Opp’n at 20, 22–23. However, the D.C. Circuit has foreclosed this argument: “that the information withheld by the CIA is ‘so widely disseminated’ that it could not cause harm to national security is foreclosed by our requirement . . . that information be ‘officially acknowledged.’” ACLU, 628 F.3d at 625. “The ‘officially acknowledged’ test recognizes that even if information exists in some form in the public domain that does not mean that official disclosure will not cause harm cognizable under a FOIA exemption.” Id.6 As explained above, the CIA has never officially acknowledged its involvement in the drone program publicly.
6 Plaintiffs’ additional authority, consisting of statements by John A. Rizzo, acting general counsel at the CIA until his retirement in 2009, does not do more: unauthorized disclosure of classified facts does not officially disclose those facts. See Afshar, 702 F.2d at 1133–34 (noting that books by former CIA agents, even where the books had been pre-screened and approved by the CIA, did not constitute official and documented disclosures for purposes of waiving an exemption); Wilson v. CIA, 586 F.3d 171, 189 (2d Cir. 2009) (“A former employee’s public disclosure of classified information cannot be deemed an ‘official’ act of the [Central Intelligence] Agency.”).
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More to the point, leaving hostile groups guessing as to the CIA’s possible interest
or involvement in, or control over, drone strikes could itself be of eminent benefit. See Military
Audit Project, 656 F.2d at 743-45 (noting that, despite widespread speculation, the lack of an
authoritative acknowledgment of a covert project’s actual purpose could itself prove beneficial by
leaving foreign agencies with “lingering doubts whether some other purpose motivated the project”);
Frugone, 169 F.3d at 775 (acknowledging CIA’s asserted benefit of Glomar response that by
denying it had records on a subject it “would lessen the burden facing a foreign intelligence agency
attempting to track the CIA’s covert activities abroad”). The CIA has met its burden of showing that
the release of any acknowledgment of responsive records could damage national security; FOIA
“bars the courts from prying loose from the government even the smallest bit of information that is properly classified or would disclose intelligence sources or methods.” Afshar, 702 F.2d at 1130.7
Courts “have consistently deferred to executive affidavits predicting harm to the
national security, and have found it unwise to undertake searching judicial review.” Ctr. for Nat’l
Sec. Studies, 331 F.3d at 927. The Court finds that the CIA has adequately justified its Glomar
response under FOIA Exemption 1. Accordingly, the CIA is independently entitled to summary
judgment under Exemption 1.
7 The CIA also offers to supplement its unclassified declaration with a classified declaration containing additional information were the Court to find its affidavit insufficient. The D.C. Circuit has cautioned courts against performing in camera review of redacted information when an agency meets its burden by affidavit. ACLU, 628 F.3d at 626. “In camera inspection is particularly a last resort in national security situations like this case—a court should not resort to it routinely on the theory that ‘it can’t hurt.’” Id. (quoting Larson, 565 F.3d at 870). The Court finds that it would be neither necessary nor appropriate to take the CIA up on its offer where, as here, it has provided specific information that the information withheld properly falls within the exemptions cited, that this information is not contradicted in the record, and there is no evidence of agency bad faith. See id.
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IV. CONCLUSION In short, the CIA has convinced the Court that FOIA Exemptions 1 and 3 apply to any records it might possibly have that are sought by Plaintiffs and that its Glomar response was appropriate. The CIA’s motion for summary judgment [Dkt. # 15] will be granted, and Plaintiffs’ motion for partial summary judgment [Dkt. # 21] will be denied. A memorializing Order accompanies this Memorandum Opinion.

Date: September 9, 2011

/s/ ROSEMARY M. COLLYER United States District Judge

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 Case 1:10-cv-00436-RMC Document 1 Filed 03/16/10 Page 1 of 10

UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA

AMERICAN CIVIL LIBERTIES UNION 125 Broad Street New York, NY 10004;
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street New York, NY 10004,
Plaintiffs, v.
DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, N.W. Washington, DC 20530-0001;
DEPARTMENT OF DEFENSE 1400 Defense Pentagon Washington, DC 20301-1400;
DEPARTMENT OF STATE 2201 C Street, N.W. Washington, DC 20520,
Defendants.

No. ________

COMPLAINT FOR INJUNCTIVE RELIEF
1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for injunctive and other appropriate relief, seeking the immediate processing and release of agency records requested by Plaintiffs American Civil Liberties Union and American Civil Liberties Union Foundation (collectively “ACLU”) from Defendants U.S. Department of Justice (“DOJ”), U.S. Department of Defense (“DOD”), and U.S. Department of State (“DOS”).

Case 1:10-cv-00436-RMC Document 1 Filed 03/16/10 Page 2 of 10
2. Plaintiffs submitted a FOIA request (“the Request”) to the DOD, Central Intelligence Agency (“CIA”), DOS, DOJ, and one specific component of the DOJ—the Office of Legal Counsel (“OLC”)—requesting the release of records relating to the use of unmanned aerial vehicles—commonly known as “drones”—for the purpose of targeting and killing individuals since September 11, 2001. The Request was submitted to all agencies on January 13, 2010.
3. Although more than two months have elapsed since the Request was filed, none of the defendant agencies has released any record in response to the Request. Nor has any defendant provided Plaintiffs with a processing schedule. The defendants have provided inconsistent responses to Plaintiffs’ application for expedited processing, for a fee limitation on the basis of Plaintiffs’ status as representatives of the news media, and for a fee waiver on the basis that disclosure is in the public interest.
4. Plaintiffs now ask this Court to order the Defendants immediately to process all records responsive to the Request and to enjoin the Defendants from charging the Plaintiffs fees for processing the Request.
Jurisdiction and Venue 5. This Court has both subject matter jurisdiction of the FOIA claim and personal jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(B), (a)(6)(E)(iii). This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 5 U.S.C. §§ 701-706. 6. Venue lies in this district under 5 U.S.C. § 552(a)(4)(B).
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Parties 7. Plaintiff American Civil Liberties Union is a nationwide, non-profit, nonpartisan organization with more than 500,000 members dedicated to the constitutional principles of liberty and equality. The ACLU is committed to ensuring that the American government acts in compliance with the Constitution and laws, including its international legal obligations. The ACLU is also committed to principles of transparency and accountability in government, and seeks to ensure that the American public is informed about the conduct of its government in matters that affect civil liberties and human rights. 8. Plaintiff American Civil Liberties Union Foundation is a separate § 501(c)(3) organization that educates the public about civil liberties and employs lawyers who provide legal representation free of charge in cases involving civil liberties. 9. Defendant DOD is a Department of the Executive Branch of the United States government and is an agency within the meaning of 5 U.S.C. § 552(f)(1). 10. Defendant DOJ is a Department of the Executive Branch of the United States government and is an agency within the meaning of 5 U.S.C. § 552(f)(1). The OLC is a component of the DOJ. 11. Defendant DOS is a Department of the Executive Branch of the United States government and is an agency within the meaning of 5 U.S.C. § 552(f)(1).
Factual Background. 12. Since at least 2002, the United States government has used unmanned aerial vehicles to conduct “targeted killings” overseas. Many of the drone strikes have taken place on bona fide battlefields—for example, in Afghanistan. In 2002, however, the U.S. conducted a drone strike in Yemen that killed several individuals including a
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U.S. citizen. According to news reports, the frequency of drone strikes has increased significantly over the last few years, and in particular in the last year. Unofficial estimates of the number and rate of civilian casualties in drone strikes vary significantly, from a rate of less than 10% to a rate of more than 90%.
FOIA Request 13. On January 13, 2010, the ACLU submitted a FOIA Request for records relating to the use of unmanned aerial vehicles by the CIA and the Armed Forces for the purpose of killing targeted individuals. The Request was submitted to the designated FOIA offices of the DOD, CIA, DOS, DOJ, and OLC. 14. The Request seeks a variety of records relating to the use of unmanned aerial vehicles to conduct targeted killings, including the legal basis for the strikes and any legal limits on who may be targeted; where targeted drone strikes can occur; civilian casualties; which agencies or other non-governmental entities may be involved in conducting targeted killings; how the results of individual drone strikes are assessed after the fact; who may operate and direct targeted killing strikes; and how those involved in operating the program are supervised, overseen or disciplined. 15. Plaintiffs sought expedited processing of the Request on the grounds that there is a “compelling need” for these records because the information requested is urgently needed by an organization primarily engaged in disseminating information in order to inform the public about actual or alleged Federal Government activity. See 5 U.S.C. § 552(a)(6)(E)(v)(II); see also 22 C.F.R. § 171.12(b)(2); 28 C.F.R. § 16.5(d)(1)(ii); 32 C.F.R. § 286.4(d)(3)(ii); 32 C.F.R. § 1900.34(c)(2). Plaintiffs also sought expedited processing on the grounds that the records sought relate to a “breaking
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news story of general public interest.” 22 C.F.R. § 171.12(b)(2)(i); 32 C.F.R. § 286.4(d)(3)(ii)(A); see also 28 C.F.R. § 16.5(d)(1)(iv) (providing for expedited processing in relation to a “matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence”); 32 C.F.R. § 1900.34(c)(2) (providing for expedited processing when “the information is relevant to a subject of public urgency concerning an actual or alleged Federal government activity”).
16. Plaintiffs sought a waiver of search, review, and duplication fees on the grounds that disclosure of the requested records is “in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” See 5 U.S.C. § 552(a)(4)(A)(iii); see also 22 C.F.R. § 171.17(a); 28 C.F.R. § 16.11(k); 32 C.F.R. § 286.28(d); 32 C.F.R. § 1900.13(b)(2).
17. Plaintiffs also sought a waiver of search and review fees on the grounds that the ACLU qualifies as a “representative of the news media” and that the records are not sought for commercial use. See 5 U.S.C. § 552(a)(4)(A)(ii); see also 22 C.F.R. §§ 171.11(o), 171.15(c); 28 C.F.R. § 16.11(b)(6), (c), (d)(1); 32 C.F.R. § 286.28(e)(7); 32 C.F.R. §§ 1900.02(h)(3), 1900.13(i)(2).
The Government’s Response to the Request 18. Although the Request has been pending for more than two months, no records have been produced. The DOD, DOJ, and DOJ have not provided any basis for withholding responsive records. The CIA, not currently a Defendant in this action, has responded only by refusing to confirm or deny whether any responsive records exist.
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19. By letter dated January 29, 2010 the DOD acknowledged receipt of the Request, but denied Plaintiffs’ application for expedited processing and also denied Plaintiffs’ application for waiver of search and review fees on the basis of “news media” requester status.
20. In the same letter the DOD deferred its decision on Plaintiffs’ application for a “public interest” fee waiver, stating that it would decide the issue only after “a search for responsive records has been conducted and the volume and nature of responsive records have been determined” and that it would base its decision on the results of that search, rather than on the face of the Request. DOD indicated that it would only conduct a two-hour search for records for this purpose, unless Plaintiff agreed in advance to pay for additional search time.
21. On March 11, 2010, Plaintiffs notified the DOD that it objected to the proposed manner of determining Plaintiffs’ entitlement to a public interest fee waiver. Plaintiffs nevertheless indicated that in the event the DOD refused to determine the fee waiver on the face of the Request, Plaintiffs were willing to commit $200 to cover search fees, in order to permit the DOD to base its public interest fee waiver decision on the basis of more than two hours of searching. Plaintiffs reserved the right, however, to appeal or apply for judicial review of both the process employed for determining the fee waiver, and any adverse determination on the issue.
22. On March 12, 2010, Plaintiff timely filed an administrative appeal of DOD’s denial of news media requester status and of DOD’s proposed procedure for determining the public interest fee waiver question. Plaintiff urged the appellate
6

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authority to grant news media requester status and also to grant the public interest fee waiver based on an examination of the contents of the Request.
23. No further response or correspondence has been received from the DOD. No records responsive to the Request have been released by the DOD, nor has the DOD indicated that it has begun searching for or processing responsive records.
24. By letter dated January 29, 2010, the CIA acknowledged receipt of the Request but denied Plaintiffs’ request for expedited processing. The CIA did not address Plaintiffs’ request for a public interest fee waiver or limitation of fees based on news media requester status.
25. By letter dated March 9, 2010, the CIA stated that the Request “is denied pursuant to FOIA exemptions (b)(1) and (b)(3) on the grounds that the “fact of the existence or nonexistence of requested records is currently and properly classified and is intelligences sources and methods that is protected from disclosure by section 6 of the CIA Act of 1949, as amended.” The letter stated that this was the CIA’s “final response” to the Request, subject to appeal to the Agency Release Panel. The CIA is not currently a defendant in this action, because Plaintiffs will exhaust their required administrative appeal of the agency’s response.
26. By letter dated February 3, 2010, the DOJ acknowledged receipt of the Request and informed the Plaintiff that the Request had been forwarded by the “receipt and referral unit” of the DOJ to the FBI, because it had determined that the FBI was the “component[] most likely to have the records” requested. The Request was forwarded to the FBI on February 3, 2010. By letter dated February 26, 2010, the FBI indicated that it had conducted a search of its Central Records System and was unable to find any
7

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responsive documents. The FBI’s letter indicated that it regarded the request for fee waivers and expedited processing moot. The FBI is not a defendant in this action.
27. By letter dated February 4, 2010, the OLC acknowledged receipt of the Request and granted Plaintiffs’ application for expedited processing, on the grounds that the Request involved “[a] matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.” 28 C.F.R. § 16.5(d)(1)(iv). The OLC did not make a decision on Plaintiff’s application for a public interest fee waiver or limitation of fees based on news media requester status, indicating that a decision on these issues would be made “after [OLC] determine[s] whether or not fees will be assessed for this request.” No further response or correspondence has been received from the OLC.
28. The DOS has not responded to any aspect of the Request, nor has it acknowledged receipt of the Request.
29. Although more than two months have elapsed since the Request was submitted, no records responsive to the Request have been released by any of the Defendants. None of the defendants in this action have indicated that they have even begun searching for or processing responsive records.
30. Events since the filing of the Request have only served to highlight the importance and urgency of the Request. On February 3, 2010, Director of National Intelligence Dennis Blair confirmed, in public remarks at an open session of the Intelligence Committee of the House of Representatives, that the Unites States operates a program to target and kill individuals abroad. He further confirmed that this program can involve “direct action [that] involve[s] killing an American.” Investigative news reports
8

Case 1:10-cv-00436-RMC Document 1 Filed 03/16/10 Page 9 of 10
suggest that at least three U.S. citizens are on a list of individuals who can be targeted and killed, using drones or other means.
Causes of Action 31. Defendants’ failure to make a reasonable effort to search for records sought by the Request violates the FOIA, 5 U.S.C. § 552(a)(3), and Defendants’ corresponding regulations. 32. Defendants’ failure to promptly make available the records sought by the Request violates the FOIA, 5 U.S.C. § 552(a)(3)(A), and Defendants’ corresponding regulations. 33. The failure of Defendants DOD and DOS to grant Plaintiffs’ request for expedited processing violates the FOIA, 5 U.S.C. § 552(a)(6)(E), and Defendants’ corresponding regulations. 34. Defendants’ failure to grant Plaintiffs’ request for a limitation of fees violates FOIA, 5 U.S.C. § 552(a)(4)(A)(ii)(II), and Defendants’ corresponding regulations. 35. Defendants’ failure to grant Plaintiffs’ request for a waiver of search, review, and duplication fees violates the FOIA, 5 U.S.C. § 552(a)(4)(A)(iii), and Defendants’ corresponding regulations.
Requested Relief WHEREFORE, Plaintiffs respectfully request that this Court: A. Order Defendants immediately to process all records responsive to the Request;
9

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B. Enjoin Defendants from charging Plaintiffs search, review, or duplication fees for the processing of the Request;
C. Award Plaintiffs their costs and reasonable attorneys’ fees incurred in this action; and
D. Grant such other relief as the Court may deem just and proper.

Dated: March 16, 2010

Respectfully submitted,
/s/ Arthur B. Spitzer
Arthur B. Spitzer (D.C. Bar No. 235960) American Civil Liberties Union of the
Nation’s Capital 1400 20th Street, N.W., Suite 119 Washington, D.C. 20036 Phone: (202) 457-0800 Fax: (202) 452-1868 artspitzer@aol.com
Jonathan Manes Jameel Jaffer Ben Wizner American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2654 jmanes@aclu.org jjaffer@aclu.org bwizner@aclu.org
Counsel for the Plaintiffs

10

 
 Case 1:10-cv-00436-RMC Document 11 Filed 06/01/10 Page 1 of 11

UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA

AMERICAN CIVIL LIBERTIES UNION 125 Broad Street New York, NY 10004,
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street New York, NY 10004,
Plaintiffs, v.
DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, N.W. Washington, DC 20530-0001,
DEPARTMENT OF DEFENSE 1400 Defense Pentagon Washington, DC 20301-1400,
DEPARTMENT OF STATE 2201 C Street, N.W. Washington, DC 20520,
CENTRAL INTELLIGENCE AGENCY Washington, D.C. 20505,
Defendants.

No. 10-cv-0436 (RMC)

AMENDED COMPLAINT FOR INJUNCTIVE RELIEF
1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for injunctive and other appropriate relief, seeking the immediate processing and release of agency records requested by Plaintiffs American Civil Liberties Union and American Civil Liberties Union Foundation (collectively “ACLU”) from

Case 1:10-cv-00436-RMC Document 11 Filed 06/01/10 Page 2 of 11
Defendants U.S. Department of Justice (“DOJ”), U.S. Department of Defense (“DOD”), U.S. Department of State (“DOS”), and the Central Intelligence Agency (“CIA”).
2. Plaintiffs submitted a FOIA request (“the Request”) to the DOD, CIA, DOS, DOJ, and one specific component of the DOJ—the Office of Legal Counsel (“OLC”)—requesting the release of records relating to the use of unmanned aerial vehicles—commonly known as “drones”—for the purpose of targeting and killing individuals since September 11, 2001. The Request was submitted to all agencies on January 13, 2010.
3. Although more than four months have elapsed since the Request was filed, none of the defendant agencies has released any record in response to the Request. Nor has any defendant provided Plaintiffs with a processing schedule. The defendants have provided inconsistent responses to Plaintiffs’ application for expedited processing, for a fee limitation on the basis of Plaintiffs’ status as representatives of the news media, and for a fee waiver on the basis that disclosure is in the public interest.
4. Plaintiffs now ask this Court to order the Defendants immediately to process all records responsive to the Request and to enjoin the Defendants from charging the Plaintiffs fees for processing the Request.
Jurisdiction and Venue 5. This Court has both subject matter jurisdiction of the FOIA claim and personal jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(B), (a)(6)(E)(iii). This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 5 U.S.C. §§ 701-706. 6. Venue lies in this district under 5 U.S.C. § 552(a)(4)(B).
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Parties 7. Plaintiff American Civil Liberties Union is a nationwide, non-profit, nonpartisan organization with more than 500,000 members dedicated to the constitutional principles of liberty and equality. The ACLU is committed to ensuring that the American government acts in compliance with the Constitution and laws, including its international legal obligations. The ACLU is also committed to principles of transparency and accountability in government, and seeks to ensure that the American public is informed about the conduct of its government in matters that affect civil liberties and human rights. 8. Plaintiff American Civil Liberties Union Foundation is a separate § 501(c)(3) organization that educates the public about civil liberties and employs lawyers who provide legal representation free of charge in cases involving civil liberties. 9. Defendant DOD is a Department of the Executive Branch of the United States government and is an agency within the meaning of 5 U.S.C. § 552(f)(1). 10. Defendant DOJ is a Department of the Executive Branch of the United States government and is an agency within the meaning of 5 U.S.C. § 552(f)(1). The OLC is a component of the DOJ. 11. Defendant DOS is a Department of the Executive Branch of the United States government and is an agency within the meaning of 5 U.S.C. § 552(f)(1). 12. Defendant CIA is a Department of the Executive Branch of the United States government and is an agency within the meaning of 5 U.S.C. § 552(f)(1).
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Factual Background. 13. Since at least 2002, the United States government has used unmanned aerial vehicles to conduct “targeted killings” overseas. Many of the drone strikes have taken place on bona fide battlefields—for example, in Afghanistan. In 2002, however, the U.S. conducted a drone strike in Yemen that killed several individuals including a U.S. citizen. According to news reports, the frequency of drone strikes has increased significantly over the last few years, and in particular in the last year. Unofficial estimates of the number and rate of civilian casualties in drone strikes vary significantly, from a rate of less than 10% to a rate of more than 90%.
FOIA Request 14. On January 13, 2010, the ACLU submitted a FOIA Request for records relating to the use of unmanned aerial vehicles by the CIA and the Armed Forces for the purpose of killing targeted individuals. The Request was submitted to the designated FOIA offices of the DOD, CIA, DOS, DOJ, and OLC. 15. The Request seeks a variety of records relating to the use of unmanned aerial vehicles to conduct targeted killings, including the legal basis for the strikes and any legal limits on who may be targeted; where targeted drone strikes can occur; civilian casualties; which agencies or other non-governmental entities may be involved in conducting targeted killings; how the results of individual drone strikes are assessed after the fact; who may operate and direct targeted killing strikes; and how those involved in operating the program are supervised, overseen or disciplined. 16. Plaintiffs sought expedited processing of the Request on the grounds that there is a “compelling need” for these records because the information requested is
4

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urgently needed by an organization primarily engaged in disseminating information in order to inform the public about actual or alleged Federal Government activity. See 5 U.S.C. § 552(a)(6)(E)(v)(II); see also 22 C.F.R. § 171.12(b)(2); 28 C.F.R. § 16.5(d)(1)(ii); 32 C.F.R. § 286.4(d)(3)(ii); 32 C.F.R. § 1900.34(c)(2). Plaintiffs also sought expedited processing on the grounds that the records sought relate to a “breaking news story of general public interest.” 22 C.F.R. § 171.12(b)(2)(i); 32 C.F.R. § 286.4(d)(3)(ii)(A); see also 28 C.F.R. § 16.5(d)(1)(iv) (providing for expedited processing in relation to a “matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence”); 32 C.F.R. § 1900.34(c)(2) (providing for expedited processing when “the information is relevant to a subject of public urgency concerning an actual or alleged Federal government activity”).
17. Plaintiffs sought a waiver of search, review, and duplication fees on the grounds that disclosure of the requested records is “in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” See 5 U.S.C. § 552(a)(4)(A)(iii); see also 22 C.F.R. § 171.17(a); 28 C.F.R. § 16.11(k); 32 C.F.R. § 286.28(d); 32 C.F.R. § 1900.13(b)(2).
18. Plaintiffs also sought a waiver of search and review fees on the grounds that the ACLU qualifies as a “representative of the news media” and that the records are not sought for commercial use. See 5 U.S.C. § 552(a)(4)(A)(ii); see also 22 C.F.R. §§ 171.11(o), 171.15(c); 28 C.F.R. § 16.11(b)(6), (c), (d)(1); 32 C.F.R. § 286.28(e)(7); 32 C.F.R. §§ 1900.02(h)(3), 1900.13(i)(2).
5

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The Government’s Response to the Request 19. Although the Request has been pending for more than four months, no records have been produced. The DOD, DOJ, and DOJ have not provided any basis for withholding responsive records. The CIA has responded only by refusing to confirm or deny whether any responsive records exist. 20. By letter dated January 29, 2010 the DOD acknowledged receipt of the Request, but denied Plaintiffs’ application for expedited processing and also denied Plaintiffs’ application for waiver of search and review fees on the basis of “news media” requester status. 21. In the same letter the DOD deferred its decision on Plaintiffs’ application for a “public interest” fee waiver, stating that it would decide the issue only after “a search for responsive records has been conducted and the volume and nature of responsive records have been determined” and that it would base its decision on the results of that search, rather than on the face of the Request. DOD indicated that it would only conduct a two-hour search for records for this purpose, unless Plaintiff agreed in advance to pay for additional search time. 22. On March 11, 2010, Plaintiffs notified the DOD that it objected to the proposed manner of determining Plaintiffs’ entitlement to a public interest fee waiver. Plaintiffs nevertheless indicated that in the event the DOD refused to determine the fee waiver on the face of the Request, Plaintiffs were willing to commit $200 to cover search fees, in order to permit the DOD to base its public interest fee waiver decision on the basis of more than two hours of searching. Plaintiffs reserved the right, however, to
6

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appeal or apply for judicial review of both the process employed for determining the fee waiver, and any adverse determination on the issue.
23. On March 12, 2010, Plaintiff timely filed an administrative appeal of DOD’s denial of news media requester status and of DOD’s proposed procedure for determining the public interest fee waiver question. Plaintiff urged the appellate authority to grant news media requester status and also to grant the public interest fee waiver based on an examination of the contents of the Request. By letter dated March 26, 2010 – after the present lawsuit was filed naming DOD as a defendant – DOD denied Plaintiff’s appeal in full, confirming the initial decisions to reject Plaintiff’s request for news media requester status and to defer Plaintiff’s fee waiver request until the search for documents is completed.
24. No further response or correspondence has been received from the DOD. No records responsive to the Request have been released by the DOD, nor has the DOD indicated that it has begun searching for or processing responsive records.
25. By letter dated January 29, 2010, the CIA acknowledged receipt of the Request but denied Plaintiffs’ request for expedited processing. The CIA did not address Plaintiffs’ request for a public interest fee waiver or limitation of fees based on news media requester status.
26. By letter dated March 9, 2010, the CIA stated that the Request “is denied pursuant to FOIA exemptions (b)(1) and (b)(3) on the grounds that the “fact of the existence or nonexistence of requested records is currently and properly classified and is intelligences sources and methods that is protected from disclosure by section 6 of the
7

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CIA Act of 1949, as amended.” The letter stated that this was the CIA’s “final response” to the Request, subject to appeal to the Agency Release Panel.
27. On April 22, 2010, Plaintiff timely filed an administrative appeal of CIA’s refusal to confirm or deny the existence of any records responsive to the Request. Plaintiff urged the appellate authority to reconsider its blanket refusal to process the request.
28. By letter dated May 6, 2010, the CIA acknowledged receipt of the appeal on April 23, 2010, but indicated that “it [is] unlikely that we can respond within 20 working days,” as required by 5 U.S.C. § 552(a)(6)(A)(ii). More than twenty days have elapsed since the appeal was received by the CIA and the CIA has not yet determined the appeal.
29. By letter dated February 3, 2010, the DOJ acknowledged receipt of the Request and informed the Plaintiff that the Request had been forwarded by the “receipt and referral unit” of the DOJ to the FBI, because it had determined that the FBI was the “component[] most likely to have the records” requested. The Request was forwarded to the FBI on February 3, 2010. By letter dated February 26, 2010, the FBI indicated that it had conducted a search of its Central Records System and was unable to find any responsive documents. The FBI’s letter indicated that it regarded the request for fee waivers and expedited processing moot. The FBI is not a defendant in this action.
30. By letter dated February 4, 2010, the OLC acknowledged receipt of the Request and granted Plaintiffs’ application for expedited processing, on the grounds that the Request involved “[a] matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public
8

Case 1:10-cv-00436-RMC Document 11 Filed 06/01/10 Page 9 of 11
confidence.” 28 C.F.R. § 16.5(d)(1)(iv). The OLC did not make a decision on Plaintiff’s application for a public interest fee waiver or limitation of fees based on news media requester status, indicating that a decision on these issues would be made “after [OLC] determine[s] whether or not fees will be assessed for this request.” No further response or correspondence has been received from the OLC.
31. By letter dated April 22, 2010 – after the present lawsuit was filed naming DOS as a defendant – DOS acknowledged receipt of the Request, granted Plaintiff’s application for expedited processing, and indicated that it would begin processing the Request. The letter also stated that it would “defer our decision to grant or deny [Plaintiff’s] request for a fee waiver until we are able to determine whether the disclosure of any documents responsive to your request is in the public interest.” DOS has not offered any response to Plaintiff’s request for news media requester status. No further response or correspondence has been received from DOS.
32. Although more than four months have elapsed since the Request was submitted, no records responsive to the Request have been released by any of the Defendants. None of the defendants in this action, with the exception of DOS, have indicated that they have even begun searching for or processing responsive records.
33. Events since the filing of the Request have only served to highlight the importance and urgency of the Request. On February 3, 2010, Director of National Intelligence Dennis Blair confirmed, in public remarks at an open session of the Intelligence Committee of the House of Representatives, that the Unites States operates a program to target and kill individuals abroad. He further confirmed that this program can involve “direct action [that] involve[s] killing an American.” Investigative news reports
9

Case 1:10-cv-00436-RMC Document 11 Filed 06/01/10 Page 10 of 11
suggest that at least three U.S. citizens are on a list of individuals who can be targeted and killed, using drones or other means.
Causes of Action 34. Defendants’ failure to make a reasonable effort to search for records sought by the Request violates the FOIA, 5 U.S.C. § 552(a)(3), and Defendants’ corresponding regulations. 35. Defendants’ failure to promptly make available the records sought by the Request violates the FOIA, 5 U.S.C. § 552(a)(3)(A), and Defendants’ corresponding regulations. 36. The failure of Defendants DOD and CIA to grant Plaintiffs’ request for expedited processing violates the FOIA, 5 U.S.C. § 552(a)(6)(E), and Defendants’ corresponding regulations. 37. Defendants’ failure to grant Plaintiffs’ request for a limitation of fees violates FOIA, 5 U.S.C. § 552(a)(4)(A)(ii)(II), and Defendants’ corresponding regulations. 38. Defendants’ failure to grant Plaintiffs’ request for a waiver of search, review, and duplication fees violates the FOIA, 5 U.S.C. § 552(a)(4)(A)(iii), and Defendants’ corresponding regulations.
10

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Requested Relief WHEREFORE, Plaintiffs respectfully request that this Court: A. Order Defendants immediately to process all records responsive to the Request; B. Enjoin Defendants from charging Plaintiffs search, review, or duplication fees for the processing of the Request; C. Award Plaintiffs their costs and reasonable attorneys’ fees incurred in this action; and D. Grant such other relief as the Court may deem just and proper.
Respectfully submitted, Arthur B. Spitzer

Dated: June 1, 2010

Arthur B. Spitzer (D.C. Bar No. 235960) American Civil Liberties Union of the
Nation’s Capital 1400 20th Street, N.W., Suite 119 Washington, D.C. 20036 Phone: (202) 457-0800 Fax: (202) 452-1868 artspitzer@aol.com
Jonathan Manes Jameel Jaffer Ben Wizner American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2654 jmanes@aclu.org jjaffer@aclu.org bwizner@aclu.org
Counsel for Plaintiffs

11

 
 Case 1:10-cv-00436-RMC Document 15 Filed 10/01/10 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

AMERICAN CIVIL LIBERTIES

)

UNION, et al.,

)

)

Plaintiffs, )

)

v.

)

)

DEPARTMENT OF JUSTICE, et al.,

)

)

Defendants. )

)

Civil Action No. 1:10-cv-00436-RMC

DEFENDANT CIA’S MOTION FOR SUMMARY JUDGMENT

Defendant United States Central Intelligence Agency (“the CIA”) hereby moves for summary judgment pursuant to Fed. R. Civ. P. 56(b) and Local Rule 7(h)(2).

Dated: October 1, 2010

Respectfully submitted,
TONY WEST Assistant Attorney General
RONALD C. MACHEN JR. United States Attorney
ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch
/s/Amy E. Powell AMY E. POWELL (N.Y. Bar) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20001 Telephone: (202) 514-9836 Fax: (202) 616-8202 amy.powell@usdoj.gov

Case 1:10-cv-00436-RMC Document 15 Filed 10/01/10 Page 2 of 32

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

AMERICAN CIVIL LIBERTIES

)

UNION, et al.,

)

)

Plaintiffs, )

)

v.

)

)

DEPARTMENT OF JUSTICE, et al.,

)

)

Defendants. )

)

Civil Action No. 1:10-cv-00436-RMC

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT CIA’S MOTION FOR SUMMARY JUDGMENT

TONY WEST Assistant Attorney General
RONALD C. MACHEN JR. United States Attorney
ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch

AMY E. POWELL (N.Y. Bar) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W Washington, D.C. 20001 Telephone: (202) 514-9836 Fax: (202) 616-8202 amy.powell@usdoj.gov

Case 1:10-cv-00436-RMC Document 15 Filed 10/01/10 Page 3 of 32

TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1

BACKGROUND .............................................................................................................................1

ARGUMENT ...................................................................................................................................4

I. THE APPLICABLE FOIA AND SUMMARY JUDGMENT STANDARDS ...................4

II. THE CIA PROPERLY DECLINED TO CONFIRM OR DENY THE EXISTENCE OR NONEXISTENCE OF RECORDS RESPONSIVE TO PLAINTIFFS’ REQUEST PURSUANT TO EXEMPTIONS 1 AND 3 .....................................................7

A. The CIA’s Glomar Response Is Proper Under Exemption 1 ...................................9

1. An Original Classification Authority Has Classified the Information.......10

2. The United States Owns, Produces, or Controls the Information..............11

3. The Information Falls Within the Protected Categories Listed in Section 1.4 of E.O. 13526..........................................................................11

4. An Original Classification Authority Has Properly Determined that the Unauthorized Disclosure of the Requested Information Could Be Expected to Result in Damage to the National Security and Has Identified that Damage.................................................................14

B. The CIA’s Glomar Response Is Proper Under Exemption 3 .................................16

1.

The CIA’s Glomar Response is Proper Under the CIA Act ....................17

2. The CIA’s Glomar Response is Proper Under the NSA............................19

III. THE CIA HAS NOT OFFICIALLY ACKNOWLEDGED THE EXISTENCE OR NONEXISTENCE OF RESPONSIVE RECORDS ..........................................................21

CONCLUSION ..............................................................................................................................25

Case 1:10-cv-00436-RMC Document 15 Filed 10/01/10 Page 4 of 32
TABLE OF AUTHORITIES
CASES
*Afshar v. Dep't of State, 702 F.2d 1125 (D.C. Cir. 1983) ....................................................................................... passim
Am. Civil Liberties Union v. U.S. Dep't of Justice, 265 F. Supp. 2d 20 (D.D.C. 2003) .............................................................................................7
Ass'n of Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd., 830 F.2d 331 (D.C. Cir. 1987) ...................................................................................................6
Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55 (D.C. Cir. 2003) ...................................................................................................17
Baker v. CIA, 580 F.2d 664 (D.C. Cir. 1978) .................................................................................................18
Bassiouni v. C.I.A., 392 F.3d 244 (7th Cir. 2004) ...................................................................................................13
*CIA v. Sims, 471 U.S. 159 (1985)......................................................................................................... passim
Ctr. for Nat'l Sec. Studies v. DOJ, 331 F.3d 918 (D.C. Cir. 2003) ...............................................................................................5, 6
Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001).......................................................................................................................5
*Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990) ......................................................................................... passim
Frugone v. CIA, 169 F.3d 772 (D.C. Cir. 1999) .........................................................................................7, 8, 10
Gardels v. CIA, 689 F.2d 1100 (D.C. Cir. 1982) ...........................................................................................8, 17
Goland v. CIA, 607 F.2d 339 (D.C. Cir. 1978) .................................................................................................18
Halperin v. CIA, 629 F.2d 144 (D.C. Cir. 1980) .................................................................................................20

Case 1:10-cv-00436-RMC Document 15 Filed 10/01/10 Page 5 of 32
John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989)...............................................................................................................4, 5
King v. U.S. Dep't of Justice, 830 F.2d 210 (D.C. Cir. 1987) .........................................................................................5, 7, 10
Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980) ("Under 5 U.S.C. § 552(a)(4)(B)[,] ..........................................................5
Krikorian v. Dep't of State, 984 F.2d 461 (D.C. Cir. 1993) .................................................................................................17
*Larson v. Dep't of State, 565 F.3d 857 (D.C. Cir. 2009) ......................................................................................... passim
*Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981) ......................................................................................... passim
Miller v. Casey, 730 F.2d 773 (D.C. Cir. 1984) .................................................................................................19
Minier v. Central Intelligence Agency, 88 F.3d 796 (9th Cir. 1996) .......................................................................................................5
Moore v. Bush, 601 F. Supp. 2d 6 (D.D.C. 2009) ...............................................................................................3
Morley v. CIA., 699 F. Supp. 2d 244 (D.D.C. 2010) ...........................................................................................9
*Phillippi v. CIA, 655 F.2d 1325 (D.C. Cir. 1981) .................................................................................3, 7, 23, 25
Public Citizen v. Dep’t of State, 11 F.3d 198 (D.C. Cir. 1993) .................................................................................................22
Ray v. Turner, 587 F.2d 1187 (D.C. Cir. 1978) .................................................................................................6
Reliant Energy Power Generation, Inc. v. FERC, 520 F. Supp. 2d 194 (D.D.C. 2007) ...........................................................................................5

Case 1:10-cv-00436-RMC Document 15 Filed 10/01/10 Page 6 of 32
*Riquelme v. CIA, 453 F. Supp. 2d 103 (D.D.C. 2006) .............................................................................15, 18, 20
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) .................................................................................................6
Schlesinger v. CIA, 591 F. Supp. 60 (D.D.C. 1984) ................................................................................................24
Snepp v. United States, 444 U.S. at 510.........................................................................................................................23
Students Against Genocide v. Dep't of State, 50 F. Supp. 2d 20 (D.D.C. 1995) .............................................................................................23
Talbot v. CIA, 578 F. Supp. 2d 24 (D.D.C. 2008) ...........................................................................................19
*Valfells v. CIA, No. 09-1363, 2010 WL 2428034 (D.D.C. June 17, 2010), appeal docketed sub nom Thomas Moore, III v. CIA, No. 10-5248 (D.C. Cir. Aug. 24, 2010) ........................................................................... passim
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) .................................................................................................13
Wheeler v. CIA, 271 F. Supp. 2d 132 (D.D.C. 2003) ...........................................................................................9
*Wilner v. Nat'l Sec. Agency, 592 F.3d 60 (2nd Cir. 2009)............................................................................................. passim
Wilson v. CIA, 586 F.3d 171 (2nd Cir. 2009) ....................................................................................................23
*Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) ......................................................................................... passim
STATUTES
5 U.S.C. § 552(a) et seq ......................................................................................................... passim
*50 U.S.C. § 401 et seq..................................................................................................................19
50 U.S.C. § 403-1(i)(1) ............................................................................................................17, 19

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*50 U.S.C. § 403-4 et seq ..............................................................................................................18 50 U.S.C. § 403g............................................................................................................................17
RULES AND REGULATIONS 32 C.F.R. §1900.42(c)......................................................................................................................4
OTHER AUTHORITIES Executive Order No. 12958, 60 Fed. Reg. 19825 (Apr. 17, 1995) ................................................10 United States Intelligence Activities, Exec. Order No. 12333,
46 Fed. Reg. 59941 (Dec. 4, 1981) ..........................................................................................19 Exec. Order No. 13470, 75 Fed. Reg. 45325 (July 30, 2008)........................................................19 *Classified National Security Information, Exec. Order No. 13526,
75 Fed. Reg. 707 (Dec. 29, 2009) .................................................................................... passim

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INTRODUCTION Pursuant to the Freedom of Information Act (“FOIA”), Plaintiffs American Civil Liberties Union and American Civil Liberties Union Foundation (collectively, “the ACLU”) have sought a variety of records from Defendant Central Intelligence Agency (“CIA”) related to “the use of unmanned aerial vehicles (‘UAVs’) — commonly referred to as ‘drones’ … — by the CIA and the Armed Forces for the purposes of killing targeted individuals.” The types of records sought include, for example, targeting information, damage assessments, information about cooperation with foreign governments, and legal opinions about general and specific uses of weaponized drones to conduct these alleged strikes. The CIA has informed Plaintiffs that it can neither confirm nor deny the existence or nonexistence of records responsive to this request without compromising the national security concerns that animate FOIA’s disclosure exemptions — specifically the exemptions set forth at 5 U.S.C. §§ 552 (b)(1) and (b)(3) (“Exemption 1” and “Exemption 3”). T he CIA’s determination in this regard is proper and entitles it to summary judgment.
BACKGROUND This action arises from several FOIA requests from Plaintiffs to the CIA, the Department of Defense (“DOD”), the Department of State (“State”), and the Department of Justice (“DOJ”). Plaintiffs’ requests, dated January 13, 2010, s eek records pertaining to the following ten categories of information, each of which concerns “drone strikes”: 1 1. The “legal basis in domestic, foreign and international law” for such drone strikes,
including who may be targeted with this weapon system, where and why;
1 The ACLU’s request uses the term “drone strike” to mean “targeted killing” with a drone. This Memorandum and accompanying declaration will use the term “drone strikes” for convenience while not confirming or denying the CIA’s involvement or interest in such drone strikes. See Declaration of Mary Ellen Cole (“Cole Decl.”) ¶ 7, Exhibit A at 5 (“CIA Request”).
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2. “Agreements, understandings, cooperation or coordination between the U.S. and the governments of Afghanistan, Pakistan, or any other country regarding the use of drones to effect targeted killings in the territory of those countries;”
3. “The selection of human targets for drone strikes and any limits on who may be targeted by a drone strike;”
4. “[C]ivilian casualties in drone strikes;” 5. The “assessment or evaluation of individual drone strikes after the fact;” 6. “[G]eographical or territorial limits on the use of UAVs to kill targeted
individuals;” 7. The “number of drones strikes the have been executed for the purpose of killing
human targets, the location of each such strike, and the agency of the government or branch of the military that undertook each such strike;” 8. The “number, identity, status, and affiliation of individuals killed in drone strikes;” 9. “[Wh]o may pilot UAVs, who may cause weapons to be fired from UAVs, or who may otherwise be involved in the operation of UAVs for the purpose of executing targeted killings;” and 10. The “training, supervision, oversight, or discipline of UAV operators and others involved in the decision to execute a targeted killing using a drone.” See Declaration of Mary Ellen Cole (“Cole Decl.”) Exhibit A (the “CIA Request”). In the original request, most of these categories include several sub-categories seeking specific information about drone strikes.
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By letter dated March 9, 2010, the CIA issued a final response to Plaintiffs’ request stating that “[i]n accordance with section 3.6(a) of Executive Order 12958, as amended, the CIA can neither confirm nor deny the existence or nonexistence of records responsive to [Plaintiffs’] request,” citing FOIA Exemptions 1 and 3, because “[t]he fact of the existence or nonexistence of requested records is currently and properly classified and is intelligence sources and methods information that is protected from disclosure by section 6 of the CIA Act of 1949, as amended.” This response is commonly known as a Glomar response.2 The CIA also informed Plaintiffs that they had a right to appeal the finding to the Agency Release Panel (the body within the CIA that considers FOIA appeals). See Cole Decl. ¶ 8, Exhibit B.
By letter dated April 22, 2010, Plaintiffs appealed the March 9 determination. See Cole Decl. ¶ 9, Exhibit C. CIA acknowledged receipt of Plaintiffs’ letter challenging the CIA’s Glomar response and noted that arrangements would be made for its consideration by the appropriate members of the Agency Release Panel. Id. ¶ 10, Exhibit D. While this appeal was pending, Plaintiffs filed an Amended Complaint in this matter on June 1, 2010, adding the CIA as a co-defendant to their previously-filed lawsuit against DOD, State, and DOJ. As a result of the filing of the Amended Complaint, and pursuant to its FOIA regulations at 32 C .F.R. §1900.42(c), the CIA terminated the administrative appeal proceedings on June 14, 2010. Id. ¶ 11, Exhibit E.
2 See Moore v. Bush, 601 F. Supp. 2d 6, 14 n.6 (D.D.C. 2009) ( “The ‘Glomar’ response is named after the ship involved in Phillippi v. Cent. Intelligence Agency, 546 F.2d 1009, 1011 (D.C. Cir. 1976). In that case, the FOIA requester sought information regarding a ship named the ‘Hughes Glomar Explorer,’ and the CIA refused to confirm or deny whether it had any relationship with the vessel because to do so would compromise national security or would divulge intelligence sources and methods.”).
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ARGUMENT As set forth below and in the attached declaration, whether or not the CIA possesses responsive records concerning drone strikes is a currently and properly classified fact that is exempt from disclosure under FOIA Exemptions 1 and 3. Official CIA acknowledgment of the existence or nonexistence of responsive records would reveal sensitive national security information concerning intelligence activities, intelligence sources and methods, and the foreign relations and foreign activities of the United States. To confirm the existence of responsive records would provide important insights into the CIA’s interests and activities to terrorist organizations, foreign intelligence services, or other hostile groups; conversely, to confirm the nonexistence of responsive records would provide these same entities with valuable information about potential gaps in the CIA’s interests and capabilities. See Cole Decl. ¶ 19, 21, 24-25. Because the CIA has properly asserted a Glomar response, it is entitled to a grant of summary judgment in its favor. I. THE APPLICABLE FOIA AND SUMMARY JUDGMENT STANDARDS FOIA’s “basic purpose” reflects a “general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” John Doe Agency v. John Doe Corp., 493 U .S. 146, 152 ( 1989) (internal citation omitted). “Congress recognized, however, that public disclosure is not always in the public interest[.]” CIA v. Sims, 471 U.S. 159, 166-67 (1985). Accordingly, in passing FOIA, “Congress sought ‘to reach a workable balance between the right of the public to know and the need of the Government to keep information in confidence to the extent necessary without permitting indiscriminate secrecy.’” John Doe Agency, 493 U .S. at 152 (quoting H.R. Rep. No. 89-1497, at 6 ( 1966), reprinted in 1966 U.S.C.C.A.N. 2418, 2423). As this Circuit has recognized, “FOIA represents a balance struck by
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Congress between the public’s right to know and the government’s legitimate interest in keeping certain information confidential.” Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 925 (D.C. Cir. 2003) (citing John Doe Agency, 493 U.S. at 152).
FOIA mandates disclosure of government records unless the requested information falls within one of nine enumerated exemptions. See 5 U.S.C. § 552(b). “A district court only has jurisdiction to compel an agency to disclose improperly withheld agency records,” i.e., records that do “not fall within an exemption.” Minier v. CIA, 88 F.3d 796, 803 (9th Cir. 1996); see also 5 U.S.C. § 552(a)(4)(B) (providing the district court with jurisdiction only “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant”); Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980) (“Under 5 U.S.C. § 552(a)(4)(B)[,] federal jurisdiction is dependent upon a showing that an agency has (1) ‘improperly’ (2) ‘withheld’ (3) ‘agency records.’”). W hile narrowly construed, FOIA’s statutory exemptions “are intended to have meaningful reach and application,” John Doe Agency, 493 U.S. at 152; see also Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001).
Summary judgment is the procedural vehicle by which most FOIA actions are resolved. Reliant Energy Power Generation, Inc. v. FERC, 520 F . Supp. 2d 194, 200 ( D.D.C. 2007); Valfells v. CIA, No. 09-1363, 2010 WL 2428034, *2 (D.D.C. June 17, 2010), appeal docketed sub nom Thomas Moore, III v. CIA, No. 10-5248 (D.C. Cir. Aug. 24, 2010 ). The government bears the burden of proving that the withheld information falls within the exemptions it invokes. See 5 U.S.C. § 552(a)(4)(B); King v. U.S. Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). In a FOIA case, a court may grant summary judgment to the government entirely on the basis of information set forth in an agency’s affidavits or declarations that provide “the justifications for
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nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 ( D.C. Cir. 1981). Such declarations are accorded “a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks omitted); Valfells, 2010 WL 2428034, *2.
In reviewing the applicability of FOIA Exemptions 1 a nd 3 f or purposes of deciding Defendant CIA’s Motion for Summary Judgment, it is important to note that the information sought by Plaintiffs directly “implicat[es] national security, a uniquely executive purview.” Ctr. for Nat’l Sec. Studies, 331 F.3d at 926-27. While courts review de novo an agency’s withholding of information pursuant to a FOIA request, “de novo review in FOIA cases is not everywhere alike.” Ass’n of Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd., 830 F.2d 331, 336 (D.C. Cir. 1987). Although de novo review provides for “an objective, independent judicial determination,” courts nonetheless defer to an agency’s determination in the national security context, acknowledging that “the executive ha[s] unique insights into what adverse affects might occur as a result of public disclosure of a particular classified record.” Ray v. Turner, 587 F.2d 1187, 1194 ( D.C. Cir. 1978) (internal quotation marks omitted). C ourts have specifically recognized the “propriety of deference to the executive in the context of FOIA claims which implicate national security.” Ctr. for Nat’l Sec. Studies, 331 F.3d at 927-28.
For these reasons, courts have “consistently deferred to executive affidavits predicting harm to the national security, and have found it unwise to undertake searching judicial review.” Ctr. for Nat’l Sec. Studies, 331 F.3d at 927; Larson v. Dep’t of State, 565 F.3d 857, 865 (D.C.
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Cir. 2009) (“Today we reaffirm our deferential posture in FOIA cases regarding the ‘uniquely executive purview’ of national security.”). Consequently, “in the national security context, the reviewing court must give ‘substantial weight’” to agency declarations. Am. Civil Liberties Union v. U.S. Dep’t of Justice, 265 F. Supp. 2d 20, 27 (D.D.C. 2003) (quoting King, 830 F.2d at 217); see Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990) (holding that the district court erred in “perform[ing] its own calculus as to whether or not harm to the national security or to intelligence sources and methods would result from disclosure”); Frugone v. CIA, 169 F.3d 772, 775 (D.C. Cir. 1999) (because “courts have little expertise in either international diplomacy or counterintelligence operations, we are in no pos ition to dismiss the CIA’s facially reasonable concerns” about the harm that disclosure could cause to national security). Accordingly, FOIA “bars the courts from prying loose from the government even the smallest bit of information that is properly classified or would disclose intelligence sources or methods.” Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983).
The following discussion and accompanying declaration establish that, pursuant to these standards of review, the CIA’s Glomar response is appropriate in this case, and the CIA is therefore entitled to summary judgment in its favor. II. THE CIA PROPERLY DECLINED TO CONFIRM OR DENY THE EXISTENCE
OR NONEXISTENCE OF RECORDS RESPONSIVE TO PLAINTIFFS’ REQUEST PURSUANT TO EXEMPTIONS 1 AND 3 “The Glomar doctrine is well settled as a proper response to a FOIA request because it is the only way in which an agency may assert that a particular FOIA statutory exemption covers the ‘existence or nonexistence of the requested records’ in a case in which a plaintiff seeks such records.” Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 68 (2nd Cir. 2009) (quoting Phillippi v. CIA, 546 F.2d 1009, 101 2 (D.C. Cir. 1976)). T he invocation of a Glomar response is appropriate
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when “to confirm or deny the existence of records … w ould cause harm cognizable under an FOIA exception.” Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982).
The CIA has properly invoked Exemptions 1 a nd 3 i n response to Plaintiffs’ request. “These exemptions cover not only the content of protected government records but also the fact of their existence or nonexistence, if that fact itself properly falls within the exemption.” Larson, 565 F.3d at 861 (citing Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)). “FOIA Exemptions 1 and 3 a re independent; agencies may invoke the exemptions independently and courts may uphold agency action under one exemption without considering the applicability of the other.” Larson, 565 F.3d at 862-63 (citing Gardels, 689 F.2d at 1106-07).
The CIA invokes a Glomar response “consistently in all cases where the existence or nonexistence of records responsive to a FOIA request is a classified fact, including instances in which the CIA does not possess records responsive to a particular request.” Cole Decl. ¶ 18. For example, “[i]f the CIA were to invoke a Glomar response only when it actually possessed responsive records, the Glomar response would be interpreted as an admission that responsive records exist.” Id. Such a “practice would reveal the very information that the CIA must protect in the interest of national security.” Id.
Courts in this Circuit have consistently upheld Glomar responses where, as here, confirming or denying the existence of records would either reveal classified information protected by FOIA Exemption 1 or disclose information protected by statute in contravention of FOIA Exemption 3. See, e.g., Larson, 565 F.3d at 861-62 (upholding the National Security Agency’s use of the Glomar response to plaintiffs’ FOIA requests regarding past violence in Guatemala pursuant to Exemptions 1 a nd 3); Frugone, 169 F.3d at 774-75 (finding that CIA properly refused to confirm or deny the existence of records concerning plaintiff’s alleged
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employment relationship with CIA pursuant to Exemptions 1 and 3, despite the allegation that another government agency seemed to confirm plaintiff’s status as a former CIA employee); Morley v. CIA., 699 F. Supp. 2d 244, 257-58 (D.D.C. 2010) (upholding CIA’s Glomar response to plaintiff’s request concerning covert CIA operations pursuant to Exemptions 1 a nd 3); Wheeler v. CIA, 271 F . Supp. 2d 132, 140 ( D.D.C. 2003) (ruling that CIA properly invoked a Glomar response to plaintiff’s request for records concerning plaintiff’s activities as a journalist in Cuba during the 1960s pursuant to Exemption 1). H ere, the CIA has submitted a detailed declaration explaining why the fact of the existence or nonexistence of the requested records is exempt from disclosure pursuant to FOIA Exemptions 1 and 3. The CIA has examined each of the individual requests and properly determined that the fact of existence or nonexistence of responsive CIA records is protected from disclosure under Exemptions 1 and 3. Cole Decl. ¶ 5.
A. The CIA’s Glomar Response Is Proper Under Exemption 1 Exemption 1 of FOIA “protects matters ‘specifically authorized under criteria established by an executive order to be kept secret in the interest of national defense or foreign policy and . . . in fact properly classified pursuant to such Executive order.’” Larson, 565 F.3d at 861; see 5 U.S.C. § 552( b)(1). Executive Order 13526 governs the classification of national security information. See Classified National Security Information, Exec. Order No. 13526, 75 Fed. Reg. 707 (Dec. 29, 2009) (“E.O. 13526”); see also Wolf v. CIA, 473 F.3d 370, 375 (D.C. Cir. 2007).3 Notably, section 3.6(a) of E.O. 13526 expressly authorizes an agency to “refuse to confirm or deny the existence” of the records. See also Wilner, 592 F .3d at 71 ( observing that “the Executive Order specifically countenances the Glomar Response, permitting a classifying agency
3 E.O. 13526 superseded Executive Order No. 12958, 60 Fed. Reg. 19825 (Apr. 17, 1995).
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to refuse to confirm or deny the existence or nonexistence of requested records whenever the fact of their existence or nonexistence is itself classified”) (internal citations omitted).
An agency can establish that it has properly withheld information under Exemption 1 if it demonstrates that it h as met the classification requirements of E.O. 13526. Section 1.1 of the Executive Order sets forth the following four requirements for the classification of national security information: (1) an original classification authority classifies the information; (2) the United States Government owns, produces, or controls the information; (3) the information is within one of eight protected categories listed in section 1.4 of the Order; and (4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in a s pecified level of damage to the national security, and the original classification authority is able to identify or describe the damage. E.O. 13526, § 1.1(a). As noted above, when it comes to matters affecting the national security, courts accord “substantial weight” to an agency’s declarations concerning classified information, King, 830 F.2d at 217, and deference to the expertise of agencies involved in national security and foreign relations. Fitzgibbon, 911 F.2d at 766; Frugone, 169 F.3d at 775. Given that the CIA has met both the procedural and substantive prerequisites for classification under the Executive Order, the existence or nonexistence of responsive CIA records is exempt from disclosure under FOIA Exemption 1.
1. An Original Classification Authority Has Classified the Information Mary Ellen Cole, the Information Review Officer for the CIA’s National Clandestine Service, has affirmed that she holds original classification authority under a delegation of authority pursuant to section 1.3(c) of E.O. 13526. Cole Decl. ¶ 3. She found that “the existence or nonexistence of responsive records is a currently and properly classified fact . . . the disclosure
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of which reasonably could be expected to cause damage to the national security of the United
States.” Id. at ¶ 5. Thus, the information withheld satisfies the Executive Order’s classification
requirement that an original classification authority classified the information.
2. The United States Owns, Produces, or Controls the Information
The Cole Declaration confirms that the fact of the existence of nonexistence of records
responsive to Plaintiffs’ requests is owned by and under the control of the United States
Government. Id. at ¶ 30. Accordingly, the withheld information satisfies the second
classification requirement regarding U.S. Government information.
3. The Information Falls Within the Protected Categories Listed in Section 1.4 of E.O. 13526
The CIA has determined, and has articulated with reasonable specificity, that the
information protected from disclosure falls squarely within certain delineated categories of information set forth in sections 1.4(c) and (d) of E.O. 13526. Cole Decl. ¶¶ 32-38.4 First,
Section 1.4(c) of the Order permits the classification of information concerning “intelligence
activities (including covert action), intelligence sources or methods, or cryptology.”). As the
Cole Declaration explains:
Hypothetically, if the CIA were to respond to this request by admitting that it possessed responsive records, it would indicate that the CIA was involved in drone strikes or at least had an intelligence interest in drone strikes – perhaps by providing supporting intelligence, as an example. In either case, such a response would reveal a specific clandestine intelligence activity or interest of the CIA, and it would provide confirmation that the CIA had the capability and resources to be involved in these specific activities – all facts that are protected from disclosure . . . .
4 The Cole Declaration also asserts that the fact of the existence or nonexistence of the requested records has not been classified in order to conceal violations of law, or inefficiency, administrative error; to prevent embarrassment to a person, organization or agency; to restrain competition; or prevent or delay the release of information that does not require protection in the interest of national security. Cole Decl. ¶ 31.
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On the other hand, if the CIA were to respond by admitting that it did not possess any responsive records, it would indicate that the CIA had no involvement or interest in drone strikes. Such a response would reveal sensitive information about the CIA’s capabilities, interests, and resources that is protected from disclosure . . . . Cole Decl. ¶ 19, 21; see also ¶¶ 32, 33, 36. Although each of the categories requested by Plaintiffs relates to drone strikes in some manner and therefore animates these concerns, some of the categories seek even more detailed information about the CIA’s activities, sources, and methods related to drone strikes. For example, several of the requests seek particular types of intelligence and analysis related to drone strikes, such as target selection and “after the fact” evaluations or assessments of individual drone strikes. See CIA Request, ¶¶ 3, 4, 5, 7, and 8; Cole Decl. ¶ 22. Confirming the existence or non-existence of records responsive to these requests would therefore divulge whether or not the CIA has an interest in or engages in intelligence analysis related to these activities. Other requests seek information about training and supervision of drone pilots. See CIA Request ¶¶ 9, 10. Confirming the existence or nonexistence of such records would reveal whether or not CIA is involved in drone strikes. Cole Decl ¶ 22. Finally, a non-Glomar response to categories 1.B and 2 could reveal information about the existence or nonexistence of any cooperation, contact, or other relationships between the CIA and foreign governments with respect to drone strike operations. Cole Decl. ¶¶ 22, 23, 25, 36-38; see also Fitzgibbon, 911 F .2d at 759, 760 (Exemption 3 protects even “nonsensitive contacts” between CIA and foreign officials). All of this information concerns CIA intelligence activities and intelligence sources and methods and thus falls within section 1.4(c).5
5 Furthermore, if CIA were required to respond to Plaintiffs’ requests by either confirming or denying whether responsive records exist, the ordinary processing of any such records in FOIA litigation, if they existed, could likely expose additional classified information even if the substantive content of the
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Second, section 1.4(d) of the Order permits classification of information concerning “foreign relations or foreign activities of the United States, including confidential sources.” The CIA has determined that official acknowledgement of the existence or nonexistence of responsive records would reveal information pertaining to the foreign relations and foreign activities of the United States. “ As an initial matter, because CIA’s operations are conducted almost exclusively overseas or otherwise concern foreign intelligence matters, they generally are U.S. ‘foreign’ activities by definition.” Cole Decl. ¶ 36. The CIA has likewise determined that official confirmation of the existence or nonexistence of CIA records concerning drone strikes would reveal information that impacts the foreign relations of the United States. As explained in the Cole Declaration, “[a]lthough it is generally known that the CIA conducts clandestine intelligence operations, identifying an interest in a particular matter or publicly disclosing a particular intelligence activity could well cause the affected or interested foreign government to respond in ways that would damage U.S. national interests.” Cole Decl. ¶¶ 37-38. “An official acknowledgement that the CIA possesses the requested information,” she explains, “could be construed by a foreign government, whether friend or foe, to mean that the CIA has operated undetected within that country’s borders or has undertaken certain intelligence operations against its residents.” Id. Several of the categories also further implicate the foreign relations of the United States by specifically seeking information about potential intelligence cooperation or
underlying records were protected from disclosure. See generally Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973) (requiring agencies to prepare an itemized index of withheld documents so that the trial court can make a rational decision about whether the withheld material must be produced). The Cole Declaration explains that this processing could reveal valuable information about depth, breadth, and timing of any potential CIA involvement or interest in drone strikes (or lack thereof). Cole Decl. ¶ 20; see also Bassiouni v. C.I.A., 392 F.3d 244, 245 ( 7th Cir. 2004) (recognizing that “[a] list of documents could show clusters of dates that reveal when the agency acquired the information. Knowing which documents entered the files, and when, could permit an astute inference [regarding] how the information came to the CIA's attention-and, in the intelligence business, ‘how’ often means ‘from whom.’”).
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coordination with foreign governments in relation to drone strikes. See CIA Request, paragraphs 1.B, 2, 6 & 7. This type of information falls squarely with section 1.4(d) of E.O. 13526.
4. An Original Classification Authority Has Properly Determined that the Unauthorized Disclosure of the Requested Information Could Be Expected to Result in Damage to the National Security and Has Identified that Damage
Finally, the CIA has determined, and explained in reasonably specific detail, that the unauthorized disclosure of this information reasonably could be expected to cause damage to the national security of the United States. As explained in the Cole Declaration, if CIA were to confirm or deny the existence or nonexistence of responsive records, it would reveal whether or not the CIA has an intelligence interest in drone strikes or is involved in drone strikes, as well as potentially revealing the depth and breadth of such an interest or involvement. Cole Decl. ¶¶ 3235. Such a disclosure would cause damage to national security by providing insight into the CIA’s capabilities and interests and by harming foreign relations. Id.
As the Cole Declaration explains, “[c]landestine intelligence techniques, capabilities, or devices are valuable only so long as they remain unknown and unsuspected. O nce an intelligence source or method (or the fact of its use in a certain situation) is discovered, its continued successful use by the CIA is seriously jeopardized.” Cole Decl. ¶ 34. Furthermore, “terrorist organizations and other hostile groups have the capacity and ability to gather information from myriad sources, analyze it, and deduce means and methods from disparate details to defeat the CIA’s collection efforts. T hus, even seemingly innocuous, indirect references to an intelligence source or method could have significant adverse effects when juxtaposed with other publicly-available data.” Id. ¶ 35; see also ¶ 32.
With this understanding, the Cole Declaration explains that “[i]t would greatly benefit hostile groups, including terrorist organizations, to know with certainty what intelligence
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activities the CIA is or is not engaged in or what the CIA is or is not interested in.” Cole Decl. ¶
24. “To reveal such information would provide valuable insight into the CIA’s capabilities,
interests, and resources that our enemies could use to reduce the effectiveness of the CIA’s
intelligence operations.” Id. “ Terrorist organizations, foreign intelligence services, and other
hostile groups use this information to thwart CIA activities and attack the United States and its
interests.” Id. ¶ 32. The Cole Declaration therefore concludes that these “revelation[s] could be
expected to cause damage to U.S. national security.” Cole Decl. ¶¶ 24-26.
Furthermore, the CIA has determined that confirming the existence or nonexistence of
requested CIA records could negatively impact United States foreign relations. T he Cole
Declaration articulates this concern as follows:
[A]ny response by the CIA that could be seen as a confirmation of its alleged involvement in drone strikes could raise questions with other countries about whether the CIA is operating clandestinely inside their borders, which in turn could cause those countries to respond in ways that would damage U.S. national interests. Moreover, … some of the individual categories of requested records specifically concern the potential involvement of foreign governments in drone strikes. If the CIA is forced to acknowledge the existence or nonexistence of records responsive to a request concerning the assistance of a foreign partner, such acknowledgement would be seen as a tacit confirmation or denial of a clandestine foreign intelligence relationship and/or the involvement of a foreign government in a clandestine activity. When foreign governments cooperate with the CIA, most of them require the CIA to keep the fact of their cooperation in the strictest confidence. A ny violation of this confidence could weaken, or even sever, the relationship between the CIA and its foreign intelligence partners, degrading the CIA’s ability to combat hostile threats abroad.
Cole Decl. ¶ 25; see also Riquelme v. CIA, 453 F. Supp. 2d 103, 109 (D.D.C. 2006) (upholding
CIA’s Glomar response under Exemption 1 because “officially acknowledging that the CIA has
recruited or collected intelligence information on a foreign national, or conducted clandestine
activities in a foreign country, may also qualify for classification on t he ground that it could
hamper future foreign relations with the government of that country” and a “denial that the CIA
15

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has records ... could serve to damage national security by alerting certain individuals that they are not CIA intelligence targets”) (internal quotations and citations omitted).
Although a Glomar response may be vexing to a FOIA requester, it is necessary to ensure that an agency does not reveal classified information simply though a pattern of responses. As the Cole Declaration observes, it would be nonsensical for an agency only to invoke a Glomar response if it had responsive records, and notify requesters when it does not have responsive records, because such an approach would construe a Glomar response as an acknowledgment that responsive records do in fact exist. Cole Decl. ¶ 18. As Ms. Cole notes, “[t]his practice would reveal the very information that CIA must protect in the interest of national security.” Id. Given these critical national security concerns, Defendant’s only protection in circumstances where, as here, the fact of the existence or nonexistence of responsive records is classified, is to provide a consistent response regardless of whether or not it actually possesses responsive records. Id.
B. The CIA’s Glomar Response Is Proper Under Exemption 3 Information withheld pursuant to Exemption 1 m ay also be withheld pursuant to Exemption 3. In refusing to confirm or deny the existence or nonexistence of responsive records, the CIA has properly invoked Exemption 3. Exemption 3 sanctions the use of a Glomar response as authorized by a s eparate statute, “provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U .S.C. § 552(b)(3). To qualify as a statute that permits the withholding of information pursuant to Exemption 3, a court must examine the statute to ascertain whether (1)
16

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the claimed statute is a statute of exemption under FOIA, and (2) whether the withheld material satisfies the criteria of the exemption statute.
The CIA’s mandate to withhold information under Exemption 3 is broader than its authority under Exemption 1 pursuant to Executive Order 13526. See Gardels, 689 F.2d at 1107 (executive order governing classification of documents “not designed to incorporate into its coverage the CIA’s full statutory power to protect all of its ‘intelligence sources and methods’”). Most importantly, unlike Section 1.1(a)(4) of Executive Order 13526, these statutes do not require a determination that the disclosure of information would be expected to result in damage to the national security. See Sims, 471 U.S. at 167; Fitzgibbon, 911 F.2d at 761-62 (“the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within the statute’s coverage.”); Krikorian v. Dep’t of State, 984 F.2d 461, 465 (D.C. Cir. 1993). Compare 50 U.S.C. §§ 403-1(i)(1), 403g, with E.O. 13526, § 1.1(a)(4). Although the CIA has properly determined that the national security would be harmed if any of the information at issue were released, if the Court is satisfied that the CIA’s Glomar response is proper under Exemption 3, it need not even conduct the additional analysis required under Exemption 1. See Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 58 n.3 (D.C. Cir. 2003) (“Because we conclude that the Agency easily establishes that the records ... are exempt from disclosure under Exemption 3, we do not consider the applicability of Exemption 1.”).
1. The CIA’s Glomar Response is Proper Under the CIA Act It is well-established that the Central Intelligence Agency Act of 1949, as amended, 50 U.S.C. § 403 -4 et seq. (the “CIA Act”) satisfies the criteria for withholding of information pursuant to Exemption 3. See Fitzgibbon, 911 F .2d at 761 ( recognizing that courts have determined that the CIA Act is an Exemption 3 statute and noting that “[t]his conclusion is
17

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supported by the plain meaning of the statute, by the legislative history of FOIA, and by every federal court of appeals that has considered the matter”); Baker v. CIA, 580 F.2d 664, 667 (D.C. Cir. 1978). Section 6 of the CIA Act exempts CIA from the provision of any law requiring the publication or disclosure of several categories of information relating to the CIA’s operations, including its “functions.” See 50 U.S.C. § 403g; see also Cole Decl. ¶ 41. Accordingly, the CIA Act protects information that would reveal the functions of the CIA, which “plainly include clandestine intelligence activities, intelligence sources and methods and foreign liaison relationships.” Cole Decl. ¶ 41; see, e.g., Goland v. CIA, 607 F .2d 339, 351 ( D.C. Cir. 1978) (holding that intelligence sources and methods are “functions” of the CIA within the meaning of the CIA Act, and thus exempt from disclosure under Exemption 3); Riquelme, 453 F. Supp. 2d at 111-12 (same). Indeed, Executive Order 12333, as amended, provides that the CIA shall, among other functions, “[c]ollect . . ., analyze, produce, and disseminate foreign intelligence and counterintelligence,” “[c]onduct covert action activities approved by the President,” and “[c]onduct foreign intelligence liaison relationships.” See United States Intelligence Activities, Exec. Order No. 12333, 46 F ed. Reg. 59941 ( Dec. 4, 1981) , amended most recently by Exec. Order No. 13470, 75 F ed. Reg. 45325 (July 30, 2008); see also 50 U.S.C. §403-4a(d)(1), 4a(f) (authorizing functions of the CIA, including intelligence collection and coordinating intelligence relationships with foreign governments and international organizations).
The Cole Declaration explains that “acknowledging the existence or nonexistence of the requested records would require the CIA to disclose information about its core functions.” Cole Decl. ¶ 41. As described above, confirming the existence or nonexistence of responsive records would reveal whether the CIA has an intelligence interest in drone strikes or is involved in drone strikes, including the existence, breadth and depth of any such interest or involvement, and the
18

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CIA’s capabilities or lack thereof with respect to drones. Cole Decl. ¶ ¶ 19-23. Such a disclosure could also confirm the existence or nonexistence of potential foreign intelligence activities and any cooperation, contact, or other relationship, between the CIA and foreign governments. Cole Decl. ¶¶ 36-38; see also Fitzgibbon, 911 F .2d at 762-63. The CIA has therefore determined that acknowledging the existence or nonexistence of the requested records would require the CIA to disclose information about its functions, an outcome the CIA Act expressly prohibits. Id.
2. The CIA’s Glomar Response is Proper Under the NSA The National Security Act of 1947, as amended, 50 U.S.C. § 401 et seq. (the “NSA”) also satisfies the criteria for withholding of information pursuant to Exemption 3. See, e.g., Sims, 471 U.S. at 167-68 (finding that the NSA “qualifies as a withholding statute under Exemption 3”); Miller v. Casey, 730 F.2d 773, 777 (D.C. Cir. 1984) (“Section 403 [of the NSA] is an Exemption 3 statute.”). The NSA provides that the “Director of National Intelligence (“DNI”) shall protect intelligence sources and methods from unauthorized disclosure.” 50 U.S.C. § 403-1(i)(1); Cole Decl. ¶ 40.6 In CIA v. Sims, the Supreme Court, recognizing the “wide-ranging authority” provided by the NSA to protect intelligence sources and methods, held that it was “the responsibility of the Director of Central Intelligence, not that of the judiciary, to weigh the variety of complex and subtle factors in determining whether disclosure of information may lead
6 Courts have recognized that not just the DNI, but also CIA and other agencies may rely upon the amended NSA to withhold records under FOIA. See, e.g., Larson, 565 F.3d at 862-63, 865; Talbot v. CIA, 578 F . Supp. 2d 24, 28-29 n.3 ( D.D.C. 2008). F urthermore, the President specifically preserved CIA’s ability to invoke the NSA to protect its intelligence sources and methods. See, e.g., Exec. Order No. 12,333, § 1.6(d) (as revised after the NSA was amended) (reprinted in 50 U.S.C. § 401 note) (requiring that the CIA Director “[p]rotect intelligence and intelligence sources, methods, and activities from unauthorized disclosure in accordance with guidance from the [DNI]”). Here, the CIA has explained that “[u]nder the direction of the DNI … and consistent with section 1.6(d) of Executive Order 12333, the CIA is authorized to protect CIA sources and methods from unauthorized disclosure.” Cole Decl. ¶ 40.
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Case 1:10-cv-00436-RMC Document 15 Filed 10/01/10 Page 27 of 32
to an unacceptable risk of compromising the Agency’s intelligence-gathering process.” 471 U.S. at 180. T he Court observed that Congress did not limit the scope of “intelligence sources and methods” in any way. Id. at 183. Rather, it “simply and pointedly protected all sources of intelligence that provide, or are engaged to provide, information the Agency needs to perform its statutory duties with respect to foreign intelligence.” Id. at 169-70.
Following the invocation of a Glomar response to a FOIA request pursuant to Exemption 3, the only question for the court is whether the agency has demonstrated that responding to the request “can reasonably be expected to lead to unauthorized disclosure of intelligence sources and methods.” Halperin v. CIA, 629 F.2d 144, 147 (D.C. Cir. 1980); see, e.g., Wolf, 473 F.3d at 377-78 (relying on t he NSA in holding that CIA’s affidavits “establish that disclosure of information regarding whether or not CIA records of a foreign national exist would be unauthorized under Exemption 3 because it would be reasonably harmful to intelligence sources and methods”); Riquelme, 453 F. Supp. 2d at 111-12 (affirming CIA’s Glomar response pursuant to the NSA and CIA Act regarding certain alleged CIA activities in Paraguay and, inter alia, information relating to a foreign national because the fact of the existence or nonexistence of such records “are pertinent to the Agency’s intelligence sources and methods”). S uch broad discretion is proper under the Exemption 3 analysis because even “superficially innocuous information” might reveal valuable intelligence sources and methods. Sims, 471 U.S. at 178; see also Fitzgibbon, 911 F .2d at 762 ( “the fact that the District Court at one point concluded that certain contacts between CIA and foreign officials were ‘nonsensitive’ does not help [plaintiff] because apparently innocuous information can be protected and withheld”).
The Cole Declaration explains in great detail that confirming or denying the existence of the records requested by Plaintiffs can reasonably be expected to lead to unauthorized disclosure
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of CIA intelligence sources and methods. See Cole Decl. ¶¶ 19-26, 33-35. As further explained therein, “to confirm or deny that the CIA possesses records responsive to Plaintiffs’ request could risk the disclosure of the existence or nonexistence of several potential intelligence sources and methods, including the CIA’s possible relationships with foreign liaison partners relating to drone strikes, any CIA interest in drone strikes, and the CIA’s capabilities relating to that particular device.” Cole Decl. ¶ 33. Information about such relationships, interests, activities, and capabilities of the CIA (or lack thereof) is intelligence sources and methods information that is protected from disclosure by the NSA.
Accordingly, the CIA has properly concluded that a Glomar response is necessary to safeguard CIA functions and intelligence sources and methods from unauthorized disclosure. The records sought by Plaintiffs – information that would disclose the existence or nonexistence of clandestine CIA functions, intelligence activities, sources and/or methods – falls squarely within the scope of the protective mandate under the CIA Act and the NSA. Thus, the CIA’s decision neither to confirm nor deny the existence of responsive records is justified by Exemption 3. III. THE CIA HAS NOT OFFICIALLY ACKNOWLEDGED THE EXISTENCE OR
NONEXISTENCE OF RESPONSIVE RECORDS Plaintiffs have alleged in their administrative appeal that the CIA has previously acknowledged “facts at issue in the Request” and that therefore a Glomar response is improper. See CIA Appeal at 2. An agency may be compelled to provide information over a valid FOIA exemption claim only when the specific information at issue has already been fully, publicly, and officially disclosed. See Wolf, 473 F.3d at 378. Plaintiffs “bear the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld.” Id.
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(quoting Afshar, 702 F.2d at 1130). The Plaintiffs must show (1) that the requested information is “as specfic as the information previously released;” (2) that the requested information “match[es] the previous information;” and (3) that the information has “already . . . been made public through an official and documented disclosure.” Id. As this Circuit noted in Wolf, “the insistence on exactitude recognizes ‘the Government’s vital interest in information relating to national security and foreign affairs.’” Id. (quoting Public Citizen v. Dep’t of State, 11 F.3d 198, 203 (D.C. Cir. 1993).
The Cole Declaration confirms that the CIA has not officially acknowledged the existence or nonexistence of responsive CIA records related to drone strikes, Cole Decl. ¶ 43, which is the relevant legal inquiry under the Glomar doctrine. See Wolf, 473 F.3d at 379; see also Wilner, 592 F.3d at 70 (“The Glomar doctrine is applicable … in cases in which the existence or nonexistence of a record is a fact exempt from disclosure under a FOIA exception. An agency is therefore precluded from making a Glomar response if the existence or nonexistence of the specific records sought by the FOIA request has been the subject of an official public acknowledgment.”); Valfells, 2010 WL 2428034 at *3 (“Resolution of this matter … turns on whether the CIA has already ‘officially acknowledged’ that it has any record concerning the [subject of the request].”) Nor has it officially acknowledged any of the protected underlying information implicated by Plaintiffs’ request, such as any involvement or intelligence interest the CIA may or may not have in drone strikes. C ole Decl. ¶ 43. Plaintiffs have attempted to infer such an acknowledgement from a variety of news sources and quotes, none of which approaches official confirmation that responsive records exist.
Many of the statements cited by Plaintiffs are either unsourced or come from former government officials or are attributed to anonymous individuals. Other statements constitute
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attempts at deduction or mere conjecture. As the Second Circuit recently explained, “anything short of [an official] disclosure necessarily preserves some increment of doubt regarding the reliability of the publicly available information.” Wilson v. CIA, 586 F.3d 171, 195 (2nd Cir. 2009). Morever, “the law will not infer official disclosure . . . from . . . w idespread public discussion of a classified matter,” and such publicity or statements are insufficient to undermine the CIA’s predictions of harm from official confirmation or denial. See id. at 195; see also Wolf, 473 F.3d at 378 (“An agency's official acknowledgment of information by prior disclosure, however, cannot be based on m ere public speculation, no m atter how widespread.”); Military Audit Project v. Casey, 656 F .2d 724, 745 (D.C. Cir. 1981) (explaining importance of maintaining “lingering doubts”); Students Against Genocide v. Dep’t of State, 50 F. Supp. 2d 20, 25 (D.D.C. 1995) (“[T]here is certainly no ‘cat out of the bag’ philosophy underlying FOIA so that any public discussion of protected information dissipates the protection which would otherwise shield the information sought.”); see also Snepp v. United States, 444 U.S. 507, 510 n.3 (1980) (recognizing government’s “compelling interest in protecting ... t he appearance of confidentiality so essential to the effective operation of our foreign intelligence service”).7
Plaintiffs also cite statements by former government employees and others not authorized to speak for the CIA. The courts have been clear, however, that “statements made by a person not authorized to speak for the Agency,” do not waive a Glomar response. Wilson, 586 F.3d at 186-87; see also Afshar, 702 F.2d at 1130-31 (“Unofficial leaks and public surmise can often be ignored by foreign governments that might perceive themselves to be harmed by disclosure of
7 Even in cases w here there arguably has been some limited acknowledgement of the alleged information at issue or related topics – which is not the case here – courts have upheld the use of a Glomar response. See Wilner, 592 F.3d at 70 (“[T]he fact that the [program’s] existence has been made public reinforces the government’s continuing stance that it is necessary to keep confidential the details of the program’s operations and scope.”); Phillippi v. CIA, 655 F.2d 1325, 1331 (D.C. Cir. 1981) (“There may be much left to hide, and if there is not, that itself may be worth hiding.”).
23

Case 1:10-cv-00436-RMC Document 15 Filed 10/01/10 Page 31 of 32
their cooperation with the CIA, but official acknowledgement may force a government to retaliate.”); Military Audit Project, 656 F .2d at 744 ( requiring “authoritative” disclosure); Schlesinger v. CIA, 591 F. Supp. 60, 66 (D.D.C. 1984) (construing official disclosure to mean “direct acknowledgments by an authoritative government source.”)
In addition to these non-authoritative media reports, Plaintiffs cite several public statements by CIA Director Leon Panetta to reporters and one by former DNI Dennis Blair to Congress. See Cole Decl. ¶ 9, Exhibit C at 3-4 (“CIA Appeal”). Even as selectively quoted in the administrative appeal, none of these statements acknowledge the existence or nonexistence of responsive CIA records. Cole Decl. ¶ 45. Accordingly, the specific information withheld has not been publicly acknowledged. N or, when read accurately, do these statements reveal the protected underlying information, such as the existence or extent of any CIA interest or involvement in drone strikes (or lack thereof) or the existence or extent of any CIA cooperation with foreign governments with respect to drone strikes (or lack thereof). Plaintiffs’ administrative appeal did not cite a single official acknowledgment of the information at issue. Instead, Plaintiffs relied on partial quotes and the inferences drawn by journalists. Such sources clearly do not constitute the formal, official acknowledgement that Courts have envisioned as a waiver of FOIA exemptions. Cf. Wolf, 473 F.3d at 379 (finding CIA may have waived Glomar response where the CIA Director had read responsive documents into the Congressional record). See also Valfells, 2010 WL 2428034 at *4 (“Logical deductions are not, however, official acknowledgments.”).
In sum, at no time has the CIA specifically acknowledged the existence or nonexistence of responsive records; nor has the CIA acknowledged CIA interest or involvement in drone strikes as defined by the Plaintiffs. The ACLU apparently believes that its intelligence expertise,
24

Case 1:10-cv-00436-RMC Document 15 Filed 10/01/10 Page 32 of 32

or the intelligence expertise of journalists, is adequate to infer such a conclusion from the publicly available information. However, such inferences, even if the ACLU finds them compelling, do not constitute official acknowledgements on b ehalf of the CIA. See Phillippi, 655 F.2d at 1331; Military Audit Project, 656 F.2d at 745; Afshar, 702 F.2d at 1130-31.
CONCLUSION For the foregoing reasons, Defendant CIA respectfully requests that the Court grant summary judgment in its favor.

Dated: October 1, 2010

Respectfully submitted,
TONY WEST Assistant Attorney General
RONALD C. MACHEN JR. United States Attorney
ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch
/s/Amy E. Powell AMY E. POWELL (N.Y. Bar) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20001 Telephone: (202) 514-9836 Fax: (202) 616-8202 amy.powell@usdoj.gov

25

 
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 Case 1:10-cv-00436-RMC Document 35 Filed 09/09/11 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

AMERICAN CIVIL LIBERTIES,

)

UNION, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

DEPARTMENT OF JUSTICE, et al., )

)

Defendants.

)

)

Civil Action No. 10-0436 (RMC)

ORDER For the reasons stated in the Memorandum Opinion filed separately and contemporaneously herewith, it is hereby ORDERED that defendant Central Intelligence Agency’s motion for summary judgment [Dkt. # 15] is GRANTED; and it is FURTHER ORDERED that Plaintiffs’ motion for partial summary judgment against the Central Intelligence Agency [Dkt. # 21] is DENIED; and it is FURTHER ORDERED that the Central Intelligence Agency is hereby DISMISSED as a defendant in this matter. SO ORDERED.

Date: September 9, 2011

/s/ ROSEMARY M. COLLYER United States District Judge

 
 Case 1:10-cv-00436-RMC Document 38 Filed 10/26/11 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA

AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs,
v. DEPARTMENT OF JUSTICE, et al.,
Defendants.

No. 1:10-cv-436-RMC

STIPULATION REGARDING VOLUNTARY DISMISSAL OF CLAIMS AGAINST CERTAIN PARTIES
The Parties in the above-captioned Freedom of Information Act case have conferred and reached a stipulated agreement that all claims against Defendants Department of Justice (“DOJ”), Department of Defense (“DOD”), and Department of State (“DOS”) shall be voluntarily dismissed from this action with prejudice. The Parties advise the Court of this agreement as follows: 1. On March 16, 2010, Plaintiffs American Civil Liberties Union and American Civil Liberties Union Foundation (collectively, “Plaintiffs”) filed a complaint for injunctive relief pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), naming as Defendants the Department of Justice, Department of Defense, and Department of State; 2. On June 1, 2010, Plaintiffs filed an amended complaint adding Defendant Central Intelligence Agency (“CIA”); 3. Defendant CIA moved for summary judgment on October 1, 2010; Plaintiffs crossmoved for partial summary judgment on November 1, 2010; and the Court granted the CIA’s motion and denied Plaintiffs’ motion on September 9, 2011;

Case 1:10-cv-00436-RMC Document 38 Filed 10/26/11 Page 2 of 2

4. Pursuant to Federal Rule of Civil Procedure 54(b), the Court’s order of September 9, 2011 is not yet a final appealable order because claims remain unadjudicated as to the Defendants other than CIA; 5. Defendants DOJ, DOD, and DOS have now completed production of records and Vaughn indices in accordance with schedules set by the Court; 6. A status report is due to the Court on October 26, 2011; 7. Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), Plaintiffs and Defendants hereby stipulate that all claims against Defendants DOJ, DOD, and DOS are voluntarily dismissed from this action with prejudice; 8. Summary judgment having previously been granted in favor of the remaining defendant, this action may now be closed on the Court’s docket.

Respectfully submitted,
Ben Wizner Nathan Freed Wessler American Civil Liberties Union Foundation 125 Broad St., 18th Fl. New York, NY 10004 Telephone: 212-549-2500 Fax: 212-549-2629
/s/ Arthur B. Spitzer Arthur B. Spitzer (D.C. Bar No. 235960) American Civil Liberties Union
of the Nation’s Capital 1400 20th Street, N.W., Suite 119 Washington, DC 20036 Telephone: 202- 457-0800 Fax: 202-452-1868 art@aclu-nca.org
Attorneys for Plaintiffs
Dated: October 26, 2011

TONY WEST Assistant Attorney General RONALD C. MACHEN JR. United States Attorney ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch
/s/ Amy E. Powell AMY E. POWELL Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20001 Telephone: 202-514-9836 Fax: 202-616-8202
Attorneys for Defendants

 
 Case 1:10-cv-00436-RMC Document 41 Filed 07/11/12 Page 1 of 1

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 11-5320

September Term 2011

1:10-cv-00436-RMC

Filed On: July 2, 2012

American Civil Liberties Union and American Civil Liberties Union Foundation,

Appellants

v.

Central Intelligence Agency,

Appellee

BEFORE: Tatel, Garland, and Griffith, Circuit Judges O R D E R
Upon consideration of appellee’s motion to remand for further proceedings, and the opposition thereto, it is
ORDERED that the motion be denied.
Per Curiam
FOR THE COURT: Mark J. Langer, Clerk BY: /s/ Michael C. McGrail Deputy Clerk

 
 UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

AMERICAN CIVIL LIBERTIES

)

UNION, et al.,

)

)

Plaintiffs,

)

)

v.

) Civil Action No. 10-436 (RMC)

)

CENTRAL INTELLIGENCE AGENCY, )

)

Defendant.

)

____________________________________ )

OPINION

The Central Intelligence Agency (CIA) engages in covert actions in foreign

countries on behalf of the United States and, by necessity, practice, and statute, keeps its

activities secret. The American Civil Liberties Union and the American Civil Liberties Union

Foundation (collectively ACLU) are concerned about CIA activities overseas. Relying on the

Freedom of Information Act, ACLU requested all CIA records pertaining to the United States’

use of drone strikes to carry out targeted killings of alleged Islamist terrorists overseas. CIA

initially provided a Glomar response to ACLU, i.e., it refused to confirm or deny that CIA had

such records, which this Court approved. See ACLU v. Dep’t of Justice, 808 F. Supp. 2d 280

(D.D.C. 2011) (Drones I). Thereafter various government officials made public statements about

a U.S. operational role in drone strikes. The D.C. Circuit reversed and ordered CIA to begin the

FOIA process anew. See ACLU v. CIA, 710 F.3d. 422, 430 (D.C. Cir. 2013) (Drones II).

On remand, ACLU narrowed its request, and CIA searched for and acknowledged

the existence of twelve legal memoranda and thousands of classified intelligence products

responsive to the narrowed request. CIA released a redacted version of a classified DOJ White

Paper, but has withheld the other eleven legal memoranda and all of the intelligence products on 1

the basis that disclosing these records would compromise classified, statutorily-protected, and privileged information. ACLU objects to CIA’s response and asserts that some records must be released, specifically those records that (1) contain information that has already been officially acknowledged; (2) contain legal analysis or statistical or factual information that is not intertwined with classified intelligence information; and (3) have not been shown by CIA to be subject to a privilege.
Both parties move for summary judgment. For the reasons set forth below, the Court will grant CIA’s Motion for Summary Judgment and deny ACLU’s Cross-Motion for Summary Judgment.
I. FACTS In September 2001, Congress authorized the use of military force against enemies of the United States. Authorization for Use of Military Force (AUMF), Pub. L. No. 107–40, 115 Stat. 224 (reprinted at 50 U.S.C. § 1541 note). Since that time, the United States and its allies have been engaged in a war with al-Qa’ida1 and its associated forces in Afghanistan, Pakistan and elsewhere. One of the recently-used weapons by the United States is an unmanned drone, which can deliver a missile strike against an enemy target with greater precision and less risk to innocent humans than a traditional bomb. ACLU has sued CIA over its refusal to release records concerning the United States’ use of drones. See Am. Compl. [Dkt. 11]. A. Original FOIA Request In a January 13, 2010 letter,2 ACLU submitted a request for documents under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to CIA’s Information and Privacy
1 Al-Qa’ida may also be referred to as “al-Qaeda” and “Al-Qaida.” See infra at 5. 2 The letter was incorrectly dated January 13, 2009.
2

Coordinator3 seeking “records pertaining to the use of unmanned aerial vehicles (‘UAVs’)—
commonly referred to as ‘drones’ and including the MQ–1 Predator and MQ–9 Reaper—by CIA
and the Armed Forces for the purpose of killing targeted individuals.” CIA 1st Mot. [Dkt. 15],
Declaration of Mary Ellen Cole (Cole Decl.), Ex. A (Jan. 13, 2010 FOIA Request) at 2. ACLU
specifically requested all records containing ten categories of information:
1. The “legal basis in domestic, foreign and international law upon which unmanned aerial vehicles” can be used to execute targeted killings, including who may be targeted with this weapon system, where and why;
2. . . . .4
3. The “selection of human targets for drone strikes and any limits on who may be targeted by a drone strike;”
4. “[C]ivilian casualties in drone strikes,” including measures to limit civilian casualties;
5. The “assessment or evaluation of individual drone strikes after the fact,” including how the number and identities of victims are determined;
6. “[G]eographical or territorial limits on the use of UAVs to kill targeted individuals;”
7. The “number of drone strikes that have been executed for the purpose of killing human targets, the location of each such strike,
3 ACLU submitted the same January 13, 2010 FOIA request to the Department of Defense (DOD), Department of Justice (DOJ), DOJ’s Office of Legal Counsel (OLC), and Department of State (State). ACLU originally sued DOD, DOJ, and State. See Compl. ¶¶ 9–11 (filed 3/16/10). The Amended Complaint added CIA as a co-defendant. See Am. Compl. [Dkt. 11] ¶ 12 (filed 6/1/10). The parties stipulated to dismissal the complaint against DOD, DOJ, and State on October 26, 2011. See Stipulation [Dkt. 38]. This Opinion addresses only the FOIA request to CIA.
4 During the first round of summary judgment briefing, ACLU abandoned its request for information in categories 1(b) and 2, both of which concerned records on the understanding, cooperation or involvement of foreign governments in drone strikes. See Pls. Opp’n to CIA 1st Mot. [Dkt. 20] at 3.
3

and the agency of the government or branch of the military that undertook each such strike;”
8. The “number, identity, status, and affiliation of individuals killed in drone strikes;”
9. “[W]ho may pilot UAVs, who may cause weapons to be fired from UAVs, or who may otherwise be involved in the operation of UAVs for the purpose of executing targeted killings,” including records pertaining to the involvement of CIA personnel, government contractors, or other non-military personnel, and;
10. The “training, supervision, oversight, or discipline of UAV operators and others involved in the decision to execute a targeted killing” using a drone.
Jan. 13, 2010 FOIA Request at 5–8 (emphasis omitted).
B. Prior Proceedings
CIA responded to the Jan. 13, 2010 FOIA Request on March 9, 2010, stating that
“the CIA [could] neither confirm nor deny the existence or nonexistence of records responsive to
[ACLU’s] request.” Cole Decl., Ex. B (Mar. 9, 2010 CIA Response). CIA stated that the “fact
of the existence or nonexistence of requested records is currently and properly classified and is
intelligence sources and methods information that is protected from disclosure by section 6 of the
CIA Act of 1949, as amended.”5 Id. CIA specifically relied on FOIA Exemptions 1 and 3 as the
basis for its response. Id. ACLU filed an administrative appeal on April 22, 2010 but then filed
the Amended Complaint in this litigation (adding CIA as a defendant) and CIA closed the
administrative file.
5 CIA’s response is commonly known as a Glomar response, which is named after the ship Hughes Glomar Explorer, about which records were sought in Phillippi v. CIA, 546 F.2d 1009, 1011 (D.C. Cir. 1976). The Phillippi requester sought information regarding the ship, and CIA refused to confirm or deny that it had any records because to do so would have compromised national security or would have revealed intelligence sources and methods. CIA’s response was sustained by the D.C. Circuit. Id.; see also Moore v. Bush, 601 F. Supp. 2d 6, 14 n.6 (D.D.C. 2009).
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CIA moved for summary judgment on October 1, 2010, arguing that it could neither confirm nor deny the existence of responsive records. ACLU opposed, citing inter alia, a May 18, 2009 response to a question by then-CIA Director Leon J. Panetta after a speech, about the United States’ use of drone strikes in Pakistan. Director Panetta responded:
On the first issue, obviously because these are covert and secret operations I can’t go into particulars. I think it does suffice to say that these operations have been very effective because they have been very precise in terms of the targeting and it involved a minimum of collateral damage. I know that some of the— sometimes the criticisms kind of sweep into other areas from either plane attacks or attacks from F–16s and others that go into these areas, which do involve a tremendous amount of collateral damage. And sometimes I’ve found in discussing this that all of this is kind of mixed together. But I can assure you that in terms of that particular area, it is very precise and it is very limited in terms of collateral damage and, very frankly, it’s the only game in town in terms of confronting and trying to disrupt the al-Qaeda leadership. Pl. Opp’n to CIA 1st Mot. [Dkt. 20], Declaration of Alexander Abdo, Ex. B (May 18, 2009 Panetta Remarks at the Pacific Council on International Policy) at 10. ACLU also quoted from an interview Director Panetta gave to the Washington Post. Id., Ex. C at 1 (“In an interview with the Washington Post, Mr. Panetta described the drone strikes in Pakistan as ‘the most aggressive operation that CIA has been involved in in our history.’”) (quoting Joby Warrick & Peter Finn, Al-Qaida Crippled as Leaders Stay in Hiding, CIA Chief Says, Wash. Post, Mar. 17, 2010). This Court granted CIA’s Motion for Summary Judgment on September 9, 2011, finding that CIA’s Glomar response was justified under FOIA Exemption 3 based on the nondisclosure provisions of the Central Intelligence Agency Act of 1949, as amended, 50 U.S.C. § 403–4 et seq. (CIA Act), and the National Security Act of 1947, as amended, 50 U.S.C. § 401
5

et seq. (the NSA). See Drones I, 808 F. Supp. 2d at 287–93.6 With respect to Director Panetta’s
comments, the Court found that:
[C]omments by Director Panetta did not officially disclose the CIA’s involvement in the drone strike program . . . . Even if Director Panetta were speaking squarely on the issue of drone strikes, he never acknowledged the CIA’s involvement in such program. That Director Panetta acknowledged that such a program exists and he had some knowledge of it, or that he was able to assess its success, is simply not tantamount to a specific acknowledgment of the CIA’s involvement in such program, nor does it waive the CIA’s ability to properly invoke Glomar.
Id. at 294 (citing Wilner v. NSA, 592 F.3d 60, 70 (2d Cir. 2009) (other citations omitted)). This
Court noted that “Plaintiffs seek exactly what is not publicly available—an official CIA
acknowledgment of the fact that it is or is not involved in the drone strike program.” Id. at 296
(citing Public Citizen v. Dep’t of State, 11 F.3d 198, 201 (D.C. Cir. 1993)). This Court also ruled
that CIA’s Glomar response was independently authorized under FOIA Exemption 1 based on
Executive Order 13526, as well as the potential damage to national security that could occur by
providing insight into CIA’s foreign intelligence activities. Id. at 298–301.
ACLU filed its notice of appeal on November 9, 2011. Thereafter, on January 30,
2012, President Obama appeared on a live internet video forum, and stated:
I think that we have to be judicious in how we use drones. But understand that probably our ability to respect the sovereignty of other countries . . . is enhanced by the fact that we are able to pinpoint-strike an al Qaeda operative in a place where the capacities of th[e] military in that country may not be able to get them. So obviously a lot of these strikes have been . . . going after al Qaeda suspects who are up in very tough terrain along the border between Afghanistan and Pakistan.
6 The CIA Act exempts CIA from “any . . . law which require[s] the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency.” 50 U.S.C. § 403g. The NSA mandates that the “Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure.” 50 U.S.C. § 403– 1(i)(1).
6

President Obama Hangs out with America, White House Blog (Jan. 30, 2012), http://www.whitehouse.gov/blog/2012/01/30/president-obama-hangs-out-america (last visited June 18, 2015); The White House, Your Interview with the President—2012, YouTube, at 28:37– 29:23 (Jan. 30, 2012), http://www.youtube.com/watch?v=eeTj5qMGTAI; see id. at 26:20–30:18 (President Obama Hangout) (last visited June 18, 2015).
On April 20, 2012, then-Assistant to the President for Homeland Security and Counterterrorism John Brennan remarked:
So let me say it is as simply as I can. Yes, in full accordance with the law . . . the United States Government conducts targeted strikes against specific al-Qaida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones. And I’m here today because President Obama has instructed us to be more open with the American people about these efforts. John O. Brennan, The Ethics and Efficacy of the President’s Counterterrorism Strategy, Wilson Center (Apr. 30, 2012), http://www.wilsoncenter.org/event/the-efficacy-and-ethics-uscounterterrorism-strategy (last visited June 18, 2015). The D.C. Circuit reversed this Court on March 15, 2013. See Drones II, 710 F.3d at 434. The Circuit noted that ACLU’s FOIA request was not limited to information about drones operated by CIA, but more broadly sought records pertaining to the use of drones by either CIA or the Armed Forces. Id. at 428. The Circuit held that the Government had acknowledged officially that CIA has an “intelligence interest” in drone strikes. Id. at 430. Taking judicial notice of the statements made by President Obama and Mr. Brennan, see id. at 431 n.10, the D.C. Circuit concluded that, “[g]iven these official acknowledgements . . . it is neither logical nor plausible for the CIA to maintain that it would reveal anything not already in the public domain to say that the Agency ‘at least has an intelligence interest’ in such strikes,’”
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id. at 430 (quoting Cole Decl. ¶ 12); see also id. at 431 (“In short, although the President and
Messrs. Brennan and Panetta did not say that the CIA possesses responsive documents, what
they did say makes it neither ‘logical’ nor ‘plausible’ to maintain that the Agency does not have
any documents relating to drones.”).
The Circuit remanded for this Court to determine “‘whether the contents—as
distinguished from the existence—of the officially acknowledged records may be protected from
disclosure by Exemptions 1 and 3.’” Id. at 432 (quoting Wolf v. CIA, 473 F.3d 370, 380 (D.C.
Cir. 2007)). The Circuit instructed that, “with the failure of the CIA’s broad Glomar response,
the case must now proceed to the filing of a Vaughn index7 or other description of the kind of
documents the Agency possesses, followed by litigation regarding whether the exemptions apply
to those documents.” Id. at 432.
The Circuit also addressed the propriety of a “no number, no list” response, by
which an agency acknowledges the existence of responsive documents, but declines to further
describe or enumerate them or provide any other information.
[A] “no number, no list” response might be viewed as a kind of Vaughn index, albeit a radically minimalist one. Such a response would only be justified in unusual circumstances, and only by a particularly persuasive affidavit. Nor is there any reason to regard this approach as subject to an on/off switch . . . . [O]nce an agency acknowledges that it has some responsive documents, there [is] a variety of forms that subsequent filings in the district court may take. A pure “no number, no list” response is at one end of that continuum; a traditional Vaughn index is at the other. Not quite as minimalist as a pure “no number, no list” response might be a “no number, no list” response (or even a Glomar response) with respect
7 A Vaughn index, which is named after the case Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), generally “indicates in some descriptive way which documents the agency is withholding and which FOIA exemptions . . . apply . . . . [T]here is no fixed rule establishing what a Vaughn index must look like, and a district court has considerable latitude to determine its requisite form and detail in a particular case.” Drones II, 710 F.3d at 432.
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to a limited category of documents, coupled with a Vaughn index for the remainder.
Drones II, 710 F.3d at 433–34.8
C. Additional Disclosures
After Drones II, the Executive Branch continued to declassify and disclose
previously-classified information. See CIA 2nd Mot. [Dkt. 49], Declaration of Martha Lutz
(Lutz Decl. I) ¶¶ 15-16. On May 22, 2013, Attorney General Eric Holder wrote to Senator
Patrick J. Leahy, Chairman of the Senate Judiciary Committee, regarding counterterrorism
operations. Id., Declaration of Amy Powell (Powell Decl.), Ex. C (May 22, 2013 Letter from
Holder to Leahy). Attorney General Holder wrote:
I am . . . disclos[ing] to you certain information about the number of U.S. citizens who have been killed by U.S. counterterrorism operations outside of areas of active hostilities. Since 2009, the United States, in the conduct of U.S. counterterrorism operations against al-Qa’ida and its associated forces outside of areas of active hostilities, has specifically targeted and killed one U.S. citizen, Anwar al-Aulaqi. The United States is further aware of three other U.S. citizens who have been killed in such U.S. counterterrorism operations over that same time period: Samir Khan, ‘Abd alRahman Anwar al-Aulaqi, and Jude Kenan Mohammed. These individuals were not specifically targeted by the United States.
Id. at 1–2.
Further, on May 23, 2013, President Obama himself disclosed that Anwar al-
Aulaqi and three other U.S. citizens were killed in lethal drone operations overseas. See Powell
Decl., Ex. D (May 23, 2013 Remarks by the President at the National Defense University) at 4
(noting that there was “one instance when [the United States] targeted . . . Anwar Awlkaki [sic],”
8 These comments were prompted by CIA arguments in an analogous FOIA case in the 2nd Circuit. See New York Times Co. v. Dep’t of Justice, 752 F.3d 123 (2d Cir. 2014), revised and superseded by 756 F.3d 100 (2d Cir. 2014), amended on denial of rehearing by 758 F.3d 436 (2d Cir. 2014).
9

and that the President “authorized the declassification of this action, and the deaths of three other Americans in drone strikes, to facilitate transparency and debate on this issue and to dismiss some of the more outlandish claims that have been made”).
D. New York Litigation The analogous FOIA litigation in New York, referenced above, was brought by
ACLU and the New York Times in the Southern District of New York, seeking records from multiple agencies regarding drone strikes on U.S. citizens. See New York Times Co. v. Dep’t of Justice, No. 11-cv-9336 (CM) (S.D.N.Y. filed Dec. 20, 2011), Am. Civil Liberties Union v. Dep’t of Justice, No. 12-cv-794 (CM) (S.D.N.Y filed Feb. 1, 2012). The District Court granted summary judgment in favor of the government, approving CIA’s proffered “no-number no-list” response to the parties’ FOIA requests, because details about the records, including their nature and number, had not been waived by official public acknowledgment. See N.Y. Times Co. v. Dep’t of Justice, 915 F. Supp. 2d 508, 550-53 (S.D.N.Y. 2013). On appeal, the Second Circuit affirmed in part, reversed in part, and remanded after concluding that the government had officially “identified CIA as an agency that had an operational role in targeted drone killings.” See N.Y. Times Co. v. Dep’t of Justice, 756 F.3d 100, 122, 124 (2d Cir. 2014). In addition to ordering the release of a portion of an Office of Legal Counsel opinion, it held that CIA’s no number, no list response was “insufficiently justified” and ordered CIA to submit a classified Vaughn index “to the District Court on remand for in camera inspection and determination of appropriate disclosure and appropriate redaction.” Id. at 124.9
9 The Second Circuit agreed with the D.C. Circuit that a no number, no list response could be appropriate in certain—albeit unusual—circumstances “and only by a particularly persuasive affidavit.” Drones II, 710 F.3d at 433. However, because it determined that CIA had publicly disclosed its operational role in targeted drone killings, the Second Circuit ruled that the
10

After remand,
the Government redacted and released one additional OLC memorandum related to a contemplated operation against Anwar alAulaqi and one classified DOJ White Paper on the same subject. With respect to all responsive OLC memoranda, the district court has upheld the Government’s withholdings in their entirety. The defendants have filed motions for summary judgment with respect to the remaining documents in dispute.
CIA 3rd Mot. [Dkt. 67-1] at 8 n.4. Proceedings continue before the U.S. District Court of the
Southern District of New York.
E. Revised FOIA Request Here
In this case, on remand from the D.C. Circuit, CIA filed a second motion for
summary judgment on August 9, 2013, Dkt. 49, which relied on a “no number, no list” response
to ACLU’s FOIA request. Subsequently, in light of the Second Circuit’s decision, CIA
withdrew its second motion for summary judgment and the parties conferred on how to proceed.
See Status Report [Dkt. 62]. Based on those discussions, ACLU amended its FOIA request,
limiting it to two categories of items:
(1) Any and all final legal memoranda (as well as the latest version of draft legal memoranda which were never finalized) concerning the U.S. Government’s use of armed drones to carry out premeditated killings; and (2) four types of records routinely compiled by the CIA for analytical purposes containing charts or compilations about U.S. Government strikes sufficient to show the identity of the intended targets, assessed number of people killed, dates, status of those killed, agencies involved, the location of each strike, and the identities of those killed if known.
CIA Notice [Dkt. 73] at 1. ACLU agreed to exclude any legal memoranda being considered in
the analogous FOIA proceedings in the Southern District of New York. Id. at 2. In addition,
“[d]uring the negotiations between the parties, the ACLU was advised the CIA possessed
“Appellees’ main argument for the use of Glomar and no number, no list responses evaporate[d].” N.Y. Times Co., 756 F.3d at 110, 122.
11

additional materials about U.S. Government strikes that was not routinely compiled for analytical
purposes.” Id. However, “the parties agreed that only the four specific types of intelligence
products would be subject to the litigation.” Id. ACLU filed no response or objection to the
CIA’s clarifying Notice.
On November 25, 2014, CIA filed a third motion for summary judgment, Dkt. 67,
acknowledging that its search yielded records responsive to ACLU’s narrowed request. In total,
CIA identified twelve documents responsive to ACLU’s request for legal memoranda and
thousands of intelligence products responsive to the four types of intelligence products covered
by ACLU’s request. See CIA 3rd Mot., Declaration of Martha M. Lutz (Lutz Decl. II) [Dkt. 67-
2] ¶¶ 8, 9. CIA asserts that, with one exception, “disclosure of these documents would
compromise classified, statutorily-protected, and privileged information.” Lutz Decl. II ¶ 7.
CIA invokes FOIA Exemptions 1, 3, and 5 to protect these records. Id. ¶ 7. CIA has also filed a
classified declaration of Ms. Lutz for ex parte, in camera review. See Notice of Classified
Lodging [Dkt. 68]. ACLU filed a cross-motion for summary judgment, Dkt. 70, arguing that
CIA has not justified its withholding of responsive records. ACLU asks the Court to review the
legal memoranda in camera to determine if any must be released and to direct CIA to segregate and disclose “strike metadata”10 from the responsive intelligence products. See Opp’n and
10 Although it does not define “strike metadata,” ACLU appears to use the term to capture the underlying factual information it requested, i.e., “the identity of the intended targets, assessed number of people killed, dates, status of those killed, agencies involved, the location of each strike, and the identifies of those killed if known.” See CIA Notice at 1. Use of the term “metadata” for such information downplays the reality of the FOIA request. See Metadata Definition, Merriam-Webster Dictionary available at http://www.merriamwebster.com/dictionary/metadata (“data that provides information about other data”) (last visited June 18, 2015); Metadata Definition, TechTerms.com available at http://techterms.com/definition/metadata (“A text document’s metadata may contain information about how long the document is, who the author is, when the document was written, and a short summary of the document.”) (last visited June 18, 2015).
12

Cross-Mot. For Summ. J. [Dkt. 69] at 32 (Opp’n). ACLU does not challenge the adequacy of CIA’s search for responsive records.
F. Supplemental Authority On February 12, 2014, ACLU filed a Notice of Supplemental Authority for the
proposition that CIA’s role in drone strikes has now been officially and publicly acknowledged. See Notice of Supp. Auth. [Dkt. 56] (Supp. Auth.). ACLU quoted a news article concerning an exchange between Director of National Intelligence (DNI) James Clapper and Senator Bill Nelson during a hearing of the Senate Armed Services Committee:
Senator Nelson: It is—you tell me if this is correct—the administration’s policy that they are exploring shifting the use of drones, unmanned aerial vehicle strikes, from the CIA to the DOD. Is that an accurate statement? Clapper: Yes, sir, it is. And again, that would be best left to a closed session. Supp. Auth. at 1.11 Directed to respond to the Supplemental Authority, CIA did not dispute the accuracy of the quote. See CIA Supp. Br. [Dkt. 60] at 2.
II. LEGAL STANDARDS CIA contends that it is entitled to judgment as a matter of law because there is no genuine dispute as to any material fact. See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary judgment is properly granted against a party who “after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will
11 ACLU cited Siobhan Gorman, CIA’s Drones, Barely Secret, Receive Rare Public Nod, Wall St. J. Washington Wire Blog (Feb. 11, 2014), http://blogs.wsj.com/washwire/2014/02/11/ciasdrones-barely-secret-receive-rare-public-nod/ (last visited June 18, 2015).
13

bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, a court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “[t]he mere existence of a scintilla of evidence” in support of its position. Id. at 252.
In a FOIA case, a district court decides de novo whether an agency properly withheld information under a claimed exemption. Mead Data Cent., Inc. v. Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977). “The underlying facts are viewed in the light most favorable to the [FOIA] requester,” Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983), and the exemptions are narrowly construed, FBI v. Abramson, 456 U.S. 615, 630 (1982).
FOIA cases are typically and appropriately decided on motions for summary judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Rushford v. Civiletti, 485 F. Supp. 477, 481 n.13 (D.D.C. 1980), aff’d, Rushford v. Smith, 656 F.2d 900 (D.C. Cir. 1981). In a FOIA case, a district court may award summary judgment solely on the basis of information provided by the agency in affidavits when the affidavits describe “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Affidavits submitted by the agency to demonstrate the adequacy of its response are presumed to be in good faith. Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). An agency must demonstrate that “each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially]
14

exempt” from FOIA’s requirements. Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal quotation marks and citation omitted). “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Wolf, 473 F.3d at 374–75).
FOIA also requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt.” 5 U.S.C. § 552(b)(9); see also Oglesby v. Dep’t of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996). Reasonably segregable information—that is, information that can be separated from the exempt portions of a document—must be produced unless the non-exempt portions are “inextricably intertwined with exempt portions.” Trans-Pacific Policing Agreement v. Customs Serv., 177 F.3d 1022, 1027 (D.C. Cir. 1999); Juarez v. Dep’t of Justice, 518 F.3d 54, 61 (D.C. Cir. 2008) (“[D]ocuments may be withheld in their entirety when non-exempt portions are inextricably intertwined with exempt portions.”) (internal quotations omitted). A district court has “‘an affirmative duty to consider the segregability issue sua sponte.’” Id. at 60.
III. ANALYSIS The question is whether ACLU can obtain certain legal memoranda concerning the U.S. Government’s use of drone strikes and four type of records “routinely compiled by the CIA for analytical purposes containing charts or compilations about U.S. Government strikes sufficient to show” the detailed information requested on covert government actions. See CIA Notice at 1. CIA has invoked FOIA Exemptions 1, 3, and 5 to justify its withholding of records. ACLU maintains that CIA has improperly withheld information that has already been officially disclosed and that CIA has not justified any of the cited FOIA Exemptions. In the course of this litigation, CIA submitted two public declarations from Ms. Lutz. See Lutz Decl. I
15

[Dkt. 49-2] and Lutz Decl. II [Dkt. 67-2]. Ms. Lutz declares that she carefully “conducted a page-by-page and line-by-line review [of the responsive documents] and determined that there is no reasonably segregable, non-exempt portions of documents that can be released without potentially compromising classified information, intelligence sources and methods, and/or material protected by privilege.” Lutz Decl. II ¶ 31. CIA also lodged ex parte and in camera an additional classified declaration from Ms. Lutz providing details about the withheld records that cannot be placed on the public record. See Notice of Classified Lodging [Dkt. 68]. The Court has carefully, and repeatedly, reviewed the entire record.
A. CIA’s Response to ACLU’s Revised FOIA Request CIA informed ACLU that its search yielded twelve legal memoranda and
thousands of intelligence products. See Lutz Decl. II ¶¶ 8, 9. CIA did not prepare a traditional Vaughn Index, listing or describing the responsive records. ACLU does not request that CIA supplement its response with a descriptive Vaughn index. Rather, the CIA has submitted a distinctly modified Vaughn Index that addresses each kind of requested document—(1) legal memoranda and 2) four types of intelligence products that contain charts or compilations of U.S. drone strikes—and the bases for their withholding. Although more fulsome than a bare-bones response that “we cannot tell you the number of documents or list them,” CIA was not more forthcoming as regards the intelligence products.
The D.C. Circuit recognized that a no number, no list response could legitimately be lodged on remand, but stressed that this Court should carefully scrutinize CIA’s proffered reasons. See Drones II, 710 F.3d at 433 (ruling that a no number/no list response “would only be justified in unusual circumstances, and only by a particularly persuasive affidavit”). Based on CIA’s limited disclosures, this guidance from the Circuit, and the information in the Lutz
16

Declarations, the Court finds that CIA’s response to ACLU’s revised FOIA request has been fully explained and adequately justified.
B. FOIA Exemption 1 Under Exemption 1, FOIA does not require the production of 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). CIA relies upon Executive Order 13526 (E.O. 13526), 75 Fed. Reg. 707 (Dec. 29, 2009), which governs the classification and protection of national security information, to withhold the legal memoranda, other than the released portions of the DOJ White Paper, and all of the responsive intelligence products. See Lutz Decl. II ¶¶ 24, 25. Information can be properly classified under E.O. 13526 if four requirements are met: (1) an original classification authority has classified the information; (2) the United States Government owns, produces, or controls the information; (3) the information pertains to one or more of eight protected categories listed in Section 1.4 of the E.O.; and (4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in a specified level of damage to the national security, and the original classification authority is able to identify or describe the damage. E.O. 13526 § 1.1(a). CIA has made an affirmative showing that (1) all of the withheld records were classified by Ms. Lutz, an original classification authority, (2) all of the withheld records are owned, produced or controlled by the United States Government, and (3) that disclosure of the withheld records could reasonably be expected to result in damage to national security. See Lutz Decl. II ¶¶ 12, 13, 15, 18, 22-26. ACLU offered no rejoinder to the first two requirements and expressly declined to address CIA’s position that disclosure of the information reasonably could
17

be expected to harm national security.12 See Opp’n at 25-27, 29-31.13 Because ACLU does not oppose CIA’s affirmations with respect to these three requirements, the Court treats the arguments as conceded. See Hopkins v. Women's Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003), aff'd, 98 Fed. Appx. 8 (D.C. Cir. 2004) (“It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.”).
ACLU objects only to CIA’s statements that the withheld records come under one or more of eight protected categories listed in Section 1.4 of E.O. 13526. CIA argues that the withheld records fall into two of those categories: (1) “intelligence activities (including covert action), intelligence sources or methods, or cryptology” and (2) “foreign relations or foreign activities of the United States, including confidential sources.” CIA 3rd Mot. at 18 (citing Exec. Order 13526 §1.4(c), (d)). Specifically, CIA maintains that the legal memoranda, including the redacted portions of the DOJ White Paper, concern classified intelligence activities, sources, and methods, and that the redacted portions of the DOJ White Paper, which discuss a contemplated CIA operation in Yemen, and the intelligence products, which include information about U.S.
12 ACLU argues that the Court should not afford customary deference to CIA’s determination that harm could result if the requested records were released, see Ctr. for Nat. Sec. Studies v. U.S. Dept. of Justice, 331 F.3d 918, 927 (D.C. Cir. 2003), because the D.C. Circuit refused to accept CIA’s earlier Glomar response. This argument confuses ACLU’s own generalized suspicion of CIA and the Circuit’s carefully drawn legal distinctions. Rather than question CIA’s entitlement to deference, the Circuit specifically found it acted without bad faith or wrongdoing. See Drones II, 710 F.3d at 430. Neither does this Court find any basis to limit customary deference. ACLU’s argument fails to address or counter the two Lutz Declarations or the NSA and CIA Acts. 13 ACLU did not file a Reply in support of its Cross-Motion for Summary Judgment.
18

government drone strikes, concern the foreign relations or foreign activities of the United States. Id. (citing Lutz Decl. II ¶¶ 6, 9, 23, 25).
ACLU’s objection is presented in three parts. First, ACLU contends that the legal analysis in the memoranda is not an intelligence activity, source or method, according to the ordinary use of those terms, and therefore cannot be withheld under Exemption 1 because it does not fall within a protected category listed in Section 1.4 of E.O. 13526. See Opp’n at 25-26. Second, it argues that if CIA can justify withholding redacted portions of the DOJ White Paper simply because those portions implicate foreign activities, CIA’s position is so expansive as to render CIA exempt from the FOIA altogether. Id. at 26 n.32. Third, ACLU argues that CIA concedes that “strike metadata” is not itself an intelligence source or method based on Ms. Lutz’s statement that “[t]he information contained in these intelligence products would reveal the sources and methods of underlying intelligence collection.” See Opp’n at 29-30 (citing Lutz Decl. II ¶ 25 (emphasis added)).
Contrary to ACLU’s argument, legal analysis need not constitute an intelligence activity, source, or method to be protected from disclosure under Exemption 1. Section 1.4 of E.O. 13526 directs that “[i]nformation shall not be considered for classification unless it . . . pertains to . . . intelligence activities (including covert action), intelligence sources or methods.” See E.O. 13526 §1.4 (emphasis added). For something to pertain to something else, it must be related or connected to such a thing. See Pertain Definition, Merriam-Webster Dictionary available at http://www.merriam-webster.com/dictionary/pertain (last visited June 18, 2015). Thus, a legal analysis need not constitute an intelligence activity, source, or method by itself to warrant protection so long as it pertains to an intelligence activity, source, or method. Here, CIA has withheld legal memoranda responsive to ACLU’s request for legal memoranda that
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“concern[] the U.S. Government’s use of armed drones to carry out premeditated killings.” CIA Notice at 1. ACLU does not contend that drone strikes are not an intelligence activity or method (or possibly reveal sources), nor could it. Thus, it is entirely logical and plausible that the legal analyses in the withheld memoranda pertain to intelligence activities, sources, and methods. See Larson, 565 F.3d at 862 (“Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’”) (internal citation omitted).
ACLU’s sweeping assertion that CIA can exempt itself from FOIA simply by linking any kind of record to foreign activities is unfounded. The argument overlooks the three other classification requirements of E.O. 13526 (none of which ACLU contests here), including that CIA demonstrate that the disclosure of withheld records “could reasonably be expected to cause identifiable or describable damage to the national security.” E.O. 13526 § 1.4. These additional requirements express clear limitations on CIA’s ability to rely on E.O. 13526 when invoking Exemption 1. Thus, ACLU’s objection to CIA’s withholding of redacted portions of the DOJ White Paper does not stand. Ms. Lutz explains that the redacted portions of the White Paper “discuss[] a contemplated CIA operation in a foreign country–Yemen.” Lutz Decl. II ¶ 23. The Court finds that this information clearly falls within Sections 1.4(c) and (d) of E.O. 13526 because it relates to intelligence activities and foreign activities of the United States. See E.O. 13526 § 1.4
ACLU insists that it only seeks “factual information” from the four kinds of intelligence products that contain charts or compilations of U.S. drone strikes, not anything that would reveal an intelligence activity, source, or method. To the contrary, ACLU seeks explicit details on U.S. drone strikes that would be “sufficient to show the identity of the intended targets, assessed number of people killed, dates, status of those killed, agencies involved, the
20

location of each strike, and the identities of those killed if known.” CIA Notice at 1. Such details could reveal the scope of the drone program, its successes and limitations, the “methodology behind the assessments and the priorities of the Agency” and more. See Lutz Decl. II ¶ 25. The Court has no doubt that this kind of detail would reveal intelligence activities, sources, and methods and is properly protected under Exemption 1.
CIA alternately designated the intelligence products containing charts and compilations as relating to the “foreign relations and foreign activities of the United States,” another protected category listed in Section 1.4 of E.O. 13526. See Reply [Dkt. 72] at 5; Lutz Decl. ¶¶ 14, 18. ACLU did not object to this designation. See generally Opp’n at 29-31. By failing to address this argument, ACLU has conceded it. See Hopkins, 284 F. Supp. 2d at 25.
The Court concludes that CIA has sustained its burden of showing that all the documents at issue were properly withheld from disclosure under FOIA Exemption 1. See Larson, 565 F.3d at 865 (“If an agency’s statements supporting exemption contain reasonable specificity of detail as to demonstrate that the withheld information logically falls within the claimed exemption and evidence in the record does not suggest otherwise, . . . the court should not conduct a more detailed inquiry to test the agency’s judgment and expertise or to evaluate whether the court agrees with the agency’s opinions.”).14
14 Because the Court has determined that all of the withheld records are protected by Exemption 1, the Court does not reach the question of whether Exemption 3 applies as well. See Lutz Decl. II ¶¶ 24-26 (“Exemption (b)(3) in conjunction with the National Security Act and the CIA Act also applies to all the information for which Exemption (b)(1) was invoked.”); Reply at 6 (“[A]ll of the withheld information is protected by Exemption 1.”). The Court nonetheless considers whether the legal memoranda are also properly withheld pursuant to Exemption 5.
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B. FOIA Exemption 5 FOIA Exemption 5 protects from disclosure “inter-agency or intra-agency
memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). This exemption encompasses material that is protected under the deliberative process privilege, the attorney-client privilege, and the presidential communications privilege. Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980); see also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (Exemption 5 includes all documents “normally privileged in the civil discovery context.”); Baker & Hostetler LLP v. Dep’t of Commerce, 473 F.3d 312, 321 (D.C. Cir. 2006) (same).
The deliberative process privilege protects records “reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” NLRB, 421 U.S. at 150. It also covers “recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.” Coastal States, 617 F.2d at 866. To qualify for withholding, material must be both predecisional and deliberative. Judicial Watch, Inc. v. Dep’t of Energy, 412 F.3d 125, 129 (D.C. Cir. 2005).
A document is predecisional if it was prepared in order to assist an agency decisionmaker in arriving at his decision, rather than to support a decision already made. Material is deliberative if it reflects the give-and-take of the consultative process. [The D.C. Circuit’s] recent decisions on the deliberativeness inquiry have focused on whether disclosure of the requested material would tend to discourage candid discussion within an agency. Petroleum Info. Corp. v. Dep’t of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (alteration in original) (citations and internal quotation marks omitted). These documents are protected from release to promote “the quality of agency decisions by protecting open and frank discussion
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among those who make them within the Government.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 9 (2001); accord Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 617 (D.C. Cir. 1997) (“[T]he quality of administrative decision-making would be seriously undermined if agencies were forced to ‘operate in a fishbowl’ because the full and frank exchange of ideas on legal or policy matters would be impossible.”) (quoting Mead Data Cent., 566 F.2d at 256).
The attorney-client privilege protects “confidential communications from clients to their attorneys, as well as communications from attorneys to their clients containing confidential information supplied by the client.” Am. Imm. Council v. Dep't of Homeland Sec., 950 F. Supp. 2d 221, 243 (D.D.C.2013) (citing Tax Analysts v. I.R.S., 117 F.3d 607, 618 (D.C. Cir. 1997)). The presidential communications privilege is a “presumptive privilege for [p]residential communications,” United States v. Nixon, 418 U.S. 683, 708 (1974), that “preserves the President’s ability to obtain candid and informed opinions from his advisors and to make decisions confidentially.” Loving v. Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir. 2008). The privilege protects those “documents or other materials that reflect presidential decisionmaking and deliberations and that the President believes should remain confidential,” and, once the privilege is invoked, the documents become presumptively privileged. In re Sealed Case, 121 F.3d 729, 744 (D.C. Cir. 1997). Further, unlike the deliberative process privilege, which is also encompassed under Exemption 5, the presidential communications privilege “applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones.” Id. at 745. Along with protecting communications that “directly involve” the President, see Loving, 550 F.3d at 39 (quoting Judicial Watch v. Dep’t of Justice, 365 F.3d 1108, 114 (D.C. Cir.)), the privilege also protects
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communications authored or solicited and received by those members of an immediate White House adviser’s staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate. In re Sealed Case, 121 F.3d at 752. CIA justifies withholding the legal memoranda under the deliberative process, attorney-client, and presidential communication privileges. See CIA 3rd Mot. at 24-28.15 Ms. Lutz avers that “[a]ll of the material for which the deliberative process privilege was asserted reveals an interim stage in intra-agency and inter-agency discussions, which preceded a final decision of the CIA or other agency or component of the Executive Branch.” Lutz Decl. II ¶ 28. CIA argues that attorney-client privilege protects “communications between the CIA and DOJ in connection with a request for the provision of legal advice as well as information provided by Agency personnel in furtherance of that advice.” Id. ¶ 29. Ms. Lutz affirms that “the confidentiality of these communications was maintained.” Id. Finally, CIA contends that the presidential communication privilege protects those documents which “reflect communications between Executive Branch agencies and presidential advisors for the purpose of presidential decision-making.” Id. ¶ 30. ACLU protests that Lutz Declaration II fails to provide a foundation for invoking any of the cited privileges because it fails to explain how any of the claimed privileges actually applies to each of the legal memoranda for which they are invoked. See Opp’n at 28-29. However, the classified Lutz Declaration, which was provided to the Court for ex parte, in camera review, see Notice of Classified Lodging [Dkt. 68], provides fully detailed descriptions of the legal memoranda with more than sufficient information for this Court to determine the nature of each memo. In this respect, the Court finds that review of the
15 CIA asserts that all of the legal memoranda, other than the released portions of the DOJ White Paper, are also withheld in accord with Exemptions 1 and 3. See Lutz Decl. II ¶ 27.
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memoranda themselves is unnecessary. The classified Lutz Declaration has provided the information on which a privileged determination would be made. As a result, the Court is fully satisfied that the cited privileges have been validly invoked and applied. Accordingly, the Court concludes that the contested legal memoranda, including the redacted portions of the DOJ White Paper, were properly withheld under Exemption 5 based on the applicable deliberative process, attorney-client, and presidential communication privileges.
C. Official Acknowledgement When “information has been ‘officially acknowledged,’ its disclosure may be
compelled even over an agency’s otherwise valid exemption claim.” Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). To be officially acknowledged: “(1) the information requested must be as specific as the information previously released; (2) the information requested must match the information previously disclosed; and (3) the information requested must already have been made public through an official and documented disclosure.” ACLU v. DoD, 628 F.3d 612, 620–21 (D.C. Cir. 2011); see also Afshar v. Dep't of State, 702 F.2d 1125, 1133 (D.C. Cir. 1983). The D.C. Circuit has cautioned that “‘[p]rior disclosure of similar information does not suffice; instead, the specific information sought by the plaintiff must already be in the public domain by official disclosure. This insistence on exactitude recognizes the Government’s vital interest in information relating to national security and foreign affairs.’” ACLU v. DoD, 628 F.3d at 621 (quoting Wolf, 473 F.3d at 378).16 The fact that information is publicly available “does not necessarily mean that official disclosure will not cause harm cognizable under a FOIA
16 ACLU cites the Second Circuit for the proposition that the official acknowledgment test should not be rigidly applied and that the “matching” requirement of the test “does not require absolute identity.” See Opp’n at 20 (citing N.Y. Times Co., 756 F.3d at 120 n.19, 116). The Second Circuit’s opinion directly contradicts binding D.C. Circuit law that strictly construes the “matching” requirement. See ACLU v. DoD, 628 F.3d at 621.
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exemption.” Wolf, 473 F.3d at 378. ACLU bears the burden of demonstrating that the information it seeks has been officially acknowledged. See id.; Afshar, 702 F.2d at 1130 (“[A]a plaintiff asserting a claim of prior disclosure must bear the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld.”).
ACLU argues that the government has officially acknowledged basic facts about the drone program and information about the program’s legal basis; therefore, ACLU concludes that some of the records CIA seeks to withhold must be released because the government has waived any FOIA exemptions with regard to such records. See Opp’n at 19-25. CIA denies that any of the withheld records has been officially acknowledged and dismisses ACLU’s argument as speculative. See Reply at 10-11 (citing Lutz Decl. II ¶¶ 22-25). The Court finds that none of the requested information is available through an official disclosure and, accordingly, CIA has not waived its validly invoked FOIA exemptions with respect to the withheld records.
1. No Waiver of FOIA Exemptions as to Charts and Compilations Pursuant to its revised FOIA request, ACLU seeks “records routinely compiled by the CIA for analytical purposes containing charts or compilations about U.S. Government strikes sufficient to show the identity of the intended targets, assessed number of people killed, dates, status of those killed, agencies involved, the location of each strike, and the identities of those killed if known.” CIA Notice at 1 (emphasis added). ACLU argues that the government has officially acknowledged basic facts about U.S. involvement in drone strikes: (1) “[t]he government has acknowledged that it uses drones to carry out targeted killings overseas . . . in Yemen, Pakistan, and Somalia;” (2) “[t]he government has acknowledged that both the DOD and CIA have an intelligence interest in the use of drones to carry out targeted killings;” (3) “[t]he government has acknowledged that both the DOD and the CIA have an operational role in drone
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strikes;” (4) “[t]he government has acknowledged that Anwar al-Aulaqi was targeted, and that U.S. drone strikes have killed two other U.S. citizens in Yemen;” and (5) “[t]he government has officially disclosed the bases on which the government placed Anwar al-Aulaqi on the ‘terrorist list’ and determined that al-Aulaqi was a legitimate target of lethal force.” Opp’n at 20-22 (emphasis in original).
Many of these allegedly disclosed facts are not relevant to the immediate FOIA request. Whether the government has acknowledged that CIA has an intelligence interest in drone strikes or an operational role in drone strikes will not aid ACLU. At best, these alleged disclosures identify the general nature of CIA’s connection to drone strikes. By contrast, ACLU has requested granular details about every drone strike recorded on CIA charts or compilations. See CIA Notice at 1. Further, ACLU did not request information regarding the factual basis for the government’s decision to place Anwar al-Aulaqi on the “terrorist list” or the government’s determination that he was a legitimate target of lethal force. See id. Because none of the information requested by ACLU matches these alleged factual disclosures, such disclosures do not constitute a waiver of the FOIA exemptions validly invoked here. See ACLU v. DoD, 628 F.3d at 620 (“information requested must match the information previously disclosed”).
ACLU also incorrectly cites Eric Holder’s May 22, 2013 letter to Senator Patrick Leahy to support its claim that the government has officially acknowledged that U.S. drone strikes were responsible for the deaths of certain U.S. citizens. Mr. Holder wrote:
[T]he President has directed me to disclose certain information that until now has been properly classified. . . . The United States is . . . aware of three other U.S. citizens who have been killed in such U.S. counterterrorism operations . . . Samir Khan, ‘Abd al-Rahman Anwar al-Aulaqi, and Jude Kenan Mohammed. May 22, 2013 Letter from Holder to Leahy at 1-2. A careful reading of the letter shows that Mr. Holder never stated that these individuals were killed by drone strikes. As to their cause of
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death, Mr. Holder stated that the individuals were killed by “U.S. counterterrorism operations.” Id. Mr. Holder’s statements about counterterrorism operations plainly do not “match” the specific information ACLU requested about drone strikes and are insufficient as a matter of fact and law to compel disclosure of any of the withheld intelligence products. See ACLU v. DoD, 628 F.3d at 620.
With respect to the remaining alleged disclosures, ACLU attempts to string together snippets of facts from various sources in the hopes that such information collectively is “as specific as” and “matches” the information that has been withheld. This Circuit’s case law demonstrates that such an approach cannot satisfy the rigorous demands of the official acknowledgment test. In Public Citizen v. Dep’t of State, 11 F.3d 198 (D.C. Cir. 1993), the FOIA plaintiff sought documents relating to a meeting between the then-U.S. Ambassador to Iraq and then-President of Iraq Saddam Hussein. Id. at 199. Because the Ambassador testified before Congress about the meeting, the plaintiff argued that the State Department had waived any FOIA exemption for the requested records consisting of the Ambassador’s post-meeting memoranda, accounts of the meeting, and her recommendations to State Department officials. Id. at 200-01. The Circuit rejected the plaintiff’s argument because it did not “meet Afshar’s requirement that it show that [the Ambassador’s] testimony was ‘as specific as’ the documents it seeks in this case, or that her testimony ‘matches’ the information contained in the documents.” Id. at 203. “Even if her testimony effected ‘partial disclosures of classified information’ contained in the requested documents,” the Circuit concluded that “those disclosures did not result in waiver because they did not precisely track the records sought to be released.” Assassination Archives and Research Center v. CIA, 334 F.3d 55, 60 (D.C. Cir. 2003) (discussing and citing Public Citizen, 11 F.3d at 203-04.).
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The FOIA plaintiff in Assassination Archives & Research Ctr. v. CIA sought release of a CIA-prepared multivolume compendium of information on “Cuban Personalities,” which included “personality profiles of, or biographic data on, a number of Cuban individuals.” 334 F.3d at 56. The plaintiff argued that CIA waived any applicable FOIA exemption because the biographies of several Cuban nationals had been released under the John F. Kennedy Assassination Records Collection Act (JFK Act), codified at 44 U.S.C. § 2107 note. Id. at 59. The plaintiff proffered the declaration of a University of Maryland associate professor who stated, “[a] very high percentage of this volume of documents concerned Cuba, Cuban exiles and Cuban exile organizations and that, in his judgment, the overwhelming majority of Cuban personalities in whom the CIA has had an interest have been disclosed under the JFK Act.” Id. at 60-61 (international quotation marks omitted). The Circuit acknowledged that “it may be that some information disclosed pursuant to the JFK Act is included in the Compendium,” but nonetheless concluded that the plaintiff had not met its burden to “show that information duplicates the contents of the Compendium.” Id. at 60. The Circuit emphasized that the professor’s declaration was deficient because it “made no specific showing that any of the JFK Act disclosures revealed information that is as specific as and matches that included in the Compendium.” Id. at 61 (internal quotation marks omitted).
As with the FOIA plaintiffs in Public Citizen and Assassination Archive, ACLU has merely pointed to alleged disclosures of vaguely similar information, but has failed to identify officially disclosed information that “precisely track[s]” or “duplicates” the information it has requested. See Assassination Archive, 334 F.3d at 60. ACLU has identified public
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statements regarding U.S. drones strikes in Yemen, Pakistan, and Somalia17 and against Anwar
al-Aulaki, but these references merely establish that the Obama Administration has spoken
publicly about the same subject matter as the requested information. This does not satisfy. Prior
disclosure of similar subject matter, without more, misses the mark. The FOIA plaintiff in
Public Citizen failed to carry its burden even when it identified Congressional testimony about
17 ACLU cites a Washington Post article to support its claim that there has been official acknowledgment of U.S. drone strikes in Somalia. See Opp’n at 20 (citing Craig Whitlock, U.S. Carries Out Counterterrorism Strike in Somalia, Wash. Po. (Sept. 1, 2014), http://www.washingtonpost.com/world/national-security/us-carries-out-counterterrorism-strikein-somalia/2014/09/01/19067e8c-323b-11e4-8f02-03c644b2d7d0_story.html (Wash. Po. Article)). A video clip of a news briefing by Pentagon Press Secretary Kirby is embedded in the article, but ACLU does not discuss it in any detail. For the sake of thoroughness, the Court has carefully reviewed it to determine if it constitutes official acknowledgment of any of the requested information. In his September 1, 2014 news briefing, Press Secretary Kirby stated that U.S. Special Forces conducted a strike near Mogadishu, Somalia that targeted Ahmed Abdi awMohamed, leader of the Al-Shabaab network:
I know that you have all been tracking events in Somalia last night, so if you just bear with me, I’ll walk you through what I can right now. Yesterday, at approximately 11:20 Eastern Time, working from actionable intelligence, U.S. Special Operations Forces, using manned and unmanned aircraft, destroyed an encampment and a vehicle using several Hellfire missiles and laser guided munitions. This operation was a direct strike against the al Shabaab network, specifically the group’s leader Ahmed Abdi aw-Mohamed, also known as Ahmed Godane . . . I’m not going to be able to provide specifics about the unit or the intelligence itself and certainly not anything regarded to tactics, techniques and procedures. The operation occurred south of Mogadishu, located in south central Somalia and it did result in the destruction of that vehicle.
See Wash. Po. Article.
Press Secretary Kirby acknowledged that the Special Operations Forces—a component of the Department of Defense’s United States Special Operations Command—were involved in the attack, but did not reference CIA. He did not state that the information he relayed had been or would be maintained in any chart or compilation by any agency, much less CIA. Because Press Secretary Kirby made no link between CIA and the Mogadishu strike, it is entirely speculative whether the identified details of the strike are contained in any of the withheld CIA records. The briefing was too far afield from CIA to constitute a waiver of the applicable FOIA exemptions. ACLU v. DoD, 628 F.3d at 621.
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the very meeting to which the requested documents related. See Public Citizen, 11 F.3d at 201. The Assassination Archives FOIA plaintiff failed to carry its burden despite the release of information under the JFK Act about Cuban nationals. See Assassination Archives, 334 F.3d at 60-61. Here, too, ACLU fails to carry its burden by only listing “basic facts” about the U.S. drone program despite its request for detailed charts and compilations providing information about U.S. government drone strikes that CIA routinely tracks. In addition, even if some of the disclosed facts are included on one or more of the withheld charts and compilations, Assassination Archives instructs that waiver has not occurred without evidence that the disclosed information “duplicates” the contents of the intelligence products. See Assassination Archives, 334 F.3d at 60-61. ACLU has not met this burden.
The Court concludes that ACLU has not cleared the “high hurdle” of demonstrating that any of government statements to which it points is as specific as the details on the charts and compilations it seeks, or that such statements match the withheld information. See Pub. Citizen v. Dep't of State, 11 F.3d 198, 203 (D.C. Cir. 1993). A FOIA plaintiff such as ACLU is held to a stringent standard because “the Government’s vital interest in information relating to national security and foreign affairs dictates that it must be.” Id. The Court finds that CIA has not waived its right to invoke the FOIA Exemptions requiring that the records containing charts and compilations be withheld.
2. No Waiver of FOIA Exemptions as to Legal Memoranda In response to ACLU’s request for “final legal memoranda (as well as the latest version of draft legal memoranda which were never finalized) concerning the U.S. Government’s use of armed drones to carry out premeditated killings,” CIA Notice at 1, CIA released portions of the DOJ White Paper, which “discusses the legal basis upon which CIA could use lethal force
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in Yemen against a U.S. citizen,” Anwar al-Aulaqi. Lutz Decl. II ¶ 22. Beyond the DOJ White Paper, CIA “determined that, based on [a] page-by-page, line-by-line review of the record, some information in the DOJ Classified White Paper remains currently and properly classified” and that “the redacted information goes beyond what has been publicly disclosed.” Id. ¶¶ 22-23. Ms. Lutz affirmed that there has been no official acknowledgment of the remaining legal memoranda. Id. ¶ 24.
ACLU argues that CIA has waived its FOIA exemptions as to some of the withheld legal memoranda, or portions thereof, because the government has already disclosed its analysis of 18 U.S.C. § 1119 (the statute that makes it a crime for “a national of the United States, [to] kill [] or attempt[] to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country”); 18 U.S.C. § 956(a) (a statute that criminalizes conspiracy to commit murder abroad); 18 U.S.C. § 2441(a) (a statute that makes it a crime for a member of the U.S. armed forces or a U.S. national to “commit[] a war crime”); E.O. 12333 (an assassination ban); and its constitutional analysis. See Opp’n at 22-24. ACLU also contends that the government has publicly expressed its commitment to ensuring that any use of lethal force by the U.S. complies with fundamental law of war principles. See id. Because CIA did not provide any description of the withheld legal memoranda in a traditional Vaughn index, ACLU requests the Court to review the legal memoranda in camera to determine whether any must be released because they contain information that has been officially acknowledged. See Opp’n at 32. A district court has broad discretion to decline to conduct an in camera review of withheld materials. See Boyd v. Criminal Div. of U.S. Dep’t of Justice, 475 F.3d 381, 391 (D.C. Cir. 2007). Based on its careful review of the classified Lutz Declaration, which contains detailed descriptions of the legal memoranda, the Court concludes that ACLU
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has not met its burden to show that there has been official acknowledgment of any of the withheld legal memoranda. Therefore, CIA has not waived its right to invoke the FOIA Exemptions requiring that the eleven legal memoranda and the redacted portions of the DOJ White Paper be withheld and the Court declines to review them in camera. See ACLU v. DoD, 628 F.3d at 620–21.
D. Segregability Even if an agency properly withholds responsive records under a FOIA
exemption, it nevertheless must disclose any non-exempt information that is “reasonably segregable.” 5 U.S.C. § 552(b); Mead Data Cent., 566 F.2d at 260 (D.C. Cir. 1977) (“It has long been a rule in this Circuit that non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions.”). “The question of segregability is by necessity subjective and context-specific, turning upon the nature of the documents and information in question.” Am. Civil Liberties Union v. Dep't of State, 878 F. Supp. 2d 215, 225 (D.D.C. 2012) (citing Mead Data Cent., 566 F.2d at 261). A district court need not “order an agency to commit significant time and resources to the separation of disjointed words, phrases, or even sentences which taken separately or together have minimal or no information content.” Mead Data Cent., 566 F.2d at 261 n. 55. An agency cannot rely on mere conclusory statements that non-exempt material in a document is not reasonably segregable. See id. at 261. It must provide a reasonably detailed justification, except where “such a detailed justification . . . would itself compromise the secret nature of potentially exempt information.” Id. Nonetheless, “[a]gencies are entitled to a presumption that they complied with the obligation to disclose reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007).
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ACLU requests that the Court direct CIA to segregate and disclose the particular factual information it requested, i.e., the “identity of the intended targets, assessed number of people killed, dates, status of those killed, agencies involved, the location of each strike, and the identities of those killed if known,” Lutz Decl. II ¶ 6. See Opp’n at 32. CIA explains that it conducted a page-by-page and line-by-line review of the materials responsive to ACLU’s request. See Lutz Decl. II ¶ 31. CIA released portions of the DOJ White Paper and otherwise “determined that there is no reasonably segregable, non-exempt portions of documents that can be released without potentially compromising classified information, intelligence sources and methods, and/or material protected by privilege.” Id. The three Lutz Declarations provide a reasonably detailed justification that any non-exempt material cannot be segregated and released. Moreover, the Court concludes that any isolated words or phrases that might not be redacted for release would be meaningless. The Court finds that CIA has demonstrated that it has not withheld any segregable, non-exempt materials and therefore denies ACLU’s request that it order CIA to do so.
IV. CONCLUSION For the reasons set forth above, the Court will grant CIA’s Motion for Summary Judgment and deny ACLU’s Cross-Motion for Summary Judgment. A memorializing Order accompanies this Opinion.

Date: June 18, 2015

/s/ ROSEMARY M. COLLYER United States District Judge

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 USCA Case #15-5217 Document #1609666

Filed: 04/21/2016 Page 1 of 5

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 15-5217

September Term, 2015
FILED ON: APRIL 21, 2016

AMERICAN CIVIL LIBERTIES UNION AND AMERICAN CIVIL LIBERTIES UNION FOUNDATION, APPELLANTS

v.

UNITED STATES DEPARTMENT OF JUSTICE, ET AL., APPELLEES

Appeal from the United States District Court for the District of Columbia (No. 1:10-cv-00436)

Before: TATEL and GRIFFITH, Circuit Judges, and SENTELLE, Senior Circuit Judge.
J U D G M E N T
This appeal from the order of the United States District Court for the District of Columbia was presented to the court and briefed and argued by counsel. The court has accorded the issues full consideration and has determined that they do not warrant a published opinion. See D.C. Cir. R. 36(d). It is
ORDERED AND ADJUDGED that the judgment of the District Court be affirmed.
In this long-running Freedom of Information Act suit, the American Civil Liberties Union and the American Civil Liberties Union Foundation (collectively, the ACLU) seek records from the Central Intelligence Agency related to the United States’ use of armed drones to conduct “targeted killings.” We need not recount here much of the procedural and factual history leading to the present appeal. Suffice it to say that the ACLU now seeks two categories of documents: (1) certain “final legal memoranda (as well as the latest version of draft legal memoranda which were never finalized) concerning the U.S. Government’s use of armed drones to carry out premeditated killings”; and (2) certain intelligence products “containing charts or compilations about U.S. Government strikes sufficient to show the identity of the intended targets, assessed number of people killed, dates, status of those killed, agencies involved, the location of each strike, and the identities of those killed if known.” Declaration of Martha M. Lutz, Chief of the Litigation Support Unit, Central Intelligence Agency, at ¶ 6 (Nov. 25, 2014). After searching for

USCA Case #15-5217 Document #1609666

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2
responsive records, the CIA identified twelve legal memoranda responsive to the first part of the request and “thousands of records” responsive to the second. Id. ¶¶ 8–9. The agency refused to release any records, save for a redacted version of a May 2011 white paper by the Department of Justice. The agency then moved for summary judgment before the district court, arguing that the redacted portions of the DOJ White Paper and the remaining records were exempt from disclosure under FOIA Exemption 1 (pertaining to classified records), FOIA Exemption 3 (pertaining to records specifically exempted from disclosure by statute), and/or FOIA Exemption 5 (pertaining to agency memoranda subject to certain litigation privileges). After reviewing a public and a classified affidavit regarding the agency’s justifications for nondisclosure, the district court granted the CIA’s motion. The ACLU now appeals. Because we agree that the withheld records may be shielded from disclosure under FOIA Exemption 1, we affirm.
We review the grant of summary judgment de novo. See Mobley v. CIA, 806 F.3d 568, 574 (D.C. Cir. 2015). In FOIA cases, “[s]ummary judgment is warranted on the basis of agency affidavits when the affidavits describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Larson v. Department of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (internal quotation marks omitted). Although FOIA authorizes district courts to review agency records in camera to determine if they are properly withheld, see 5 U.S.C. § 552(a)(4)(B), this court has said that in national security cases like this one, “‘in camera review is neither necessary nor appropriate’” when an agency has met its burden through reasonably specific affidavits, Mobley, 806 F.3d at 588 (quoting Larson, 565 F.3d at 870); see ACLU v. Department of Defense, 628 F.3d 612, 626 (D.C. Cir. 2011) (“In camera inspection is particularly a last resort in national security situations like this case—a court should not resort to it routinely on the theory that it can’t hurt.” (internal quotation marks omitted)); Hayden v. National Security Agency, 608 F.2d 1381, 1387 (D.C. Cir. 1979) (“In camera review is a ‘last resort’ to be used only when the affidavits are insufficient for a responsible De novo decision.”).
Here, in both its public and classified affidavits, the CIA invokes FOIA Exemption 1 to protect all of the requested records from disclosure. Pursuant to that exemption, agencies may withhold records “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy” and that “are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). Executive Order 13,526 currently governs the classification of government records. 75 Fed. Reg. 707 (Dec. 29, 2009). Under that order’s substantive criteria, information may be classified if it “pertains to” one or more of eight categories of information, id. § 1.4, and if an original classification authority has “determine[d] that the unauthorized disclosure of the information reasonably could be expected to result in [identifiable or describable] damage to the national security,” id. § 1.1(a)(4). Relevant here, information may be classified if it “pertains to” “intelligence activities . . . [,] sources or methods,” and/or “foreign relations or foreign activities of the United States.” Id. § 1.4(c), (d). As this court has previously noted, “pertains is not a very demanding verb.” Judicial Watch, Inc. v. Department of Defense, 715 F.3d 937, 941 (D.C. Cir. 2013) (internal quotation marks omitted).

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And “[b]ecause courts lack the expertise necessary to second-guess . . . agency opinions in the typical national security FOIA case, [they] must accord substantial weight to an agency’s affidavit concerning the details of the classified status of . . . disputed record[s].” ACLU, 628 F.3d at 619 (internal quotation marks and citation omitted).
Of course, even if information falls within an exemption, an agency may be forced to disclose it if the agency has already “officially acknowledged” the information. Mobley, 806 F.3d at 583 (internal quotation marks omitted). This circuit applies a three-part test to determine when an agency has “officially acknowledged” requested information: “(1) the information requested must be as specific as the information previously released; (2) the information requested must match the information previously disclosed; and (3) the information requested must already have been made public through an official and documented disclosure.” Id. (internal quotation marks omitted). This test is quite strict. “Prior disclosure of similar information does not suffice; instead, the specific information sought by the plaintiff must already be in the public domain by official disclosure.” Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007). This court has explained that this “insistence on exactitude recognizes the Government’s vital interest in information relating to national security and foreign affairs.” Id. (internal quotation marks omitted). In each case where a FOIA requester contends that an agency has acknowledged information it seeks to withhold, the burden is on the requester to point to specific information in the public domain that “appears to duplicate that being withheld.” Id. (internal quotation marks omitted).
Having carefully and thoroughly reviewed the CIA’s classified affidavit, we affirm the district court’s grant of summary judgment largely for the reasons set forth in its opinion. In brief, the agency has satisfied its burden to show that the records are properly classified under Executive Order 13,526, and that they are, therefore, properly withheld under FOIA Exemption 1. The affidavit describes, in considerable detail, the records and the agency’s reasons for withholding them. See Larson, 565 F.3d at 862. The classified affidavit amply demonstrates that the information withheld “pertains to” “intelligence activities . . . [,] sources or methods” and/or “foreign relations or foreign activities of the United States,” Exec. Order 13,526, § 1.4(c), (d), and that its disclosure could reasonably be expected to damage national security, id. § 1.1(a)(4). The agency’s explanations as to why the records are classified are both “logical” and “plausible,” and uncontroverted by evidence in the record. Larson, 565 F.3d at 862 (internal quotation marks omitted). The ACLU never argues in its brief that the agency exhibited bad faith. But to the extent it intended to suggest bad faith by pointing out that this court previously overruled the CIA’s initial refusal to confirm or deny the existence of responsive records, we are unpersuaded that such attempt exhibited bad faith, and, given the considerable detail presented in the CIA’s classified affidavit, we believe that attempt presents an insufficient reason to doubt the veracity of the agency’s current assertions about the contents of the records and their classified status. The CIA’s affidavit also adequately demonstrates that there are no “reasonably segregable portion[s]” of the documents that could be disclosed. 5 U.S.C. § 552(b).
Finally, the ACLU has failed to point to any officially acknowledged information that appears to duplicate or match that being withheld. The district court was, accordingly, well

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within its discretion to decline to review the documents in camera. See Mobley, 806 F.3d at 588. For the same reasons, we find it unnecessary to review the documents to determine whether the information has been properly withheld. See id. (“When an agency meets its burden through affidavits, in camera review is neither necessary nor appropriate, and in camera inspection is particularly a last resort in national security situations like this case.” (internal quotation marks and alteration omitted)). Nothing in the ACLU’s Rule 28(j) letter, dated April 13, 2016, alters that assessment. See ACLU’s 28(j) Letter at 1–2 (Apr. 13, 2016).
The ACLU’s arguments regarding the standards that we should apply in this case are largely unavailing and, in some instances, run contrary to our precedent. To take just one example, the ACLU advocates a narrow reading of the phrase “pertains to” in Executive Order 13,526 because, in its view, a broad reading would “give the CIA a near-categorical exemption from the FOIA—something Congress considered but rejected.” ACLU Br. 17. It adds that a broad construction would “effectively sanction secret law” in contravention of FOIA’s “principal purposes.” Id. at 18 (internal quotation marks omitted). These arguments, however, ignore this court’s prior statement that “pertains is not a very demanding verb.” Judicial Watch, 715 F.3d at 941 (internal quotation marks omitted). They also misunderstand the role of the Executive Order in our analysis. That order has relevance beyond FOIA, and our task is not to construe it in light of FOIA’s purposes. Instead, our task in this FOIA suit is to determine whether the records the CIA seeks to withhold under FOIA Exemption 1 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 in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). As noted above, the CIA’s affidavit adequately establishes that the records satisfy those criteria.
Finally, we decline the ACLU’s post-oral argument invitation to remand the case for further consideration in light of the government’s recent announcement that “in the coming weeks, the Administration will publicly release an assessment of combatant and non-combatant casualties resulting from strikes taken outside areas of active hostilities since 2009,” and that “[g]oing forward, these figures will be provided annually.” Lisa O. Monaco, Assistant to the President for Homeland Security and Counterterrorism, Evolving to Meet the New Terrorist Threat (Mar. 7, 2016), available at https://www.whitehouse.gov/the-pressoffice/2016/03/07/remarks-lisa-o-monaco-council-foreign-relations-kenneth-moskow-memorial; see ACLU’s 28(j) Letter at 2 (Mar. 14, 2016). As an initial matter, we cannot know at this juncture whether the government will actually disclose this information or how that information will be presented. It is, therefore, not yet possible to determine whether the information the government plans to release will duplicate that being withheld or undermine the government’s assertion that disclosing summary strike data can reasonably be expected to harm national security. More importantly, however, the question in FOIA cases is typically whether an agency improperly withheld documents at the time that it processed a FOIA request. See Bonner v. Department of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991). Although there may be some circumstances in which it is appropriate to consider new information that comes to light during litigation, courts must be wary of creating “an endless cycle of judicially mandated reprocessing”

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of FOIA requests, lest they undermine the Act’s “premium on the rapid processing of [such] requests.” Id. Under the circumstances presented here, including that the case was already submitted following oral argument by the time the government announced its intention to disclose new information, we believe that it would be inappropriate to remand the case for further processing. If the information that the government ultimately releases undercuts the government’s exemption claims, the ACLU can file a new FOIA request.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41.
Per Curiam
FOR THE COURT: Mark J. Langer, Clerk
BY: /s/
Ken Meadows Deputy Clerk

 
 USCA Case #11-5320 Document #1374831 Filed: 05/21/2012 Page 1 of 59
[ORAL ARGUMENT NOT YET SCHEDULED]
No. 11-5320 ________________________________________________________________ ________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________________
AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES FOUNDATION,
Plaintiffs-Appellants,
v.
CENTRAL INTELLIGENCE AGENCY,
Defendant-Appellee. ____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________
BRIEF FOR APPELLEE ____________________
STUART F. DELERY Acting Assistant Attorney General
RONALD C. MACHEN, JR. United States Attorney
BETH S. BRINKMANN Deputy Assistant Attorney General
MATTHEW M. COLLETTE (202) 514-4214 CATHERINE Y. HANCOCK (202) 514-3469 Attorneys, Appellate Staff Civil Division, Room 7236 Department of Justice Washington, D.C. 20530-0001 ________________________________________________________________ ________________________________________________________________

USCA Case #11-5320 Document #1374831 Filed: 05/21/2012 Page 2 of 59
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to Circuit Rule 28(a)(1), appellee hereby certifies as follows: A. Parties and Amici. The parties before this Court and the district court are: plaintiffs-appellants the
American Civil Liberties Union and American Civil Liberties Union Foundation, and defendant-appellee the Central Intelligence Agency. The Department of Justice, Department of Defense, and Department of State were defendants before the district court, but are not parties on appeal.
On appeal, the Bureau of Investigative Journalism, Campaign for Innocent Victims in Conflict, Center for Constitutional Rights, Center on National Security at Fordham Law, the Constitutional Project, First Amendment Coalition, Human Rights Watch, International Commission of Jurists, and National Security Archive are participating as amici in support of plaintiffs-appellants. In the district court, the Washington Legal Foundation and the Allied Education Foundation were amici in support of defendant.
B. Ruling Under Review. Plaintiffs-appellants appeal from the district court’s opinion and order (Rosemary M. Collyer, J.) of September 9, 2011, granting summary judgment in favor of the Central Intelligence Agency and denying plaintiffs-appellants’ motion for
C-1

USCA Case #11-5320 Document #1374831 Filed: 05/21/2012 Page 3 of 59
partial summary judgment. The district court’s opinion is published at 808 F. Supp. 2d 280 (D.D.C. 2011).
C. Related Cases. This case has not previously been before this Court or any other court. Other than the two cases plaintiffs have identified as “potentially related,” see American Civil Liberties Union v. U.S. Department of Justice, No. 12-CIV-0794 (S.D.N.Y.); New York Times Co. v. U.S. Department of Justice, No. 11-CIV-9336 (S.D.N.Y.), counsel is not aware of any related cases within the meaning of Circuit Rule 28(a)(1)(C).
Respectfully submitted, s/Catherine Y. Hancock CATHERINE Y. HANCOCK Counsel for Defendant-Appellee
C-2

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TABLE OF CONTENTS Page
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES. . . . . C-1 TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii GLOSSARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATUTES AND REGULATIONS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Statutory Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 B. Plaintiffs’ FOIA Request and Proceedings Below. . . . . . . . . . . . . . . . 7 C. District Court Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 I. THE DISTRICT COURT PROPERLY UPHELD THE CIA’S
GLOMAR RESPONSE, CORRECTLY REJECTING PLAINTIFFS’ CONTENTION THAT THE EXISTENCE OR NONEXISTENCE OF RESPONSIVE RECORDS HAD BEEN OFFICIALLY DISCLOSED.. . . . . . . . . . . . . . . . . . . . 18

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A. A Glomar Response Is Appropriate When An Agency Can Neither Confirm Nor Deny The Existence Of Requested Records Without Revealing Information That Is Exempt From Disclosure Under FOIA.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
B. The District Court Correctly Determined That The CIA’s Glomar Response Here Was Proper Under FOIA Exemptions 1 And 3.. . . . . . . . . . . . . . . . . . . . . . . . . . . 23
C. The Agency Has Not Officially Disclosed The Existence Or Nonexistence Of Records That Would Be Responsive To Plaintiffs’ FOIA Request.. . . . . . . 23
1. Director Panetta’s Statements Do Not Acknowledge The CIA’s Participation In Drone Strikes Nor The Existence Of Such Records.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2. The President’s Statements Do Not Officially Acknowledge That The CIA Conducts Drone Strikes Or Possesses Records Concerning Drone Strikes... . . . . . . . . . . . . . . . . . . . . . 34
3. Statements By Former CIA Officials Or Unidentified Government Officials Cannot Waive the Agency’s Ability To Refuse To Confirm Or Deny The Existence Of Responsive Records.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
ADDENDUM
ii

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TABLE OF AUTHORITIES

Cases:

Page

*ACLU v. U.S. Department of Defense, 628 F.3d 612 (D.C. Cir. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 22, 25, 36, 41, 42

*Afshar v. Department of State, 702 F.2d 1125 (D.C. Cir. 1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 26, 36, 39, 41

Bassiouni v. CIA, 392 F.3d 244 (7th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . 3, 20

Center for National Security Studies v. Department of Justice, 331 F.3d 918 (D.C. Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

CIA v. Sims, 471 U.S. 159 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

*Electronic Privacy Information Center v. NSA, ___ F.3d ___ (D.C. Cir. May 11, 2012). . . . . . . . . . . . . . . . . . . . . . 6, 19, 20, 25, 26, 41, 43

Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990). . . . . . . . . . . . . . . . . . . . . . 24, 41

Frugone v. CIA, 169 F.3d 772 (D.C. Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . 26, 42

Gardels v. CIA, 689 F.2d 1100 (D.C. Cir. 1982). . . . . . . . . . . . . . . . . . . . . . . 20, 21

Goland v. CIA, 607 F.2d 339 (D.C. Cir. 1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Halperin v. CIA, 629 F.2d 144 (D.C. Cir. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . 21

Hudson River Sloop Clearwater, Inc. v. Department of Navy, 891 F.2d 414 (2d Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Hunt v. CIA, 981 F.2d 1116 (9th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19 __________________________________________________________________ *Authorities chiefly relied upon are marked with an asterisk.

iii

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John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989).. . . . . . . . . . . . . . . . . 18 King v. Department of Justice, 830 F.2d 210 (D.C. Cir. 1987). . . . . . . . . . . . . . . 18 Larson v. Department of State, 565 F.3d 857 (D.C. Cir. 2009). . . . . . . . . . 4, 17, 19 Miller v. Casey, 730 F.2d 773 (D.C. Cir. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Minier v. CIA, 88 F.3d 796 (9th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . 6, 18, 20 *Moore v. CIA, 666 F.3d 1330 (D.C. Cir. 2011). . . . . . . . . . . . . 6, 7, 24, 25, 28, 44 Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976).. . . . . . . . . . . . . . . . . . . . . . 19, 39 Salisbury v. United States, 690 F.2d 966 (D.C. Cir. 1982). . . . . . . . . . . . . . . . . . 21 Students Against Genocide v. Department of State, 257 F.3d 828
(D.C. Cir. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 *Wilner v. NSA, 592 F.3d 60 (2d Cir. 2009).. . . . . . . . . . . . 6, 15, 20, 21, 25, 28, 43 *Wilson v. CIA, 586 F.3d 171 (2d Cir. 2009). . . . 22, 24, 25, 30, 35, 36, 38, 39, 41 *Wolf v. CIA, 473 F.3d 370
(D.C. Cir. 2007).. . . . . . . . . . . . 5, 6, 7, 15, 19, 25, 26, 28, 35, 38, 41, 43, 44 Statutes: 5 U.S.C. § 552. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4 5 U.S.C. § 552(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5 U.S.C. § 552(a)(4)(B).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5 U.S.C. § 552(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 18 5 U.S.C. § 552(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4
iv

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5 U.S.C. § 552(b)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5 5 U.S.C. §§ 701-706. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 50 U.S.C. § 403-1(i)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 50 U.S.C. § 403g. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Central Intelligence Agency Act of 1949, 50 U.S.C. § 403-4 et seq... . . . . . . . . . . 5 Regulations: 32 C.F.R. § 1900.42(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Rules: Fed. R. App. P. 4(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Miscellaneous: 60 Minutes, The Killing of Anwar al-Awlaki (CBS Jan.29, 2012),
available at http://bit.ly/wEx57M.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Karen DeYoung, U.S. Launches Airstrike Against al-Qaeda
Affiliate in Yemen, Wash. Post, Jan. 31, 2012. . . . . . . . . . . . . . . . . . . . . . . 35 The Ethics and Efficacy of the President’s Counterterrorism Strategy,
Transcript of Remarks by John O. Brennan (April 30, 2012). . . . . . . . . . . 40 Exec. Order No. 12,958, 60 Fed. Reg. 19,825 (Apr. 17, 1995). . . . . . . . . . . . . . . 10 Exec. Order. No. 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009). . . . . . . . . . . . . 5, 6, 10
v

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President Obama Hangs Out With America, White House Blog (Jan. 30, 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34-35
U.S.: Defense Secretary Refers to CIA Drone Use, L.A. Times, Oct. 7, 2011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
‘US Drone’ Hits Pakistan Funeral, Al Jazeera, June 24, 2009. . . . . . . . . . . . . . . 35
vi

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GLOSSARY Br.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Plaintiffs’ Opening Brief CIA.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Central Intelligence Agency FOIA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Freedom of Information Act JA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Joint Appendix UAV.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Unmanned aerial vehicle
vii

USCA Case #11-5320 Document #1374831 Filed: 05/21/2012 Page 11 of 59
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________________
No. 11-5320
____________________
AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Plaintiffs-Appellants, v.
CENTRAL INTELLIGENCE AGENCY, Defendant-Appellee.
____________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA ____________________ BRIEF FOR APPELLEE ____________________
STATEMENT OF JURISDICTION In this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, plaintiffs invoked the jurisdiction of the district court pursuant to 5 U.S.C. § 552(a)(4)(B), 28 U.S.C. § 1331, and 5 U.S.C. §§ 701-706. Joint Appendix (“JA”) 11. The district court entered summary judgment for defendant-appellee, the Central Intelligence Agency (“CIA” or “the Agency”), on September 9, 2011. JA 296. That

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judgment became final on October 26, 2011, when the parties voluntarily dismissed the remaining defendants. JA 297-98. Plaintiffs filed a timely notice of appeal on November 9, 2011. JA 299; Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF THE ISSUE This appeal arises out of the CIA’s “Glomar response,” refusing to confirm or deny the existence of any records responsive to the FOIA request that plaintiffs submitted to the CIA for records about any use of unmanned aerial vehicles (or “drones”) for targeted killing, because stating whether or not any such records exist would reveal information protected from disclosure by both FOIA Exemption 1, 5 U.S.C. § 552(b)(1) (classified national defense and foreign policy matters), and FOIA Exemption 3, 5 U.S.C. § 552(b)(3) (matters specifically exempted from disclosure by another statute). The sole issue on appeal is whether the district court correctly held that the CIA had not previously officially acknowledged the existence of any responsive records and therefore had not waived its ability to refuse to confirm or deny the existence of such records.
STATUTES AND REGULATIONS The pertinent statutory provisions are attached as an addendum to this brief.
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STATEMENT OF THE CASE Plaintiffs-appellants, American Civil Liberties Union and American Civil Liberties Union Foundation (collectively “plaintiffs”), filed a FOIA request on January 13, 2010, seeking records from the Department of Defense, the Department of Justice, the State Department, and the CIA, relating to any government use of unmanned aerial vehicles, or “drones,” to carry out targeted killings. JA 89-104. Only the CIA’s FOIA response is at issue in this appeal. JA 297-98. On March 9, 2010, the CIA issued a Glomar response pursuant to FOIA Exemptions 1 and 3, indicating that it could neither confirm nor deny whether any responsive records exist.1 JA 64. Plaintiffs filed an administrative appeal challenging the CIA’s response. JA 67-79. Prior to the resolution of that administrative appeal, plaintiffs filed a complaint in district court on June 1, 2010. JA 10-20.2 The CIA subsequently moved for summary judgment, and plaintiffs crossmoved for summary judgment against the CIA. JA 5-6. On September 9, 2011, the
1 An agency decision’s to neither confirm nor deny the existence of responsive records is referred to as a “‘Glomar response,’ taking its name from the Hughes Glomar Explorer, a ship built (we now know) to recover a sunken Soviet submarine, but disguised as a private vessel for mining manganese nodules from the ocean floor.” Bassiouni v. CIA, 392 F.3d 244, 246 (7th Cir. 2004).
2 Pursuant to the CIA’s FOIA regulations, see 32 C.F.R. § 1900.42(c), the Agency stopped processing plaintiffs’ administrative appeal once plaintiffs filed suit in district court. JA 84.
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district court granted summary judgment in favor of the CIA. JA 265-95; JA 296. The court held that the Agency’s Glomar response was authorized by FOIA Exemptions 1 and 3, and rejected plaintiffs’ argument that the Agency had officially acknowledged the existence of responsive records that indicate CIA involvement in drone strikes and, thus, could not use a Glomar response. JA 265-95. Plaintiffs appeal. JA 299-300.
STATEMENT OF THE FACTS A. Statutory Background
The Freedom of Information Act, 5 U.S.C. § 552, generally provides access to certain agency records and other information unless exempted by the statute. Section 552(a) provides that “[e]ach agency shall make available to the public” records in its possession unless the information is specifically exempted by one of Section 552(b)’s nine statutory exemptions. If one or more exemption applies, however, the agency is authorized to withhold the information at issue. 5 U.S.C. § 552(b).
In particular, FOIA Exemption 1, 5 U.S.C. § 552(b)(1), “protects matters ‘specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and * * * [are] in fact properly classified pursuant to such Executive order.’” Larson v. Department of State, 565 F.3d 857, 861 (D.C. Cir. 2009) (quoting 5 U.S.C. § 552(b)(1))). Pursuant
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to Executive Order 13,526, an agency may withhold classified information, including “intelligence activities,” “intelligence sources or methods,” and “foreign relations or foreign activities of the United States.” See Exec. Order No. 13,526, § 1.4(c)-(d), 75 Fed. Reg. 707, 709 (Dec. 29, 2009); see also Wolf v. CIA, 473 F.3d 370, 375 (D.C. Cir. 2007).
FOIA Exemption 3, 5 U.S.C. § 552(b)(3), shields from disclosure records that are “specifically exempted from disclosure by statute * * * provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). The Central Intelligence Agency Act of 1949, as amended, 50 U.S.C. § 403-4 et seq., exempts the CIA from any law requiring the publication or disclosure of several categories of information relating to the CIA’s operations, including its “functions.” See 50 U.S.C. § 403g; see also Goland v. CIA, 607 F.2d 339, 351 (D.C. Cir. 1978) (holding that intelligence sources and methods are CIA “functions” that are exempt from disclosure). And the National Security Act of 1947, as amended, provides that the “Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure.” See 50 U.S.C. § 403-1(i)(1).
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In addition to withholding records that are exempt, an agency may also refuse to confirm or deny the existence or nonexistence of records responsive to a FOIA request if a particular FOIA exemption “would itself preclude the acknowledgment of such documents.” Minier v. CIA, 88 F.3d 796, 800 (9th Cir. 1996); accord Electronic Privacy Information Center v. NSA, No. 11-5233, ___ F.3d ___, 2012 WL 1654943, at *2 (D.C. Cir. May 11, 2012); Moore v. CIA, 666 F.3d 1330, 1333 (D.C. Cir. 2011); Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007); Wilner v. NSA, 592 F.3d 60, 71 (2d Cir. 2009); see also Exec. Order 13,526, § 3.6(a), 75 Fed. Reg. at 719 (expressly authorizing agency to “refuse to confirm or deny the existence or nonexistence of requested records whenever the fact of their existence or nonexistence is itself classified”). Such a response is referred to as a Glomar response.
If, however, the agency has previously officially disclosed whether or not there are records that would be responsive to the FOIA request at issue, then the agency is precluded from issuing a Glomar response with respect to those records. Moore, 666 F.3d at 1333; Wolf, 473 F.3d at 378-79; Wilner, 592 F.3d at 70 (“If the government has admitted that a specific record exists, a government agency may not later refuse to disclose whether that same record exists or not.”).
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A “strict test applies to claims of official disclosure.” Moore, 666 F.3d at 1333 (internal quotation marks omitted). The FOIA plaintiff must demonstrate that the information requested is “as specific as the information previously released,” “match[es] the information previously disclosed,” and “already ha[s] been made public through an official and documented disclosure.” ACLU v. U.S. Department of Defense, 628 F.3d 612, 620-21 (D.C. Cir. 2011). If the information has been previously officially disclosed, the agency must either (1) produce the records whose existence was previously disclosed or (2) establish that the contents of those records are exempt. Moore, 666 F.3d at 1333; Wolf, 473 F.3d at 379-80. B. Plaintiffs’ FOIA Request and Proceedings Below
On January 13, 2010, plaintiffs submitted a FOIA request to several U.S. Government agencies, including the CIA, seeking “records pertaining to the use of unmanned aerial vehicles (‘UAVs’) – commonly referred to as ‘drones,’ and including the MQ-1 Predator and MQ-9 Reaper – by the CIA and the Armed Forces for the purpose of killing targeted individuals.” JA 48. Specifically, that request sought ten categories of records created after September 11, 2001, pertaining to:
1. The “legal basis in domestic, foreign and international law upon which unmanned aerial vehicles (‘UAVs’ or ‘drones”) can be used to execute targeting killings,” including:
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(a) “who may be targeted by a drone strike”; (b) “whether drones may be used against individuals who are selected or nominated as targets by a foreign government”; (c) limits on civilian casualties or “efforts that must or should be taken to minimize civilian casualties”; (d) “the verification, both in advance of a drone strike and following it, of the identify and status or affiliation of individuals killed”; (e) “where, geographically or territorially, drones may be used to execute targeted killings” and whether they may be used outside Afghanistan and Iraq; (f) “whether drones can be used by the CIA or other government agencies aside from the Armed Forces”; and (g) “whether and to what extent government contractors can be involved in planning or providing support for” the use of drones. 2. “[A]greements, understandings, cooperation or coordination between the U.S. and the governments of Afghanistan, Pakistan, or any other country regarding the use of drones to effect targeted killings in the territory of those countries”;
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3. “[T]he selection of human targets for drone strikes and any limits on who may be targeted by a drone strike”; 4. “[C]ivilian casualties in drone strikes,” including “measures regarding the determination of the likelihood of civilian casualties, measures to limit civilian casualties, and guidelines about when drone strikes may be carried out despite a likelihood of civilian casualties”; 5. The “assessment or evaluation of individual drone strikes after the fact”; 6. Any “geographical or territorial limits on UAVs to kill targeted individuals”; 7. The “number of drone strikes that have been executed for the purpose of killing human targets, the location of each such strike, and the agency of the government or branch of the military that undertook each such strike”; 8. The “number, identity, status, and affiliation of individuals killed in drone strikes,” including: “the number (including estimates) of individuals killed in each drone strike”; the number of individuals “of each particular status or affiliation killed in each drone strike” (including “the number of individuals of unknown status”);
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9. “[W]ho may pilot UAVs, who may cause weapons to be fired from UAVs, or who may otherwise be involved in the operation of UAVs for the purpose of executing targeted killings”; and 10. The “training, supervision, oversight, or discipline of UAV operators and others involved in the decision to execute a targeted killing using a drone[.]” JA 51-54.3 The CIA responded to plaintiffs’ request on March 9, 2010. JA 64. The Agency stated that, “[i]n accordance with section 3.6(a) of Executive Order 12958, as amended, the CIA can neither confirm nor deny the existence or nonexistence of records responsive to your request.” JA 64.4 Invoking FOIA Exemptions 1 and 3 as justification for its Glomar response, the CIA explained that, “[t]he fact of the existence or nonexistence of requested records is currently and properly classified and is intelligence sources and methods information that is protected from disclosure by section 6 of the CIA Act of 1949, as amended.” JA 64.
3 Plaintiffs subsequently abandoned their request for the information in category 2 and in category 1, insofar as it requested records regarding the understanding, cooperation, or involvement of foreign governments in drone strikes. JA 268.
4 Executive Order No. 12,958, 60 Fed. Reg. 19,825 (Apr. 17, 1995), was superseded by Executive Order 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009).
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Plaintiffs filed an administrative appeal. JA 67-79. While that administrative appeal was pending, plaintiffs filed suit in the United States District Court for the District of Columbia. JA 10-20. Plaintiffs argued that neither Exemption 1 nor Exemption 3 applied to the requested information but, even if one or both exemptions did apply, the CIA was nevertheless precluded from issuing a Glomar response because the Agency had already officially acknowledged the existence of responsive records. Plaintiffs and the CIA cross-moved for summary judgment.
In support of its motion for summary judgment, the CIA filed a declaration by Mary Ellen Cole, the Information Review Officer for the CIA’s National Clandestine Service. JA 21-45. That declaration explained that the National Clandestine Service is the directorate of the CIA “responsible for conducting the CIA’s foreign intelligence and counterintelligence activities.” JA 21. The Cole Declaration stated that “the CIA can neither confirm nor deny the existence or nonexistence of responsive records because the existence or nonexistence of any such records is a currently and properly classified fact that is exempt from release under FOIA exemptions (b)(1) and (b)(3).” JA 23. The declaration further explained that, if the CIA were to acknowledge the existence or nonexistence of responsive records, such acknowledgment “would reveal information that concerns intelligence activities, intelligence sources and methods, and U.S. foreign relations and foreign activities,
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the disclosure of which reasonably could be expected to cause damage to the national security of the United States.” JA 23.
The Cole Declaration also stated that “no authorized CIA or Executive Branch official has disclosed whether or not the CIA possesses records regarding drone strikes or whether or not the CIA is involved in drone strikes or has an interest in drone strikes.” JA 43-44. The declaration further explained that, “[i]f the CIA was precluded from issuing a Glomar response to FOIA requests as a result of [unsourced statements or statements by former government officials], the U.S. Government’s ability to protect classified information would be eviscerated, thereby causing significant and far reaching damage to the U.S. national security.” JA 44. C. District Court Decision
The district court held that the CIA was entitled to summary judgment, reasoning that the CIA’s Glomar response was independently justified under both FOIA Exemptions 1 and 3. JA 295. With respect to Exemption 3, the court held that the agency had demonstrated that disclosing the existence or nonexistence of responsive records would reveal the “functions” of CIA personnel (including their involvement or noninvolvement in drone strikes and any related intelligence interest in drone strikes), and therefore that the agency properly invoked the CIA Act’s protections. JA 271-74. The court also held that the Glomar response was justified
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because the information sought relates to “intelligence sources and methods” protected by the National Security Act. JA 275-81. And the court held that the Glomar response was independently justified by FOIA Exemption 1 because the CIA had demonstrated that the existence or nonexistence of responsive records was properly classified. JA 289-94.
The district court rejected plaintiffs’ argument that the Agency was precluded from issuing a Glomar response, concluding that the CIA had not previously officially acknowledged the existence of responsive records relating to the use of drones to target individuals. JA 289. To the extent plaintiffs relied on various statements by then-CIA Director Leon Panetta, the district court concluded that such statements “did not officially disclose the CIA’s involvement in the drone strike program.” JA 283; id. (“Even if Director Panetta were speaking squarely on the issue of drone strikes, he never acknowledged the CIA’s involvement in such program.”); JA 284 n.5 (“even if Director Panetta had confirmed that the drone program exists, the statements offered by Plaintiffs did not specifically acknowledge that the CIA is involved directly or indicate whether the CIA has responsive records”). Indeed, the district court noted that several of the statements on which plaintiffs relied expressly noted that the CIA had refused to acknowledge whether or not it has an intelligence interest or any involvement in drone strikes. JA 285 (“the article specified that the
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CIA formally declined to acknowledge U.S. participation in the use of unmanned aerial vehicles in Pakistan”); JA 287 (“[T]he statements cited by Plaintiffs demonstrate that the CIA has carefully and specifically refused to acknowledge any role or interest in such program”).
The district court concluded, therefore, that plaintiffs “fail[ed] to cite any official disclosure containing the exact information sought by Plaintiffs.” JA 286; see also JA 287 (“Plaintiffs seek exactly what is not publicly available – an official CIA acknowledgment of the fact that it is or is not involved in the drone strike program.”). The court found that all of the statements cited by plaintiffs “lacked a specific reference to any particular CIA action except that the CIA was involved in undefined, aggressive operations in Pakistan. In all of the statements cited by Plaintiffs, Director Panetta’s references to ‘we’ or ‘our’ could have just as easily referred to the joint efforts of all U.S. military and civilian resources dedicated in Afghanistan and Pakistan.” JA 286-87. The court concluded that “the tenor, deliberate ambiguity, and explicit disclaimers of involvement in targeted attacks in the statements cited by Plaintiffs” illustrate that the CIA has not acknowledged any role or intelligence interest in any drone program. JA 287.
Moreover, the district court noted that Director Panetta’s statements certainly did not confirm the existence of any CIA records on the use of drones responsive to
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plaintiffs’ FOIA request. JA 288 (citing Wolf, 473 F.3d at 379, and Wilner, 592 F.3d at 70, for the proposition that an agency may not issue a Glomar response as to particular records when the agency has already officially acknowledged the existence of those particular records). The district court explained that, “[t]here is nothing in the various statements submitted by Plaintiffs which speaks to any records [in the 10 categories requested by plaintiffs]; only by inference from former Director Panetta’s statements might one conclude that the CIA might have some kind(s) of documentation somewhere.” JA 288.
Finally, the court emphasized that, under this Court’s precedent concerning official disclosures, plaintiffs could not rely on “speculation or overt factual assertions of the CIA’s involvement in drone strikes” that have been in media reports, nor on statements by unidentified or unofficial sources. JA 288-89; see also JA 293 (“[t]he fact that the public may already speak freely of the existence of drones, or speculate openly that such a program may be directed in part or in whole by the CIA,” does not eliminate the requirement that the information must be officially acknowledged before it is required to be disclosed under FOIA).
SUMMARY OF ARGUMENT Plaintiffs seek disclosure under FOIA from the CIA of records that relate to the use of unmanned aerial vehicles, or “drones,” to conduct targeted killings of
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individuals. CIA asserted a “Glomar response,” refusing to confirm or deny whether records responsive to plaintiffs’ FOIA request exist. A Glomar response is appropriate where, as here, acknowledging whether or not responsive records exist is itself covered by a FOIA exemption.
On appeal, plaintiffs have expressly waived any argument that the CIA improperly invoked FOIA Exemptions 1 and 3. Rather, plaintiffs argue only that the CIA’s Glomar response is precluded because the Agency has officially acknowledged that it has records that would be responsive to their request. Plaintiffs also appear to narrow the scope of their request for purposes of this appeal, stating (Br. at 2) that the issue in this case concerns the Agency’s Glomar response as it pertains to records relating to “the CIA’s use of drones to carry out targeted killings,” which appears no longer also to include records about the lethal use of drones by the Armed Forces and any involvement or intelligence interest by the CIA related thereto.
Regardless of whether plaintiffs seek records of any CIA involvement or intelligence interest in U.S. drone strikes generally, or the alleged use of drones by the CIA specifically, or both, the district court properly held that plaintiffs failed to establish official disclosure by the CIA of the existence of any records that would be responsive to such request and that the CIA therefore is not prevented from providing a Glomar response. Instead of citing any direct statements to that effect by an
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authorized official, plaintiffs rely on vague and ambiguous statements by former CIA Director Leon Panetta and President Obama, none of which expressly acknowledges the information that plaintiffs seek here: that the CIA possesses responsive records relating to drone strikes.
Plaintiffs alternatively suggest that such an official disclosure may be inferred from those statements, particularly if those statements are considered in the context of media reports and statements by other government officials, which purportedly acknowledge the CIA’s involvement in drone strikes. But an official disclosure cannot be premised on speculation or inference by the public or media, or on statements made by unauthorized or unofficial government sources. Accordingly, this Court should affirm the entry of summary judgment for the CIA based on the Agency’s Glomar response.
STANDARD OF REVIEW This Court reviews de novo a district court’s grant of summary judgment. See Larson v. Department of State, 565 F.3d 857, 862 (D.C. Cir. 2009).
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ARGUMENT I. THE DISTRICT COURT PROPERLY UPHELD THE CIA’S GLOMAR
RESPONSE, CORRECTLY REJECTING PLAINTIFFS’ CONTENTION THAT THE EXISTENCE OR NONEXISTENCE OF RESPONSIVE RECORDS HAD BEEN OFFICIALLY DISCLOSED. A. A Glomar Response Is Appropriate When An Agency Can Neither
Confirm Nor Deny The Existence Of Requested Records Without Revealing Information That Is Exempt From Disclosure Under FOIA. The FOIA generally mandates disclosure of Government records unless the requested information falls within an enumerated exemption. See 5 U.S.C. § 552(b). Notwithstanding the FOIA’s “liberal congressional purpose,” the statutory exemptions must be given “meaningful reach and application.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). “Requiring an agency to disclose exempt information is not authorized[.]” Minier v. CIA, 88 F.3d 796, 803 (9th Cir. 1996). Agency decisions to withhold information under the FOIA are reviewed de novo, and the agency bears the burden of proving that the withheld information falls within the exemption it invokes. 5 U.S.C. § 552(a)(4)(B); King v. Department of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). Generally, an agency may meet its burden under FOIA by submitting a declaration that “describe[s] the justifications for nondisclosure with reasonably specific detail [and] demonstrate[s] that the information withheld logically falls within the claimed exemptions.” Hunt v. CIA,
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981 F.2d 1116, 1119 (9th Cir. 1992). A court may grant summary judgment to the Government entirely on the basis of information set forth in such an affidavit, so long as the affidavit is “‘ not controverted by either contrary evidence in the record nor by evidence of agency bad faith.’” Larson, 565 F.3d at 862 (quoting 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.’” Id. (quoting Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007)).
The same standard applies when the Government issues a Glomar response, refusing to acknowledge whether or not responsive records exist: in such circumstances, the agency’s affidavit must explain how the fact of the existence or non-existence of responsive records constitutes information protected by a FOIA exemption. Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976); Electronic Privacy Information Center, 2012 WL 1654943 at *2; Wolf, 473 F.3d at 374 (“In determining whether the existence of agency records vel non fits a FOIA exemption, courts apply the general exception review standard established in non-Glomar cases.”).
A Glomar response is appropriate where, as here, confirming or denying whether responsive records exist would itself cause the harm that a given FOIA exemption is intended to prevent. See, e.g., Electronic Privacy Information Center,
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2012 WL 1654943 at *2; Wilner v. NSA, 592 F.3d 60, 68 (2d Cir. 2009) (“The Glomar doctrine is well settled as a proper response to a FOIA request because it is the only way in which an agency may assert that a particular FOIA statutory exemption covers the ‘existence or nonexistence of the requested records’ in a case in which a plaintiff seeks such records.”), cert. denied, 131 S. Ct. 387 (2010); Bassiouni v. CIA, 392 F.3d 244, 246 (7th Cir. 2004) (“Every appellate court to address the issue has held that the FOIA permits the [agency] to make a ‘Glomar response’ when it fears that inferences * * * or selective disclosure could reveal classified sources or methods of obtaining foreign intelligence.”); Minier, 88 F.3d at 800 (“[A] government agency may issue a ‘Glomar Response,’ that is, refuse to confirm or deny the existence of certain records, if the FOIA exemption would itself preclude the acknowledgment of such documents.”); Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982) (“[A]n agency may refuse to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable under an FOIA exception.”).
“In reviewing an agency’s Glomar response, this Court exercises caution when the information requested ‘implicat[es] national security, a uniquely executive purview.’” Electronic Privacy Information Center, 2012 WL 1654943 at *2 (quoting Center for National Security Studies v. Department of Justice, 331 F.3d 918, 926-27
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(D.C. Cir. 2003)). Indeed, the Supreme Court has cautioned that “weigh[ing] the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising” national security is a task best left to the Executive Branch. CIA v. Sims, 471 U.S. 159, 180 (1985); see also Center for National Security Studies, 331 F.3d at 928 (“[T]he judiciary is in an extremely poor position to second-guess the executive’s judgment in [the] area of national security.”); Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980) (“Judges * * * lack the expertise necessary to second-guess * * * agency opinions in the typical national security FOIA case.”).
As a result, in the FOIA context, courts have “consistently deferred to executive affidavits predicting harm to the national security, and have found it unwise to undertake searching judicial review.” Center for National Security Studies, 331 F.3d at 927; see also Wilner, 592 F.3d at 69 (“The ‘[a]ffidavits submitted by an agency are accorded a presumption of good faith.”); Students Against Genocide v. Department of State, 257 F.3d 828, 840 (D.C. Cir. 2001) (“[S]ubstantial weight [is] owed to agency explanations in the context of national security, to qualify for withholding under Exemptions 1 and 3.”); Salisbury v. United States, 690 F.2d 966, 970 (D.C. Cir. 1982) (noting that agencies possess “unique insights” into the adverse effects that might result from public disclosure of classified information); Gardels,
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689 F.2d at 1104-05 (“Once satisfied that proper procedures have been followed and that the information logically falls into the exemption claimed, the courts ‘need not go further to test the expertise of the agency, or to question its veracity when nothing appears to raise the issue of good faith.’”).
The existence of media reports based on unsourced comments and other unofficial statements that relate to the information that a FOIA requester seeks from the Government does not diminish the importance of a Glomar response by an agency, particularly in the area of national security and foreign affairs. That is because, “[a]s a practical matter, foreign governments can often ignore unofficial disclosures of CIA activities that might be viewed as embarrassing or harmful to their interests.” See Wilson v. CIA, 586 F.3d 171, 186 (2d Cir. 2009). Official government acknowledgment of whether media or other unofficial claims are accurate or not, is a different matter. See Afshar v. Department of State, 702 F.2d 1125, 1130-31 (D.C. Cir. 1983) (“official acknowledgment by an authoritative source might well be new information that could cause damage to the national security”); ACLU, 628 F.3d at 625 (recognizing “that even if information exists in some form in the public domain that does not mean that official disclosure will not cause harm cognizable under a FOIA exemption”).
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B. The District Court Correctly Determined That The CIA’s Glomar Response Here Was Proper Under FOIA Exemptions 1 And 3.
The district court concluded that the CIA’s affidavit here was sufficient to establish that the Government’s Glomar response was justified under both Exemptions 1 and 3. JA 270-94. On appeal, plaintiffs do not dispute that FOIA Exemptions 1 and 3 may apply to the information at issue, or that a Glomar response is proper where revealing the existence or nonexistence of responsive records would disclose information protected by those exemptions. See Plaintiffs’ Opening Brief (“Br.”) at 8 n.5 (“Before the district court, Plaintiffs argued that * * * the CIA’s invocation of the Glomar doctrine was unlawful because the mere existence of the drone program was not protected by any FOIA exemption. Plaintiffs do not pursue this argument here[.]”); see also Br. at 15 (“assuming” the “existence of the [alleged] drone program” is protected under Exemptions 1 and/or 3). Their sole claim is that the CIA officially disclosed information that precludes its reliance on Glomar.
C. The Agency Has Not Officially Disclosed The Existence Or Nonexistence Of Records That Would Be Responsive To Plaintiffs’ FOIA Request.
The sole issue plaintiffs raise on appeal is whether, assuming that the district court correctly decided that FOIA Exemptions 1 and 3 could justify the CIA’s Glomar response, the CIA is nonetheless precluded from invoking the Glomar
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response because the Agency has officially acknowledged the existence of CIA records concerning the lethal use of drones. Although plaintiffs’ FOIA request sought several discrete categories of records concerning the lethal use of drones “by the CIA and the Armed Forces,” JA 48, on appeal plaintiffs appear to narrow the scope of their request to “the CIA’s use” of lethal drones. Br. at 2. In any event, regardless of whether plaintiffs maintain their broader request or now focus only on a narrow characterization, their contention that the CIA cannot use a Glomar response because it has officially acknowledged an involvement or intelligence interest in drone strikes (and records related thereto) is without merit. Plaintiffs misconstrue both the nature and scope of the “official acknowledgment” doctrine, as well as various statements that they contend constitute official disclosures.
“[W]hen information has been ‘officially acknowledged,’ its disclosure may be compelled even over an agency’s otherwise valid exemption claim.” Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). This Court, however, has recognized that “‘[a] strict test applies to claims of official disclosure.’” Moore v. CIA, 666 F.3d at 1333 (quoting Wilson v. CIA, 586 F.3d 171, 186 (2d Cir. 2009)). To constitute an official disclosure, “(1) the information requested must be as specific as the information previously released; (2) the information requested must match the information previously disclosed; and (3) the information requested must already
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have been made public through an official and documented disclosure.” ACLU v. U.S. Department of Defense, 628 F.3d 612, 620-21 (D.C. Cir. 2011).
As a result, “[a] plaintiff asserting a claim of prior disclosure bears the burden of pointing to ‘specific information in the public domain that appears to duplicate that being withheld.’” Electronic Privacy Information Center, 2012 WL 1654943 at *4 (quoting Wolf, 473 F.3d at 378); Moore, 666 F.3d at 1333 (“in order to overcome an agency’s Glomar response based on an official acknowledgment, the requesting plaintiff must pinpoint an agency record that both matches the plaintiff’s request and has been publicly and officially acknowledged by the agency”); Wilner, 592 F.3d at 70 (agency is only “precluded from making a Glomar response if the existence or nonexistence of the specific records sought by the FOIA request has been the subject of an official public acknowledgment”) (emphasis added). Plaintiffs have failed to satisfy this exacting standard to foreclose the CIA’s Glomar response.
Moreover, an agency may be found to have waived its ability to issue a Glomar response only if a disclosure is “official and documented.” See ACLU, 628 F.3d at 620-21. A statement by an unnamed agency official cannot constitute an official disclosure. See Wilson, 586 F.3d at 186 (“statements made by a person not authorized to speak for the Agency” do not constitute an official disclosure). Also, a former official of an agency is not authorized to make an official disclosure on the agency’s
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behalf. See Afshar, 702 F.2d at 1134; cf. Frugone v. CIA, 169 F.3d 772, 774 (D.C. Cir. 1999) (noting that public disclosure by OPM does not foreclose another federal agency, the CIA, from issuing a Glomar response). And speculation by journalists or members of the public cannot constitute official disclosure, “no matter how widespread.” Wolf, 473 F.3d at 378; see also Electronic Privacy Information Center, 2012 WL 1654943 at *4 (“national media are not capable of waiving [an agency’s] statutory authority to protect information”).
Yet plaintiffs’ official disclosure argument here rests heavily on just these types of statements. See, e.g., Br. at 30-39. Plaintiffs acknowledge (Br. at 36), as they must, that these statements may not be used to support a claim of official disclosure. Plaintiffs nevertheless weave them into nearly every page of their argument, attempting to bolster a case that rests upon nothing more than a few stray statements of former CIA Director Leon Panetta and remarks made by President Obama (that post-date the district court’s decision) – none of which officially acknowledges the existence of any responsive records.
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1. Director Panetta’s Statements Do Not Acknowledge The CIA’s Participation In Drone Strikes Nor The Existence Of Such Records.
Plaintiffs first rely (Br. at 16-17) on a statement made by then-CIA Director
Panetta before the Pacific Council on International Policy on May 18, 2009, during
a question and answer session:
Q: [Audience member] . . . You mentioned that you believe the strategy in Pakistan is working – the President’s strategy in Pakistan in the tribal regions, which is the drone – the remote drone strikes. You’ve seen the figures recently from David Kilcullen and others that the strikes have killed 14 midlevel operatives and 700 civilians in collateral damage. And his assessment as a counterinsurgency expert is it’s creating more anti-Americanism than it is disrupting al-Qaeda networks.
And then secondly, President Musharraf told me when he was in office that the Pakistan nukes are safer than those in the former Soviet Union. Do you agree with that? Safely guarded – more safely guarded?
A: [Panetta] . . . On the first issue, obviously because these are covert and secret operations I can’t go into particulars. I think it does suffice to say that these operations have been very effective because they have been very precise in terms of the targeting and it involved a minimum of collateral damage. I know that some of the – sometimes the criticisms kind of sweep into other areas from either plane attacks or attacks from F-16s and others that go into these areas, which do involve a tremendous amount of collateral damage. And sometimes I’ve found in discussing this that all of this is kind of mixed together. But I can assure you that in terms of that particular area, it is very precise and it is very limited in terms of collateral damage and, very frankly, it’s the only game in town in terms of confronting and trying to disrupt the al-Qaeda leadership.
JA 114-15.
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The district court properly concluded that this statement “did not officially disclose the CIA’s involvement in the drone strike program.” JA 283. The court explained that, “[e]ven if Director Panetta were speaking squarely on the issue of drone strikes, he never acknowledged the CIA’s involvement in such program. That Director Panetta acknowledged that such a program exists and he had some knowledge of it, or that he was able to assess its success, is simply not tantamount to a specific acknowledgment of the CIA’s involvement in such program, nor does it waive the CIA’s ability to properly invoke Glomar.” JA 283. Indeed, Director Panetta’s statement does not even explicitly acknowledge whether the U.S. Government is involved in such operations. Moreover, Director Panetta’s statement does not confirm whether or not the CIA possesses responsive records related to any drone strikes, which is the relevant inquiry here, see Moore, 666 F.3d at 1333-34 (“in order to overcome an agency’s Glomar response based on an official acknowledgment, the requesting plaintiff must pinpoint an agency record that both matches the plaintiff’s request and has been publicly and officially acknowledged by the agency”); Wolf, 473 F.3d at 379 (holding that plaintiff was entitled to disclosure only of the specific records, the existence of which was previously disclosed); Wilner, 592 F.3d at 70 (“An agency only loses its ability to provide a Glomar response when
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the existence or nonexistence of the particular records covered by the Glomar response has been officially and publicly disclosed.”).5
Plaintiffs contend that the district court’s interpretation of Director Panetta’s remarks “defies logic.” Br. at 21. They argue that because the “sitting CIA Director” “referenced the existence” of drone strikes in Pakistan, his statement “surely comprises an acknowledgment.” Br. at 21. Yet plaintiffs do not even specify exactly what that statement purportedly acknowledges. Plaintiffs also ignore the fact that Director Panetta never even mentioned the term “drones” or “unmanned aerial vehicles” in his answer. Even if one accepts plaintiffs’ reading of Director Panetta’s statement as referring to drone strikes, however, at most he recognizes that drone strikes occur in Pakistan; he says nothing about whether the CIA possesses records about such drone strikes or whether the CIA is involved or has an intelligence interest in such drone strikes.
Moreover, as explained in the Cole Declaration, and recognized by the district court, whether or not the CIA is involved in and maintains records relating to drone
5 Plaintiffs dispute the relevant standard, Br. at 23, but this Court’s precedent clearly establishes that plaintiffs must demonstrate that the existence of a specific record has already been officially disclosed. In any event, this dispute is not determinative in this case because the cited statements do not satisfy either standard: they do not establish the existence of specific CIA records concerning any drone strikes, nor do they establish that the CIA is involved in any drone strikes.
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strikes is a classified fact that is covered by Exemption 1. JA 23, 26-34; JA 290. Plaintiffs’ suggestion that Director Panetta intended to disclose what would be classified information (based on plaintiffs’ reading) at this question and answer session – notwithstanding the district court’s more plausible interpretation – flies in the face of the Second Circuit’s admonition that “the law will not infer official disclosure of information classified by the CIA.” Wilson, 586 F.3d at 186.
Plaintiffs next rely on an article in The Washington Post from March 2010, in which Director Panetta is quoted as referring to “the most aggressive operation that CIA has been involved in in our history,” and stating that “[t]hose operations are seriously disrupting al-Qaida.” Br. at 17; JA 124. But plaintiffs misstate the article, asserting that “Mr. Panetta described the drone strikes as ‘the most aggressive operation that CIA has been involved in * * *.’” Br. at 17 (emphasis supplied). The article itself did not put it that way, referring instead to Director Panetta’s description of “the CIA’s war against extremists in Pakistan” (a description which itself is merely the reporter’s characterization, not an official disclosure). JA 124. Plaintiffs speculate that the “operations” to which Director Panetta referred must be drone strikes, because, as they construe the article, it “is largely about the CIA’s drone program.” Br. at 22. But Director Panetta did not specify what CIA operations he was discussing, or state that he was referring to drone strikes. Indeed, even the article
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did not attribute such meaning to his statements: the article referred to “[r]elentless attacks” and “an increasingly aggressive campaign * * * including more frequent strikes,” but did not state that Director Panetta was commenting specifically about drone strikes, much less about drone strikes allegedly carried out by the CIA. JA 124. In addition, as the district court noted, given that “the article specified that the CIA formally declined to acknowledge U.S. participation in the use of unmanned aerial vehicles in Pakistan,” “it would be contradictory under the circumstances to read Director Panetta’s reference to the CIA operations as a specific reference to drone strikes.” JA 285.
Plaintiffs’ reliance on articles in which Director Panetta allegedly “acknowledged the targets of particular drone strikes” (Br. at 17) fares no better. Plaintiffs point to a March 2010 Wall Street Journal article, which quotes Director Panetta stating that, “‘[w]e now believe that al-Yemeni, who was one of the top 20 [al Qaeda leaders], was one of those who was hit,’” and praising the fact that “‘we g[o]t a high value target.’” Br. at 17-18 (quoting JA 127-28). For further support, plaintiffs then cite an interview with ABC News, in which Director Panetta stated that, “we are engaged in the most aggressive operations in the history of the CIA in that part of the world,” and then subsequently noted that “[w]e just took down number three in [Al Qaida’s] leadership a few weeks ago.” Br. at 18; JA 134. Again,
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however, Director Panetta did not acknowledge any specific CIA operations, much less state that the CIA was involved in drone strikes. Director Panetta’s use of the word “we” did not necessarily refer to the CIA, specifically; the district court correctly recognized that it “could have just as easily referred to the joint efforts of all U.S. military and civilian resources dedicated in Afghanistan and Pakistan.” JA 287.
Plaintiffs also rely on statements made by Panetta after the district court’s opinion in this case and when he was no longer the Director of the CIA (Panetta became Secretary of Defense on July1, 2011). Br. at 19-21. Even assuming that this Court may take judicial notice of those statements, those statements do not officially acknowledge that the CIA possesses responsive records concerning drone strikes. Plaintiffs cite an interview in which Panetta “nodded in response” to the interviewer’s statement, “‘You killed al-Awlaki,’” Br. at 20. Although plaintiffs construe Panetta’s nodding as a substantive response, it is at least as plausibly interpreted as merely acknowledging the interviewer’s statement, while Panetta was waiting for the interviewer to pose a question. See 60 Minutes, The Killing of Anwar al-Awlaki (CBS Jan.29, 2012), available at http://bit.ly/wEx57M. But even assuming plaintiffs correctly interpreted Panetta’s nod as a signal of agreement, that does not address whether al-Awlaki was killed in a drone strike, let alone whether the CIA was
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involved in any such strike. As noted, Panetta was serving as Secretary of Defense, not as CIA Director, both at the time of al-Awlaki’s death and at the time of the interview. Although the media has reported that al-Awlaki was killed in a drone strike, see, e.g., Br. at 32-35 & n. 20, 22 (citing news articles), Panetta’s gesture in no way constitutes an official acknowledgment that the CIA possesses responsive records regarding drone strikes.
Plaintiffs further rely on Panetta’s statement in that same interview in which he referred to a “recommendation [to the President] that the CIA Director makes in my prior role * * * .” See Br. at 20-21. Contrary to plaintiffs’ contention, that statement plainly says nothing about drone strikes.
Plaintiffs quote a statement by former Director Panetta, after he became Secretary of Defense, in which he stated: “‘I have a hell of a lot more weapons available to me in this job than I had at the CIA, although the Predators aren’t bad.’” Br. at 19. The same article quoted him as saying that he “‘was very familiar with [the use of Predators] in my past job.’” Br. at 20. Contrary to plaintiffs’ suggestion, however, those vague statements do not constitute official confirmation of CIA records relating to drone strikes. As for his aside of “although Predators aren’t bad,” this statement is too ambiguous to constitute an official disclosure that the CIA possesses responsive records concerning drone strikes. And even if this comment
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could be read as acknowledging that Predators were “available” to the CIA, it does not acknowledge that the Agency uses them for lethal purposes, as opposed to surveillance and intelligence-gathering. Indeed, even the article acknowledged that “Panetta stopped short of confirming that CIA Predators were conducting airstrikes.” U.S.: Defense Secretary Refers to CIA Drone Use, L.A. Times, Oct. 7, 2011, available at http://lat.ms/roREDq.
In sum, former Director Panetta’s statements did not officially acknowledge whether or not the CIA possesses responsive records relating to drone strikes.
2. The President’s Statements Do Not Officially Acknowledge That The CIA Conducts Drone Strikes Or Possesses Records Concerning Drone Strikes.
Plaintiffs also refer to several statements made by President Obama that postdate the district court’s decision. Br. at 24-26. As with statements made by Panetta, however, these statements do not officially acknowledge that the CIA possesses responsive records regarding drone strikes.
Plaintiffs first rely upon a video forum, during which the President “acknowledged that the United States carries out targeted killings using drones in Pakistan.” Br. at 24 (emphasis added). That statement does not disclose whether or not the CIA carries out drone strikes or maintains responsive records regarding drone strikes. The remarks did not even mention the CIA. See President Obama Hangs
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Out With America, White House Blog (Jan. 30, 2012), http://www.whitehouse.gov/blog/2012/01/30/president-obama-hangs-out-america.
Plaintiffs speculate that the President must have been speaking about CIA involvement in drone strikes. They base this inference upon the President’s reference to drone strikes in the Federally Administered Tribal Areas of Pakistan, and cite media reports stating that the Department of Defense does not conduct drone strikes in Pakistan. Br. at 25 & n. 15. It is precisely this sort of unbridled speculation that is insufficient to support a claim of official disclosure. See Wilson, 586 F.3d at 186 (“the law will not infer official disclosure”); Wolf, 473 F.3d at 378 (insisting “on exactitude” before finding an official disclosure).
Indeed, plaintiffs’ argument piles inference upon inference. They base their contention that the Department of Defense does not conduct drone strikes in Pakistan not upon any official sources, but upon unsourced statements in two media reports. See Br. at 25 n.15; ‘US Drone’ Hits Pakistan Funeral, Al Jazeera, June 24, 2009, http://aje.me/yKZJWO (quoting an unnamed Department of Defense official as stating that “‘[t]here are no US military strike operations being conducted in Pakistan’”); Karen DeYoung, U.S. Launches Airstrike Against al-Qaeda Affiliate in Yemen, Wash. Post, Jan. 31, 2012, http://wapo.st/zSgzxq (stating, without reference to any source, that “the CIA has had sole responsibility for hundreds of drone strikes
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[in Pakistan]”). But neither the statement of an unnamed agency official nor the unattributed statement of a newspaper reporter can constitute official disclosure. See Wilson, 586 F.3d at 186 (“statements made by a person not authorized to speak for the Agency” do not constitute an official disclosure); ACLU, 628 F.3d at 621-22 (“‘it is one thing for a reporter or author to speculate or guess that a thing may be so or even, quoting undisclosed sources, to say that it is so; it is quite another thing for one in a position to know of it officially to say that it is so.”); Afshar, 702 F.2d at 1130 (“even if a fact * * * is the subject of widespread media and public speculation” it does not constitute official acknowledgment).
Moreover, even if plaintiffs could demonstrate an official disclosure regarding Department of Defense activities in Pakistan, which they cannot, it would require an additional degree of speculation to infer that the President must have intended to disclose that the CIA, as opposed to some other agency or entity of the United States, is involved in drone strikes. Accordingly, plaintiffs’ interpretation of President Obama’s statement as acknowledging the CIA’s role in drone strikes in Pakistan is based on a series of unofficial speculations and is not an official disclosure of CIA involvement as plaintiffs claim, let alone an acknowledgment as to the existence of any CIA records about the same.
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Plaintiffs also attempt to find official disclosure in two statements by the President referring generally to al-Awlaki’s death. But plaintiffs’ characterization of those statements as acknowledging “particular CIA drone strikes” (Br. at 26) is misleading. The President’s statements make no reference to either the CIA or to drone strikes. They discuss al-Awlaki’s death as a “significant milestone in the broadr effort to defeat al Qaeda and its affiliates,” and laud the “intelligence community” for its efforts in that regard. It is plaintiffs – not the President – who inject references to supposed CIA drone strikes, based upon only media reports.
Moreover, President Obama’s general statement that al-Awlaki’s death was “‘a tribute to our intelligence community,’” Br. at 26, is unavailing. This statement does not explicitly identify the CIA, nor does it mention drone strikes. The President’s comments regarding the “intelligence community” (which is made up of seventeen federal organizations, not just the CIA) may well have been intended to praise the community for its role in collecting and analyzing intelligence that may have contributed to this effort. The President’s statements do not constitute official disclosure of whether or not the CIA possesses responsive records concerning drone strikes.
Finally, plaintiffs argue that even if none of these statements (or those of Director Panetta) by themselves constitutes official acknowledgment of CIA
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responsive records concerning drone strikes, they should be considered collectively. See Br. at 26-29. Plaintiffs suggest that the number of consistent statements counsels in favor of finding that there has been an official acknowledgment. Br. at 27. But the volume of disclosures, from whatever source, is not the test for official disclosure, and plaintiffs fail to cite any “official acknowledgment” FOIA cases in support of that proposition. Cf. Wilson, 586 F.3d at 186 (requiring official disclosure to be by authorized official); Wolf, 473 F.3d at 378 (speculation, “no matter how widespread,” cannot constitute official disclosure). More significantly, however, even if considered collectively, those statements do not explicitly acknowledge that the CIA has responsive records regarding drone strikes.
3. Statements By Former CIA Officials Or Unidentified Government Officials Cannot Waive the Agency’s Ability To Refuse To Confirm Or Deny The Existence Of Responsive Records.
Plaintiffs also cite media reports containing statements by former CIA officials and unidentified government officials. Although plaintiffs concede that none of these statements alone constitutes an official acknowledgment, Br. at 30, 36, they nevertheless contend that, collectively, these statements “make the CIA’s Glomar invocation in this case particularly suspect, and particularly unseemly, and that they warrant particularly searching review by this Court.” Br. at 30. Plaintiffs, however,
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fail to meet their burden of showing that such statements officially acknowledge the existence of any CIA records regarding drone strikes.
Plaintiffs cite remarks made in 2011 by the CIA’s former Acting General Counsel, John Rizzo, see Br. at 30, but plaintiffs readily acknowledge that “Mr. Rizzo was not in the employ of the CIA when he made these comments, and * * * plaintiffs do not suggest that his comments, taken alone, establish official acknowledgement [sic].” Br. at 30. Indeed, the district court recognized in rejecting plaintiffs’ reliance on Mr. Rizzo’s statements, that such statements by a former official cannot constitute official acknowledgment. See JA at 293 n. 6; see also Afshar, 702 F.2d at 1134 (holding that disclosures in books written by former CIA officials could not be treated as “official disclosures”); Wilson v. CIA, 586 F.3d 171, 189 (2d Cir. 2009) (“A former employee’s public disclosure of classified information cannot be deemed an ‘official’ act of the [Central Intelligence] Agency.”); Phillippi v. CIA, 655 F.2d 1325, 1330-31 (D.C. Cir. 1981) (information reported in book by former CIA Director was not official disclosure). For that reason, plaintiffs’ reliance (Br. at 31) on comments by former Director of National Intelligence Dennis Blair is also misplaced.
Plaintiffs contend that the White House’s counterterrorism advisor, John Brennan, has disclosed the CIA’s involvement in drone strikes, citing an article in the Los Angeles Times. See Br. at 31 & n.18. But that article made clear that Mr.
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Brennan said no words to that effect; to the contrary, the author made clear that he was inferring such meaning: “‘Brennan presumably was referring to covert strikes by the CIA and the Joint Special Operations Command[.]’” Br. at 31 (emphasis added). Nor did Mr. Brennan’s recent remarks on the President’s counterterrorism strategy acknowledge one way or the other the existence of any CIA intelligence interest in, or involvement in, drone strikes. See The Ethics and Efficacy of the President’s Counterterrorism Strategy, Transcript of Remarks by John O. Brennan (April 30, 2012), available at http://www.wilsoncenter.org/event/the-efficacy-and-ethics-uscounterterrorism-strategy. Although Mr. Brennan officially acknowledged that the United States conducts drone strikes, id. (“the United States Government conducts targeted strikes against specific al-Qa’ida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones”), he did not reveal whether the CIA (as opposed to another federal entity such as the Department of Defense) is involved in these drone strikes, or any other specific details. Id.
Plaintiffs also cite a number of media reports, quoting various unnamed and/or former government officials, that allegedly discuss the CIA’s involvement in drone strikes. See Br. at 31-36. Plaintiffs argue that the “sheer volume of these statements * * * suggests an official policy on the part of the agency and, more to the point, underlines that the existence of the CIA’s drone strike program has been disclosed.”
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Br. at 36-37 (emphasis added). That argument, however, has been repeatedly rejected by the courts. As this Court has recognized, “[a]n agency’s official acknowledgment * * * cannot be based on mere public speculation, no matter how widespread.” Wolf, 473 F.3d at 378 (emphasis added); see also Electronic Privacy Information Center, 2012 WL 1654943 at *4 n.5 (“national media are not capable of waiving [an agency’s] statutory authority to protect information”); ACLU, 628 F.3d at 621-22 (“It is one thing for a reporter or author to speculate or guess that a thing may be so or even, quoting undisclosed sources, to say that it is so; it is quite another thing for one in a position to know of it officially to say that it is so”); Fitzgibbon, 911 F.2d at 765 (recognizing “a critical difference between official and unofficial disclosures”); Hudson River Sloop Clearwater, Inc. v. Department of Navy, 891 F.2d 414, 421 (2d Cir. 1989) (statements made by a person without authority to speak for the agency cannot constitute official disclosure).
These binding precedents are based upon the principle that, even if there is speculation about a fact, unless an agency officially confirms that fact, the public does not know whether it is so. See Wilson, 586 F.3d at 186 (“As a practical matter, foreign governments can often ignore unofficial disclosures of CIA activities that might be viewed as embarrassing or harmful to their interests.”); Afshar, 702 F.2d at 1130-31 (“official acknowledgment by an authoritative source might well be new
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information that could cause damage to the national security”); ACLU, 628 F.3d at 625 (recognizing “that even if information exists in some form in the public domain that does not mean that official disclosure will not cause harm cognizable under a FOIA exemption”). Indeed, if the law were to the contrary, agencies would be required to confirm sensitive and/or classified information in a FOIA case whenever an inadvertent disclosure or unauthorized leak of the requested information had previously occurred. Cf. Frugone, 169 F.3d at 775 (if another agency’s disclosure could constitute official acknowledgment on behalf of the CIA, then “those with no duties related to national security - could obligate agencies with responsibility in that sphere to reveal classified information”). Agencies would likewise be forced to issue official denials in FOIA cases whenever the plaintiffs cited false reports from unofficial sources about purportedly classified operations.
Even in cases where there arguably has been some limited official acknowledgment of the information relating to the subject-matter at issue, courts have nevertheless upheld the Government’s use of the Glomar response. As the Second Circuit explained in Wilner, “an agency may invoke the Glomar doctrine in response to a FOIA request regarding a publicly revealed matter. An agency only loses its ability to provide a Glomar response when the existence or nonexistence of the particular records covered by the Glomar response has been officially and publicly
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disclosed.” 592 F.3d at 70; accord Electronic Privacy Information Center, 2012 WL 1654943 at *4 (rejecting plaintiff’s argument that same information requested under FOIA had been published on agency’s website); Wolf, 473 F.3d at 379 (holding that plaintiffs were entitled to disclosure only of the specific records whose existence had been previously disclosed, but not to any others concerning the same subject). Plaintiffs nowhere assert that the CIA has officially disclosed the existence of particular records that fall within their FOIA request.
Finally, plaintiffs argue that because “the use of drones is not a secret method of killing,” Br. at 37, “the CIA’s claim that the Glomar invocation serves a legitimate purpose” is undermined, Br. at 39. Plaintiffs’ argument is wide of the mark. Notwithstanding widespread reports that drone strikes occur, the CIA has never confirmed or denied whether it has any involvement or intelligence interest in any of those drone strikes, or whether it maintains any records relating to those drone strikes. Thus, responding to plaintiffs’ FOIA request would, in fact, reveal information that has not been officially disclosed, i.e., whether the CIA has responsive records regarding the use of drone strikes.
The Court should reject plaintiffs’ attempt to cobble together an official CIA acknowledgment by combining together the substance of various news reports, unofficial statements, and imprecise statements by former CIA Director Panetta and
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President Obama. This Court has repeatedly recognized that there is a “strict test” for official acknowledgment. See, e.g, Moore, 666 F.3d at 1333. That “insistence on exactitude recognizes ‘the Government’s vital interest in information relating to national security and foreign affairs.’” Wolf, 473 F.3d at 378. Plaintiffs’ very efforts to try to piece together such an official acknowledgment from these disparate sources demonstrate that there has not, in fact, been any prior, truly official acknowledgment within the meaning of that longstanding precedent. Indeed, it is just such an official acknowledgment that plaintiffs seek to obtain, for the first time, from this suit.
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CONCLUSION For the foregoing reasons, the judgment of the district court should be affirmed.
Respectfully submitted, STUART F. DELERY Acting Assistant Attorney General RONALD C. MACHEN, JR. United States Attorney BETH S. BRINKMANN Deputy Assistant Attorney General MATTHEW M. COLLETTE
(202) 514-4214 s/ Catherine Y. Hancock CATHERINE Y. HANCOCK
(202) 514-3469 Attorneys, Appellate Staff Civil Division, Room 7236 Department of Justice Washington, D.C. 20530-0001
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CERTIFICATE OF COMPLIANCE Counsel for appellee hereby certifies that the foregoing Brief for Appellee satisfies the requirements of Federal Rule of Appellate Procedure 32(a)(7) and D.C. Circuit Rule 32(a). The brief was prepared in Times New Roman, 14-point font, and, excluding parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and D.C. Circuit Rule 32(a)(2), contains 9,740 words according to the count of Corel Wordperfect X5.
s/Catherine Y. Hancock Catherine Y. Hancock
Counsel for Defendant-Appellee

USCA Case #11-5320 Document #1374831 Filed: 05/21/2012 Page 57 of 59
CERTIFICATE OF SERVICE
I hereby certify that on May 21, 2012, I served the foregoing Brief for Appellee
by causing an electronic copy to be served on the Court via the ECF system and eight
paper copies via hand delivery, and by causing one copy to be served on the
following counsel via the ECF system:
Arthur B. Spitzer ACLU of the Nation’s Capital 4301 Connecticut Ave., NW, Suite 434 Washington, DC 20008 (202) 457-0800
Jameel Jaffer Ben Wizner Nathan Freed Wessler American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500
s/Catherine Y. Hancock Catherine Y. Hancock
Counsel for Defendant-Appellee

USCA Case #11-5320 Document #1374831 Filed: 05/21/2012 Page 58 of 59
ADDENDUM

USCA Case #11-5320 Document #1374831 Filed: 05/21/2012 Page 59 of 59
5 U.S.C. § 552:
(a) Each agency shall make available to the public information as follows: * * *
(3)(A) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, and except as provided in subparagraph (E), each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.
* * * (b) This section does not apply to matters that are--
(1) (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;
* * *
(3) specifically exempted from disclosure by statute (other than section 552b of this title), if that statute--
(A)(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or
(ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and
(B) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph.

 
 Case: 1:10-cv-436 As of: 10/20/2016 11:12 PM EDT 1 of 13
CLOSED,TYPE−I
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:10−cv−00436−RMC

AMERICAN CIVIL LIBERTIES UNION et al v. DEPARTMENT OF JUSTICE et al Assigned to: Judge Rosemary M. Collyer Case in other court: USCA, 11−05320
USCA, 15−05217 Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 03/16/2010 Date Terminated: 06/18/2015 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

AMERICAN CIVIL LIBERTIES UNION

represented by Arthur B. Spitzer AMERICAN CIVIL LIBERTIES UNION OF THE NATION'S CAPITAL 4301 Connecticut Avenue, NW Suite 434 Washington, DC 20008 (202) 457−0800 x1004 Fax: (202) 457−0805 Email: artspitzer@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hina Shamsi AMERICAN CIVIL LIBERTIES UNION FOUNDATION National Security Project 125 Broad Street 18th floor New York, NY 10004 (212) 284−7321 Fax: (212) 549−2654 Email: hshamsi@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brett Max Kaufman AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2603 Fax: (212) 549−2654 Email: bkaufman@aclu.org TERMINATED: 09/04/2014 PRO HAC VICE

Jameel Jaffer AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 (212) 519−7814 Fax: (212) 549−2654 Email: jjaffer@aclu.org TERMINATED: 08/31/2016 PRO HAC VICE

Nathan Freed Wessler

Case: 1:10-cv-436 As of: 10/20/2016 11:12 PM EDT 2 of 13

AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 (212) 519−7847 Email: nwessler@aclu.org TERMINATED: 06/03/2013 PRO HAC VICE

Plaintiff
AMERICAN CIVIL LIBERTIES UNION FOUNDATION

represented by Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hina Shamsi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brett Max Kaufman (See above for address) TERMINATED: 09/04/2014 PRO HAC VICE

Jameel Jaffer (See above for address) TERMINATED: 08/31/2016 PRO HAC VICE

Nathan Freed Wessler (See above for address) TERMINATED: 06/03/2013 PRO HAC VICE

V. Defendant DEPARTMENT OF JUSTICE
Defendant DEPARTMENT OF DEFENSE

represented by Amy E. Powell U.S. DEPARTMENT OF JUSTICE P.O. Box 883 Washington, DC 20044 (202) 514−9836 Fax: (202) 616−8517 Email: amy.powell@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen McCoy Elliott U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 305−8177 Fax: (202) 616−8470 Email: stephen.elliott@usdoj.gov ATTORNEY TO BE NOTICED
represented by Amy E. Powell (See above for address)

Case: 1:10-cv-436 As of: 10/20/2016 11:12 PM EDT 3 of 13

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen McCoy Elliott (See above for address) ATTORNEY TO BE NOTICED

Defendant U.S. DEPARTMENT OF STATE

represented by Amy E. Powell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen McCoy Elliott (See above for address) ATTORNEY TO BE NOTICED

Defendant
CENTRAL INTELLIGENCE AGENCY TERMINATED: 09/09/2011

represented by Amy E. Powell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen McCoy Elliott (See above for address) ATTORNEY TO BE NOTICED

Amicus
WASHINGTON LEGAL FOUNDATION

represented by Richard A. Samp WASHINGTON LEGAL FOUNDATION 2009 Massachusetts Avenue, NW Washington, DC 20036 (202) 588−0302 Fax: (202) 588−0386 Email: rsamp@wlf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
ALLIED EDUCATIONAL FOUNDATION

represented by Richard A. Samp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/16/2010
03/16/2010 03/17/2010 03/26/2010

# Docket Text
1 COMPLAINT against DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE ( Filing fee $ 350, receipt number 4616028263) filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Attachments: # 1 Civil Cover Sheet)(rdj) (Entered: 03/16/2010)
SUMMONS (5) Issued as to DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE, U.S. Attorney and U.S. Attorney General (rdj) (Entered: 03/16/2010)
2 SUMMONS Returned Executed as to US Attorney, served on 3/16/2010, answer due 4/15/2010. (Spitzer, Arthur) Modified on 3/17/2010 to edit the parties (dr). (Entered: 03/17/2010)
3 NOTICE of Appearance by Amy E. Powell on behalf of DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE (Powell,

Case: 1:10-cv-436 As of: 10/20/2016 11:12 PM EDT 4 of 13

04/02/2010 04/02/2010 04/02/2010 04/02/2010 04/09/2010 04/12/2010 04/12/2010 05/04/2010 05/05/2010
05/05/2010 05/14/2010 05/14/2010
06/01/2010 06/15/2010

Amy) (Entered: 03/26/2010)
4 SUMMONS Returned Executed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. DEPARTMENT OF JUSTICE served on 3/22/2010, answer due 4/21/2010. (Spitzer, Arthur) (Entered: 04/02/2010)
5 SUMMONS Returned Executed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. DEPARTMENT OF DEFENSE served on 3/29/2010, answer due 4/28/2010. (Spitzer, Arthur) (Entered: 04/02/2010)
6 SUMMONS Returned Executed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. DEPARTMENT OF STATE served on 3/24/2010, answer due 4/23/2010. (Spitzer, Arthur) (Entered: 04/02/2010)
7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General 03/22/2010. (Spitzer, Arthur) (Entered: 04/02/2010)
8 Unopposed MOTION for Extension of Time to File Answer by DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE (Powell, Amy) (Entered: 04/09/2010)
MINUTE ORDER granting 8 Defendants' Unopposed Motion for Extension of Time to Answer. Defendants shall file their answer or otherwise respond to the complaint no later than May 6, 2010. Signed by Judge Rosemary M. Collyer on 4/12/10. (lcrmc2) (Entered: 04/12/2010)
Set/Reset Deadlines/Hearings: Answer to complaint due by 5/6/2010. (cdw) (Entered: 04/13/2010)
9 Unopposed MOTION for Extension of Time to File Answer by DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE (Powell, Amy) (Entered: 05/04/2010)
MINUTE ORDER granting 9 Defendants' Unopposed Motion for Extension of Time to Answer. Defendants shall file an Answer or otherwise respond to the Complaint no later than May 19, 2010. If Plaintiffs file an amended Complaint on or before May 19, 2010, Defendants will then have fourteen (14) days from the filing of the amended Complaint to file an Answer or otherwise respond to the amended Complaint. Signed by Judge Rosemary M. Collyer on 5/5/2010. (lcrmc2) (Entered: 05/05/2010)
Set/Reset Deadlines/Hearings: Answer to complaint due by 5/19/2010. (cdw) (Entered: 05/05/2010)
10 Joint MOTION to Amend/Correct Order on Motion for Extension of Time to Answer, by DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE (Powell, Amy) (Entered: 05/14/2010)
MINUTE ORDER granting 10 Defendants' Unopposed Motion for an Extension of Time. Plaintiffs will, if they determine it necessary, file an amended complaint no later than June 1, 2010. If Plaintiffs file an amended complaint, Defendants shall file an answer or other response no later than June 15, 2010. If Plaintiffs do not file an amended complaint by June 1, 2010, Defendants shall file an answer or other response to the complaint no later than June 4, 2010. Signed by Judge Rosemary M. Collyer on 5/14/2010. (lcrmc2) (Entered: 05/14/2010)
11 AMENDED COMPLAINT against DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE, CENTRAL INTELLIGENCE AGENCY filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION.(znmw, ) (Entered: 06/02/2010)
12 ANSWER to 11 Amended Complaint by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE. Related document: 11 Amended Complaint filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION, AMERICAN CIVIL LIBERTIES

Case: 1:10-cv-436 As of: 10/20/2016 11:12 PM EDT 5 of 13

06/16/2010 06/16/2010 07/01/2010 07/01/2010
07/16/2010 07/28/2010
10/01/2010 10/15/2010 10/19/2010 10/19/2010 10/19/2010 10/19/2010 11/01/2010

UNION.(Powell, Amy) (Entered: 06/15/2010)
MINUTE ORDER requiring the parties to file a joint proposed dispositive motion briefing schedule no later than July 1, 2010. Signed by Judge Rosemary M. Collyer on 6/16/2010. (lcrmc2) (Entered: 06/16/2010)
Set/Reset Deadlines/Hearings: Joint Proposed Dispositive Motion Briefing Schedule due by 7/1/2010. (cdw) (Entered: 06/22/2010)
13 STATUS REPORT Proposed Briefing Schedule, jointly filed by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE. (Powell, Amy) (Entered: 07/01/2010)
MINUTE ORDER. The parties shall file a joint status report by no later than July 16, 2010, to inform the Court as to the Defendants' search for and production of documents responsive to the Plaintiffs' FOIA request. Defendant CIA shall file a motion for summary judgment by no later than October 1, 2010. Plaintiffs shall file an opposition by no later than November 1, 2010. Defendant CIA may file a reply by no later than December 1, 2010. The parties are advised that no extensions of time will be granted. Signed by Judge Rosemary M. Collyer on 7/1/2010. (lcrmc2) (Entered: 07/01/2010)
14 STATUS REPORT , jointly filed, with proposed order by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE. (Powell, Amy) (Entered: 07/16/2010)
MINUTE ORDER. The Court approves the proposed schedule detailed in the parties' Joint Status Report [Dkt. # 14] and hereby ORDERS that the parties file a joint status report by no later than December 6, 2010. Defendant Department of Justice shall complete its search for responsive records by no later than September 14, 2010. Department of Justice and the Plaintiffs shall then confer and notify the Court of the proposed production schedule. Defendant Department of State shall complete its search for responsive records by no later than October 14, 2010 and shall begin a rolling production of responsive records to the Plaintiffs by no later than November 24, 2010. Defendant Department of Defense shall complete all searches for responsive records by November 15, 2010. Signed by Judge Rosemary M. Collyer on 7/28/2010. (lcrmc2) Modified on 7/30/2010 (cdw). (Entered: 07/28/2010)
15 MOTION for Summary Judgment by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Declaration of Mary Ellen Cole, # 2 Exhibits A − E to Declaration of Mary Ellen Cole, # 3 Text of Proposed Order)(Powell, Amy) (Entered: 10/01/2010)
16 MOTION for Leave to File Amicus Brief by WASHINGTON LEGAL FOUNDATION, ALLIED EDUCATIONAL FOUNDATION (Attachments: # 1 Text of Proposed Order, # 2 Proposed 7.1, # 3 Proposed Amici Curiae)(rdj) (Entered: 10/15/2010)
17 NOTICE of Consent to Motion for Leave to File Amicus Brief by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION re 16 MOTION for Leave to File (Spitzer, Arthur) (Entered: 10/19/2010)
MINUTE ORDER granting 16 Washington Legal Foundation and the Allied Educational Foundation's consent motion for leave to file amicus curiae brief. Signed by Judge Rosemary M. Collyer on 10/19/2010. (lcrmc2) (Entered: 10/19/2010)
18 AMICUS BRIEF by ALLIED EDUCATIONAL FOUNDATION, WASHINGTON LEGAL FOUNDATION. (rdj) (Entered: 10/19/2010)
19 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by ALLIED EDUCATIONAL FOUNDATION, WASHINGTON LEGAL FOUNDATION identifying Corporate Parent NONE for ALLIED EDUCATIONAL FOUNDATION, WASHINGTON LEGAL FOUNDATION. (rdj) (Entered: 10/19/2010)
20 Memorandum in opposition to re 15 MOTION for Summary Judgment by Defendant CIA, filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Attachments: # 1 Declaration of Alexander Abdo, # 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 11/01/2010)

Case: 1:10-cv-436 As of: 10/20/2016 11:12 PM EDT 6 of 13

11/01/2010 11/30/2010 11/30/2010 12/01/2010 12/01/2010 12/06/2010
12/07/2010
12/07/2010 12/17/2010 01/21/2011
01/26/2011
03/29/2011 05/12/2011 05/12/2011

21 Cross MOTION for Partial Summary Judgment against Defendant CIA, by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Declaration of Alexander Abdo, # 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 11/01/2010)
22 REPLY to opposition to motion re 15 MOTION for Summary Judgment filed by CENTRAL INTELLIGENCE AGENCY. (Powell, Amy) (Entered: 11/30/2010)
23 Memorandum in opposition to re 21 Cross MOTION for Partial Summary Judgment against Defendant CIA, filed by CENTRAL INTELLIGENCE AGENCY. (Powell, Amy) (Entered: 11/30/2010)
MINUTE ORDER. Plaintiffs may file a reply in support of the cross−motion for partial summary judgment against Defendant CIA 21 by no later than December 17, 2010. Signed by Judge Rosemary M. Collyer on 12/1/2010. (lcrmc2) (Entered: 12/01/2010)
Set/Reset Deadlines: Reply in support of the cross−motion for partial summary judgment due by 12/17/2010. (tcb) (Entered: 12/01/2010)
24 STATUS REPORT (JOINT) by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE. (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 12/06/2010)
MINUTE ORDER. Pursuant to the joint status report 24 , the parties, with the exception of Defendant Central Intelligence Agency, are ORDERED to file a joint status report by no later than January 21, 2011. The status report shall inform the Court of the progress of production and propose a mutually agreeable production schedule. Defendants shall continue with production on a rolling basis to the fullest extent possible. Signed by Judge Rosemary M. Collyer on 12/7/2010. (lcrmc2) (Entered: 12/07/2010)
Set/Reset Deadlines/Hearings: Joint Status Report due by 1/21/2011. (cdw) (Entered: 12/08/2010)
25 REPLY to opposition to motion re 21 Cross MOTION for Partial Summary Judgment against Defendant CIA, filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Spitzer, Arthur) (Entered: 12/17/2010)
26 STATUS REPORT by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE. (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 01/21/2011)
27 SCHEDULING ORDER: Counsel will meet and confer, and the parties willl file a Status Report with the Court on July 15, 2011, informing the Court as to the status of production, and, if the parties can reach agreement, setting out a mutually agreeable briefing schedule. See order for further details. Signed by Judge Rosemary M. Collyer on January 24, 2011. (cdw) (Entered: 01/27/2011)
28 NOTICE OF SUPPLEMENTAL AUTHORITY by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Exhibit Newsweek article)(Spitzer, Arthur) (Entered: 03/29/2011)
29 Unopposed MOTION for Extension of Time to complete FOIA processing by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE (Powell, Amy) (Entered: 05/12/2011)
MINUTE ORDER granting 29 Defendant Department of Defense's unopposed motion for an extension of time. The Court's January 24, 2011 Scheduling Order 27 is MODIFIED as follows: Defendant Department of Defense shall use its best efforts to complete processing by May 20, 2011. Signed by Judge Rosemary M. Collyer on 5/12/2011. (lcrmc2) (Entered: 05/12/2011)

Case: 1:10-cv-436 As of: 10/20/2016 11:12 PM EDT 7 of 13

06/28/2011 06/28/2011
06/28/2011 07/26/2011 07/26/2011 07/26/2011 08/12/2011 08/16/2011 09/09/2011 09/09/2011
09/09/2011 09/12/2011
10/11/2011
10/13/2011

30 Unopposed MOTION for Extension of Time to complete FOIA processing by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE (Powell, Amy) (Entered: 06/28/2011)
MINUTE ORDER granting 30 Defendants' consent motion for an extension of time. The Court's January 24, 2011 Scheduling Order 27 is MODIFIED as follows: Defendant Department of State shall use best efforts to complete processing by July 14, 2011. The parties shall then meet and confer and file a joint status report by July 29, 2011, indicating the status of production and proposing a mutually agreeable briefing schedule. Signed by Judge Rosemary M. Collyer on 6/28/2011. (lcrmc2) (Entered: 06/28/2011)
Set/Reset Deadlines/Hearings: Joint Status Report due by 7/29/2011. (cdw) (Entered: 06/30/2011)
31 Consent MOTION for Extension of Time to File joint status report and proposed briefing schedule by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 07/26/2011)
MINUTE ORDER granting 31 Plaintiffs' Motion for Extension of Time. By no later than August 12, 2011, the parties shall file a joint status report proposing a mutually agreeable briefing schedule. Signed by Judge Rosemary M. Collyer on 7/26/2011. (lcrmc2) (Entered: 07/26/2011)
Set/Reset Deadlines/Hearings: Joint Status Report due by 8/12/2011. (cdw) (Entered: 07/29/2011)
32 STATUS REPORT , filed jointly by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE. (Attachments: # 1 Text of Proposed Order)(Powell, Amy) (Entered: 08/12/2011)
33 ORDER directing the parties to file a Status Report with the Court by 10/26/2011. See order for further details. Signed by Judge Rosemary M. Collyer on August 15, 2011. (cdw) (Entered: 08/16/2011)
34 MEMORANDUM OPINION. Signed by Judge Rosemary M. Collyer on 9/9/2011. (lcrmc2) (Entered: 09/09/2011)
35 ORDER granting 15 defendant Central Intelligence Agency's motion for summary judgment and denying 21 Plaintiffs' motion for partial summary judgment against the Central Intelligence Agency. Accordingly, the Central Intelligence Agency is hereby DISMISSED as a defendant. Signed by Judge Rosemary M. Collyer on 9/9/2011. (lcrmc2) (Entered: 09/09/2011)
36 Unopposed MOTION for Extension of Time to Produce Draft Vaughn Indices by DEPARTMENT OF DEFENSE, DEPARTMENT OF STATE (Powell, Amy) (Entered: 09/09/2011)
MINUTE ORDER granting 36 defendants' consent motion for an extension of time. The Court's August 15, 2011 Scheduling Order 33 is modified as follows: By no later than September 16, 2011, defendant Department of Defense shall provide Plaintiffs a draft Vaughn index and defendant Department of State shall provide Plaintiffs a partial draft Vaughn index. All other deadlines remain the same. Signed by Judge Rosemary M. Collyer on 9/12/2011. (lcrmc2) (Entered: 09/12/2011)
37 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Nathan Freed Wessler, :Firm− American Civil Liberties Union Foundation, :Address− 125 Broad Street, NY NY 10004. Phone No. − (212) 519−7847. Fax No. − 212−549−2651 by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Declaration of Nathan Freed Wessler, # 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 10/11/2011)
MINUTE ORDER granting 37 Motion for Leave to Appear Pro Hac Vice. Signed by Judge Rosemary M. Collyer on 10/13/2011. (lcrmc2) (Entered: 10/13/2011)

Case: 1:10-cv-436 As of: 10/20/2016 11:12 PM EDT 8 of 13

10/26/2011 11/09/2011 11/10/2011 11/18/2011 07/11/2012 05/08/2013
05/10/2013 05/15/2013
05/15/2013
05/15/2013
05/21/2013 05/21/2013

38 STIPULATION of Dismissal as to Department of Defense, Department of Justice, and Department of State, by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE. (Spitzer, Arthur) (Entered: 10/26/2011)
39 NOTICE OF APPEAL as to 35 Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment,, by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. Filing fee $ 455, receipt number 0090−2728622. Fee Status: Fee Paid. Parties have been notified. (Spitzer, Arthur) (Entered: 11/09/2011)
40 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 39 Notice of Appeal. (rdj) (Entered: 11/10/2011)
USCA Case Number 11−5320 for 39 Notice of Appeal, filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION, AMERICAN CIVIL LIBERTIES UNION. (rdj) (Entered: 11/18/2011)
41 ORDER of USCA as to 39 Notice of Appeal to DC Circuit Court, filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION, AMERICAN CIVIL LIBERTIES UNION ; USCA Case Number 11−5320. ORDERED that the motion be denied. (kb) (Entered: 07/11/2012)
42 MANDATE of USCA (certified copy) as to 39 Notice of Appeal to DC Circuit Court, filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION, AMERICAN CIVIL LIBERTIES UNION ; ORDERED and ADJUDGED that the judgement of the District Court appealed from in this cause is hereby reversed and the case is remanded for further proceedings, in accordance with the opinion of the court filed herein this date. USCA Case Number 11−5320. (md, ) (Entered: 05/09/2013)
MINUTE ORDER. Following receipt of the 42 USCA Mandate, it is hereby ORDERED that this case is REOPENED. The parties shall meet and confer and file a proposed joint briefing schedule on the issues on remand no later than May 24, 2013. Signed by Judge Rosemary M. Collyer on 5/10/2013.(lcrmc2) (Entered: 05/10/2013)
43 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Brett Max Kaufman, :Firm− American Civil Liberties Union Foundation, :Address− 125 Broad Street, New York NY 10004. Phone No. − 212.549.2603. Fax No. − 212.549.2654 by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Declaration of Brett Kaufman, # 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 05/15/2013)
44 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Hina Shamsi, :Firm− American Civil Liberties Union Foundation, :Address− 125 Broad Street, New York NY 10004. Phone No. − 212.284.7321. Fax No. − 12.549.2654 by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Declaration of Hina Shamsi, # 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 05/15/2013)
45 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Jameel Jaffer, :Firm− American Civil Liberties Union Foundation, :Address− 125 Broad Street, New York NY 10004. Phone No. − 212.519.7814. Fax No. − 212.549.2654 by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Declaration of Jameel Jaffer, # 2 Text of Proposed Order)(Spitzer, Arthur) (Entered: 05/15/2013)
MINUTE ORDER granting 43 Motion for Leave to Appear Pro Hac Vice as to attorney Brett Max Kaufman. Signed by Judge Rosemary M. Collyer on 5/21/2013. (lcrmc2) (Entered: 05/21/2013)
MINUTE ORDER temporarily granting 44 Motion for Leave to Appear Pro Hac Vice as to Hina Shamsi. Ms. Shamsi has been admitted pro hac vice in this Court four times in the past two years. Her motion for pro hac vice admission in this case is granted conditionally pending her application for admission to the bar of this Court. Signed by Judge Rosemary M. Collyer on 5/21/2013. (lcrmc2) (Entered: 05/21/2013)

Case: 1:10-cv-436 As of: 10/20/2016 11:12 PM EDT 9 of 13

05/21/2013
05/24/2013 05/28/2013
05/28/2013 06/03/2013 06/03/2013 06/03/2013 06/03/2013 08/09/2013 08/09/2013 09/13/2013 09/13/2013 10/01/2013 10/01/2013

MINUTE ORDER temporarily granting 45 Motion for Leave to Appear Pro Hac Vice as to Jameel Jaffer. Mr. Jaffer has been admitted pro hac vice in this Court four times in the past two years. His motion for pro hac vice admission in this case is granted conditionally pending his application for admission to the bar of this Court. Signed by Judge Rosemary M. Collyer on 5/21/2013. (lcrmc2) (Entered: 05/21/2013)
46 STATUS REPORT RESPONDING TO MAY 10, 2013 MINUTE ORDER OF THE COURT by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Shamsi, Hina) (Entered: 05/24/2013)
MINUTE ORDER. Upon consideration of the parties' 46 Joint Status Report, it is ordered that, no later than August 9, 2013, Defendant CIA shall file its motion for summary judgment. Plaintiffs may file a cross−motion and response no later than September 13, 2013; Defendant CIA may file its opposition and reply no later than October 11, 2013. The Court anticipates that briefing will be conducted as scheduled without any extensions to either party. Signed by Judge Rosemary M. Collyer on 5/28/2013. (lcrmc2) (Entered: 05/28/2013)
Set/Reset Deadlines/Hearings: CIA's Summary Judgment motion due by 8/9/2013. Response to Motion for Summary Judgment due by 9/13/2013. Reply to Motion for Summary Judgment due by 10/11/2013. Plaintiff's Cross Motion due by 9/13/2013. Response to Cross Motion due by 10/11/2013. (cdw) (Entered: 05/29/2013)
47 MOTION to Withdraw as Attorney by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Wessler, Nathan) (Entered: 06/03/2013)
48 MOTION to ClarifyBriefing Schedule by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 06/03/2013)
MINUTE ORDER. 48 ACLU's motion to clarify is DENIED. The Court has adopted the normal progression of briefs in FOIA cases. Should future good cause exist for additional briefs, either party can submit a motion at that time. Signed by Judge Rosemary M. Collyer on 6/3/2013. (lcrmc2) (Entered: 06/03/2013)
MINUTE ORDER granting 47 Motion to Withdraw as Attorney as to Nathan Freed Wessler. Signed by Judge Rosemary M. Collyer on 6/3/2013.(lcrmc2) (Entered: 06/03/2013)
49 WITHDRAWN PER MINUTE ORDER FILED 7/25/2014.....MOTION for Summary Judgment by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Text of Proposed Order, # 2 Declaration of Martha Lutz, # 3 Declaration of Amy Powell)(Powell, Amy) Modified on 7/29/2014 (zmm, ). (Entered: 08/09/2013)
50 NOTICE of Lodging Classified Material by DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE (Powell, Amy) (Entered: 08/09/2013)
51 Cross MOTION for Partial Summary Judgment by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Shamsi, Hina) (Entered: 09/13/2013)
52 RESPONSE re 51 Cross MOTION for Partial Summary Judgment , 49 MOTION for Summary Judgment filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Shamsi, Hina) (Entered: 09/13/2013)
53 Unopposed MOTION to Stay Briefing Deadline in Light of Lapse of Appropriations by CENTRAL INTELLIGENCE AGENCY (Powell, Amy) (Entered: 10/01/2013)
MINUTE ORDER granting as unopposed 53 Defendants' Motion to Stay. This case is STAYED until Congress authorizes funding so that Department of Justice attorneys may resume their usual civil litigation functions. See 31 U.S.C. § 1342. Upon such authorization, Defendants shall inform the Court and propose a deadline for filing their omnibus reply/opposition brief. Signed by Judge Rosemary M. Collyer on 10/1/2013. (lcrmc2) (Entered: 10/01/2013)

Case: 1:10-cv-436 As of: 10/20/2016 11:12 PM EDT 10 of 13

10/01/2013 10/08/2013
10/08/2013 10/18/2013 10/18/2013
10/18/2013 11/01/2013 02/12/2014 04/09/2014
04/09/2014 04/22/2014 04/29/2014 05/01/2014
05/19/2014
05/19/2014 06/02/2014 06/05/2014

Case Stayed. (cdw) (Entered: 10/02/2013)
MINUTE ORDER. Due to the unanticipated length of the lapse of government appropriations, this case remains STAYED. No later than seven days after the government shutdown ends, the parties shall file a revised joint proposed schedule for Defendants' omnibus reply/opposition brief. The stay will be automatically lifted without further court order upon the end of the shutdown. Signed by Judge Rosemary M. Collyer on 10/8/2013. (lcrmc2) (Entered: 10/08/2013)
Case Stayed. (cdw) (Entered: 10/08/2013)
54 NOTICE of Restored Funding and Joint Proposed Schedule by DEPARTMENT OF JUSTICE (Powell, Amy) (Entered: 10/18/2013)
MINUTE ORDER granting the 54 Joint Proposed Schedule. Defendants' Reply Memorandum in support of their 49 Motion for Summary Judgment shall be filed no later than 11/1/13. The Court will take Plaintiffs' request for oral argument under advisement. Signed by Judge Rosemary M. Collyer on 10/18/13. (lcrmc1) (Entered: 10/18/2013)
Set/Reset Deadlines/Hearings: Reply to Motion for Summary Judgment due by 11/1/2013. (cdw) Modified on 10/21/2013 (zcdw). (Entered: 10/21/2013)
55 REPLY to opposition to motion re 51 Cross MOTION for Partial Summary Judgment , 49 MOTION for Summary Judgment and Opposition to Cross−motion filed by CENTRAL INTELLIGENCE AGENCY. (Powell, Amy) (Entered: 11/01/2013)
56 NOTICE OF SUPPLEMENTAL AUTHORITY by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Shamsi, Hina) (Entered: 02/12/2014)
MINUTE ORDER. The CIA is hereby directed to file a supplemental brief, no later than April 30, 2014, addressing 56 Plaintiffs' Notice of Supplemental Authority. Plaintiffs may reply to CIA's submission no later than May 14, 2014. The briefs on this issue are not to exceed ten pages. Signed by Judge Rosemary M. Collyer on 4/9/2014. (lcrmc1) (Entered: 04/09/2014)
Set/Reset Deadlines/Hearings: CIA's supplemental brief due by 4/30/2014. Plaintiffs' reply brief due by 5/14/2014. (cdw) (Entered: 04/10/2014)
57 NOTICE OF SUPPLEMENTAL AUTHORITY by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Jaffer, Jameel) (Entered: 04/22/2014)
58 MOTION to Stay Proceedings by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Text of Proposed Order)(Powell, Amy) (Entered: 04/29/2014)
59 Memorandum in opposition to re 58 MOTION to Stay Proceedings filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Attachments: # 1 Text of Proposed Order)(Jaffer, Jameel) (Entered: 05/01/2014)
MINUTE ORDER taking under advisement 58 CIA's Motion to Stay the Proceedings. It is further ordered that CIA shall file a supplemental brief, no later than June 2, 2014, addressing 56 Plaintiffs' Notice of Supplemental Authority. Plaintiffs may reply to CIA's submission no later than June 16, 2014. The briefs on this issue are not to exceed ten pages. Signed by Judge Rosemary M. Collyer on 5/19/2014. (lcrmc1) (Entered: 05/19/2014)
Set/Reset Deadlines/Hearings: CIA's supplemental brief due by 6/2/2014. Plaintiffs reply due by 6/16/2014. (cdw) (Entered: 05/20/2014)
60 SUPPLEMENTAL MEMORANDUM to re 56 NOTICE OF SUPPLEMENTAL AUTHORITY filed by CENTRAL INTELLIGENCE AGENCY. (Powell, Amy) (Entered: 06/02/2014)
61 SUPPLEMENTAL MEMORANDUM to re 60 Supplemental Memorandum re Feb. 12, 2014 Notice of Supplemental Authority filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Jaffer, Jameel)

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06/06/2014
06/06/2014 07/18/2014 07/24/2014 07/25/2014
08/11/2014
08/20/2014
08/20/2014 09/04/2014 09/04/2014 09/10/2014 09/11/2014
09/11/2014 11/10/2014

(Entered: 06/05/2014)
MINUTE ORDER granting 58 CIA's Motion to Stay Proceedings pending further appeal of the Second Circuit's decision in New York Times Co. v. DOJ, Nos. 13−422−cv and 13−445−cv (April 21, 2014). No later than July 21, 2014, the CIA shall submit a status report to advise the Court of the status of any further proceedings in that matter. Signed by Judge Rosemary M. Collyer on 6/6/2014. (lcrmc1) (Entered: 06/06/2014)
Case Stayed. Set/Reset Deadlines/Hearings: CIA's Status Report due by 7/21/2014. (cdw) (Entered: 06/09/2014)
62 STATUS REPORT by CENTRAL INTELLIGENCE AGENCY. (Powell, Amy) (Entered: 07/18/2014)
63 RESPONSE re 62 Status Report filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Jaffer, Jameel) (Entered: 07/24/2014)
MINUTE ORDER. Pursuant to 62 Defendant CIA's status report and 63 ACLU's response, it is hereby ordered that the stay of this matter is lifted. It is further ordered that 49 Defendants' Motion for Summary Judgment is withdrawn at Defendants' request. Signed by Judge Rosemary M. Collyer on 7/25/2014. (lcrmc1) (Entered: 07/25/2014)
MINUTE ORDER. Based on 62 CIA's Status Report and 63 ACLU's Response, the Court finds that 51 ACLU's Cross−Motion for Partial Summary Judgment requires revised briefing to account for recent developments. Accordingly, it is hereby ordered that 51 ACLU's Cross−Motion for Partial Summary Judgment is denied without prejudice. Signed by Judge Rosemary M. Collyer on 8/11/2014. (lcrmc1) (Entered: 08/11/2014)
MINUTE ORDER. No later than September 10, 2014, the parties shall file a joint status report regarding the outstanding FOIA requests. To the extent further briefing is required, the parties are further directed to submit a joint proposed briefing schedule no later than September 10, 2014. Signed by Judge Rosemary M. Collyer on 8/20/2014. (lcrmc1) (Entered: 08/20/2014)
Set/Reset Deadlines/Hearings: Joint status report and joint proposed briefing schedule due by 9/10/2014 (cdw) (Entered: 08/20/2014)
64 MOTION to Withdraw as Attorney Brett Max Kaufman by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Kaufman, Brett) (Entered: 09/04/2014)
MINUTE ORDER granting 64 Plaintiffs' Motion to Withdraw. Attorney Brett Max Kaufman is hereby terminated from this action. Signed by Judge Rosemary M. Collyer on 9/4/2014. (lcrmc1) (Entered: 09/04/2014)
65 STATUS REPORT (JOINT) by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Jaffer, Jameel) (Entered: 09/10/2014)
MINUTE ORDER. Pursuant to the 65 Joint Status Report, it is hereby ordered that Defendant CIA shall complete the processing of responsive documents and file a motion for summary judgment no later than November 25, 2014; Plaintiffs shall file an opposition and cross−motions for summary judgment no later than December 19, 2014; and Defendant CIA may file a reply no later than January 9, 2015. Signed by Judge Rosemary M. Collyer on 9/11/2014. (lcrmc1) (Entered: 09/11/2014)
Set/Reset Deadlines/Hearings: Defendant CIA's Summary Judgment motion due by 11/25/2014. Response to Motion for Summary Judgment due by 12/19/2014. Reply to Motion for Summary Judgment due by 1/9/2015. Plaintiffs' Cross Motion due by 12/19/2014. (cdw) (Entered: 09/12/2014)
66 NOTICE of Appearance by Stephen McCoy Elliott on behalf of All Defendants (Elliott, Stephen) (Entered: 11/10/2014)

Case: 1:10-cv-436 As of: 10/20/2016 11:12 PM EDT 12 of 13

11/25/2014 11/25/2014 12/19/2014 12/19/2014 01/09/2015 01/09/2015 06/09/2015 06/18/2015 06/18/2015 07/29/2015
07/30/2015 08/03/2015 06/15/2016
07/08/2016 07/11/2016

67 MOTION for Summary Judgment by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Memorandum in Support, # 2 Declaration of Martha M. Lutz, # 3 Statement of Facts, # 4 Text of Proposed Order)(Elliott, Stephen) (Entered: 11/25/2014)
68 NOTICE of Classified Lodging by DEPARTMENT OF JUSTICE (Elliott, Stephen) (Entered: 11/25/2014)
69 Memorandum in opposition to re 67 MOTION for Summary Judgment filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Attachments: # 1 Declaration of Jameel Jaffer, # 2 Text of Proposed Order)(rdj) (Entered: 12/22/2014)
70 Cross− MOTION for Summary Judgment by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Seed docket entry 69 to view the document)(rdj) (Entered: 12/22/2014)
71 REPLY to opposition to motion re 67 MOTION for Summary Judgment filed by CENTRAL INTELLIGENCE AGENCY. (Attachments: # 1 Text of Proposed Order)(Elliott, Stephen) (Entered: 01/09/2015)
72 Memorandum in opposition to re 70 MOTION for Summary Judgment by Plaintiffs filed by CENTRAL INTELLIGENCE AGENCY. (Attachments: # 1 Text of Proposed Order)(Elliott, Stephen) (Entered: 01/09/2015)
73 NOTICE by DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE (Powell, Amy) (Entered: 06/09/2015)
74 MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on June 18, 2015. (lcrmc1) (Entered: 06/18/2015)
75 ORDER granting 67 Defendant's Motion for Summary Judgment and denying 70 Plaintiffs' Cross−Motion for Summary Judgment. Judgment is entered in favor of Defendant. This case is closed. Signed by Judge Rosemary M. Collyer on June 18, 2015. (lcrmc1) (Entered: 06/18/2015)
76 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 75 Order on Motion for Summary Judgment,,, by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. Filing fee $ 505, receipt number 0090−4191819. Fee Status: Fee Paid. Parties have been notified. (Jaffer, Jameel) (Entered: 07/29/2015)
77 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 76 Notice of Appeal to DC Circuit Court. (zrdj) (Entered: 07/30/2015)
USCA Case Number 15−5217 for 76 Notice of Appeal to DC Circuit Court, filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION, AMERICAN CIVIL LIBERTIES UNION. (md) (Entered: 08/03/2015)
78 MANDATE of USCA (certified copy) ORDERED AND ADJUDGED that the judgment of the District Court be affirmed as to 76 Notice of Appeal to DC Circuit Court, filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION, AMERICAN CIVIL LIBERTIES UNION. USCA Case Number 15−5217. (Attachments: # 1 Exhibit)(zrdj) (Entered: 06/15/2016)
79 Consent MOTION for Extension of Time to File application for attorneys' fees by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Text of Proposed Order)(Spitzer, Arthur) (Entered: 07/08/2016)
MINUTE ORDER granting 79 consent Motion for Extension of Time to File motion for attorney fees. Plaintiffs shall file a motion for attorney fees with accompanying affidavit regarding hourly rate(s) and time billed, no later than September 6, 2016. A status conference is scheduled on August 30, 2016 at 10:00 a.m. in Courtroom 8. If the parties resolve this issue, they shall file a notice informing the Court. Signed by Judge Rosemary M. Collyer on 7/11/2016. (KD) (Entered: 07/11/2016)

Case: 1:10-cv-436 As of: 10/20/2016 11:12 PM EDT 13 of 13

07/11/2016 08/26/2016 08/26/2016
08/31/2016 08/31/2016 10/03/2016 10/03/2016 10/03/2016 10/14/2016 10/14/2016

Set/Reset Deadlines/Hearings: Status Conference set for 8/30/2016 at 10:00 AM in Courtroom 8 before Judge Rosemary M. Collyer. (cdw) (Entered: 07/12/2016)
80 Consent MOTION for Extension of Time to Negotiate Attorneys' Fees by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Shamsi, Hina) (Entered: 08/26/2016)
MINUTE ORDER granting 80 consent Motion for Extension of Time; requiring Plaintiffs to file a motion for attorney fess, with supporting affidavit of fees, costs, and hourly rates, no later than October 4, 2016. The August 30, 2016 status conference is CANCELLED and will not be reset at this time. Signed by Judge Rosemary M. Collyer on 8/26/2016. (KD) (Entered: 08/26/2016)
81 MOTION to Withdraw as Attorney by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Jaffer, Jameel) (Entered: 08/31/2016)
MINUTE ORDER granting 81 Motion to Withdraw as Attorney. Attorney Jameel Jaffer withdrawn and terminated as counsel in this case. Signed by Judge Rosemary M. Collyer on 8/31/2016. (KD) (Entered: 08/31/2016)
82 Consent MOTION for Extension of Time to Brief Attorneys Fees and Costs by CENTRAL INTELLIGENCE AGENCY (Powell, Amy) (Entered: 10/03/2016)
MINUTE ORDER granting 82 Consent Motion for Extension of Time. Plaintiffs' motion for attorneys' fees shall be filed on or before October 14, 2016. Signed by Judge Rosemary M. Collyer on 10/3/2016. (lcrmc1) (Entered: 10/03/2016)
Set/Reset Deadlines/Hearings: Motion for attorneys' fees due by 10/14/2016. (cdw) (Entered: 10/04/2016)
83 STIPULATION of Dismissal by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Shamsi, Hina) (Entered: 10/14/2016)
MINUTE ORDER approving of 83 Stipulation of Dismissal with Prejudice. This case is closed. Signed by Judge Rosemary M. Collyer on 10/14/2016. (lcrmc1) (Entered: 10/14/2016)

 
 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 20, 2012

Decided March 15, 2013

No. 11-5320

AMERICAN CIVIL LIBERTIES UNION AND AMERICAN CIVIL LIBERTIES UNION FOUNDATION, APPELLANTS

v.

CENTRAL INTELLIGENCE AGENCY, APPELLEE

Appeal from the United States District Court for the District of Columbia (No. 1:10-cv-00436)

Jameel Jaffer argued the cause for appellants. With him on the briefs were Ben Wizner and Arthur B. Spitzer.
Ranjana Natarajan was on the brief for amici curiae The Bureau of Investigative Journalism , et al. in support of appellants.
Stuart F. Delery, Acting Assistant Attorney General, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, Beth S. Brinkmann, Deputy Assistant Attorney General, and Matthew M. Collette and Catherine Y. Hancock, Attorneys. Douglas N. Letter and Sharon Swingle, Attorneys, entered appearances.

2
Before: GARLAND, Chief Judge, and TATEL and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Chief Judge GARLAND.
GARLAND, Chief Judge: The plaintiffs filed a Freedom of Information Act request for records hel d by the Central Intelligence Agency pertaining to the use of unmanned aerial vehicles (“drones”) to carry out targeted killings. The Agency issued a so-called Glomar response, refusing to confirmor deny that it had any such records. The district court affirm ed the Agency’s response and granted summary judgment in its favor. The question on appeal is whe ther the Agency’s Glomar response was justified under the circumstances of this case. We conclude that it was not justified a nd therefore reverse and remand for further proceedings.
I
On January 13, 2010, the American Civil Liberties Union and American Civil Liberties Union Foundation (collectively, the ACLU) submitted a Freedom of Information Act (FOIA) request to the Central Intelligence Agency (CIA), seeking “records pertaining to t he use of unm anned aerial vehicles (‘UAVs’) -- commonly referred to as ‘drones’ . . . -- by the CIA and the Arm ed Forces for the purpose of killing targeted individuals.” FOIA Request 2 (J.A. 48); see 5 U.S.C. § 552(a). The CIA responded with what is com monly known as a “Glomar response,” declining either to confirm or deny the existence of any responsive records. 1 The CIA’ s Agency
1The name is derived from the facts of Phillippi v. CIA, in which this court addressed the CIA’s refusal to confirm or deny whether it had documents relating to Howard Hughes’ ship, the Glomar Explorer,

3
Release Panel accepted an administrative appeal, but failed to make a determination within twenty days as FOIA requires. See 5 U.S.C. § 552(a)(6)(A)(ii). The ACLU then filed suit against the CIA in the United States Dist rict Court for t he District of Columbia, seeking the immediate processing and release of the requested records. See id. § 552(a)(4)(B).
The CIA moved for summary judgment. It asserted that the answer to t he question of whether it possessed responsive records was itself exem pt from disclosure under FOIA Exemptions 1 and 3. See id. § 552(b)(1), (3). And it rejected the ACLU’s content ion that there had been official public acknowledgments that warranted overriding the Agency’s exemption claims. I n support of those argum ents, the CIA submitted the affidavit of Mary Ellen Cole, the Inf ormation Review Officer for the Agency’s National Clandestine Service, who explained at some length why the CIA believed itsGlomar response was justified. See Declaration of Mary Ellen Col e (Cole Decl.).
On September 9, 2011, the district court granted the CIA’s motion for summary judgment. Am. Civil Liberties Union v. Dep’t of Justice, 808 F. Supp. 2d 280, 284 (D.D.C. 2011). The court agreed with the CIA that t he existence vel non of responsive records was exempt under both Exemptions 1 and 3, and that there had been no offciial acknowledgment sufficient to override those exemptions. As a conseque nce, the court held, the CIA was not required to confirm or deny that it ha d any responsive records, let alone describe any specific documents it might have or explain why any such docume nts were exempt from disclosure. The ACLU filed a timely appeal.
which had reputedly been used in an attempt to recover a lost Soviet submarine. 546 F.2 d 1009 (D.C. Cir. 1976); see Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981).

4

II

This appeal concerns the intersection of two lines of FOIA cases. The first is the Glomar line, which permits an agency to “refuse to confirm or deny the existence of records” in limited circumstances. Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007). “Because Glomar responses are an exception to the general rule that agencies must acknowledge the existence of inform ation responsive to a FOIA request and provide specific, non-conclusory justifications for withholding that information, they are perm itted only when conf irming or denying the existence of records would itself ‘cause harmcognizable under an FOIA exception.’” Roth v. U.S. Dep’t of Justice , 642 F.3d 1161, 1178 (D.C. Cir. 2011) (quoting Wolf, 473 F.3d at 374) (citation and internal quotation marks omitted); see, e.g., Miller v. Casey, 730 F.2d 773, 775-78 (D.C. Cir. 1984); Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir.1982). Accordingly, “[i]n determining whether the existence of agency recordsvel non fits a FOIA exemption, courts apply the general exemption review standards established in non-Glomar cases.” Wolf, 473 F.3d at 374; see, e.g., Gardels, 689 F.2d at 1103-07.

The second line of cases is the “official acknowledgment”

line, which provides that when an agency has officially

acknowledged otherwise exem pt information through prior

disclosure, the agency has waived its right to clai

m an

exemption with respect to that inform ation. I n other words,

“‘when information has been “officially acknowledged,” its

disclosure may be compelled even over an agency’s otherwise

valid exemption claim.’” Wolf, 473 F.3d at 378 (quoting

Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990)). A

plaintiff mounting an official acknowledgment argument “must

bear the initial burden of pointing to specific information in the

public domain that appears to duplicate that being withheld.”Id.

5
(quoting Afshar v. Dep’t of State , 702 F.2d 1125, 1130 (D.C. Cir. 1983)).
These two lines of cases converge when a plaintiff seeks to rebut a Glomar response by establishing of ficial acknowledgment. In the Glomar context, the “ specific information” at issue is not the contents of a particular record, but rather “the existence vel non” of any records responsive to the FOIA request. Id. at 379 (emphasis omitted); see id. at 380. Accordingly, the plaintiff can overcome a Glomar response by showing that the age ncy has already disclosed the fact of the existence (or nonexistence) of responsive records, since that is the purportedly exempt information that a Glomar response is designed to protect. See id. at 379-80; Marino v. DEA, 685 F.3d 1076, 1081 (D.C. Ci r. 2012). As we have explained, “in the context of a Glomar response, the public domain exception is triggered when ‘the prior disclosure establishes theexistence (or not) of records responsive to the FOIA request,’ regardless whether the contents of the records have been disclosed.” Marino, 685 F.3d at 1081 (quoting Wolf, 473 F.3d at 379).
“Under the FOIA, ‘the burden ison the agency to sustain its action,’ 5 U.S.C. § 552( a)(4)(B), and we review de novo the agency’s use of a FOIA exem ption to withhold docum ents.” Wolf, 473 F.3d at 374. However, “in conductingde novo review in the context of national security concerns, courts ‘must accord substantial weight to an agency’s affidavit concerning the detalis of the classified status of the disputed record.’” Id. (quoting Miller, 730 F.2d at 776) ( internal quotation m arks omitted). “Ultimately, an agency’s justification for invoking a FOIA exemption,” whether directly or in the form of a Glomar response, “is sufficient if it appears ‘logical’ or ‘plausible.’”Id. at 374-75; see Elec. Privacy Info. Ctr. v. NSA, 678 F.3d 926, 931 (D.C. Cir. 2012); Am. Civil Libertie s Union v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011); see also CIA Br. 19

6
(acknowledging that “[t]he sam e standard applies when the Government issues a Glomar response”).
In the district cour t, the CIA argued that it could neither confirm nor deny that it had responsive docum ents because confirming that it did would reveal that the CIA was either involved in, or interested in, drone strikes (while denying that it did would reveal the opposite). According to the Agency, its involvement or interest in such strikes is exempt from disclosure under FOIA Exemptions 1 and 3. 2 On behalf of the Agency, Mary Ellen Cole declared that “[a]n offi cial CIA acknowledgment that c onfirms or denies the existence or nonexistence of records responsive to Plaintiffs’ FOIA request would reveal, among other things, whether or not the CIA is involved in drone strikes or at least has an intelligence interest in drone strikes.” Cole Decl. ¶ 12;see id. ¶ 19. “[T]he existence or nonexistence of CIA records responsive to this request,” she continued, “is a currently and properly classified fact, the disclosure of which reasonably c ould be expected to cause damage to the na tional security.” Id. ¶ 15. And she further averred that, “[c]ontrary to Plaintiffs’ suggestion, no authorized CIA or Executive Branch official has disclosed whether or not
2Exemption 1 permits the government to withhold in formation “specifically authorized under criteria established by an Executive order to be kept secret in the interest of nati onal defense or foreign policy,” if that information has been “properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). Exem ption 3 permits the government to withhold information “specifically exempted from disclosure by statute,” if such statute either “requires that the matters be withheld from the public in sucha manner as to leave no discretion on the issue” or “establishes particular criteria for withholding or refers to particular types of matters to be withheld.” Id. § 552(b)(3). The government relies on the National Security Act of 1947 and the Central Intelligence Agency Act of 1949 as the relevant withholding statutes under Exemption 3. See 50 U.S.C. §§ 403-1(i)(1), 403g.

7
the CIA possesses records regarding drone strikes or whether or not the CIA is involved in drone strikes or has an int erest in drone strikes.” Id. ¶ 43; see id. ¶ 45.
In response, the ACLU argue d both that: (1) the m ere existence or nonexistence of records responsive to its requests was not exempt under FOIA Exemption 1 or 3; and (2) even if it were, the existence of such records had already been officially acknowledged by prior disclosure. The district cour t rejected both arguments. See Am. Civil Liberties Union, 808 F. Supp. 2d at 287-93, 298-301; id. at 293-98. On appeal, the ACLU pursues only the second argument. Accordingly, that is the only argument we consider, and we consider it de novo. See Elec. Privacy Info. Ctr., 678 F.3d at 930.
III
For reasons that will become clear in a moment, the CIA did not justify its Glomar response by contending that it w as necessary to prevent disclosing whether or not theUnited States engages in drone strikes. Rather, as we have noted, the response was justified on the ground that it was necessary to keep secret whether the CIA itself was involved in, or inter ested in, such strikes. Although the Agency’s brief repeatedly emphasizes the first prong of this just ification -- protecting whether the CIA operates drones -- that is not the issue before us on this appeal. The plaintiffs requested the release of ten cat egories of documents pertaining to drone strikes, each of which s ought documents about drones, but none of which was lim ited to drones operated by the CIA. FOIA Request 5-8 (J.A. 51-54); see Cole Decl. ¶ 7 (noting that plaintiffs’ request sought “records pertaining to the use of. . . ‘drones’ . . . by the CIAand

8
the Armed Forces ” (emphasis added)).3 Nor was the CIA’s Glomar response limited to documents about drones operated by the Agency. Rather, the CIA asserted and the di strict court upheld a sweeping Glomar response that ended the plaintiffs’ lawsuit by permitting the Agency to refuse to say whether it had any documents at all about drone strikes. See Am. Civil Liberties Union, 808 F. Supp. 2d at 287, 301.
The CIA has proffered no reason to believe that disclosing whether it has any docum ents at all a bout drone strikes will reveal whether the Agency i tself -- as opposed to som e other U.S. entity such as the Defense Department -- operates drones.4 There is no doubt, however, that such disclosure woul d reveal whether the Agency “at least hasan intelligence interest in drone strikes.” Cole Decl. ¶ 12; see id. ¶ 19. The question before us, then, is whether it i s “logical or plausible,” Wolf, 473 F.3d at 375 (internal quotation marks omitted), for the CIA to contend that it would reveal som ething not already offic ially acknowledged to say that the Agency “a t least has an
3See ACLU Reply Br. 1 n.1 (confirmation by plaintiffs that their FOIA request was for documents relating to the use of drones to carry out targeted killings, notonly for documents relating tothe use of such drones by the CIA); Oral Arg. Tr. 17.
4There might be a reason if it were unlikely that any entity other than the CIA operates drones. But the CIA does not m ake that argument. To the contrary, the Agency itself notes the possibilitythat official acknowledgments of U.S. drone strikes may refer to operations of “another federal entity such as the Department of Defense.” CIA Br. 40. See also Robert M. Gates, Remarks by Secretary Gates at the United States Air Force Academy, U.S. DEP’T OF DEF. (Mar. 4, 2011), http://www.defense.gov/transcripts/transcript.aspx?transcriptid=4779 (“The Air Force now has 48 Predator and Reaper com bat air patrols currently flying . . . and is training more pilots for advanced UAVs than for any other single weapons system.”).

9

intelligence interest” in such stri kes. Given the extent of the official statements on the subject, we conclude that the answer to that question is no.

The President of the United States has him self publicly acknowledged that the United States uses drone strikes against al Qaeda. In response to a question about drone strikes on a live internet video forum, the President said:

I think that we have to be judicious in how we use drones. But understand that probably our ability to respect the sovereignty of other countries . . . i s enhanced by the fact that weare able to pinpoint-strike an al Qaeda operative ina place where the capacities of th[e] military in that country m ay not be able to get them. So obviously a lot of these strikes have been . . . going after al Qaeda suspec ts who are up in very tough terrain along the border between Afghanistan and Pakistan.5

Similarly, in a speech at the W oodrow Wilson International Center, the President’s counterterrorismadvisor, then-Assistant to the President for Home land Security and Counterterrorism John Brennan, said:

So let m e say it as simply as I can. Yes, in full

accordance with the law . . . the United St

ates

Government conducts targeted strikes against specific

5President Obama Hangs out with America, WHITE HOUSE BLOG (Jan. 30, 2012), http://www.whitehouse.gov/blog/2012/01/30/ president-obama-hangs-out-america; The Wh ite House, Your Interview with the President - 2012, YOUTUBE, at 28:37-29:23 (Jan. 30, 2012), http://www.youtube.com/watch?v=eeTj5qMGTAI; see id. at 26:20-30:18.

10
al-Qaida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones. And I’m here today because President Obama has instructed us to be more open with the American people about these efforts.6
Although these statem ents do not acknowledge that the CIA itself operates drones, they leave no doubt that som e U.S. agency does. The CIA does not dispute that these st atements qualify as official acknowledgments of at least that much. Oral Arg. Tr. 25-26. To the contrary, it concedes that “Mr. Brennan officially acknowledged that the United States conducts drone strikes,” albeit without“reveal[ing] whether the CIA (as opposed to another federal entity such as the Department of Defense) is involved in these drone strikes.” CIA Br. 40.7
6John O. Brennan, The Ethics and Efficacy of the President’s Counterterrorism Strategy, WILSON CENTER (Apr. 30, 2012), http://www.wilsoncenter.org/event/the-efficacy-and-ethics-uscounterterrorism-strategy [hereinafter Wilson Center Speech]; see id. (“The United States is the first na tion to regularly conduct strikes using remotely piloted aircraft in an armed conflict.”)
7We have permitted agencies to give a Glomar response despite the prior disclosure of another, unrelated agency. See, e.g., Frugone v. CIA, 169 F.3d 772, 774-75 (D.C. Cir. 1999) (upholding the CIA’s ability to make a Glomar response despite official disclosure of the same information by the Office of PersonnelManagement). That rule does not apply , however, where the disclosures are m ade by an authorized representative of the agency’s parent. See Marino, 685 F.3d at 1082 (disallowing a Glomar response by the DEA where a U.S. Attorney released documents because both are “co mponent[s] within the Department of Justice”); see id. (noting the court’s holding in Davis v. Department of Justicethat “the FBI -- likewise part of DOJ -- could not withhold the specific portions of recordings that the plaintiff showed were played in federal court” by a federal prosecutor)

11

Given these official acknowledgments that the United States

has participated in drone strikes, it is neither logical

nor

plausible for the CIA to maintain that it would reveal anything

not already in the public domain to say that the Agency “at least

has an intelligence interest” in such strikes, Cole Decl. ¶ 12.

The defendant is, after all, the CentraIlntelligence Agency. And

it strains credulity to suggest that an agency charged with

gathering intelligence affecting the national security does not

have an “intelligence interest” in drone strikes, even if that

agency does not operate the drones itself.

But there is more. Counterterrorism advisor Brennan did not merely acknowledge that the United States “regul arly conduct[s] strikes using rem otely piloted aircraft.” W ilson Center Speech. He also statedthat, in deciding whether to carry out a strike, “[w]e . . . dr aw[] on the full range of our intelligence capabilities” and “m ay ask the intelligence community to . . . collect additional intelligence or ref ine its analysis so that a m ore informed decision can be m ade.” Id. “We listen to departm ents and agencies across our national security team,” he said, and “don’t just hear out differing views, we ask for them and encourage them.” Id. Needless to say, by statutory definition the Central Intelligence Agency is part of “the full range” of the nation’s “intelligence capabilities.” See 50 U.S.C. §§ 403-4, 403-4a.

And there is still more. In 2009, then-Director of the CIA Leon Panetta delivered rem arks at the Pacific Council on International Policy. In a nswer to a question about “rem ote

(citing Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1279-82 (D.C. Cir. 1992)). A disclosure m ade by the President, or by his counterterrorism advisor acting as “instructed” by the President, falls on the “parent agency” side of that line.

12
drone strikes” in the tribal regions of Pakistan, Director Panetta stated:
[O]bviously because these are covert and secret operations I can’t go into particulars. I think i t does suffice to say that these operations have be en very effective because they have been very precise in terms of the targeting and it invovl ed a minimum of collateral damage. . . . I can assure you that in term s of that particular area, it is very precise and it is very limited in terms of collateral damage and, very frankly, it’s the only game in town in terms of confronting and trying to disrupt the al-Qaeda leadership.8
It is hard to see how the CIA Director could have m ade his Agency’s knowledge of -- and therefore “interest” in -- drone strikes any clearer. And given these statements by the Director, the President, and the President’s counterterrorism advisor, the Agency’s declaration that “no authorized CIA or Executive Branch official has disclosed whether or not the CIA . . . has an interest in drone strikes,” Cole Decl. ¶ 43; see CIA Br. 43, is at this point neither logical nor plausible.
It is true, of course, that neither the President nor any other official has specifically stated that the CIA has documents relating to drone strikes, as com pared to an interest in such strikes. At this stage ofthis case, however, those are not distinct issues. The only reason t he Agency has given for refusing to disclose whether it has documents is that such disclosure would reveal whether it has an interest in drone strikes; it does not
8Director’s Remarks at the Pacific Council on International Policy, CENT. INTELLIGENCE AGENCY (May 19, 2009), https://www.cia.gov/news-information/speeches-testimony/ directors-remarks-at-pacific-council.html.

13
contend that it has a reason for refusing to confirm or deny the existence of documents that is independent from its reason for refusing to confirm or deny its inte rest in that subject. And more to the point, as it is now clear that the Agency does have an interest in drone strikes, itbeggars belief that it does not also have documents relating to the subject.9
But again, there is more. In the above-quoted excerpt from the CIA Director’s Pacific Council remarks, the Director spoke directly about the precision of targeted drone strikes, the level of collateral damage they cause, and their usefulness in comparison to other weapons and tactics. Given those statem ents, it is implausible that the CIA does not possess a single document on the subject of drone strikes. Unless we are to believe that the Director was able to “assure” his audience that drone strikes are “very precise and . . . very limited in terms of collateral damage” without having exam ined a single docum ent in his agency’s possession, those statements are tantam ount to an acknowledgment that the CIA has documents on the subject. In short, although the President and Messrs. Brennan and Panetta did not say that the CIA possesses responsive documents, what they did say m akes it neither “ logical” nor “plausible” to maintain that the Agency does not have any documents relating to drones.10
9Compare Moore v. CIA, 666 F.3d 1330 (D.C. Cir. 2011), which upheld the CIA’s Glomar response to a request for “all information or records relevant to . . .Sveinn B. Valfells,” notwithstanding the CIA’s official acknowledgment that it “asked the FBI to redact some ‘CIAoriginated information’” from a report on Valfells, because the plaintiff could not “show that the redacted information even relates to Valfells.” Id. at 1331, 1333-34.
10Although the statem ents by the President and Mr. Brennan postdated the district cou rt’s grant of summary judgment, the CIA does not argue that we may not take judicial notice of themon appeal.

14
The Glomar doctrine is in large m easure a judicial construct, an interpretation ofFOIA exemptions that flows from their purpose rather than their express language. In this case, the CIA asked the courts to stretch that doctrine too far -- to give their imprimatur to a fiction of deniability that no reasonable person would regard as plaus ible. “There com es a point where . . . Cour t[s] should not be ignorant as judges of what [they] know as men” and women. Watts v. Indiana, 338 U.S. 49, 52 (1949) (opinion of Frankfurter, J.). We are at that point with respect to the question of whether the CIA has any documents regarding the subject of drone strikes.
Indeed, the CIA itself now appears to have recognized the indefensibility of its position. Shortly after filing its appellate brief defending its Glomar response in this ca se, the Agency filed pleadings in litigation in the Southern District oNf ew York acknowledging that it does have documents concerning targeted killings. Declaration of John Bennett ¶¶ 17, 27N, ew York Times Co. v. U.S. Dep’t of Justice, No. 11-cv-9336, 2013 WL 50209 (S.D.N.Y. Jan. 3, 2013) (Bennett D ecl.). It gave as exam ples two public speeches on the subject, one by Attorney General Eric Holder, and the other the remarks of counterterrorism advisor John Brennan tha t we have quoted above. Id. ¶ 27. Thereafter, the Agency filed a motion for remand in this case, stating that the New York filing “officially acknowledges the CIA’s possession of some records that could potentially be responsive to plaintiffs’ FOIA requests in this case as well.” Remand Mot. 4. The motion went on to hint that the Agency might abandon its Glomar response in favor of something less absolute, if only slightly less. See id. at 5.
The CIA’s New Yo rk filing was unclear as to whether it was acknowledging that the Agency had anything responsive to the requests in that case beyondthe two public speeches it noted. At oral argum ent in this case, CIA counsel appeared to

15
acknowledge that it did. Oral Ar g. Tr. 33-35. Even if we are overreading that acknowledgm ent, however, the official statements of the President and Messrs. Brennan and Panetta render it impossible to believe that those two speeches are the only documents related to drone strikes in the Agency’s files. Accordingly, the CIA’s broad Glomar response is untenable, and we therefore reverse the disrtict court’s judgment dismissing the plaintiffs’ FOIA action.11
IV
The collapse of the CIA’s Glomar response does not mark the end of this case. FOIA contains exem ptions, including particularly Exemptions 1 and 3, that the governm ent argues permit withholding. “To determine whether the contents -- as distinguished from the existence -- of the officially acknowledged records may be protected from disclosure by Exemptions 1 and 3[,] . . . we [m ust] remand the case to the district court” for further proceedings. Wolf, 473 F.3d at 380; see Marino, 685 F.3d at 1082-83. With the failure of the CIA’s broad Glomar response, the case must now proceed to the filing of a Vaughn index or other description of the kind of documents the Agency possesses, followed by litigation regarding whether the exemptions apply to those docum ents. See generally Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). This has not occurred here because, by accepting the CIA’sGlomar response, the district court perm itted the Agency to end the litigation
11Because the ACLU does not make the argument on appeal, we do not consider whether -- in light of those official statem ents -- a Glomar response would also be unwarranted on the ground that it is implausible that revealing thatthe CIA merely has an interestin drone strikes “would cause harm cognizable under [ a] FOIA excep tion.” Wolf, 473 F.3d at 374.

16
without acknowledging the existence of any responsive documents, let alone indicating their nature or contents.
Just how detailed a disclosure m ust be made, even in an index, is anot her matter. A Vaughn index indicates in som e descriptive way which documents the agency is withholding and which FOIA exem ptions it believes apply. As the plaintiffs acknowledge, there is no fixed rule establishing what aVaughn index must look like, and a district court has considerable latitude to determine its requisite form and detail in a particular case. Oral Arg. Tr. 57-58 (plaintiffs’ acknowledgment that the district court has “a lot of leeway” in determining the degree of detail required in a Vaughn index); see Judicial Watch, Inc. v. FDA, 449 F.3d 141, 145-46 (D.C. Cir. 2006); Tax Analysts v. IRS, 214 F.3d 179, 185 (D.C. Cir. 2000). In the usual case, the index is public and relatively specific in describing the kinds of documents the agency is withholding. See Lykins v. U.S. Dep’t of Justice, 725 F.2d 1455, 1465 (D.C. Cir. 1984); Hayden v. NSA, 608 F.2d 1381, 1384-85 (D.C. Cir. 1979). But a Vaughn index may also contain brief or categorical descriptions when necessary to prevent the litigation process f rom revealing the very information the agency hopes to protect. Judicial Watch, 449 F.3d at 146.12 “Indeed, an agency may even submit other measures in com bination with or in lieu of the index itself . Among other things, the agency m ay submit supporting affidavits or seek in camera review of som e or all of the documents.” Id. at 146 (citation omitted); see Tax Analysts, 214 F.3d at 185. And in some circumstances, the court may permit
12See Gallant v. NLRB, 26 F.3d 168, 173(D.C. Cir. 1994) (“[T]he government need not justifyits withholdings document-by-document; it may instead do socategory-of-document by category-of-document, so long as its definitions of relevant categories are sufficientlydistinct to allow a court to determ ine . . . wh ether the specific claim ed exemptions are properlyapplied.” (internal quotation marks omitted)).

17
in camera submission of the index itself. See Hayden, 608 F.2d at 1385 (finding in camera review appropriate where “public itemization and detailed justif ication would com promise legitimate secrecy interests”). In short, “‘[ t]he materials provided by the agency may take any form so long as they give the reviewing court a reasonable basis to evaluate the claim of privilege.’” Gallant, 26 F.3d at 173 (quoting Delaney, Migdail & Young, Chartered v. IRS , 826 F.2d 124, 128 (D.C. Cir. 1987)).
In the New York litigation, the CIA said that it did not want to file a Vaughn index at all, but instead submit what it called a “no number, no list” response -- acknowledging t hat it had responsive documents, but declining to “further describe or even enumerate on t he public record the num ber, types, dates, or other descriptive information about these responsive records.” Bennett Decl. ¶ 28. Although theCIA’s New York filings speak as if the notion of a “no num ber, no list” response is wellestablished, it has not previously been considered by this court. Indeed, at the tim e of those fil ings, there were only two previously reported instances of such a response: it was briefly mentioned in one district court case in this circuitJ, arvik v. CIA, 741 F. Supp. 2d 106, 123 (D.D.C. 2010), and was litigated once before the Seventh Circuit,Bassiouni v. CIA, 392 F.3d 244, 24647 (7th Cir. 2004). There are nowtwo more reported instances: another brief mention by a district court in this circuitN, at’l Sec. Counselors v. CIA , No. 11-443, 2012 W L 4903377, at *38 (D.D.C. Oct. 17, 2012), and t he district court’s recent grant of summary judgment in favor of the CIA in the New Yor k litigation, New York Times Co. v. U.S. Dep’t of Justice, No. 11cv-9336, 2013 WL 50209 (S.D.N.Y. Jan. 3, 2013).
Citing the Se venth Circuit’s view that a “no num ber, no list” response is “legally identical” to a Glomar response, Bassiouni, 392 F.3d at 247, the plaintiffs argue that, if the CIA

18
is not entitled to make a Glomar response in this case, it is also not entitled to m ake a “no num ber, no list” response. Pl s.Appellants’ Opp’n to Remand Mot. 4-5. At least in a case like this, however, there is a m aterial difference between a “no number, no list” response and a Glomar response. A Glomar response requires the agency to argue, and the court to accept, that the very fact of the existence or nonexistence of responsive records is protected from disclosure. That is conceptual ly different from conceding (or being com pelled by the court to concede) that the agency has some documents, but nonetheless arguing that any description of those docum ents would effectively disclose validly exempt information. There may be cases where the agency cannot pl ausibly make the form er (Glomar) argument with a straight face, but where it can legitimately make the latter.
Indeed, a “no number, no list” response might be viewed as a kind of Vaughn index, albeit a radically minimalist one. Such a response would only be justified in unusual circumstances, and only by a particularly persuasive affidavit. Nor is there any reason to regard this approach assubject to an on/off switch. As we have just noted, once an age ncy acknowledges that it has some responsive documents, there are a variety of form s that subsequent filings in the dist rict court may take. A pure “no number, no list” response is at one end of that continuum ; a traditional Vaughn index is at the other. Not quite as minimalist as a pure “no number, no list” response might be a “no number, no list” response (or even a Glomar response) with respect to a limited category of documents, coupled with aVaughn index for the remainder.
But we are getting ahead of ourselves. None of these issues has been litigated in this case, e ither in this court or in the district court, because sum mary judgment was granted in the

19 face of an unqualified, across-the-boardGlomar response.13 No government affidavit has yet been filed in this case t hat even attempts to justify a “no number, no list” response. And neither a traditional Vaughn index nor affidavits justifying an alternative submission have been filed. Accordingly, all such issues remain open for the district court’s determination upon remand.
V For the foregoing reasons, we reverse the judgment of the district court and rem and the case for further proce edings consistent with this opinion.
So ordered.
13For this reason, we also do not decide whether the government would be warranted in making a more limited Glomar response to one or more of the specific categories of documents “pertaining to drone strikes” included in the plaintiffs’ FOIA request.