Boening v. Central Intelligence Agency

Memorandum in opposition to re MOTION to Dismiss and Motion for Summary Judgment

D.D.C.March 10, 2008

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FRANZ BOENING * * Plaintiff, * * Civil Action No: 07-430 (EGS) v. * * CENTRAL INTELLIGENCE AGENCY * * Defendant. * * * * * * * * * * * * * RESPONSE TO DEFENDANT’S LOCAL RULE 7(h) STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE Pursuant to Local Rule 7.1 (h), the plaintiff respectfully responds to the defendant’s Statement of Material Facts as to Which There is No Genuine Issue. 1. Plaintiff does not dispute this statement. 2. Plaintiff does not dispute this statement. 3. Plaintiff does not dispute the factual recitation of these statements, except to the extent it sets forth legal characterizations and he disputes the conclusion that his May 10, 2001 Memorandum did not represent an “urgent concern.” 4. Plaintiff does not dispute this statement, but has no independent knowledge this is what took place. 5. Plaintiff does not dispute these statements. 6. Plaintiff does not dispute the factual recitations of these statements, except he has no independent knowledge this is what took place, but does dispute any legal characterizations or conclusions. 7. Plaintiff does not dispute the factual recitations of these statements, except to the extent it contains any legal characterizations or conclusions and the letter dated February 4, 2004, speaks for itself. 8. Plaintiff does not dispute this statement, except to the extent he did not assert, nor does he claim, his May 10, 2001 Memorandum was a “nonofficial document.” Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 1 of 57 2 9. Plaintiff does not dispute these statements. 10. Plaintiff disputes the allegation he “failed to make the necessary changes”, but does not dispute the PRB’s notifications as its’ written communications speak for themselves. 11. Plaintiff does not dispute these statements. 12. Plaintiff does not dispute this statement. 13. Plaintiff does not dispute this statement as the letter speaks for itself, but he does dispute the conclusion that the material in the “Classified Annex” was properly classified. 14. Plaintiff does not dispute that the DiMaio Declarations (only one of which is available to the plaintiff) speak for themselves and reflect the fact that a CIA official believes that certain identified information within the relevant records is classified, but does dispute the contents of the Declarations to the extent they set forth legal characterizations asserting why the information at issue is considered classified. Dated: February 10, 2008 Respectfully submitted, /s/ _________________________ Mark S. Zaid, Esq. D.C. Bar #440532 Mark S. Zaid, P.C. 1250 Connecticut Avenue, N.W. Suite 200 Washington, D.C. 20036 Attorney For Plaintiff Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 2 of 57 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FRANZ BOENING * * Plaintiff, * * Civil Action No. 07-0430 (EGS) v. * * CENTRAL INTELLIGENCE AGENCY * * Defendant. * * * * * * * * * * * * * OPPOSITION TO DEFENDANT’S RENEWED MOTION TO DISMISS UNDER RULE 12 AND MOTION FOR SUMMARY JUDGMENT UNDER RULE 56 AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S RENEWED CROSS-MOTION FOR SUMMARY JUDGMENT1 Plaintiff Franz Boening (“Boening”), a former employee of the defendant Central Intelligence Agency (“CIA”) for nearly three decades, internally challenged the CIA with a legal, factual and moral dilemma by calling upon it to publicly come clean about its’ alleged relationship with a foreign national – referred to as “M” – who held a senior position with another Government and was revealed to be a human rights violator and criminal.2 1 Before public filing this document and its attachments underwent a CIA classification review. To the extent any information has been redacted as “classified”, the filing of this document does not denote Boening’s agreement with that decision and he reserves the right to challenge the classification at the appropriate time. Moreover, depending upon the extent of information redacted, this Court should review any unredacted version in order to ensure Boening receives full due process during these proceedings. 2 The designation “M” has been openly used by the CIA’s Publication Review Board (“PRB”) and Boening in unclassified e-mails, including one that was filed by the CIA on the public record. See e.g., Defendant’s Motion to Dismiss Under Rule 12 and Motion for Summary Judgment Under Rule 56 (“Def’s Initial Memo”)(filed July 20, 2007), Declaration of Scott A. Koch (“Koch Decl.”), Ex. “G” (including clear overt references to “M” as an individual). Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 3 of 57 2 This case revolves around a 25-page memorandum dated May 10, 2001 and its attachments (hereinafter referred to as the “M Complaint”, the unclassified term used by Boening and the CIA). Boening’s concerns about “M” arose not from any classified work he had performed, or as a result of classified files he had reviewed (or even heard through hallway gossip), but were entirely derived from his reading of publicly available newspaper and magazine articles that described or speculated about the relationship. Based on open source information, and not knowing whether any documentation on “M” actually existed, Boening pursued a rarely used whistleblower provision to call upon the CIA to declassify any relevant classified information it might possess on this individual. Relying upon provisions established by President Clinton in Executive Order 12,958 which encouraged government employees to challenge overclassification determinations, Boening attempted to persuade the CIA to do the right thing. Instead of rewarding Boening the CIA retaliated.3 The CIA initially classified portions of the “M Complaint” because of its misconceived notion that Boening possessed access to legitimately classified information on the topic. As a CIA employee, his options were limited. As a former employee Boening is free of some of the legal restraints the CIA previously held over him. The CIA’s only power now is control over properly classified information. This lawsuit represents a significant challenge to the CIA’s attempt to unconstitutionally broaden the scope of its authority over its former employees and stifle 3 As a result of the matters addressed herein Boening became a whistleblower and suffered employment retaliation to include not being sent to Foreign Country “A” in 2003 despite his having volunteered and possessing needed language skills. Complaint at ¶3 (dated March 5, 2007); Second Declaration of Franz Boening at ¶25)(dated February 11, 2008)(“Second Boening Decl.”), attached as Exhibit “1”. Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 4 of 57 3 their First Amendment rights. That effort, based on the law and facts established herein, should be thwarted by this Court.4 FACTUAL BACKGROUND Boening began employment with the CIA in 1980. At that time he executed a routine secrecy agreement. 5 Koch Decl., Ex. “A”. This is the only secrecy agreement he ever executed. Second Boening Decl. at ¶3. He retired from the CIA in 2005. Id. at ¶2. Creation Of The “M Complaint” In or around Autumn 2000, Boening began reading publicly available newspaper and magazine articles that described the political scandals in M’s country [six words 4 This is the CIA’s second bite at the proverbial legal apple. The CIA initially filed a Motion to Dismiss Under Rule 12 and Motion for Summary Judgment Under Rule 56 on July 20, 2007. Boening filed an Opposition and Cross-Motion for Summary Judgment on November 19, 2007. These Motions were denied without prejudice on November 28, 2007 (Dkt. No. 16), to allow the Court to resolve Boening’s Motion to Compel Access to Classified Information for Plaintiff and His Cleared Counsel (filed November 19, 2007). As part of its Opposition to the Motion to Compel, the CIA has simultaneously renewed its original Motions and heavily relied upon its prior submissions by incorporating its earlier arguments and attachments (such as supporting declarations and its Statement of Material Facts). As it is Boening’s belief that doing so violates the spirit, if not the letter, of LCvR 7(h) and 56.1 (and is simply confusing to the reader), he will not duplicate this strategy and instead has included all of his arguments herein. However, given the posture of the CIA’s filings, he will necessarily cite to its earlier submissions. Interestingly, a comparison of the CIA’s First Amendment arguments from its initial motion to its current reveals significant differences, particularly to the extent the CIA seeks to shift the burden from itself to Boening. Many of the arguments the CIA initially asserted about the “M Complaint” being properly classified are gone. Instead they are replaced with attacks on Boening’s alleged failure to supply pinpoint overt sources to the PRB. Of course, the CIA continues to rely on its’ hidden in camera, ex parte classified declaration. 5 Boening was employed by the CIA from 1980 – 2005. After learning Arabic in the early 1980s, he spent nearly one dozen years handling agent operations, primarily in the Middle East. He worked declassification issues from 1995 – 1999, and ultimately retired from the CIA after working at the Foreign Broadcast Information Service where he handled Internet exploitation and training. He has held a Top Secret/Sensitive Compartmented security clearance for more than 25 years. Complaint at ¶3. Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 5 of 57 4 redacted by the CIA].6 Boening had a personal interest in developmental affairs of this geographic region as well as human rights issues. Second Boening Decl. at ¶4. After reading domestic and international news accounts Boening was angered, not just by the level of narco-corruption in M’s country and the hidden brutality of his regime, but also by the constant reminder that, according to the scores of credible published media accounts, his employer had nurtured and supported “M” for years. Complaint at ¶4. Boening decided to monitor, during his own personal time, the unfolding political scandal because of his strong sense of civic responsibility, which was combined with his personal irritation of the allegations.7 If what he had read was even 50% true, he decided to take it upon himself to document what he perceived to be an apparently gargantuan intelligence failure. Second Boening Decl. at ¶8. Boening was livid that CIA may have been party to human rights violations and, even worse, that it seemed entirely possible that CIA had been criminally involved with “M”. Id. at ¶9. Based on the articles Boening read he decided to document the “perceived violations of the law committed by the CIA” with regard to an alleged “special relationship with a foreign individual who committed unlawful human rights violations and criminal acts.” Complaint at ¶6. This led him to create his “M Complaint”, which was a whistleblower complaint drafted pursuant to the Intelligence Community Whistleblower Protection Act of 1998 (“ICWPA”). Boening’s “M Complaint” specifically alleged that the: 6 [14 lines deleted by CIA. The deleted text can be found in Boening’s original memorandum filed November 19, 2007]. Second Boening Decl. at ¶7. 7 During the relevant period of time in question Boening worked overtly in the Foreign Broadcast Information Service as a Mideast media analyst. He had absolutely no professional responsibility whatsoever for “M’s” geographical area nor did he have access to any type of classified, compartmented CIA operational information on either “M” or his region. Second Boening Decl. at ¶10. Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 6 of 57 5 CIA may have violated US laws during its 10+ year relationship with [NAME REDACTED](paragraph five); CIA’s professional behavior was so scandalous that it seriously damaged American prestige and credibility (paragraph six); relationship continued because of an egregious counterintelligence failure (paragraph eight). Complaint at ¶6; Exhibit “2”.8 Not one word of the May 10, 2001 “M Complaint” is based on any classified CIA document on or concerning “M”, or on any information Boening received as a result of his employment with the CIA. Indeed, in his entire life Boening has never read a single classified CIA document (apart from official responses to his complaint which classified publicly available newspaper and magazine articles) wherein “M” was mentioned. Every comment or conclusion expressed in the “M Complaint” is based on open source information. Complaint at ¶¶7-8; Second Boening Decl. at ¶11. Attempt To Internally Challenge CIA’s Actions Involving The “M Complaint” The “M Complaint” was officially submitted to the CIA’s Office of Inspector General (“OIG”) on May 10, 2001. The document was styled as an “urgent concern” and addressed to “Office of the Inspector General, Central Intelligence Agency,” and identified as coming from “Franz Boening, Central Intelligence Agency”. The OIG rejected Boening’s request. Koch Decl. at ¶21. The CIA then conducted an initial classification review and determined it contained classified information. Id. at ¶22. This included publicly available newspaper, radio, and television information. Additionally, 8 The “M Complaint” was formatted in the typical simple memo-style format one learns as a schoolchild and included “To”, “From” and “Subject” headings. See Exhibit “2”. Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 7 of 57 6 the CIA deleted all references to “M” and Boening’s personal assessment of him. Complaint at ¶8. On July 2, 2001, pursuant to Executive Order 12,958 and the CIA’s implementing regulations, Boening, acting in his capacity as a CIA official, submitted the “M Complaint” to the CIA’s Agency Release Panel (“ARP”) for further classification review so that he could release it to a non-profit organization. Koch Decl. at ¶23. The ARP mistakenly believed that Boening had actually accessed classified information in order to create the “M Complaint”, and referred the document to the “Agency Classification Management Review Panel” (“ACMRP”) for further review. Id. at ¶¶23-24. The ACMRP also failed to realize that Boening’s “M Complaint” was based simply on publicly available information. Id. at ¶25. When a new Executive Secretary was appointed to the ARP he questioned whether the “M Complaint” was an “official” document. Id. at ¶26. Ultimately, by memorandum dated December 12, 2002, Boening was notified he “was not conducting or facilitating agency business” and that his “M Complaint” was a “personal record” and, therefore, not subject to review pursuant to the Executive Order. Id. at ¶27; Second Boening Decl. at ¶14; Exhibit “3”. Thus, the CIA erroneously determined that neither the ARP nor ACMRP held jurisdiction over the document. Koch Decl. at ¶27. During this time, in May 2002, Boening met with William McNair, then CIA’s Information Review Officer, Directorate of Operations, who revealed to Boening why the “M Complaint” was considered classified. McNair stated: “Look, Franz, do you think I care about “M’s name”? This is not about ‘source protection,’ this is about CIA’s reputation. We don’t want you to have any credibility. The problem with the M memorandum is that what you’ve written is all true.” Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 8 of 57 7 Complaint at ¶9; Second Boening Decl. at ¶16. McNair also acknowledged during the same conversation that the “M Complaint” was based solely on open source information and that it seemed to be reasonably well-sourced. The “M Complaint” was eventually forwarded to the Information Review Officer for the Directorate of Science & Technology (“DS&T/IRO”). The DS&T/IRO was the responsible official, based on the regulations that existed at that time, to review “non- official” documents authored by current employees who worked within the DS&T as Boening did. Koch Decl. at ¶28. It took until June 24, 2003, for an unfavorable decision to be communicated to Boening. Id. at ¶29. Attempt To Externally Challenge CIA’s Actions Surrounding The “M Complaint” Following the CIA’s decision Boening sought to appeal the denial that the ARP/ACMRP lacked jurisdiction and that the document contained classified information to the Inter-Agency Security Classification Appeals Panel (“ISCAP”), which operates through the Information Security Oversight Office (“ISOO”), National Archives & Records Administration. Complaint at ¶17. Initially, ISCAP, or at least ISOO, agreed that Boening was permitted to appeal to the ISCAP and ordered CIA to deliver the document. Second Boening Decl. at ¶15. The CIA refused. Id. Eventually, William Leonard, Chair, ISOO, was persuaded, based on information not fully known to Boening, that the CIA’s view was correct and that he was not an “authorized holder”. Id. This decision was conveyed by letter dated February 4, 2004. Koch Decl., Ex. “D”. The CIA Retaliates Against Boening For His Pursuit Of The “M Complaint” After Boening drafted his “M Complaint” unfortunate circumstances required that he author a series of follow-up complaints alleging that the CIA had retaliated against him. Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 9 of 57 8 These complaints included two formal whistleblower memorandums and dated March 24, 2003 and May 20, 2004, as well as two internal grievances dated January 16, 2003 and November 7, 2003. Exhibit “4”. During this period Boening was forced to endure various retaliatory acts from being denied assignments, being told to keep his mouth shut, not speak to younger officers and never being promoted again. Second Boening Decl. at ¶25. From 1980 to 1993, Boening had been promoted on average once every 2.5-3.0 years. After he filed his first informal human rights complaint in 1994, and the series of whistleblower complaints in later years, he never once received another promotion during the time – 12 more years – he served with the CIA. Id. at ¶26. Submission Of The “M Complaint” For Prepublication Review By memorandum dated November 22, 2004, Boening submitted to the PRB four documents, including the “M Complaint”, for classification review.9 Exhibits “2” & “4”; Complaint at ¶5. The “M Complaint” was accompanied by all the source documentation. Second Boening Decl. at ¶¶17-24. The PRB did nothing for months. Id. at ¶18. Finally, when Boening was nearing his retirement in Summer 2005, he and then PRB Chairman, Paul Noel Chrétien, exchanged internal messages about the “M Complaint”. In or around January 2006, the PRB stated “M’s” name and country could be released if Boening could demonstrate the information was based on overt sources. Complaint at ¶10. However, by letter dated June 20, 2006, the new PRB Chairman, Richard Puhl, formally notified Boening of a reversal of the CIA’s decision regarding the classification 9 These were: (a) May 10, 2001, Whistleblower Complaint and addendums dealing with [Individual’s name]; (b) March 24, 2003, Whistleblower Complaint alleging retaliation; (c) May 20, 2004, Whistleblower Complaint alleging retaliation; and (d) January 16, 2003, Grievance Against FBIS managers. All four documents were considered classified, but (b) – (d) have since been declassified. Complaint at ¶5;Koch Decl. at 20 fn.7. Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 10 of 57 9 of his submissions. This letter detailed thirteen pages of required changes on the basis that the information “is inappropriate for disclosure in the public domain and must be revised or deleted prior to publication”. Koch. Decl., Ex. “F”. Given that by now Boening was no longer a CIA employee, the only information the CIA could legally block publication of was information that was considered classified. This included “M’s” name and country of origin. The PRB also noted it required Boening to include a specific disclaimer should he disseminate the redacted document. Id. By e-mail dated June 30, 2006, the PRB further clarified that: If you rewrite your M story in a different format, outside the official- looking memo-type one it currently is in; and attribute those statements to open sources in the new format (as you basically have), there should be no problem with you getting your message out. The deletions noted in our letter pertain to the information as presented in the old format and not to the information itself. Koch Decl., Ex. “G” Furthermore, by letter dated August 11, 2006, the PRB notified Boening that the “2001 classified annex” 10 document he created was also considered “inappropriate for disclosure in the public domain (i.e., is considered to be classified information).” Koch Decl., Ex. “H”. ARGUMENT Applicable Legal Standards A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) presents a threshold challenge to the Court's jurisdiction. Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). The Court may resolve a Rule 12(b)(1) motion based solely on the complaint, or if necessary, may look beyond the allegations of the complaint to affidavits 10 Boening styled this document as a “classified annex” not because he was conceding it contained classified information, but because it was a possibility. He expressly challenges whether the annex contains classified information. Second Boening Decl. at ¶11. Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 11 of 57 10 and other extrinsic information to determine the existence of jurisdiction. Id. at 908. The Court must accept as true all the factual allegations contained in the complaint, but the plaintiff bears the burden of proving jurisdiction by a preponderance of the evidence. Bennett v. Ridge, 321 F. Supp. 2d 49, 51-52 (D.D.C. 2004). A motion filed under Rule 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The district court must treat the complaint's factual allegations – including mixed questions of law and fact – as true and draw all reasonable inferences therefrom in the plaintiff's favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir. 2003). Summary judgment is to be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists, the Court must view all facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party’s opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324. Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 12 of 57 11 Legal Standards For Prepublication First Amendment Classification Challenges The D.C. Circuit has twice provided guidance on how to handle prepublication classification challenges; first in McGehee v. Casey, 718 F.2d 1137, 1149 (D.C. Cir. 1983), and more recently in Stillman v. CIA et al., 319 F.3d 546 (D.C. Cir. 2003). As the Circuit originally stated in McGehee: Because the present case implicates first amendment rights, however, we feel compelled to go beyond the FOIA standard of review for cases reviewing CIA censorship pursuant to secrecy agreements. While we believe courts in securing such determinations should defer to CIA judgment as to the harmful results of publication, they must nevertheless satisfy themselves from the record, in camera or otherwise, that the CIA in fact had good reason to classify, and therefore censor, the materials at issue. Accordingly, the courts should require that CIA explanations justify censorship with reasonable specificity, demonstrating a logical connection between the deleted information and the reasons for classification. These should not rely on a “presumption of regularity” if such rational explanations are missing. We anticipate that in camera review of affidavits, followed if necessary by further judicial inquiry, will be the norm. Moreover, unlike FOIA cases, in cases such as this both parties know the nature of the information in question. Courts should therefore strive to benefit from “criticism and illumination by [the] party with the actual interest in forcing disclosure.” 719 F.2d at 1148-49 (citations omitted); Accord Stillman, 319 F.3d at 548-49. The instant review will not involve the need to “second-guess CIA judgments on matters in which the judiciary lacks the requisite expertise.” McGehee, 719 F.2d at 1149. There will be little, if any, substantive classification decisions in this case that this Court does not possess the requisite level of expertise to rule upon.11 Importantly, “while the CIA’s tasks include the protection of the national security and the maintenance of the 11 See New York Times Co. v. United States, 403 U.S. 713 (1971)(per curiam) (permitting publication of Pentagon Papers despite government’s claim that they were “top secret”); Haig v. Agee, 453 U.S. 280, 289 (1981)(President’s plenary power over foreign relations, “like every other government power, must be exercised in subordination to the applicable provisions of the Constitution.”), quoting United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936). Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 13 of 57 12 secrecy of sensitive information, the judiciary’s tasks include the ‘protection of individual rights. Considering that ‘speech concerning public affairs is more than self-expression; it is the essence of self-government,’ and that the line between information threatening to foreign policy and matters of legitimate public concern is often very fine, courts must assure themselves that the reasons for classification are rational and plausible ones.” Id. (citations omitted).12 When the government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply “posit the existence of the disease sought to be cured.” It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way. United States et al. v. National Treasury Employees Union et al.(“NTEU”), 513 U.S. 454, 475 (1995).13 I. BOENING IS ENTITLTED TO SUMMARY JUDGMENT AS HE HAS BEEN DEPRIVED OF HIS PROTECTED FIRST AMENDMENT RIGHT TO PUBLISH UNCLASSIFIED INFORMATION The Supreme Court has long recognized that expression about public issues rests “on the highest rung of the hierarchy of First Amendment values.” Carey v. Brown, 447 U.S. 455, 467 (1980). The constitutional protection for freedom of expression on public 12 In the landmark “Pentagon Papers” case, Justice Brennan wrote that “[t]he entire thrust of the Government’s claim throughout these cases has been that publication of the material sought to be enjoined ‘could,’ or ‘might,’ or ‘may’ prejudice the national interest in various ways. But the First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result.” New York Times Co. 403 U.S. at 725 (1971). 13 “As Justice Brandeis reminded us, a ‘reasonable’ burden on expression requires a justification far stronger than mere speculation about serious harms. ‘Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women...To justify suppression of free speech there must be reasonable grounds to fear that serious evil will result if free speech is practiced.’” National Treasury Employees Union, 513 U.S. at 475, quoting Whitney v. California, 274 U.S. 357, 376 (1927)(Brandeis, J., concurring). Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 14 of 57 13 matters, which was “fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people,” Roth v. United States, 354 U.S. 476, 484 (1957), is at the very core of our constitutional and democratic system. Stromberg v. People of State of Cal., 283 U.S. 359, 369 (1931). In addressing First Amendment challenges courts must keep in mind that “debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)(citation omitted). That said, Boening’s ability to disseminate his writing is legitimately subject to certain limitations due to his prior affiliation with the CIA.14 But Boening is neither asserting that the prepublication review process is unconstitutional nor that he possesses a First Amendment right to publish properly classified information. See Snepp v. United States, 444 U.S. 507, 510 (1980). However, his secrecy agreement applies only with respect to “classified information” that “has come or shall come to [his] attention by virtue of [his] connection with the Central Intelligence Agency.” McGehee, 718 F.2d at 1142. As the D.C. Circuit has noted, secrecy 14 To some extent, however, Boening’s relationship with the CIA also creates greater First Amendment significance under the circumstances. As Judge Kessler noted recently in a prepublication review case “the FBI, by its very nature, is not an open institution, and very few people are knowledgeable about its inner operations. For that very reason, the views of knowledgeable, informed, experienced ‘insiders’ are of particular utility.” Wright v. FBI, 2006 U.S. Dist. LEXIS 52389, *23 (D.D.C. July 31, 2006). It would seem obvious that the same rationale applies equally, and in fact more, to the CIA. As Justice Jackson recognized in American Communications Assn. v. Douds, 339 U.S. 382, 442 (1950), “[t]he priceless heritage of our society is the unrestricted constitutional right of each member to think as he will. Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error.” Id. at 443. Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 15 of 57 14 agreements do not extend to “unclassified materials or to information obtained from public sources.” Id. The government may not censor such material, “contractually or otherwise.” United States v. Marchetti, 466 F.2d 1309, 1313 (4th Cir.), cert. denied, 409 U.S. 1063 (1972).15 “The government has no legitimate interest in censoring unclassified materials. Moreover, when the information at issue derives from public sources, the agent’s special relationship of trust with the government is greatly diminished if not wholly vitiated.” McGehee, 718 F.2d at 1141. Accord Snepp v. United States, 444 U.S. 507, 513 n.8 (1980)(“if in fact information is unclassified or in the public domain, neither the CIA nor foreign agencies would be concerned”). See also Stillman, 319 F.3d at 548 (if information not classified properly manuscript can be published). The CIA can not properly classify the information contained in Boening’s “M Complaint” for at least three reasons: (1) at no time did Boening ever obtain access to any classified information relating to the substance of his “M Complaint” during the time of his employment and the information in question was derived exclusively from open source materials; (2) the information addresses perceived violations of the law by the CIA in its relationship with a foreign individual who has committed “unlawful human rights violations and criminal acts” and the CIA can not classify its own violations of the law; and (3) the CIA can not demonstrate that the information is within its “control” and therefore can not properly classify the information. 15 This Court recently noted that “any secrecy agreement which purports to prevent disclosure of unclassified information would contravene First Amendment rights.” Stillman v. CIA et al., 2007 U.S. Dist. LEXIS 24206, *13 fn.4 (D.D.C. March 30, 2007)(EGS), citing Marchetti, 466 F.2d at 1317 (“We would decline enforcement of the secrecy oath signed when he left the employment of the CIA to the extent that it purports to prevent disclosure of unclassified information, for, to that extent, the oath would be in contravention of his First Amendment rights.”). Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 16 of 57 15 By virtue of any or all of these arguments, by seeking to improperly classify information within the “M Complaint”, the CIA has deprived Boening of his First Amendment right. Therefore, its’ Motion should be denied and judgment entered in favor of Boening or, alternatively, both motions should be denied without prejudice until discovery should be permitted. A. The CIA Can Not Properly Classify The Information Contained In The “M Complaint” As It Was Exclusively Derived From Publicly Available Newspaper And Magazine Articles And Declassified Government Records Retrieved From The Internet The governing document concerning the CIA’s classification decisions is Executive Order 13,292, 68 Fed. Reg. 15315 (2003), which amended Executive Order 12,958 (1995).16 Pursuant to § 1.4 of EO 13,292, information shall not be considered for classification unless it concerns: foreign government information, intelligence activities (including special activities), intelligence sources or methods, or cryptology; and foreign relations or foreign activities of the United States, including confidential sources. It also contains four conditions for the classification of information: (1) the information must be classified by an “original classification authority”; (2) the information must be “owned by, produced by or for, or is under the control of” the government; (3) the information must fall within one of the authorized classification categories under section 1.4 of the Order; and (4) the original classification authority must “determine [] that the unauthorized disclosure of the information reasonably could be expected to result in 16 This case presents the novel question in a prepublication classification challenge of which Executive Order applies given that the document was reviewed under both EO 12,958 and EO 13,292. See Koch Decl. at 3 (noting “M Complaint” reviewed in May 2001 and May 2004, as well as on 5 other occasions). Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 17 of 57 16 damage to the national security” and must be “able to identify or describe the damage.” Id. at § 1.1. The CIA concedes that if the “M Complaint” “contains information derived only from overt sources, he may publish it.” Defendant’s Renewed Motion to Dismiss and Motion for Summary Judgment (“Def’s Renewed Memo”)(filed January 11, 2008).17 This concession alone seemingly results in a judgment in Boening’s favor. Let it be clear from the outset – the CIA cannot honestly dispute that every withheld fact from within the “M Complaint” was derived from published newspaper and magazine articles, or declassified documents of other government agencies that were retrieved from the Internet. These openly available sources were initially attached as exhibits to his November 2007 filing, and are incorporated once again in support of this filing. However, the CIA has disturbingly “classified” these documents which include articles from the Washington Post and Miami Herald, among other nongovernmental sources retrieved from the Internet. Second Boening Decl. at Exhibits “A” – “OOOO”. Although the CIA has prohibited the public from reading these documents, of course it 17 The CIA misstates Boening’s argument by postulating the very interesting legal question of whether an individual could publish properly classified information but which was obtained outside of government employment and secrecy agreement. It is easy to envision such a scenario, particularly if that individual remains in the Washington, D.C. region or becomes involved with the news media. For example, Frank Snepp, the former CIA official whose prepublication review case is the only one to have ever reached the Supreme Court, is now employed by the news media and often receives information from sources that the CIA would consider classified even though his employment with the CIA ended nearly three decades ago. As intriguing as this question remains, it is not the issue presented before this Court and need not be decided at this time. The entire “M Complaint” is based solely on unclassified sources. That Boening’s prepublication review requirement exists in perpetuity does nothing to enhance the “classified” nature of information contained in a document he creates. Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 18 of 57 17 can not equally so restrict the Court.18 In fact, the Court is permitted to take judicial notice of these documents. See e.g. Benak ex rel. Alliance Premier Growth Fund v. Alliance Capital Management L.P., 435 F.3d 396, 401 n. 15 (3d Cir. 2006)(court may take judicial notice of published newspaper articles); In re Merrill Lynch & Co. Research Reports Sec. Litig., 289 F. Supp. 2d 416, 425 n. 15 (S.D.N.Y. 2003)(same). 1. The CIA Is Attempting To Create A More Stringent Open Source Citation Standard For Prepublication Review Challenges That Has No Basis In Fact Or Law Because the CIA cannot contest the open source nature of Boening’s information, it has instead sought to attack the “M Complaint” by posing the following question: “has plaintiff demonstrated that he obtained the information deemed classified by the CIA from an overt source rather than from classified information that plaintiff may have had access to – either authorized or not – by virtue of his employment at the CIA?” Def’s Renewed Memo at 8. 18 The CIA complains that Boening disregarded its offer to make an in camera filing of these specific materials thereby insinuating that he (and his counsel) sought to intentionally violate their secrecy agreements by disclosing classified information. Def’s Renewed Memo at 13 fn.8. This claim is quite disingenuous. While it is true the CIA offered in advance to provide assistance for any desired in camera filings, it had no idea what that would entail. Thus, it had no idea that Boening would rely on published newspaper and magazine articles, as well as officially declassified federal records, all of which were openly retrieved from the Internet, as support for his Motion. More to the point, Boening had no legitimate or reasonable understanding that the CIA would go to such lengths to classify published newspaper and magazine articles, as well as officially declassified federal records, all of which were openly retrieved from the Internet. The public deserves to see the absurd level to which the CIA will stoop to prevent its current or former employees from openly challenging its conduct. It was the CIA’s decision to classify these documents, not Boening. Either way, the Court has access so an in camera filing was completely unnecessary. Finally, neither Boening nor his counsel has been contacted by CIA’s Office of Security to discuss this attempted “violation” of security regulations. Once again the CIA’s post-hoc legal arguments contradict its internal practices. Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 19 of 57 18 As a general matter, there is no case – and the CIA has notably failed to cite any – holding that information in the public domain may be censored. Indeed, in McGehee, the D.C. Circuit specifically noted that “when the information at issue derives from public sources, the agent’s special relationship of trust with the government is greatly diminished if not wholly vitiated.” 718 F.2d at 1141. The Circuit relied heavily on Marchetti, which held that the government may not censor information obtained from public sources, “contractually or otherwise.” 466 F.2d at 1313.19 The CIA heavily relies on our Circuit’s statement that “[a]n ex-agent should demonstrate, however, at an appropriate time during the prepublication review, that such information is in the public domain.” McGehee, 718 F.2d at 1141 n. 9; Def’s Renewed Memo at 12. From this simple statement the CIA extrapolates the argument that “without specific guidance from plaintiff as to exactly which information he relies upon, the PRB has no meaningful way of making the careful comparison that is required in order to determine whether a particular assertion touching on classified intelligence matters is in fact in the public domain.” Id. at 9 (emphasis added). This enhanced burden does not exist as a matter of fact or law. Other than the single generic statement in McGehee, there is no judicial decision, statute, Executive Order or CIA regulation that imposes the stringent burden articulated by the CIA for prepublication review challenges. The CIA’s complaint that it is not the “PRB’s job to wade through the large stack of documents provided by plaintiff to try to match up each unsourced, classified assertion in 19 See also Snepp, 444 U.S. at 513 n. 8 (“if in fact information is unclassified or in the public domain, neither the CIA nor foreign agencies would be concerned”); Wright v. FBI, 2006 U.S. Dist. LEXIS 52389, *28 (D.D.C. July 31, 2006)(“Defendants’ argument, even if accurate, does not explain how, regardless of how or when Wright learned of certain information, the Government could have any interest whatsoever in censoring it if it is already in the public domain”). Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 20 of 57 19 plaintiff’s memorandum to a book or article that could have been specifically referenced by the author, but was not” disregards the actual facts of this case and is not supported by the evidence.20 i. Boening Was Not Required To Provide Specific Source Citations In The “M Complaint” By Either The Governing CIA PRB Regulations Or By PRB Officials With Whom He Negotiated The Classification Review Of The Document The relevant CIA provision that existed at the time Boening authored the “M Complaint” and when the document was initially submitted to the PRB for review stated: When an author claims that information intended for nonofficial publication is unclassified because it has already appeared in public, the author may be called upon to identify any open sources for information that, in the Agency’s judgment, originates from classified sources. Failure or refusal to identify such public sources or otherwise cooperate may result in refusal of authorization to publish the information in question. The author may also be requested to cite the source in a footnote. Koch Decl., Ex. “B”, § 2(c)(5). In July 2005, the pertinent CIA PRB regulation was modified to state: When otherwise classified information is also available independently in open sources and can be cited by the author, the PRB will consider that fact in making its determination on whether that information may be published with the appropriate citations. Nevertheless, the Agency reserves the right to disallow certain open-source information or citations where, because of the author’s Agency affiliation or position, the reference might confirm the classified content. 20 Nor does the CIA’s reliance on McGehee and Lamont v. Dep’t of Justice, 475 F.Supp. 761, 772 n.43 (S.D.N.Y. 1989), see Def’s Renewed Memo at 12, provide an accurate representation of either Court’s discussion of whether the burden of searching public records fell to the Government. Besides the fact that Lamont is a FOIA case, and thus imposes a completely different legal burden, both references pertain to a situation where the plaintiff simply claims a fact is unclassified because it is in the public record, without providing proof, and whether the Government or Court must then conduct an exhaustive search in order to disprove this assertion. On the other hand, in this case Boening provided the specific sources of published information to the PRB to demonstrate where the information originated. Whether he adequately referenced the identified source in his actual document is not the test that exists for prepublication review challenges. Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 21 of 57 20 Koch Decl., Ex. “C”, § 2(f)(4). This language was maintained when the regulation was amended in May 2007. Exhibit “5”, § 2(f)(4). These regulations make it poignantly clear that the “pinpoint citation” standard now asserted by the CIA during litigation differs from that which exists during administrative processing. Moreover, despite the cry of foul by the CIA as to the alleged lack of citations, the evidence before this Court demonstrates that the CIA never before requested the level of specificity it now seeks to impose. By e-mail dated June 30, 2006, the PRB acknowledged, in fact, that Boening had basically provided sufficient sourcing and that the issue with the rewrite was strictly pertaining to the “old format”, i.e., the “official-looking memo type”. Koch Decl., Ex. “G”. And, at no time, had the PRB ever requested that Boening specifically identify any text with a “pinpoint citation”. To the contrary, Boening had reached an agreement with the then PRB Chairman that it was not necessary and all he needed to do was submit his public source material. Second Boening Decl. at ¶20.21 ii. There is A Significant Legal And Factual Distinction Between Adjudicating Whether Information Has Been “Officially Acknowledged” In FOIA Cases And Whether Information Is In The Public Domain In Prepublication Classification Challenges The CIA’s reliance on Boening’s alleged failure to provide “specific guidance” is an attempted expansion of the argument that the information contained in the “M Complaint” can still be properly classified despite being “publicly discussed,” if there has been no official acknowledgment of the information. Def’s Initial Memo at 37, citing 21 The CIA goes to great pains to attack the perceived lack of detail with his sourcing. Although he explained in his declaration what formatting he used to source information, as well as discussed the extent of his conversations and agreements with the PRB, this type of attack demonstrates why both Boening and his counsel required access to the “classified” “M Complaint” in order to more fully articulate their factual response. Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 22 of 57 21 Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990); Def’s Renewed Memo at 9 (citing cases).22 This argument is a red herring. The CIA continues to rely exclusively on analysis taken from FOIA decisions that is inapplicable to the present circumstances.23 The CIA does cite as support one of the first prepublication review cases ever decided (which was an outgrowth of the Marchetti case, the first such legal challenge) by the Fourth Circuit more than thirty years ago. Def’s Initial Memo at 39, citing Knopf v. Colby, 509 F.2d 1362, 1370 (4th Cir. 1975)(“It is true that others may republish previously published [press] material, but such republication by strangers to it lends no additional credence to it. [Plaintiffs] are quite different, for their republication of the material would lend credence to it, and, unlike strangers referring to earlier unattributed reports, they are bound by formal agreements not to disclose such information.”). But this argument ignores the D.C. Circuit’s clear admonition, which is binding on this case, nearly a decade later rejecting the notion of that premise: “when the information at issue derives from public sources, the agent’s special relationship of trust with the government is greatly diminished if not wholly vitiated”. McGehee, 718 F.2d at 22 Unlike the CIA, see Def’s Renewed Memo at 10, Boening has every bit of confidence that this Court can meaningfully assess whether the “M Complaint” is completely sourced from the public documents submitted with his declaration at Exhibits “A” – “OOOO”, especially when compared to the unredacted copy of the “M Complaint”. 23 See e.g., Fitzgibbon, 911 F.2d at 765 (finding disclosure of CIA station’s location in Congressional report did not constitute official disclosure and CIA, due to national security concerns, could not be forced under FOIA to disclose actual location); Public Citizen v. Dep’t of State, 11 F.3d 198, 202 (D.C. Cir. 1993)(rejecting FOIA request for records relating to meeting between Saddam Hussein and U.S. Ambassador April Glaspie despite public congressional testimony on meeting as testimony did not necessarily constitute official disclosure or necessarily specifically match requested information)The rationale behind the need for “specific citations” in an “official confirmation” FOIA case is obvious. When an agency withholds documents pursuant to a FOIA request and the requestor is asserting that the information has been previously “officially disclosed”, the burden is on the requestor to identify “specific information in the public domain that duplicates that being withheld.” Id. at 201-02. Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 23 of 57 22 1141. The CIA’s argument also ignores its own interpretation of what is meant by “official information” and the relationship to publicly available materials. See 57 Fed. Reg. 876 (1992)(CIA regulation defining “official information” excludes items meant for public consumption, such as newspapers, magazines, books, and reference materials.24 Though perhaps falling short of the manufactured stringent burden the CIA wishes to impose on the prepublication review process, Boening more importantly has met the requirement as set forth by the law in this Circuit, as well as an interpretation of the CIA’s governing regulations by the PRB as to what was required during the administrative process. Second Boening Decl. at ¶¶17-24.25 Therefore, he is entitled to summary judgment as the CIA can not prevent the disclosure of the publicly available, unclassified information in his “M Complaint”. 24 The CIA does possess wide latitude to prevent current employees from publishing even personal opinions concerning publicly available newspaper articles. See 57 Fed. Reg. 54564 (1992), citing HR 6-2 (2)(h)(4)(“For current employees and contractors, the Agency may also deny permission to publish statements or expressions of opinion that could reasonably be expected to impair the author’s performance of duties, interfere with the authorized functions of the CIA, or have an adverse impact on the foreign relations or security of the United States.”)(although from a proposed regulation, identical or similar language exists in the current regulation governing employee writings). For former employees, which is Boening’s status, however, the CIA can only prevent the publication of properly classified information. See Koch Decl., Exs. “B” & “C”. 25 It would seem to be clearly established in law that a person whose behavior is being regulated is entitled to rely on the representations made by the agency as to what the regulation means. See Cox v. Louisiana, 379 U.S. 559, 568-69 (1965)(individuals would “justifiably tend to rely on ... [an] administrative interpretation of how ‘near’ the courthouse a particular demonstration might take place”); Omnipoint Corp. v. FCC, 78 F.3d 620, 636 (D.C. Cir. 1996)(elimination of provision “would have harmed many of the minority-owned businesses that had been relying upon the rule”); International Union, United Automobile, Aerospace & Agric. Implement Workers of Am. v. Brock, 783 F.2d 237, 248 (D.C. Cir. 1986)(“employers will justifiably rely on the Department’s interpretation”). Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 24 of 57 23 B. The CIA Can Not Classify Information Concerning A Violation Of Law Or To Prevent Embarrassment Boening submitted the “M Complaint” to the CIA IG pursuant to the ICWPA on the grounds that he believed there was evidence, based on his reading of published newspaper and magazine accounts, that the CIA had engaged in “perceived violations of the law” with regard to an alleged “special relationship with a foreign individual who committed unlawful human rights violations and criminal acts.” Def’s Initial Memo at 8. The CIA may not classify information to “conceal violations of law, inefficiency, or administrative error,” “prevent embarrassment to a person, organization, or agency,” or “prevent or delay the release of information that does not require protection in the interest of the national security.” EO 13,292, § 1.7(a)(1)-(2). In renewing its request for summary judgment the CIA has backed away from its initial argument that the information contained in the “M Complaint” allegedly implicates “intelligence sources and methods” or “information concerning foreign relations or foreign activities of the United States, including confidential sources,”26 and that disclosure of the information in the Memorandum could reasonably be expected to cause damage to national security. Def’s Initial Memo at 34, citing Exec. Order 12958, as amended, § 1.4(c)-(d). It also seemingly withdrew from its heavy reliance on FOIA case 26 For unexplained reasons (at least in its public filings), the CIA also identified “foreign government information” as an applicable classification category. However, the very definition of the term, see EO 13,292, § 6.1 (r), demonstrates its inapplicability. All of the information contained within the “M Complaint” was derived directly from published newspaper and magazine accounts. Complaint at ¶¶7-8; Second Boening Decl. at ¶11. The only retort from the CIA to this point was to again criticize Boening for allegedly failing to include pinpoint citations to his sources. Def’s Renewed Memo at 18 fn.11. Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 25 of 57 24 law, particularly with respect to the notion of judicial deference. Def’s Initial Memo at 27-35. 27 Instead, the CIA now relies upon the argument that Boening cannot prevail on this claim by “merely alleging illegal behavior is somehow sufficient to overcome the deference that is due to the government’s affidavits averring that the information is classified for proper purposes.” Def’s Renewed Memo at 17.28 But that is not the evidence before this Court. The CIA boldly pronounces, while conveniently relying upon its classified in camera, ex parte declaration, that were this Court to look behind the propriety of its classification decision “it would uncover nothing to suggest that the 27 Even Boening agrees judicial deference has a role in prepublication review challenges. As this Court has itself recognized. Stillman, 2007 U.S. Dist. LEXIS 24206, *18-19 (noting “government is entitled to substantial deference in its classification decisions.”). However, “[d]espite this high level of deference, the Court will not just rubber stamp the government's classification decision. To uphold the government’s classification decision, the Court must satisfy itself ‘from the record, in camera or otherwise, that the [government agencies] in fact had good reason to classify, and therefore censor, the materials at issue.’… The Court will not rely on any ‘presumption of regularity’ if rational explanations are missing.” Id. at *19-20 (internal citations omitted), quoting McGehee, 718 F.2d at 1148-49. 28 The CIA once again relies solely upon several FOIA decisions, most notably People for the American Way Foundation v. National Security Agency/Central Security Service, 462 F. Supp. 2d 21 (D.D.C. 2006), where the Court reviewed a challenge under EO 13,292, § 1.7. See Def’s Renewed Memo at 17-18. However, the Court there noted that “[b]ecause of the deference due to the NSA in matters of national security, and in the absence of any evidence to the contrary, the Court must accept defendant’s reasonable explanation that the materials were classified in order to prevent damage to the national security.” 462 F.Supp.2d at 33 (emphasis added). In the instant matter Boening submitted undisputed (to date the CIA has never addressed the issue) evidence in the form of an official CIA statement to the contrary. Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 26 of 57 25 CIA’s classification decision turned on a desire to prevent embarrassment or shield supposedly illegal behavior.” Id. at 19.29 Conveniently the CIA continues to ignore Boening’s sworn declaration that recounts a conversation he had in May 2002 with William McNair, who was then serving as the Information Release officer of the CIA’s Directorate of Operations.30 McNair informed Boening the real reason for the classification of the “M Complaint” when he stated: “Look, Franz, do you think I care about [“M”’s name]? This is not about ‘source protection,’ this is about CIA’s reputation. We don’t want you to have any credibility. The problem with the “M” memorandum is that what you’ve written is all true.” Second Boening Decl. at ¶16. McNair also acknowledged that the “M Complaint” was based solely on open sources and that it seemed to be reasonably well-sourced. Id. While perhaps this evidence is insufficient to permit summary judgment in favor of Boening, this is far more than “unsubstantiated speculation” as the CIA asserts and is sufficient to defeat the CIA’s summary judgment motion. This is the exact circumstance where discovery is in order as a material fact conceivably remains in dispute. C. The CIA Cannot Demonstrate That The Information In The “M Complaint” Is Owned By, Was Produced By Or For, Or Is Under The Control Of The Government Thereby Precluding It From Restricting Its Publication As “Classified” Although in its latest Motion the CIA has minimized its reliance on arguments that the “M Complaint” is properly classified it still cannot escape the fact it has no legal 29 In light of the important First Amendment considerations, some of which are novel, at issue in this litigation this Court should respectfully accept the CIA’s challenge. “[W]hile the CIA’s tasks include the protection of the national security and the maintenance of the secrecy of sensitive information, the judiciary’s tasks include the protection of individual rights”. McGehee, 718 F.2d at 1149. 30 At the time, McNair served in the same position now held by Ralph S. DiMaio, who has submitted declarations in support of the CIA’s Motions. Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 27 of 57 26 standing to block publication of the contents of the memorandum given their public source origin. The governing Executive Order defines “information” as “any knowledge that can be communicated or documentary material, regardless of its physical form or characteristics, that is owned by, produced by or for, or is under the control of the United States Government.” EO 13,292, § 6.1(s). It also defines “control” as “the authority of the agency that originates the information … to regulate access to information.” Id.31 The CIA had initially asserted that because the information in Boening’s “M Complaint” describes the government’s intelligence activities, sources or methods or impacts foreign relations that it falls within the purview of Boening’s Secrecy Agreement and is therefore under the “control” of the CIA. Def’s Initial Memo at 32. It claimed that Boening’s “passing assertions that he did not have access to the classified information in his Memorandum while employed at the CIA, see Complaint at ¶8, are insufficient to defeat the Agency’s control over that information.” Def’s Initial Memo at 33. The CIA also initially focused on the issue of whether former CIA employees who had access to classified information within the “control” of the CIA can claim that information they discovered through open source materials was not related to the classified information to which they had access, regardless of whether the employee ever actually exercised that access. Presumably the CIA’s view was that since Boening 31 Interestingly, as part of a litigation settlement in 1991, the CIA published a new regulation entitled “Nondisclosure Obligations and Prepublication Review; Access to and Release of Official Information”. 57 Fed. Reg. 876 (1992). It specifically defined the related term of “official information,” to include “all information, whether classified or unclassified, that is originated, received, or controlled by the Agency in pursuance of law or in connection with the discharge of official duties. This definition encompasses information that concerns sources and methods, is unique to the Agency, or can be traced to the Agency. Excluded from this definition are … items meant for public consumption, such as newspapers, magazines, books, and reference materials. Id. (emphasis added). Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 28 of 57 27 possibly had access to the allegedly classified information contained in his “M Complaint” while employed at CIA, regardless of whether he ever actually exercised that access to learn that information, Boening can not now claim that he based all of his research exclusively on open source materials. Id. Instead of hitting that argument again head-on, the CIA instead dances around the premise and affirmatively seeks to undercut any prospective claim for discovery. Although Boening challenged the Agency to prove he had ever accessed – whether in an unauthorized or authorized manner – classified information pertaining to “M”, while at the same time offering evidence that he did not, the CIA does little more than seek to ridicule that premise without articulating a substantive response. Def’s Renewed Memo at 19. It further decries this argument as nothing more than a “red herring” claiming that it has not asserted “control” over the public source documents in Exhibits “A” – “OOOO”, which it has amusingly “classified” but “merely asserts control over its own information” as if there is some distinction at this stage of the dispute. Id. at 9. In the instant case, Boening cannot only prove he gathered the information exclusively outside of his employment at CIA and solely from open source materials, but further that at no time did he even have authorized access to the information while employed at the CIA. Complaint at ¶8; Second Boening Decl. at ¶11. In fact, the CIA has repeatedly conceded – particularly in order to defeat Boening’s efforts to solicit outside intervention – that Boening did not have authorized access to any of the “classified” information he included within his “M Complaint”. Def’s Initial Memo at 22-23; Classified DiMaio Decl. ¶8; see also Koch Decl. ¶32 n.7 & Ex. D (letter from J. William Leonard)(“[T]he CIA has represented that any access to classified information you Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 29 of 57 28 gained and which you included in your original complaint was not granted in accordance with your duties at the CIA. They have further represented that you did not have a need- to-know . . . the specific classified information accessed in preparation of your original complaint.”). And the CIA has characterized the “M Complaint” as a “personal record.” Koch Decl. at ¶27. The CIA cannot have it both ways.32 Moreover, the PRB has conceded that the only issues preventing publication were the “official-looking” format of the “M Complaint” and, to a much lesser extent, what can be described perhaps as a desire or preference, rather than requirement, to supplement Boening’s open source citations. Complaint at ¶12; Koch Decl., Ex. “G” (“If you rewrite your M story in a different format, outside the official-looking memo-type it is currently in; and attribute those statements to open sources in the new format (as you basically have), there should be no problem with you getting your message out. The deletions 32 The CIA initially tried to gloss over this fact by implying Boening perhaps inappropriately accessed classified information without CIA consent. Def’s Initial Memo at 23, n.11 (“employees with access to classified systems can obtain classified information on a wide variety of subjects”). Whether the implication that follows is true, namely that the CIA is admitting its own failure to restrict access in compliance with Executive Order 13,292, it remains to be seen and serves to fortify the need for discovery to determine the extent of Boening’s access while employed at CIA and whether he actually accessed classified materials relevant to the information contained in the “M Complaint”. Most likely, and this seems to be the case in light of the CIA’s revised posture, this argument is nothing less than after-the-fact lawyering, especially since the CIA at no time, and this issue obviously dates back more than six years, ever cited Boening for a security violation or sought to revoke his security clearance (which he actually still maintains to this day). Second Boening Decl. at ¶12. The focus now appears to be “[i]f, as plaintiff contends, he never accessed classified information in drafting the memorandum, he should be able to identify specific, public source materials for those assertions in his memorandum that the CIA deemed to be classified.” Def’s Renewed Memo at 8. The fact is, he has. The entire memorandum was based on the public documents supplied to the PRB during the administrative process, and now to this Court as part of the litigation. Second Boening Decl. at Exhibits “A” – “OOOO”. There exists no requirement that the CIA has identified that obligates a current/former employee to specifically pinpoint cite every single sentence or even paragraph of a submitted writing. Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 30 of 57 29 noted in our letter pertain to the information as presented in the old format and not to the information itself”)(emphasis added). The PRB’s statement evidences the true issue for the CIA: the formatting of the “M Complaint” (which ties directly into the embarrassment factor elucidated by CIA official William McNair). This bears no relation to the classification status, or the CIA’s “control” of the information contained in the “M Complaint”. D. The Information Concerning “M” And The Drafting Of The “M Complaint” Occurred Outside The Scope Of Boening’s Employment And Secrecy Agreement Not far removed from the argument that the “M Complaint” was based entirely on publicly available information, Boening is also entitled to summary judgment due to the fact that he obtained the information and created the document outside of the scope of his employment and secrecy agreement.33 This Court recently issued a ruling in another prepublication classification challenge in Stillman wherein it noted that “the same logic that prevents current and former employees from revealing classified information obtained by them during the course of their employment prevents individuals who maintain a security clearance and contract with the government as either an employee or affiliate from disclosing classified information obtained while under such a contract and bound by a secrecy agreement.” Stillman, 2007 U.S. Dist. LEXIS 24206, *16 (emphasis added). While there are notable distinctions between the factual and legal circumstances 33 This argument does not eliminate Boening’s obligation to submit any writings, even when created outside of the scope of employment, for prepublication review. Of course, that requirement extends into perpetuity. Although acknowledging this contractual obligation, Boening rejects the CIA’s distortion of his so-called “concession” that this expands the CIA’s limitation on only being able to “classify” information submitted by former employees that fell within the individual’s scope of employment. Def’s Renewed Memo at 7 fn.5. Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 31 of 57 30 that led to the instant matter and that of Stillman, one conclusion in particular resonates with significant relevance. The Court is also persuaded by the government’s in camera submissions that but for Stillman’s high-level security clearances with the government and its contractors and the secrecy agreements he signed, Stillman would not have had access to or obtained the classified information that he is now attempting to disclose in his manuscript. Stillman, 2007 U.S. Dist. LEXIS 24206, *17 fn.6 (emphasis added). This “but for” determination that was accorded significant weight in Stillman is conspicuously absent in Boening’s case. Having relied solely upon published newspaper and magazine articles (as well as declassified records of other federal agencies retrieved off the Internet), and never once having had access to any related classified information from the CIA’s systems, Boening’s relationship with the CIA had absolutely nothing to do with the contents of the “M Complaint”.34 Notwithstanding Boening’s employment with the CIA, he still would have had access and obtained the information that he set forth in his “M Complaint”.35 An analysis of the prior prepublication review cases recognizes an implicit recognition that there was a limitation as to how far the scope of employment would extend to permit an infringement upon a former employee’s First Amendment rights.36 34 Indeed, the only significance of Boening’s CIA relationship was that he could submit the memorandum internally. Of course, any John Q. Public could have written the same memorandum utilizing the same sources and mailed the document to the CIA Director’s Office. 35 Boening would submit the “but for” test appropriately relates to access and content of the document in which the classification is being challenged, not whether the memorandum overall would have been written in the first place had he not been a CIA employee. 36 See e.g., Snepp, 444 U.S. at 510 n.3 (government may “protect substantial government interests by imposing reasonable restrictions on employee activities that in other contexts might be protected by the First Amendment.”); Stillman, 319 F.3d at 548 (favorably citing Snepp); Marchetti, 466 F.2d at 1317 (“Marchetti retains the right to speak and Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 32 of 57 31 1. The CIA’s Argument That It Has The Lawful Authority To Block Publication Of Information Obtained Outside Of The Course Of Employment Or The Scope Of Any Executed Secrecy Agreement Renders Those Agreements Unconstitutionally Broad The government’s argument is essentially that because a secrecy agreement may be active for an individual who is handling information “A”, it lawfully applies to information “B”, “C” and “D” as well. As noted above, that argument renders secrecy agreements too broad and, therefore, unconstitutional. See also National Federation of Federal Employees v. United States, 659 F.Supp. 1196, 1204 (D.D.C. 1988)(requirement that certain government employees not disclose any information which is “classifiable” was excessive restriction on speech which was more than necessary to protect the substantial government interest), on remand, American Foreign Service Association v. Garfinkel, 490 U.S. 153 (1989)(per curiam). E. If Boening Is Not Entitled To Summary Judgment Outright, Discovery Is Necessary On His First Amendment Claim Before The CIA Deserves Judgment In Its Favor If the CIA is claiming that Boening did not exclusively derive the information within his “M Complaint” from publicly available newspaper and magazine articles, or other federal agencies’ declassified documentation retrieved from the Internet, then Boening is entitled to discovery prior to the granting of summary judgment to further demonstrate that no evidence exists that he ever accessed – either in an authorized or unauthorized manner – information contained within the “M Complaint”, or that the CIA had any control over the information in the document. write about the CIA and its operations, and to criticize it as any other citizen may, but he may not disclose classified information obtained by him during the course of his employment which is not already in the public domain); Knopf, 509 F.2d at 1371 (secrecy agreement “of course, covers only information learned by [an employee] during their employment and in consequence of it. It does not cover information gathered by them outside of their employment or after its termination.”); United States v. Snepp, 456 F.Supp. 178, 182 (E.D.V.A. 1978)(upheld government’s “system of prior restraint against disclosure by employees and former employees of classified information obtained during the course of employment.”). Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 33 of 57 32 Additionally, discovery would be appropriate to demonstrate that the CIA has improperly claimed the information in the “M Complaint” is classified solely in order to cover up embarrassment or a violation of law. The comment by William McNair, the former Information Release officer of the CIA’s Directorate of Operations, justifies further exploration on this point. Mr. McNair would specifically be deposed to discuss his concession of: “Look, Franz, do you think I care about [“M”’s name]? This is not about ‘source protection,’ this is about CIA’s reputation. We don’t want you to have any credibility. The problem with the “M” memorandum is that what you’ve written is all true.” Finally, discovery would be conducted to expose agreements and understandings between Boening and the PRB as to whether specific pinpoint citations were required to support the unclassified nature of the “M Complaint” or whether supplying copies of the actual source documentation was sufficient. See Second Rule 56(f) Declaration of Mark S. Zaid, Esq. at ¶¶3-6 (dated February 10, 2008)(“Second Zaid Rule 56(f) Decl.”), attached as Exhibit “6”.37 II. THE CIA’S MANDATORY DISCLAIMER AND DEMAND THAT HE MODIFY THE FORMAT OF HIS DOCUMENT IS BOTH UNCONSTITUTIONAL AND RUNS AFOUL OF THE APA The CIA’s 2005 PRB Regulations require former employees to include a disclaimer, unless waived in writing by the PRB. Koch Decl. Ex. “C”. The CIA asserts that this 37 See Wright, 2006 U.S. Dist. LEXIS 52389, * 27-9 (D.D.C. 2006)(finding existence of dispute concerning genuine issue of material fact where both former and current FBI Special Agent utilized newspaper accounts and various open source materials to draft manuscript criticizing FBI counterterrorism efforts and FBI claimed the information was not derived solely from open source materials but obtained by virtue of plaintiff’s position within the FBI). See also Knopf, 509 F.2d at 1365 (CIA required to produce witnesses); Marchetti, 466 F.2d at 1312 (trial on merits held); Snepp, 456 F.Supp. at 179- 180 (extensive discovery conducted including testimony from former and then current CIA Directors). Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 34 of 57 33 requirement does not violate the First Amendment. Def’s Initial Memo at 23-26; Def’s Renewed Memo at 14-17. A. The CIA Cannot Impose Additional Restrictions Upon Former Employees Beyond That Of A Classification Review The obligation upon former CIA employees to submit to the prepublication review process is contractual in nature. It arises from the language in a secrecy agreement that all CIA employees execute. Koch Decl., Ex. “A”. Although it is undisputed that the prepublication review process itself is not unconstitutional as long as the information sought to be censored was obtained by and through an employee’s work for the government, the CIA’s attempt to mandate the use of a disclaimer must fail because it has overextended its authority. The ability of the CIA to regulate or control matters surrounding the dissemination of information by its former employees is limited to protecting classified information only. That authority is derived from the lawful obligation imposed by a secrecy agreement.38 However, Boening’s secrecy agreement contains no mention of any requirement to include a disclaimer in any published work. Compare Koch Decl., Ex. “A” (Secrecy Agreement, ¶¶4-6) to Koch Decl., Ex. “B” (1995 PRB Regulations) at ¶i.5 & Ex. “C” (2005 PRB Regulations) at ¶b.4. Moreover, the mandatory disclaimer sought to be forced upon Boening was enacted internally by the CIA four years after he submitted the “M 38 The CIA’s fallback argument appears to be that “[n]othing in the First Amendment or plaintiff’s secrecy agreement prohibits the CIA from requiring employees to specify that personal writings touching on classified information do not constitute official statements of agency policy.” Def’s Renewed Memo at 15. Just as applicable, of course, is the argument that there is nothing within either the First Amendment or Boening’s secrecy agreement that requires him to include the disclaimer. Unfortunately for the CIA the burden falls upon it, as the Government entity that is seeking to infringe upon Boening’s First Amendment rights, to demonstrate why its’ disclaimer is constitutionally valid rather than the other way around. Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 35 of 57 34 Complaint” to the CIA, and one year after he had submitted it to the PRB. The previous regulation, which was issued in 1995, merely encouraged, instead of required, the insertion of a disclaimer.39 See Koch Decl. Ex.. B, ¶2.i.(5). B. Even If The CIA Can Generally Impose Additional Requirements Upon Former Employees The Specific Mandating Of An Explicit Disclaimer Runs Afoul Of The First Amendment Even if it is determined that the disclaimer requirement is applicable to Boening’s writing, case law does not support the CIA’s contention that its disclaimer passes constitutional muster. The CIA claims that a disclaimer is less restrictive of First Amendment rights than the prepublication review process itself, and that since the prepublication review process has been found to be constitutional, then by necessity a disclaimer must also be constitutional. Def’s Initial Memo at 24-25, citing Weaver v. U.S. Information Agency, 87 F.3d 1429, 1453-54 (D.C. Cir. 1996)(Wald, J., dissenting); Snepp, 444 U.S. at 510 n.3. See also Def’s Renewed Memo at 15-16 (same). As an initial matter, it goes without saying that the CIA’s primary support for the contention that a disclaimer is less restrictive than the prepublication review process is based upon a dissenting opinion in the Weaver case. Def’s Initial Memo at 24; Def’s Renewed Memo at 16. Additionally, the CIA further misunderstands the rationale underlying Judge Wald’s reasoning. She was suggesting that the prepublication review 39 The 1995 Regulations required the disclaimer for current employees, which is perfectly understandable. Koch Decl. Ex. “B”, ¶2.i.(5). The rationale is not because the contents of a current employee’s writings automatically harm national security, but because they could interfere with the effective operation of the CIA to have a current employee perhaps contradicting its official policies. However, while Boening was still a CIA employee when he submitted the “M Complaint”, he retired on August 13, 2005, months before the PRB even responded to his submission with its initial concerns. Therefore, for purposes of the CIA’s ability to censor Boening’s First Amendment rights, the CIA’s reach only extends to the limitations it has over former employee – classified information. Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 36 of 57 35 process be replaced or that the Government’s interests were satisfied solely by a disclaimer requirement that is less restrictive than the prepublication review requirement that was in place. Weaver, 87 F.3d at 1453-54.40 If that is the CIA’s preference, that all former employees can simply include its stated disclaimer rather than submit their writing to prepublication review, Boening would strongly support such a policy and willingly include the disclaimer in the “M Complaint” and all future writings. But neither Weaver, whether in the dissent or not, nor any other case, supports the CIA’s proposition that both the burden of a prepublication review requirement and the inclusion of a disclaimer is constitutional under the First Amendment. Alternatively, the CIA claims that even if its disclaimer does violate the First Amendment, it would still be constitutional in the context of the prepublication review process. Def’s Memo at 25. Its’ rationale is based on the fact that it retains the authority, in general, to “protect substantial government interests by imposing reasonable restrictions on employee activities that in other contexts might be protected by the First Amendment.” Snepp, 444 U.S. at 510. Thus, according to the CIA, a disclaimer is constitutional because ensuring that current and former employees who had “access to sensitive national security information do not publish personal documents appearing to be official Agency records” qualifies as a “substantial government interest.” Def’s Initial Memo at 25 (emphasis added).41 40 In any event, the constitutionality or restrictiveness of a disclaimer in relation to the prepublication review process was not considered in Weaver and therefore provides no support to the CIA’s argument that its disclaimer is constitutionally valid. 41 Contrary to the CIA’s belief, Boening has no desire to “cloak himself in the CIA’s mantle while producing supposedly personal writings”. Def’s Renewed Memo at 14. More importantly, the CIA proclaims, without support, that a failure to include its disclaimer somehow “heightens the unacceptable risk that readers and foreign Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 37 of 57 36 The CIA’s argument constitutes a considerable expansion of what the Snepp Court considered to be a “substantial government interest.” 444 U.S. at 511-12. Rather than even attempt to articulate an actual substantive reason for the necessity of national security to require the disclaimer, the CIA speculates that preventing publication of documents by former employees that could be mistaken as official CIA records is an equivalent “substantial government interest” in such a manner as preventing the unauthorized disclosure of classified information and even to the extent of ensuring that the publication of unclassified information does not compromise classified information or sources.42 See Def’s Initial Memo at 25 (“Hence, a reader might easily mistake the Memorandum as having been created as part of official Agency business”). This argument is contrary to the CIA position expressed numerous times in FOIA litigation concerning the official “worth” of a former employee’s writings. Courts have repeatedly held that merely because a former employee, even if previously a high level official, states a fact that this does not constitute an official acknowledgment of anything.43 intelligence services would wrongly construe his unsourced speculations as statements of classified fact and official agency position.” Id. For one thing, it would seem just as unlikely that foreign intelligence services are as unintelligent as the CIA would imply. Nevertheless, were this such a grave concern to the CIA, which has required prepublication review for at least 40 years, it would include such an obligation in its secrecy agreements or at least would have mandated the requirement long before 2005. 42 It should be noted that the CIA’s argument also attempts to expand the quoted language from Snepp to include the activities of former employees, as opposed to just current employees. Def’s Memo at 25. 43 See e.g. Afshar v. Department of State, 702 F.2d 1125, 1133 (D.C. Cir. 1983) (information reported in book by former CIA official did not constitute official acknowledgment); Phillippi v. CIA, 655 F.2d 1325, 1330-31 (D.C. Cir. 1981)(same, regarding information reported in book by former Director of Central Intelligence). It seems somewhat disingenuous then for the CIA to ascribe additional credibility to Boening simply to support its own argument when, in fact, Boening’s position with the CIA added no substantive value to his “M Complaint”. Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 38 of 57 37 Nor is the CIA’s argument consistent with the law. The courts have consistently held that regulations which burden--even if they do not completely restrict--employees' speech nonetheless may run afoul of the Constitution. See e.g., NTEU, 513 U.S. at 475; Sanjour v. EPA, 56 F.3d 85 (D.C. Cir. 1995)(en banc). In those cases where the government restricts the speech of its employees, it must show that the harms from reducing employees’ speech are outweighed by the government’s interest in efficiently carrying out its mission by minimizing harms that “are real, not merely conjectural.” NTEU, 513 U.S. at 475. The CIA has failed to meet this test. C. The CIA Has No Authority Or Control Over the Format That Boening Chooses To Utilize Whether It Accurately Reflects The Original State Of The Document Or Even As A Journalistic Tool Boening drafted the “M Complaint” using the same memorandum format learned in grade school: headings of “To”, “From” and “Subject”. Exhibit “2”. The CIA complains that this format “incorrectly suggests the memorandum was drafted as part of his official CIA duties.” Def’s Renewed Memo at 14. Therefore, according to the CIA, portions of the document are “classified” when written in this format. Id. at 14-15. This is the crux of the CIA’s argument. See Koch Decl., Ex. “G” (“If you rewrite your [Foreign Individual’s name] story in a different format, outside the official-looking memo-type it is currently in; and attribute those statements to open sources in the new format (as you basically have), there should be no problem with you getting your message out. The deletions noted in our letter pertain to the information as presented in the old format and not to the information itself”)(emphasis added). This argument is baseless. Beyond the legal interpretation that “confusion”, to the degree it would even exist, is not tantamount to a determination that the information is Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 39 of 57 38 classified, thereby rendering the CIA’s authority over the format of a document authored by former employees to be null and void, just one simple fact illustrates the absurdity. The CIA approved the release of Boening’s other memoranda that were styled in a similar if not identical format to that of the “M Complaint”. See Exhibit “4”. To that point all the CIA can do is counter-assert that this argument is a “red herring”, Def’s Renewed Memo at 14, and cite to some generic – irrelevant – conclusions from FOIA decisions. Id. at 15. This is a First Amendment case, and Boening’s interests are at their height. If the information in Boening’s “M Complaint” is not classified, that is the end of the story. The CIA has no authority over its former employee beyond that aspect, and that includes the formatting of the document (which, of course, does not change the classification status of the underlying information). III.BOENING POSSESSES STANDING TO CHALLENGE THE CIA’S FINAL DECISION THAT HE WAS NOT AN AUTHORIZED HOLDER UNDER ITS REGULATIONS Pursuant to Section 1.9 of EO 12,958 (now Section 1.8 in EO 13,292), Boening sought to challenge the CIA’s overclassification of any documents that might exist relating to “M” and certainly with respect to his “M Complaint”. The CIA argues that Boening lacks standing to raise an APA claim on his ability to raise a classification challenge because the “M Complaint” was (1) drafted in his personal, as opposed to official, capacity, and (2) because the CIA did not arbitrarily determine that Boening was not an “authorized holder” of the “classified” information in his “M Complaint”. Def’s Initial Memo at 19, 23; Def’s Renewed Memo at 24. Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 40 of 57 39 A. Boening Can Demonstrate That He Has Incurred Substantive Harm Sufficient For Purposes Of Standing It is undisputed that mere allegations of error, untethered from any substantive harm, are insufficient to satisfy Article III for purposes of standing. See Center for Law and Educ.v. Dep’t of Educ., 396 F.3d 1152, 1160 (D.C. Cir. 2005). The CIA argues that Boening has conceded that he drafted the “M Complaint” in his personal capacity by virtue of his statement that the document consisted of Boening’s “personal assessment of the individual.” Def’s Initial Memo at 20. Thus even if CIA committed a procedural error by erroneously determining that Boening was not an “authorized holder,” he has still failed to allege any substantive harm and concrete injury following from the erroneous determination and therefore lacks standing. Id. To clarify, all Boening has conceded is that he personally drafted the “M Complaint”. See Exhibit “7” (“I do not agree with OIM’s assertion that these documents are unofficial but I am willing to submit them to your branch on the chance that they will be approved for release”). He submitted the “M Complaint” in his official capacity as an employee of the CIA pursuant to Section 17(d)(5) of the CIA Act, 50 U.S.C. § 403q(d)(5). The CIA has chosen to construe Boening’s arguments concerning substantive harm as an attempt to raise two new APA claims not addressed by his Complaint. Def’s Renewed Memo at 28. However, Boening’s arguments are appropriately before this Court. The CIA brought this issue to the Court when it challenged Boening’s standing. It cannot now complain when Boening responds. In evaluating issues of jurisdiction under Rule 12(b)(1), the court must construe the complaint liberally, and give the plaintiff the benefit of all reasonable inferences. See Tozzi v. EPA, 148 F. Supp. 2d 35, 41 (D.D.C. 2001), citing Scheuer v. Rhodes, 416 U.S. 232 (1974). Moreover, complaints do not have to Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 41 of 57 40 “plead law or match facts to every element of a legal theory.” Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000). 1. The CIA’s Determination That Boening Pursued His Classification Challenge In His Personal Capacity Violated The APA The CIA argues that a whistleblower complaint is, by its nature, “a personal communication between a federal employee, the IG, and/or Congress,” and that because it represents the federal employee’s personal views, it cannot be construed as “facilitating agency business.” Koch Decl. ¶27. This view too narrowly interprets the important role that whistleblowers play in contributing to governmental functions. The submission of an ICWPA complaint is more than a mere “personal communication”. It should be held to constitute facilitation of CIA business because the ICWPA was specifically designed for current government employees to raise issues of “urgent concern” to Congress. The ability to submit ICWPA complaints is limited to a select group – federal employees – and necessarily and logically involves topics regarding which the federal employee would be uniquely qualified to view as a potential matter of “urgent concern” due to the employee’s training and experience. To attempt to label ICWPA complaints as “personal documents” merely because the issue could expose the CIA to embarrassment does not serve as a justification for the CIA to denigrate their importance. Although the arguments contained in the “M Complaint” may not represent the CIA’s official position that has no bearing on whether the document or the views expressed therein facilitate official CIA business. The entire purpose of the ICWPA was to provide a secure and protected line of communication between federal employees and Congress concerning matters of “urgent concern.” This protection was deemed to be necessary because of the fear that federal employees would otherwise not raise such concerns Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 42 of 57 41 without some form of protection from retaliatory action. The notion that drawing the attention of the CIA’s OIG and Congress to such matters does not constitute facilitation of official CIA business merely because it is the not official CIA position evidences a fundamental lack of understanding of the purpose behind the ICWPA. Section 1.9 of EO 12,958 provides additional support to the idea that ICWPA complaints are both drafted by “authorized holders” of information in their official capacity and that the act of drafting and submitting such complaints constitutes a facilitation of official CIA business. It notes that “[a]uthorized holders of information who, in good faith, believe that its classification status is improper are encouraged and expected to challenge the classification status of the information …”)(emphasis added). This is not a legislatively adopted statute. It is not an agency regulation. This language emanates directly from an order of the President of United States. One can not find higher authority for the designation of official policy as to how federal employees, such as Boening, are to act under these types of circumstances. 2. The CIA’s Determination Concerning The Capacity In Which Whistleblower Complaints Are Drafted Constitutes A Violation Of The APA’s Notice-And- Comment Rulemaking Provisions The ICWPA does not address, explicitly or implicitly, whether whistleblower complaints were to be considered as “personal” or “official” documents for purposes of classification challenges under Section 1.9 of EO 12958. See Public Law No: 105-272. When a statute is silent or ambiguous as to the intended construction of a particular piece of statutory language and does not explicitly leave a gap for an agency to fill, the reviewing court must decide whether the agency’s interpretation of the statute was reasonable and permissible. See Chevron v. Natural Resources Defense Council, 467 Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 43 of 57 42 U.S. 837, 843 (1987); Nat’l Ass’n. of Clean Air Agencies v. EPA, 489 F.3d 1221, 1228 (D.C. Cir. 2007) . If the interpretation is reasonable and permissible, it must be upheld unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 5 U.S.C. §706(2)(A); Nat’l Ass’n. of Clean Air Agencies, 489 F.3d at 1228; Wright, 2006 U.S. Dist. LEXIS at *32. The CIA’s interpretation is unreasonable, arbitrary and “not in accordance with the law” in that the CIA failed to abide by the APA’s notice-and-comment rulemaking provisions. See 5 U.S.C. §552(a); 5 U.S.C. §553(b). When the CIA chose to interpret ICWPA complaints as being drafted in a “personal capacity” and thereby removed the ability of authorized holders to challenge the classification status of the information in such complaints, the CIA in effect prescribed a “substantive rule” and subsequently was obligated to undertake notice-and-comment rulemaking. See Chrysler Corp. v. Brown, 441 U.S. 281, 301 (1979). Although there are three exceptions to the notice-and-comment rulemaking requirement, namely if the agency action constitutes “interpretative rules, general statements of policy, or rules of agency organization, procedure or practice,” 5 U.S.C. § 553(b)(A), the only potentially applicable exception is the “interpretative rule” exception.44 “Interpretative rules” are limited to “administrative construction of a 44 The CIA’s determination can not constitute a “general statement of policy,” as “[a]gency action can not be a general statement of policy if it substantially affects the rights of persons subject to agency regulations.” Pickus v. United States Bd. of Parole, 507 F.2d 1107, 1112 (D.C. Cir. 1974); Syncor Int’l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997). The CIA’s unilateral construction of ICWPA complaints for purposes of classification challenges under Section 1.9 of EO 12958 substantially affects Boening’s rights, as well as those of every current and former CIA employee, to raise an important classification challenge. The CIA’s determination also cannot constitute a “rule of agency organization, practice, or procedure,” as matters relating to “practice or Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 44 of 57 43 statutory provision on a question of law reviewable in the courts.” Air Transport Association of America, Inc. v. FAA, 291 F.3d 49, 55 (D.D.C. 2002).45 Unlike an “interpretative rule,” a “substantive rule” modifies or adds to a legal norm based on the agency’s own authority, and since that authority flows from a Congressional delegation to engage in supplementary lawmaking, the APA requires compliance with notice and comment. Syncor, 127 F.3d at 95. The CIA’s construction of the status of ICWPA complaints constitutes a substantive regulation, as it “interprets” the CIA’s obligations in a manner that carries the “force and effect of law” and does not merely provide guidance concerning a duty “fairly encompassed” within EO 12958, as amended, or the ICWPA, as neither addresses the notion of affording authority to agencies to determine what documents are “official” for purposes of classification challenges. Even if the CIA’s construction could be considered as an “interpretative rule,” it would still be subject to notice-and-comment rulemaking as it would constitute a modification of an existing rule. Air Transport Association, 291 F.3d at 56. As the CIA’s Motion and supporting declarations make quite clear, prior to the appointment of a new Executive Secretary of the ARP (“ES/ARP”) in 2002, the CIA had considered whistleblower complaints as “official” documents within the jurisdiction of the ARP to consider for purposes of classification challenges. See Def’s Initial Memo at 9-10; Koch. procedure” have not been found to include any action which goes beyond formality. Pickus, 507 F.2d at 1113. 45 See also Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579, 588 (D.C. Cir. 1997)(“If the statute or rule to be interpreted is itself very general, using terms like “equitable” or “fair,” and the “interpretation” really provides all the guidance, then the latter will more likely be a substantive regulation”); Pickus, 507 F.2d at 1113 (finding that agency’s action was not mere interpretation of statute’s meaning but rather consisted of “self-imposed controls over the manner and circumstances in which the agency will exercise its plenary power,” and had effect of law and not reviewable except for arbitrariness). Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 45 of 57 44 Decl. at ¶¶23-25. Even if Boening is apparently the first, and so far only, CIA employee to have raised this issue and received the contradicting interpretations, the CIA’s initial decision to view the “M Complaint” as being drafted in Boening’s “official capacity” and then reversing that decision constitutes a modification of an existing interpretation and necessitates that the CIA undertake notice and comment rulemaking. Of course, there is no dispute that an agency enjoys a manner of informed discretion as to whether it can undertake adjudication rather than rulemaking. SEC v. Chenery Corp., 332 U.S. 194 (1947). Additionally, Boening recognizes that this very Court issued a ruling touching upon this issue in favor of an agency. Shays v. FEC, 511 F. Supp. 2d 19, 31 (D.D.C. 2007)(“It is not surprising, therefore, that plaintiffs have been unable to cite any case where a court, absent a clear directive from Congress, required an agency to institute rulemaking in the place of adjudication. This Court will not be the first.”). However, the Supreme Court also recently acknowledged that a window is open for courts to retain authority to exercise judicial review over an agency’s decision to utilize adjudication rather than rulemaking. Massachusetts v. EPA, 127 S. Ct. 1438, 1459 (2007). While the Supreme Court noted that any such judicial review would be “extremely limited” and “highly deferential”, judicial review nonetheless is permissible. Id.46 Therefore, the CIA’s failure to abide by the APA’s notice-and-comment rulemaking 46 Furthermore, unlike in previous cases where the agency’s decision to utilize adjudication related to an issue that was more aptly suited for a case-by-case determination, Shays, 511 F. Supp.2d at 25 (lending support to the practice of agency adjudication when the “problem may be so specialized and varying in nature as to be impossible of capture within the boundaries of a general rule”); American Gas Assn’ v. FERC, 912 F.2d 1496, 1519 (D.C. Cir. 1990)(“The Commission seems on especially solid ground in choosing an individualized process where important factors may vary radically from case to case.”), the CIA’s decision in the instant case will have the effect of depriving every CIA employee who retains “authorized holder” status over Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 46 of 57 45 requirements constituted conduct that was arbitrary and “not in accordance with the law,” and thereby demonstrates that Boening has incurred substantive harm. 3. Boening Can Demonstrate That There Is Still Meaningful Relief He Can Obtain From The Court Assuming that Boening can demonstrate a concrete injury, the CIA argues that his injury is not redressable because there is no meaningful relief Boening could obtain from this Court. Def’s Initial Memo at 21. The proper remedy, asserts the CIA, would be to remand the matter to the CIA so that the ARP could adjudicate the merits of the classification challenge. Id. Given that both the ARP and the Executive Director of the ISCAP, the entity to which ARP determinations may be appealed, has already concluded that the “M Complaint” was properly classified, any remand, according to the CIA, would be a “hollow, meaningless exercise.” Id. at 21-22. Yet the CIA never completed the process it was required to follow. As the CIA itself explains in considerable detail, on July 2, 2001, Boening submitted the “M Complaint” to the ARP for a classification challenge. Id. at 9. The ARP referred the Memorandum to the ACRMP, which, on July 25, 2001, agreed that the paragraphs marked classified (save one) were properly labeled as such. Id. The ACRMP met again on September 4, 2001, to consider specific issues identified by Boening in his July 2, 2001 letter and reaffirmed its initial determination that the “M Complaint” was properly classified. Id. at 9-10. On “classified” information from ever submitting an ICWPA complaint as part of their official duties. Presumably even the CIA itself would concede that a categorical rule stating that ICWPA-related whistleblower complaints are to be considered “personal” documents for purposes of classification challenges would more effectively avoid the prospect of confusion, as was the case here with the ARP. See Public Citizen, Inc. v. Mineta, 427 F. Supp.2d 7, 13-14 (D.D.C. 2006)(upholding the issuance of categorical rules instead of case-by-case adjudications on the basis that the latter would undermine the agency’s ability to implement the regulations). Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 47 of 57 46 September 12, 2001, the ACRMP wrote to the Chair of the ARP, setting forth its decision, and Boening promptly appealed the ACRMP’s decision to the ARP. Id. Although the ARP scheduled a formal appeal, it was at this point that the ES/ARP and the CIA made the decision that whistleblower complaints drafted pursuant to the ICWPA were not official CIA documents and therefore not within the jurisdiction of the ARP. Id. Because of the CIA’s arbitrary decision, Boening was deprived of the administrative appeal to the ARP. In addition, while the statements by the Executive Secretary of the ISCAP, ISOO Director William Leonard (“Leonard”), are informative they are in no way authoritative or conclusive, as they do not represent a formal decision by the ISCAP.47 The ISCAP does not consist merely of the Executive Secretary, but rather consists of senior-level representatives from the Departments of State, Defense, and Justice, as well as the CIA, the National Archives, and the Assistant to the President for National Security Affairs. Exec. Order 12,958, as amended, § 5.3(a)(1); 32 C.F.R. § 2001.83(A)(defining the membership of the ISCAP as the appointments made under Section 5.3(a) of Executive Order 12958). The regulations and the Executive Order do not, at any point, accord authority to the Executive Secretary to make a conclusive and authoritative determination outside of the established framework. Id. at § 5.3(b); 32 C.F.R. § 2001.83(E)-(F) (stipulating that the Executive Secretary must notify the senior-level representatives of 47 It should be noted that Mr. Leonard’s letter focused solely on the issue of whether Boening was an “authorized holder” and did not address the CIA’s interpretation of whistleblower complaints drafted pursuant to the ICWPA as they pertain to classification challenges. Def’s Initial Memo at 21. Furthermore, Mr. Leonard’s interpretation of “authorized holder” incorrectly relied upon the ISOO definition and not the applicable CIA definition, which differed significantly in scope. Compare 32 C.F.R. § 1907.2 (CIA reg) to 32 C.F.R. § 2001.14 (ISOO reg). Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 48 of 57 47 the relevant agencies of the existence of the appeal, present those representatives with an appeal file, and that the ISCAP as a whole must vote to either affirm, reverse or remand the matter). As a supplemental matter, there has been no evidence provided to demonstrate what information was provided to Mr. Leonard by the CIA prior to his determination. 32 C.F.R. § 2001.83(E)(stating that the appeal file will include “all records pertaining to the appeal”)(emphasis added). 4. Boening Can Demonstrate That The CIA Arbitrarily And Erroneously Determined That He Was Not An “Authorized Holder” Of The Information In The Memorandum The CIA counters that even if it is determined that Boening can demonstrate a concrete injury and that the injury is redressable, thereby satisfying the requirements for standing, the Court should still dismiss his claim under Rule 12(b)(6), or in the alternative award summary judgment to the CIA, because the CIA did not err in determining that Boening is not an “authorized holder” of the classified information in the “M Complaint”. Def’s Initial Memo at 22. The CIA cites to three different sources for definitions of what constitutes an “authorized holder” and what is required to permit “access to specific classified information.” Id. The CIA’s regulations define an “authorized holder” as one who “holds a security clearance from or has been authorized by the Central Intelligence Agency to possess and use on official business classified information.” Id. citing 32 C.F.R. Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 49 of 57 48 § 1907.02(b).48 ISOO’s regulations contradictorily define an “authorized holder” as “any individual, including an individual external to the agency, who has been granted access to specific classified information.” Id., citing 32 C.F.R. § 2001.14. Finally, the CIA points to EO 12,958, as amended, wherein it sets forth three prerequisites that must be met before a person may access specific classified information. Def’s Initial Memo at 22.49 The CIA argues that because there was never any need-to-know determination awarding Boening access to the specific “classified” information contained in the “M Complaint” then Boening does not meet the definition of an “authorized holder”. Id. at 23.50 However, this argument is flawed for the simple reason that it relies on the ISOO regulation’s narrow definition of “authorized holder” rather than the CIA’s own more expansive and applicable definition. While per the ISOO regulation an individual is apparently required to have had access to the specific information that is being challenged, the CIA’s regulation is simply not as narrow. A plain reason of the provision reflects that an “authorized holder” need only possess a valid security clearance or otherwise be authorized by the CIA to “possess and use” classified information in general. 32 C.F.R. § 1907.01(b). Nowhere in the CIA’s 48 A “challenge” under this provision is defined as “a request in the individual’s official, not personal, capacity and in furtherance of the interests of the United States; 32 C.F.R. § 1907.02(d). The CIA fails to distinguish that a document can be written in an individual’s “personal” capacity, i.e., away from the office and on his own time, but still submitted in his “official” capacity. 49 “A person may have access to classified information provided that: (1) a favorable determination of eligibility for access has been made by an agency head or the agency’s head designee; (2) the person has signed an approved nondisclosure agreement; and (3) the person has a need-to-know the information.” EO 12,958 § 4.1(a). 50 Ironically, the CIA’s decision to classify information within the “M Complaint” but then later grant Boening access to the unredacted document during internal proceedings constitutes the issuance of a “need-to-know” determination. Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 50 of 57 49 regulation does it indicate that the individual must have had access to the specific classified information that is being challenged. Given that Boening, as a CIA employee, indisputably possessed a valid security clearance and was authorized by the CIA to “possess and use” classified information, he met the parameters of the CIA’s definition. Therefore, the CIA’s determination that Boening lacked “authorized holder” status was indeed arbitrary and erroneous and is without merit. IV. BOENING’S APA CLAIM CONCERNING THE CIA’S FAILURE TO ADJUDICATE THE PREPUBLICATION REQUEST WITHIN 30 DAYS IS NOT MOOT AND THE EXCESSIVE UNDUE DELAY IS UNCONSTITUTIONAL The CIA continues to argue that this Court lacks jurisdiction over Boening’s APA claim concerning the CIA’s failure to adjudicate Boening’s prepublication request within 30 days because it is moot. Def’s Renewed Memo at 21. Under Article III of the Constitution, federal courts are courts of limited jurisdiction that can only decide “‘actual, ongoing controversies.’” Honig v. Doe, 484 U.S. 305, 317 (1988). Even if an action poses a live controversy when filed, the mootness doctrine requires “a federal court to refrain from deciding it if ‘events have so transpired that the decision will neither presently affect the parties’ rights nor have a more-than-speculative chance of affecting them in the future.’” Transwestern Pipeline Co. v. FERC, 897 F.2d 570, 575 (D.C. Cir. 1990). The test for mootness comprises two requirements: (1) there is “no reasonable expectation … that the alleged violation will recur,” and (2) “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” County of Los Angeles v. Davis, 440 U.S. 625, 632 (1979). Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 51 of 57 50 A. Boening’s Case Demonstrates The Circumstances Surrounding The CIA’s Prepublication Review Process Is Capable Of Repetition Yet Evading Review Although this Court recently ruled on a similar argument set forth in Stillman, Boening’s case presents a slightly different set of circumstances.51 For one thing, Boening’s submission has not been properly reviewed through the ARP process. Additionally, Boening plans to continue submitting writings to the CIA PRB for classification review. Second Boening Decl. at ¶29. Thus, this is the type of case where the injury is “capable of repetition yet evading review”. This exception waives the mootness doctrine when “the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration” and “there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Alliance for Democracy v. FEC, 335 F. Supp. 2d 39, 44 (D.D.C. 2004).52 The CIA’s contentions to the contrary, this case is more than appropriate to invoke the “capable of repetition yet evading review” exception. It would seem reasonable to presume that a 30 day period constitutes too short a period to gain meaningful judicial relief. See e.g., Burlington Northern Railroad Co. v. Surface Transportation Bd., 75 F.3d 685, 690 (D.C. Cir. 1996)(noting that agency conduct of less than two years duration will 51 Plaintiff’s “APA claim is moot because there is no further relief that this Court can provide as to that claim. Stillman has already received the final classification decision that he sought from the defendant agencies. Accordingly, this Court lacks subject matter jurisdiction over Stillman’s APA claim and dismisses it as moot under Rule 12(b)(1) of the Federal Rules of Civil Procedure.” Stillman, 2007 U.S. Dist. LEXIS 24206, *9-10. 52 See also Friends of the Earth, Inc. v. Laidlaw Envtl. Services, Inc., 528 U.S. 167, 174 (2000)(“[a] defendant’s voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to moot a case.”); Boag v. MacDougall, 454 U.S. 364, 364 (1982)(transfer to another prison did not moot prisoner’s damages claim arising from his allegedly being placed in solitary confinement without notice or hearing); Jersey Cent. Power & Light Co. v. New Jersey, 772 F.2d 35, 41 (3d Cir. 1985)(“The availability of damages or other monetary relief almost always avoids mootness….”). Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 52 of 57 51 ordinarily evade review). And as stated, Boening continues to submit documents for review. Second Boening Decl. at ¶29.53 In this case, the CIA has offered no evidence to establish a “reasonable expectation” that it will not employ the same tactics in the future. Indeed, all past evidence indicates that the PRB’s excessive delays and reversals constitute a routine pattern and practice. See Second Zaid Rule 56(f) Decl. at ¶7. Certainly, the CIA’s continuing refusal to grant permission to publish the other portions of the “M Complaint” – which it even admits are in the public domain – strongly indicates that the same violation may recur as it is ongoing now. A. The Repeated And Continuing Excessive Undue Delays Experienced By The CIA’s PRB Constitutes Unconstitutional Suppression Of Protected Speech Alternatively, the CIA further argues that if the claim is not found to be moot the Court should nonetheless dismiss it pursuant to Rule 12(b)(6), or award summary judgment, because “there is no regulation requiring the CIA to adjudicate all prepublication requests within 30 days, and because the CIA did not unreasonably delay action on [Boening’s] submission.” Def’s Initial Memo at 18. Boening’s secrecy 53 The CIA challenges Boening’s claim of suffering similar delays in the future by virtue of the fact that his November 12, 2007 submission – which Boening identified in his initial declaration as evidence of the likelihood of future harm – was reviewed, process and approved for publication by the PRB by November 15, 2007, four days before Boening even filed his declaration with this Court. Def’s Renewed Memo at 22-23. The CIA conveniently fails to indicate that the submitted document was not even two pages in length. Second Boening Decl. at ¶29. The CIA also asserts that this is proof that the PRB “acts expeditiously to process submissions” but that the process is slowed “when an author fails to provide adequate citations” and it was “only after it became clear that plaintiff would not provide the information requested by the PRB that the Board issued its final determination.” Def’s Renewed Memo at 23 n.14. The CIA’s recollection of the timeline is flawed. It took more than one year before the PRB ever contacted Boening about his submission. Second Boening Decl. at ¶18. What “slowed” the PRB process during that time period? Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 53 of 57 52 agreement states that the CIA will respond to submissions within a “reasonable time”. Koch Decl., Ex. “A”. What constitutes a “reasonable time” is undefined, but whatever it might be the CIA violated that period in the instant matter by taking 16 months to render a decision. Furthermore, while it is true that the CIA’s regulations do not explicitly require that it abide by a thirty day deadline, this is not the policy that has been previously adopted by other courts adjudicating prepublication review challenges or, more importantly, what the PRB itself broadcasts. Moreover, the CIA’s argument that it did not unreasonably delay the processing of Boening’s submission is factually flawed. The CIA seeks to muddy the waters by pointing to the “complex” process that ensued prior to Boening’s submission of the Memorandum to the PRB; namely, his submission to the ARP for a classification challenge and the debate over whether Boening was an “authorized holder”. Def’s Initial Memo at 19. The CIA also notes that following Boening’s submission of the “M Complaint” negotiations ensued with the PRB, and that only after those negotiations failed did the PRB issue its final decision. Id. As the 30 day deadline applies from the date upon which Boening submitted his “M Complaint” to the PRB, the CIA’s reference to the ARP process is completely irrelevant. Furthermore, the CIA’s depiction of the delay in beginning the commencement of negotiations distorts the facts. Boening submitted his “M Complaint” to the PRB on November 22, 2004. See Koch Decl. ¶ 33. On November 25, 2005, a full year after his submission, Boening requested a status update. Id. ¶ 34. By letter dated January 5, 2006, nearly 16 months later the PRB Chairman responded that the CIA “requires that you rewrite your ‘M Documents’ outside of a government memo format stating in your own Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 54 of 57 53 words what you desire to communicate” and that Boening include “specific, open source citations.” Id.(emphasis added). Whether or not this constitutes “negotiations” is questionable, but what remains relevant is that nearly 16 months passed without a word from the PRB. Even conceding that the 30 day deadline is an “aspirational” goal, for the CIA to argue that 16 months does not constitute an unreasonable delay defies logic. The Fourth Circuit held that the prepublication review process was constitutional provided the agency acted on, and responded to, the request quickly. Because we are dealing with a prior restrain upon speech, we think the CIA must act promptly to approve or disapprove any material which may be submitted to it by Marchetti. Undue delay would impair the reasonableness of the restraint, and that reasonableness is to be maintained if the restraint is to be enforced. We should think that, in all events, the maximum period for responding after the submission of material for approval should not exceed thirty days. Marchetti, 466 F.2d at 1317 (emphasis added). In fact, the PRB routinely leads submitters to believe that the 30-day deadline is, in fact, a legally binding deadline. In 2003, then PRB Chairman Paul Noel-Chrétien distributed copies of unclassified briefing slides that he used to explain the PRB process to CIA employees. See Exhibit “8”. These slides very clearly acknowledge the existence of a firm 30-day deadline (including referring to court authorization). Id. Although one slide references that the PRB is increasingly finding it “difficult to meet” the 30-day deadline, nowhere is it mentioned that the CIA can take longer than the 30-days, request an extension of time or that this “deadline” is nothing more than “administrative guidance”. Moreover, the CIA’s own unclassified journal unequivocally asserts that the CIA faces a 30-day deadline for compliance in reviewing a submitted publication. In an article written by then PRB Chairman John Hollister Hedley, it states: Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 55 of 57 54 The courts have held that this signed agreement is a lifetime enforceable contract. The courts also have noted that the secrecy agreement is a prior restraint of First Amendment freedom. But they ruled it a legitimate restraint, provided it is limited to the deletion of classified information and so long as a review of a proposed publication is conducted and a response given to its author within 30 days.54 In fact, although the D.C. Circuit has noted that a “time lag” does not amount to a violation of law per se, Weaver, 87 F.3d at 1443, the Supreme Court has recognized that a constitutional violation may occur when the review period is unreasonable. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 228 (1990)(agency must issue “license for a First Amendment-protected business … within a reasonable period of time, because undue delay results in the unconstitutional suppression of protected speech.”)(emphasis added) Boening challenges the excessive delay perpetrated by the CIA and that this conduct repeats itself time and time again. See Second Zaid Rule 56(f) Decl. at ¶7.55 For these reasons, the CIA’s argument that Boening’s APA claim is moot, or that it should be dismissed pursuant to Rule 12(b)(6), or alternatively be awarded summary judgment, is without merit and should be denied. V. ALTERNATIVELY BOENING AND HIS CLEARED COUNSEL ARE ENTITLED TO SEE THE CLASSIFIED MATERIALS IN THIS CASE On October 15, 2007, Boening and his cleared counsel requested access to the “M Complaint” in order to substantively respond to the CIA’s Motion. Exhibit “9”. This 54 The article can be retrieved online at https://www.cia.gov/library/center-for-the-study- of-intelligence/csi-publications/csi-studies/studies/spring98/Secret.html. The footnote to this sentence reads “[t]The 30-day time constraint was set forth by the circuit court decision in US v. Marchetti, 466 F2d 1309, 1317 (4th Cir. 1972). It was reiterated in US v. Snepp, 595 F2d. 934 (4th Cir. 1979), and it has been adopted as the standard by the Department of Justice.” 55 See also Weaver, 87 F.3d at 1441 (“The primary burden on employees from the regulation is simply the delay associated with submitting to the review process prior to publication. If the prior review were extensive, of course, it might delay constitutionally protected speech to a time when its only relevance was to historians.”). Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 56 of 57 55 request was denied, see Exhibit “10”, and the denial hampered Boening’s ability to fully respond to the CIA’s Motion. Therefore, the “M Complaint” should be made available to Boeing and his counsel, as well as the CIA’s “classified” declaration in order to allow “criticism and illumination by [the] party with the actual interest in forcing disclosure,” McGehee, 719 F.2d at 1148-49. Boening filed a Motion to Compel Access to Classified Information for Plaintiff and His Cleared Counsel (filed November 19, 2007)(Dkt. No. 11) and incorporates herein the facts and arguments expressed therein. CONCLUSION Based on the foregoing, the defendants’ Motion should be denied and summary judgment should be granted to the plaintiff instead. Alternatively, both motions should be denied without prejudice and the plaintiff should be permitted to conduct discovery. Date: February 11, 2008 Respectfully submitted, /s/ ___________________ Mark S. Zaid, Esq. DC Bar #440532 Bradley P. Moss, Esq. D.C. Bar #975905 Mark S. Zaid, P.C. 1250 Connecticut Avenue, N.W. Suite 200 Washington, D.C. 20036 Attorneys For Plaintiff Case 1:07-cv-00430-EGS Document 25 Filed 03/10/2008 Page 57 of 57 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FRANZ BOENING * * Plaintiff, * * Civil Action No: 07-430 (EGS) v. * * CENTRAL INTELLIGENCE AGENCY * * Defendant. * * * * * * * * * * * * * SECOND DECLARATION OF FRANZ BOENING The undersigned hereby declares as follows: 1. I am a person over eighteen (18) years of age and competent to testify. I am the plaintiff in this action and make this Declaration on personal knowledge. This Declaration is submitted in support of my Opposition to Defendants’ Motion to Dismiss.1 2. I was formerly employed by the Central Intelligence Agency (CIA) from 1980 – 2005. After learning Arabic in the early 1980s, I spent nearly one dozen years in agent operations, primarily in the Middle East. I worked declassification issues from 1995 – 1999, and ultimately retired from the Agency after working at the Foreign Broadcast Information Service where I handled Internet exploitation and training. I have held a Top Secret/Sensitive Compartmented security clearance for nearly 25 years. As a result of the matters addressed herein I became a whistleblower and suffered employment retaliation. This included not being sent to Foreign Country “A” despite my having volunteered and possessing needed the language skills. 1 Per the requirements of my secrecy agreement, this document has been submitted for classification review and the contents, unless noted otherwise, have been deemed unclassified and approved for public filing. Case 1:07-cv-00430-EGS Document 25-2 Filed 03/10/2008 Page 1 of 14 2 3. In 1980, I signed a secrecy agreement in which I agreed to submit for pre- publication review any intelligence related documents that I might author after leaving government service. I agreed not to reveal any CIA classified information and I have observed the agreement. However:  I did not agree to any specific type of CIA formatting for my documents;  I did not agree to append tortuously worded disclaimers;  I did not agree to never criticize the CIA;  I did not agree to withhold reporting of apparently felonious activity by CIA that is publicly discussed in declassified documents that originated with other federal agencies;  I did not agree to never write a whistleblower complaint;  and I did not agree to refrain from citing and quoting published newspaper and magazine articles in my criticism. My secrecy agreement deals strictly with properly classified CIA information. I made no other legal promises to CIA. 4. This lawsuit primarily pertains to my whistleblower complaint of May 10, 2001, which I will refer to as the “M Complaint” (a designation that the CIA and I have utilized with approval in unclassified correspondence). I drafted the “M Complaint” in the spring of 2001 after reading a number of publicly available newspaper and magazine articles since autumn 2000 about political scandals in “M’s” country [six words redacted by the CIA]. I have long taken a personal interest in Latin American developments and in Case 1:07-cv-00430-EGS Document 25-2 Filed 03/10/2008 Page 2 of 14 3 human rights issues. I have visited several countries in the area and speak serviceable Spanish. 5. As I read the domestic and international news accounts I became angered not just by the level of narco-corruption in this particular country and the hidden brutality of the regime in question, but also by the constant reminder that, according to the scores of credible published media accounts, my employer, the CIA, had nurtured and supported “M” for years. 6. [Eight lines deleted by CIA. The deleted text can be found in my original declaration dated November 12, 2007]. 7. According to the same media accounts I read, many of which are attached to my declaration as Exhibits “A” through “OOO” (these documents were ultimately submitted to the CIA’s Publication Review Board (PRB) as part of the review process), [seven lines deleted by CIA. The deleted text can be found in my original declaration dated November 12, 2007]. 8. I decided to monitor, during my own personal time, the unfolding political scandal because of my strong sense of civic responsibility combined with my personal irritation. I did this because I knew that if what I had read was even 50% true, I would take it upon myself to document an apparently gargantuan intelligence failure. 9. Why would a CIA officer do this when it had little or nothing to do with his present assignment? Because by 2001, I had devoted over 20 years of my life to the CIA and I owed it to the American taxpayers to call my employer to account. It made me livid that CIA was so inept, that it may have been party to human rights violations and, even worse, that it seemed entirely possible that CIA had been criminally involved with “M”. Case 1:07-cv-00430-EGS Document 25-2 Filed 03/10/2008 Page 3 of 14 4 After all, for whom did I work? The American taxpayer or for an organization that might engage in criminal activity and hide behind the flag? Was it not my civic duty to draft a professional complaint in which I outlined my credible evidence of intelligence failure and wrongdoing? 10. It is important to note that during this period I worked in the Foreign Broadcast Information Service (FBIS) as a Mideast media analyst (I did the original mapping of the Arabic-language network of jihadist bulletin boards). I had absolutely no professional responsibility whatsoever for Latin American affairs nor did I have computer or other access to any type of classified, compartmented CIA operational information on Latin America. 11. I can swear that not one word of my May 10, 2001 memorandum is based on any classified CIA document on “M”, or on any information I received as a result of my employment with the CIA. Indeed, in my entire life I have never read a single classified CIA document (apart from official responses to my complaint which classified publicly available newspaper and magazine articles) wherein “M” was mentioned. Everything in my May 10, 2001 memo is based on open source information from newspaper or magazine accounts, or officially declassified information from other federal agencies that I obtained via the Internet. Additionally, the “classified annex” that accompanied the “M Complaint” was styled that way as a precaution, and not because I actually believed it did contain classified information. In fact, I explicitly challenge that it does not. 12. The CIA operates an extremely rigid, compartmented data system that prevents anyone without a need to know to access sensitive information. Thus, the insinuation that Case 1:07-cv-00430-EGS Document 25-2 Filed 03/10/2008 Page 4 of 14 5 I may have surreptitiously entered into CIA’s Latin America databases is completely baseless and utterly irresponsible. The CIA knows full well that accessing databases, at least undetected, in such a manner is virtually impossible and was beyond my technical reach. Such an allegation, even if just an insinuation, further demonstrates the level at which the CIA will sink in order to cover-up its embarrassing conduct. Moreover, if the CIA even believed this to be true it never once raised the allegation during the four years (2001-2005) I spent inside the CIA discussing the “M Complaint”. It never sought to discipline me for a security violation, or revoke my clearance. Nor did it interfere with the transfer of my security clearance, which the CIA continues to hold, for contracting work after I retired. 13. About a year after writing the “M Complaint”, I was allowed to formally challenge its classification under rules established by EO 12,958 (or so I thought at the time). CIA informed me that it had formally accepted my challenge in Summer 2002, and implicitly acknowledged that the “M Complaint” was an official document. By Fall 2002, however, after the process had run its course inside the Agency and the latter had refused to declassify any material, I requested, in keeping with rules established by the EO as I understood them, to have the document forwarded to the Inter-Agency Security Classification Appeals Panel (ISCAP) in Washington, D.C., then chaired by William Leonard, which supposedly had jurisdiction over the challenge. 14. Significantly, within weeks of making this request, on December 12, 2002, CIA annulled my official classification challenge in its entirety. Beginning in December 2002, CIA suddenly asserted that my “M Complaint” was not really an official document; rather, it was a personal document. And, according to the CIA, personal documents could Case 1:07-cv-00430-EGS Document 25-2 Filed 03/10/2008 Page 5 of 14 6 not be submitted to ISCAP, nor could they be published while the author remained an employee. 15. I protested the cancellation of the challenge to the ISCAP. Ultimately, the ISCAP Panel agreed with me and ordered CIA to deliver the document to it. CIA refused to do so. Sometime later, ISCAP chairman William Leonard visited the CIA where officials apparently persuaded him that I did not really have the right to write a whistleblower complaint on Latin America since I did not work in that field and was not an “authorized holder” of the specific classified information. Moreover, it was my understanding they falsely insinuated to him that I may have broken into databases in order to obtain material contained in the document. The result was that ISCAP seemingly relented and changed its position. 16. No doubt anyone reading this declaration is likely saying to themselves “why in the world would the CIA be so determined to withhold a series of overt newspaper and magazine articles and claim they were classified?” Why did my writing a memorandum alleging government misconduct based solely on public sources cause the CIA such consternation? I was provided the answer in May 2002 during a conversation with the then Information Release officer of the CIA’s Directorate of Operations, William McNair. He told me privately in his office the real reason he would continue to classify the “M Complaint”. With his voice tinged by exasperation he said something very close to the following: “Look, Franz, do you think I care about [“M’s” name]? This is not about ‘source protection,’ this is about CIA’s reputation. We don’t want you to have any credibility. The problem with the “M” memorandum is that what you’ve written is all true.” Case 1:07-cv-00430-EGS Document 25-2 Filed 03/10/2008 Page 6 of 14 7 McNair also privately acknowledged during the same conversation that my May 10, 2001 memo was based solely on open source information and that it seemed to be reasonably well-sourced. 17. Contrary to CIA’s assertions that I did not source my May 10, 2001, memo, the document is actually sourced in quite amount of detail, although perhaps not according to the academic standards of Harvard University. At no time was I ever informed by the PRB that I needed to source my document in a specific manner or utilizing a particular method. Anyone who reads the document carefully will find a specific source and a date attached to most entries in the chronology and a full list of sources in the bibliography. The body of the “M Complaint” is based on the chronology. Moreover, as can be plainly seen in the e-mail June 30, 2006, the CIA privately conceded that I did demonstrate that my sources were all overt. 18. I personally delivered source documents to the PRB in the Autumn of 2004 and in Summer 2005. I was under the clear impression that I needed only to prove that my sources were overt and I wanted the documents released after I retired in August 2005. I discovered only a few days before retiring in August 2005 that absolutely no one in PRB had taken the time to review the materials I had submitted nearly one year earlier! As far as I know, they did absolutely nothing with the documents at all during that time. At my last meeting with the PRB on August 10, 2005, they now asserted that not only must I demonstrate that the sources were unclassified (which they privately acknowledged was the case) but that everything should be rewritten in a non-official format, that I must add their formal disclaimer, and that every entry in the chronology must be formatted to their Case 1:07-cv-00430-EGS Document 25-2 Filed 03/10/2008 Page 7 of 14 8 specifications (which are explained nowhere in their regulations). These concerns had never been raised before. 19. As a result of the August 10, 2005 meeting, I provided to the PRB a four centimeter-thick stack of open source documents for purposes of demonstrating that the information contained in the “M Complaint” was not based on any classified information. In order to ensure that the open source documents could be easily referenced in accordance with the actual “M Complaint”, I numbered each open source document and then numbered the section of the “M” chronology that related to the open source material. 20. It was not until November 1, 2005 that I was made aware by then-Acting PRB Chairman Richard Florence that the PRB was under the impression that I would be rewriting the “M Complaint” in order to provide “specific citations” for the statements made in the “M Complaint”. I made it very clear to Mr. Florence that the understanding I had of my discussions with former PRB Chairman Paul Noel was that I simply had to demonstrate that I could provide open source documents, which I believed I had in August 2005, and not that I had to provide “specific citations”. I also expressed confusion as to how I could be expected to provide additional citations when the supporting documentation I had provided was still in the hands of the PRB. Interestingly, this was the last time I received any comments about the possible “insufficiency” of the citations and sourcing which I had provided. 21. The CIA’s primary concern, at least as how I interpreted their e-mail to me of June 30, 2006 and now their arguments before this Court, pertains to formatting design. For reasons they best understand the CIA does not want me to “publish” the memorandum in an official looking format, whatever that might be. Of course, the format Case 1:07-cv-00430-EGS Document 25-2 Filed 03/10/2008 Page 8 of 14 9 I used for the May 10, 2001, is exactly the format I used for my March 24, 2003 and May 20, 2004 memorandums which have since been declassified and released in full (other than names of certain CIA officials). Mr. Florence made it clear that the formatting issue was the prime concern in his June 30, 2006 email, going so far as to state that I had pretty much already demonstrated that the statements in the “M Complaint” could be attributed to open sources. Interestingly, he implicitly suggested that the formatting issue related to the notion that the statements were derived from classified information by asserting that individuals with access to classified systems can access classified information on subjects which had no relevance to their area of work. This assertion directly conflicts with my understanding of the restrictions imposed upon access to classified information. 22. Let me provide some explanatory information surrounding my source documentation for the “M Complaint”. In understanding the sourcing of the “M Complaint” it is important to comprehend the specific sections of the document. Pages 1-8 contain a narrative description of the various crimes that I believed, based on my public source documentation, “M”, and possibly CIA, committed. It is in a narrative format. Pages 9-21 comprise a historical chronology of the “M” situation listing 87 entries. Not one page of this section has been publicly released but I understand the Court has been provided with an unredacted copy it can review. Pages 22-23 are final comments by me and a call for investigation. Page 24-25 is a bibliography with 55 different listings plus an “about the author” statement. There is then a two page “Unclassified Annex: Myths Surrounding CIA’s Relationship with “M””, and a two page “Unclassified Annex: Was “M” an Agent?”. Finally, there is also a “Classified Annex” which remains classified in its entirety. Case 1:07-cv-00430-EGS Document 25-2 Filed 03/10/2008 Page 9 of 14 10 23. The chronology set forth within pages 9-21 is a key section for this Court to review. Nearly all entries in the chronology follow the same general format: First, the date of the incident or development in the “M story is identified. Second a summary of incident, development, or pertinent fact in the “M” story is noted. Finally, a parenthetic remark containing usually two elements: a) the specific media source of the fact, development or incident and b) the author’s comment and/or analysis of the fact or development. It was my belief that the chronological unfolding of the “M” debacle was easier to comprehend and digest in his chronological format. The format was very simple: date, development, source, author’s comment. Most parenthetic entries contain a source and a comment. Some contain simply the source with no comment; a very small number contain a comment only. The full names of all of the media sources are listed in the bibliography. I should specifically note that all source documents were reviewed by CIA and all documents were linked to specific entries in the chronology. All of the source documents were eventually returned to me by the PRB. 24. All of the supporting documents that are attached as Exhibits “A” through “OOO” to this declaration are annotated according to the entry date in the chronology of the “M Complaint” or the paragraph number in the body of the document. For instance, some documents might say “para one”. This means that it is a general fact that supports paragraph one of the “M Complaint”, which asserts that the press claimed [one word deleted by CIA] had a relationship with CIA. Other supporting documents might say “44”, “37”, or “79”. This means that the cited document corresponded to the 44th, or 37th or 79th entry in the “M Complaint” chronology. Additionally, for example, the first entry in the chronology is from a long article written by [four words deleted by CIA. The Case 1:07-cv-00430-EGS Document 25-2 Filed 03/10/2008 Page 10 of 14 11 deleted text can be found in my original declaration dated November 12, 2007]. I provided the PRB with a copy of the [one word deleted by CIA. The deleted text can be found in my original declaration dated November 12, 2007] article and in the “M Complaint”, I provided a brief explanation of who [one word deleted by CIA. The deleted text can be found in my original declaration dated November 12, 2007] is. Throughout the document I wrote “source: [one word deleted by CIA. The deleted text can be found in my original declaration dated November 12, 2007]” to refer to the article as the source for information within a particular paragraph. Many entries within the “M Complaint” state “source: [one word deleted by CIA. The deleted text can be found in my original declaration dated November 12, 2007], various.” [one word deleted by CIA. The deleted text can be found in my original declaration dated November 12, 2007] refers to the organization “[one word deleted by CIA. The deleted text can be found in my original declaration dated November 12, 2007]” and I submitted only one document from [one word deleted by CIA. The deleted text can be found in my original declaration dated November 12, 2007] as a source. Thus, by referencing this specific document I was identifying information from within the “M Complaint” as having primarily originated from that article, although there may also have been support from other sources that I submitted for the same factual assertion. 25. Finally, this Court should also be aware that after I drafted the “M Complaint”, I was forced to author a series of follow-up complaints alleging that the CIA had retaliated against me. These complaints are also formal whistleblower memorandums and dated March 24, 2003 and May 20, 2004, as well as internal grievances dated January 16, 2003 and November 7, 2003. During the period after I drafted and submitted the “M Case 1:07-cv-00430-EGS Document 25-2 Filed 03/10/2008 Page 11 of 14 12 Complaint”, as just an example of some of the conduct, I was variously told by a number of different CIA managers that:  I lacked the qualifications to serve abroad. Yet prior to submitting these whistleblower memorandums I had served successfully in a half-dozen different CIA foreign postings;  I volunteered to serve in a particularly sensitive country in 2003. I happened to speak the language, which was in very short supply, particularly among CIA officers. I was informed I was not fit to serve in that country because the CIA did not wish to read memorandums regarding any of its activities that I would find fault with. As it turned out, several very public scandals emerged from the CIA’s activities in this country;  I was grilled on the polygraph about my contacts with Congress, a practice that could be considered retaliation given that such contacts are a protected activity;  I was very worthy of promotion to GS-14 – that is, if only I would keep my mouth shut. My supervisor at the time said I could do one thing to improve my chances for promotion - keep my mouth shut as “this would help a lot”;  I should consider keeping my mouth shut in order to avoid further problems or conflicts within the CIA. In fact, one of the OIG investigators actually said this to me during an interview about my March 24, 2003 complaint;  I should not talk to younger CIA officers and that I should be given a separate office in order to limit my contact with them. The supervisor who made this comment said she feared that I might criticize CIA’s historical conduct to impressionable young officers; Case 1:07-cv-00430-EGS Document 25-2 Filed 03/10/2008 Page 12 of 14 13  I was accused of allegedly threatening an office colleague by leaving a yellow Post-it note asking that she be consistent in her editing. CIA’s Office of Security investigated and found no merit in the charge. This baseless accusation was nothing more than an intentionally designed form of harassment; and  I was publicly humiliated by the head of a CIA office when he attributed work to another employee that he knew I had undertaken. 26. Was I retaliated against? From 1980 to 1993, I was promoted on average once every 2.5-3.0 years. After filing my first informal human rights complaint in 1994, and the series of whistleblower complaints in later years, I never once received another promotion during the time I served with the CIA. Not once in 12 years, from 1993-2005. 27. I strongly believe, based on my over 25 years of CIA experience, that CIA wants to keep my May 10, 2001, memorandum classified because its contents reveal an undeniable intelligence failure involving illegal actions (and despicable human rights violations) by an individual with whom the CIA had close relations and disclosure of this information would prove excruciatingly embarrassing to the organization. 28. The “M” case in 2007, minor as it may seem to some observers, is an outrageous example of the lengths to which CIA will go to extinguish criticism and to negate my First Amendment rights. In the process the CIA will classify scores of media articles, all of which were produced by non-CIA (and even non-governmental and non-American) authors. Case 1:07-cv-00430-EGS Document 25-2 Filed 03/10/2008 Page 13 of 14 Case 1:07-cv-00430-EGS Document 25-2 Filed 03/10/2008 Page 14 of 14 Boening v. Central Intelligence Agency, Civil Action No. 07-430 (EGS) Second Declaration of Franz Boening EXHIBITS “A” – “OOOO” Classified And Withheld By The CIA Case 1:07-cv-00430-EGS Document 25-3 Filed 03/10/2008 Page 1 of 1 Boening v. CIA, Civil Action No. 07-0430 (EGS) EXHIBIT “2” May 10, 2001 Memorandum Case 1:07-cv-00430-EGS Document 25-4 Filed 03/10/2008 Page 1 of 18 Case 1:07-cv-00430-EGS Document 25-4 Filed 03/10/2008 Page 2 of 18 Case 1:07-cv-00430-EGS Document 25-4 Filed 03/10/2008 Page 3 of 18 Case 1:07-cv-00430-EGS Document 25-4 Filed 03/10/2008 Page 4 of 18 Case 1:07-cv-00430-EGS Document 25-4 Filed 03/10/2008 Page 5 of 18 Case 1:07-cv-00430-EGS Document 25-4 Filed 03/10/2008 Page 6 of 18 Case 1:07-cv-00430-EGS Document 25-4 Filed 03/10/2008 Page 7 of 18 Case 1:07-cv-00430-EGS Document 25-4 Filed 03/10/2008 Page 8 of 18 Case 1:07-cv-00430-EGS Document 25-4 Filed 03/10/2008 Page 9 of 18 Case 1:07-cv-00430-EGS Document 25-4 Filed 03/10/2008 Page 10 of 18 Case 1:07-cv-00430-EGS Document 25-4 Filed 03/10/2008 Page 11 of 18 Case 1:07-cv-00430-EGS Document 25-4 Filed 03/10/2008 Page 12 of 18 Case 1:07-cv-00430-EGS Document 25-4 Filed 03/10/2008 Page 13 of 18 Case 1:07-cv-00430-EGS Document 25-4 Filed 03/10/2008 Page 14 of 18 Case 1:07-cv-00430-EGS Document 25-4 Filed 03/10/2008 Page 15 of 18 Case 1:07-cv-00430-EGS Document 25-4 Filed 03/10/2008 Page 16 of 18 Case 1:07-cv-00430-EGS Document 25-4 Filed 03/10/2008 Page 17 of 18 Case 1:07-cv-00430-EGS Document 25-4 Filed 03/10/2008 Page 18 of 18 Boening v. CIA, Civil Action No. 07-0430 (EGS) EXHIBIT “3” December 12, 2002 APR Memorandum Case 1:07-cv-00430-EGS Document 25-5 Filed 03/10/2008 Page 1 of 5 Case 1:07-cv-00430-EGS Document 25-5 Filed 03/10/2008 Page 2 of 5 Case 1:07-cv-00430-EGS Document 25-5 Filed 03/10/2008 Page 3 of 5 Case 1:07-cv-00430-EGS Document 25-5 Filed 03/10/2008 Page 4 of 5 Case 1:07-cv-00430-EGS Document 25-5 Filed 03/10/2008 Page 5 of 5 Boening v. CIA, Civil Action No. 07-0430 (EGS) EXHIBIT “4” PRB Submissions Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 1 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 2 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 3 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 4 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 5 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 6 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 7 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 8 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 9 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 10 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 11 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 12 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 13 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 14 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 15 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 16 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 17 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 18 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 19 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 20 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 21 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 22 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 23 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 24 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 25 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 26 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 27 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 28 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 29 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 30 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 31 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 32 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 33 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 34 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 35 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 36 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 37 of 38 Case 1:07-cv-00430-EGS Document 25-6 Filed 03/10/2008 Page 38 of 38 Boening v. Central Intelligence Agency, Civil Action No. 07-430 (EGS) EXHIBIT “5” 2007 CIA PRB Regulations Case 1:07-cv-00430-EGS Document 25-7 Filed 03/10/2008 Page 1 of 11 Case 1:07-cv-00430-EGS Document 25-7 Filed 03/10/2008 Page 2 of 11 Case 1:07-cv-00430-EGS Document 25-7 Filed 03/10/2008 Page 3 of 11 Case 1:07-cv-00430-EGS Document 25-7 Filed 03/10/2008 Page 4 of 11 Case 1:07-cv-00430-EGS Document 25-7 Filed 03/10/2008 Page 5 of 11 Case 1:07-cv-00430-EGS Document 25-7 Filed 03/10/2008 Page 6 of 11 Case 1:07-cv-00430-EGS Document 25-7 Filed 03/10/2008 Page 7 of 11 Case 1:07-cv-00430-EGS Document 25-7 Filed 03/10/2008 Page 8 of 11 Case 1:07-cv-00430-EGS Document 25-7 Filed 03/10/2008 Page 9 of 11 Case 1:07-cv-00430-EGS Document 25-7 Filed 03/10/2008 Page 10 of 11 Case 1:07-cv-00430-EGS Document 25-7 Filed 03/10/2008 Page 11 of 11 Boening v. Central Intelligence Agency, Civil Action No. 07-430 (EGS) EXHIBIT “6” Second Rule 56 (f) Declaration of Mark S. Zaid, Esq. Case 1:07-cv-00430-EGS Document 25-8 Filed 03/10/2008 Page 1 of 4 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FRANZ BOENING * * Plaintiff, * * Civil Action No: 07-430 (EGS) v. * * CENTRAL INTELLIGENCE AGENCY * * Defendant. * * * * * * * * * * * * * SECOND RULE 56(f) DECLARATION OF MARK S. ZAID, ESQ. I, MARK S. ZAID, pursuant to 28 U.S.C. § 1746, hereby declares as follows: 1. I am a person over eighteen (18) years of age and competent to testify. I make this Declaration on personal knowledge and in support of the plaintiff’s Opposition to Defendant’s Motion for Summary Judgment. 2. I am the attorney of record for plaintiff Franz Boening (“Boening”). I am admitted to practice law in the States of New York, Connecticut and the District of Columbia, as well as the D.C. Circuit, Second Circuit and Fourth Circuit Court of Appeals, and the United States District Courts for the District of Columbia, Maryland, Eastern District of New York, Northern District of New York and the Southern District of New York. I have been litigating cases pertaining to national security since 1993. As part of my representation of Boening, I have executed a Secrecy/NonDisclosure Agreement providing me access to up to and including SECRET level information (and the same applies to my associate Bradley P. Moss, Esq.). I have, in fact, participated in classified meetings with Boening and the CIA to discuss or review the specific documents at issue in this case. 3. This action was filed on March 5, 2007 to challenge the conduct of the defendant Central Intelligence Agency (“CIA”) with respect to the processing by the Publication Review Board of a memorandum drafted by Boening dated May 10, 2001. The Case 1:07-cv-00430-EGS Document 25-8 Filed 03/10/2008 Page 2 of 4 2 memorandum detailed perceived violations of law and policy mistakes surrounding the alleged relationship between the CIA and a foreign government official – “M”. [14 words redacted by the CIA]. 4. If the CIA is claiming that Boening did not exclusively derive the information within his “M Complaint” from publicly available newspaper and magazine articles, or other federal agencies’ declassified documentation retrieved from the Internet, then discovery is essential prior to the granting of summary judgment for the CIA. This goes to the heart of the legal and factual questions in this case, i.e., whether Boening’s “M Complaint” was based on open sources. Discovery could be undertaken to demonstrate that no evidence exists that Boening ever accessed – either in an authorized or unauthorized manner – information contained within the “M Complaint”, or that the CIA had any control over the information in the document. Boening’s personnel and security files would reveal whether the CIA ever suspected him of inappropriately accessing classified information on “M”, as well as whether any aspect of “M’s” situation fell within Boening’s scope of employment. 5. Additionally, discovery would be appropriate to demonstrate that the CIA has improperly claimed the information in the “M Complaint” is classified solely in order to cover up embarrassment and/or a violation of law. The comment by William McNair, the former Information Release officer of the CIA’s Directorate of Operations, justifies further exploration on this point. Mr. McNair would specifically be deposed to discuss his concession of: Look, Franz, do you think I care about [“M’s” name]? This is not about ‘source protection,’ this is about CIA’s reputation. We don’t want you to have any credibility. The problem with the “M” memorandum is that what you’ve written is all true. 6. Finally, discovery would be relevant on the matter of past agreements and understandings between Boening and the PRB as to whether specific pinpoint citations were required to support the unclassified nature of the “M Complaint” or whether simply Case 1:07-cv-00430-EGS Document 25-8 Filed 03/10/2008 Page 3 of 4 3 providing copies of the open source documentation was sufficient. Thus, depositions of former PRB Chairman Paul Noel Chrétien, current PRB Chairman Richard Puhl, and PRB staffer Richard Florence, among others, would be sought. 7. Over the last decade I have handled more than a dozen prepublication review cases, particularly with the CIA, both at the administrative and litigation stages. See e.g. Sterling v. CIA, Civil Action No: 03-0603 (D.D.C.)(TPJ); Wendy Lee v. CIA, Civil Action No. 03-0206 (D.D.C.)(TPJ); Waters v. CIA, Civil Action No: 06-383 (D.D.C.)(RBW); Stillman v. CIA 209 F. Supp. 2d 185 (D.D.C. 2002), rev’d on other grounds, 319 F.3d 546 (D.C. Cir. 2003). Personally, I will openly concede that – notwithstanding the fact that the PRB sends conflicting messages to its current and former employees regarding whether a specific deadline exists for a response – a 30 day requirement is often unrealistic given the manner in which the current process has been structured for reviews. However, my experiences have revealed that delays that extend one to two years before a final response occurs have become a common routine pattern and practice with the CIA. The excessive delays have a significant impact on the submitter, especially since there is often a publication deadline involved or an important public interest underlying the contents. Moreover, at times the final response is negotiated to such an extent, i.e., that “classified” information all of a sudden becomes unclassified, it makes a mockery of the classification system in general. I do solemnly affirm under the penalties of perjury and upon personal knowledge that the contents of the foregoing paper are true to the best of my knowledge. Date: February 10, 2008 /s/ __________________________ Mark S. Zaid Case 1:07-cv-00430-EGS Document 25-8 Filed 03/10/2008 Page 4 of 4 Boening v. Central Intelligence Agency, Civil Action No. 07-430 (EGS) EXHIBIT “7” November 22, 2004 PRB Submission Memorandum Case 1:07-cv-00430-EGS Document 25-9 Filed 03/10/2008 Page 1 of 3 Case 1:07-cv-00430-EGS Document 25-9 Filed 03/10/2008 Page 2 of 3 Case 1:07-cv-00430-EGS Document 25-9 Filed 03/10/2008 Page 3 of 3 Boening v. Central Intelligence Agency, Civil Action No. 07-430 (EGS) EXHIBIT “8” PRB Briefing Slides Case 1:07-cv-00430-EGS Document 25-10 Filed 03/10/2008 Page 1 of 5 Case 1:07-cv-00430-EGS Document 25-10 Filed 03/10/2008 Page 2 of 5 Case 1:07-cv-00430-EGS Document 25-10 Filed 03/10/2008 Page 3 of 5 Case 1:07-cv-00430-EGS Document 25-10 Filed 03/10/2008 Page 4 of 5 Case 1:07-cv-00430-EGS Document 25-10 Filed 03/10/2008 Page 5 of 5 Boening v. Central Intelligence Agency, Civil Action No. 07-430 (EGS) EXHIBIT “9” Zaid Letter To DOJ Dated October 15, 2007 Case 1:07-cv-00430-EGS Document 25-11 Filed 03/10/2008 Page 1 of 3 MARK S. ZAID, P.C. Attorney-At-Law 1250 CONNECTICUT AVENUE, N.W. SUITE 200 WASHINGTON, DC 20036 ______ TELEPHONE (202) 454 -2809 FACSIMILE (202) 330-5610 October 15, 2007 VIA E-MAIL Michael P. Abate Trial Attorney, Civil Division U.S. Department of Justice P.O. Box 883 20 Massachusetts Avenue, N.W. Room 7302 Washington, D.C. 20530 Re: Boening v. CIA, Civil Action No. 07-430 (D.D.C.)(EGS) Dear Mr. Abate: I am writing to take you up on your offer of July 26, 2007, to cooperate and ensure that any “classified” submission by my client will be filed in camera for the Court’s review. To be perfectly candid, we have no intention of filing, much less creating, a classified submission but, of course, I cannot claim to know whether the CIA will consider certain information we intend to include in a declaration, especially in light of the current posture of this case, to be classified. Therefore, in order to properly ascertain whether any declaration (and any accompany materials) to be submitted by my client contains alleged classified information – and therefore necessitates an in camera filing – I am respectfully requesting that the CIA arrange for a date/time for my client and I to use a secure computer at an Agency facility (wherever that might reasonably be) in order to draft a factual declaration for his signature. We can then submit the document(s) for classification review and act accordingly following a determination. As we have no interest in even inadvertently disclosing what may or may not be legitimately classified information, this method will ensure no potential problems arise. The alternative is to proceed how I normally handle these types of cases and – in complete good faith with no intention to include classified information – draft any intended filings on our own computers and then submit the document(s) for classification review. We would then delete any material – despite our good faith efforts to exclude – designated as classified by the Agency and request that the unredacted version be submitted to the Court for its in camera review. Case 1:07-cv-00430-EGS Document 25-11 Filed 03/10/2008 Page 2 of 3 We are comfortable with either option but offer both to the Government in order to ensure no concerns arise. Furthermore, in order to ensure we can present an appropriate response consistent with my client’s First Amendment rights, I would also like to make immediate arrangements for my client and I to re-review the “classified” documents he created that are the subject of this litigation. As you know, I participated in the IG process wherein these documents were created, reviewed and discussed. Please note I am not asking the Government for permission to review any of the Agency's classified submissions for which I have never had prior access. That dispute will be directed towards the Court. I am only addressing those documents for which I had unfettered prior authorized access (and for which the substantive information contained therein I continue to have authorized access). I appreciate your cooperation in this matter, and await your timely response. Should you wish to discuss any of the above with me, please contact me at (202) 498-0011. Sincerely, /s/ Mark S. Zaid Case 1:07-cv-00430-EGS Document 25-11 Filed 03/10/2008 Page 3 of 3 Boening v. Central Intelligence Agency, Civil Action No. 07-430 (EGS) EXHIBIT “10” DOJ Letter To Zaid Dated October 26, 2007 Case 1:07-cv-00430-EGS Document 25-12 Filed 03/10/2008 Page 1 of 3 U.S. Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Ave., NW Room 7302 Washington, DC 20530 Michael P. Abate Tel: (202) 616-8209 — Fax: (202) 616-8470 Trial Attorney Email: michael.abate@usdoj.gov October 26, 2007 VIA FIRST-CLASS MAIL AND E-MAIL Mr. Mark S. Zaid Mark S. Zaid, P.C. 1250 Connecticut Ave., N.W., Suite 200 Washington, DC 20036 Re: Boening v. Central Intelligence Agency, Civil Action No. 07-0430 (D.D.C.) Dear Mark: I write in response to your October 15, 2007 letter. The Central Intelligence Agency (“CIA”) has advised me that it has no objection to you or your client preparing draft legal pleadings on your personal computers, as long as the draft pleadings do not contain any classified information and you submit them to the CIA for classification review before filing. Additionally, the CIA further advised me that it has denied your client’s request for access to classified documents he created in connection with the proceedings before the Office of Inspector General (“OIG”) referred to in your letter. Access to classified information is governed by Executive Order 12958, as amended, which includes a requirement that the prospective recipient has a “need to know” the information. Section 6.1(z) defines “need to know” as “a determination made by an authorized holder of classified information that a prospective recipient requires access to specific classified information in order to perform or assist in a lawful and authorized governmental function.” As noted in the Declaration of Scott A. Koch, filed along with the Motion for Summary Judgment, the CIA has determined that your client does not have a need to know the classified information contained in those materials. See Koch Decl. ¶ 32 n.6. Moreover, the CIA has advised me that it also denied your request for access to these classified materials created by your client. The CIA has determined that you do not have a need to know this information because your representation of a private client in civil litigation against the United States does not constitute performing or assisting in a lawful and authorized governmental function. This determination that pursuing civil litigation against the United States does not constitute performing or assisting a lawful governmental function is distinct from and supercedes any limited access to certain classified information that you may have been given in connection with the proceedings involving the CIA’s OIG. Case 1:07-cv-00430-EGS Document 25-12 Filed 03/10/2008 Page 2 of 3 Case 1:07-cv-00430-EGS Document 25-12 Filed 03/10/2008 Page 3 of 3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FRANZ BOENING * * Plaintiff, * * Civil Action No: 07-430 (EGS) v. * * CENTRAL INTELLIGENCE AGENCY * * Defendant. * * * * * * * * * * * * * ORDER Upon consideration of Defendant’s Motion to Dismiss and Plaintiff’s Cross-Motion for Summary Judgment, and the entire record herein, it is this ______ day of _________________ 2008, hereby ORDERED, that defendant’s Motion is denied; and FURTHER ORDERED, that plaintiff’s Cross-Motion is granted and he is permitted to publish his May 10, 2001, Memorandum in its entirety. _________________________________________ UNITED STATED DISTRICT JUDGE Case 1:07-cv-00430-EGS Document 25-13 Filed 03/10/2008 Page 1 of 1