indicating that a disclosure by the President, but not by an official of the Defense Department, could bind the CIASummary of this case from Osen LLC v. U.S. Cent. Command
No. 18-2112-cv August Term, 2019
David E. McCraw, The New York Times Company, Legal Department, New York, NY for Plaintiffs-Appellants. Jeannette A. Vargas (Benjamin H. Torrance, on the brief), for Geoffrey S. Berman, United States Attorney for Southern District of New York, NY, for Defendant-Appellee.
David E. McCraw, The New York Times Company, Legal Department, New York, NY for Plaintiffs-Appellants.
Jeannette A. Vargas (Benjamin H. Torrance, on the brief), for Geoffrey S. Berman, United States Attorney for Southern District of New York, NY, for Defendant-Appellee.
Before: Katzmann, Chief Judge, and Walker, and Park, Circuit Judges.
Chief Judge Katzmann dissents in a separate opinion.
John M. Walker, Jr., Circuit Judge:
New York Times and Matthew Rosenberg (collectively, the Times) brought this Freedom of Information Act (FOIA) action seeking acknowledgement from the Central Intelligence Agency (CIA) that it was aware of the existence of records regarding a covert program of arming and training rebel forces in Syria. Claiming that such a disclosure was not required under two FOIA exemptions, the CIA responded to the Times’ initial FOIA request with a so-called Glomar response that that the Agency could neither confirm nor deny the existence or nonexistence of such records. The Times filed a complaint asserting that certain statements made by the President and another individual precluded use of the Glomar response. The parties cross-moved for summary judgment. The district court (Carter, J. ) granted summary judgment for the CIA, holding that the relevant statements did not strip the CIA of the claimed exemptions because the statements did not officially acknowledge or inadvertently declassify the existence of such a program. We AFFIRM.
Plaintiffs-Appellants, the New York Times and Matthew Rosenberg, a reporter for the New York Times (collectively, the Times), submitted a FOIA request on July 25, 2017, seeking to compel disclosure by the CIA of records pertaining to a covert program arming and training rebel forces in Syria. The FOIA request specifically sought "[a]ll records and documents, including Inspector General reports, related to the program to which President Trump referred in a July 24, 2017 post on Twitter." The Twitter post stated, "The Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad ...." While President Trump did not specify the article in question, the Washington Post had published an article on July 19, 2017, titled, "Trump ends covert CIA program to arm anti-Assad rebels in Syria, a move sought by Moscow." The article stated that "President Trump ha[d] decided to end the CIA's covert program to arm and train moderate Syrian rebels battling the government of Bashar al-Assad[.]" Additionally, during an interview with the Wall Street Journal on July 25, 2017, the day after the Twitter post, the President mentioned the "story about Syria that was in the New York Times the other day" (before acknowledging that the story was in the Washington Post). He then stated that the program was "not something that [he] was involved in" and that the decision was "made by people, not me."
Separately, on July 21, 2017, United States Special Operations Commander, General Raymond (Tony) Thomas, was asked about the "roll[ing] up" of a "covert program to arm [anti-Assad rebels]" at a national security conference at the Aspen Institute. In response, Thomas said that the decision to end the program was "based on assessment of the nature of the program, what we're trying to accomplish, the viability of it going forward, and [was] a tough, tough decision."
On August 22, 2017, the Times filed the complaint in this case, asking the district court to compel disclosure of any records responsive to its FOIA request. By letter dated August 23, 2017, the CIA issued its Glomar response, informing the Times that it could neither confirm nor deny the existence or nonexistence of records responsive to the request, pursuant to FOIA Exemptions 1 and 3. To support its response, the CIA submitted two declarations by Antoinette B. Shiner, an Information Review Officer for the agency. Shiner asserted that confirming the existence of responsive records would, for instance, "confirm the existence and the focus of sensitive Agency activity that is by definition kept hidden to protect U.S. government policy objectives," and that denying their existence would "confirm the absence of specific foreign policy objectives ... or the Agency's inability to successfully carry out the purported operational activities ...."
The Glomar doctrine originated in a FOIA case, in the D.C. Circuit, involving records pertaining to the Hughes Glomar Explorer, an oceanic research vessel. See Phillippi v. CIA , 546 F.2d 1009 (D.C. Cir. 1976). In Phillippi, the CIA claimed that the "existence or nonexistence of the requested records was itself a classified fact exempt from disclosure under ... FOIA." Id. at 1012 (emphasis added). The CIA asserted that, "in the interest of national security, involvement by the U.S. government in the activities which are the subject matter of [plaintiff's] request can neither be confirmed nor denied." Id. In this Circuit, we have held that the "Glomar doctrine is applicable in cases where to answer the FOIA inquiry would cause harm cognizable under a[ ] FOIA exception – in other words, in cases in which the existence or nonexistence of a record is a fact exempt from disclosure under a FOIA exception." Wilner v. Nat'l Sec. Agency , 592 F.3d 60, 70 (2d Cir. 2009) (internal citation omitted).
Both parties filed for summary judgment and, on June 29, 2018, the district court granted the CIA's motion and denied the Times's motion. The district court first determined that the Shiner Declarations provided "sufficient bases for concluding that revealing whether or not responsive records exist in connection with an alleged program to arm and train Syrian rebels would lead to an unauthorized disclosure of intelligence sources and methods." The district court then held that: (1) the CIA's Glomar response was appropriately tethered to FOIA Exemptions 1 and 3; (2) President Trump's statements did not declassify the existence of the covert Syrian program;] (3) those same statements did not officially acknowledge the existence of the program and therefore did not waive the CIA's eligibility for FOIA Exemptions 1 and 3; and (4) U.S. Special Operations Commander Thomas's statements did not independently confirm the existence of the covert government program.
N.Y. Times Co. v. Cent. Intelligence Agency , 314 F. Supp. 3d 519 (S.D.N.Y. 2018).
Id . at 534.
This case lies at the intersection of two important competing interests: the need for the public to know what its government is doing and the need to keep secret certain government activity the disclosure of which could compromise national security, including by revealing clandestine sources and methods used to acquire foreign intelligence and to conduct covert operations. FOIA provides an avenue for government transparency by making documents available to the public. FOIA contains nine exemptions, however, to balance a variety of governmental interests, including national security, against the public interest in transparency. Exemptions 1 and 3, at issue here, exempt information that is classified to protect national security (Exemption 1) and information that is prohibited from disclosure by another federal law (Exemption 3). The right to claim these exemptions can be waived, however, by official statements that acknowledge the existence of records pertaining to the secret activity and that meet certain, specific requirements.
See 5 U.S.C. §§ 552(b)(1), 552(b)(3).
To properly invoke a Glomar response, an agency must "tether its refusal to one of the nine FOIA exemptions." The agency can do this by submitting affidavits or declarations that provide sufficient detail as to why an exemption is appropriate. We review an agency's justification de novo , but when the information requested concerns national security, courts "must accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record." "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible."
Wilner , 592 F.3d at 71 (internal citation omitted).
Id. at 69.
Id. at 72.
"Affidavits or declarations ... giving reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain the agency's burden" and "are accorded a presumption of good faith." "Summary judgment is warranted ... when the affidavits describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith."
Id . at 69 (quoting Carney v. U.S. Dep't of Justice , 19 F.3d 807, 812 (2d Cir. 1994) ).
Id . at 73 (quoting Larson , 565 F.3d at 862 ).
I. FOIA Exemptions
Here, the CIA based its Glomar response on FOIA Exemptions 1 and 3.
a. Exemption 1
Exemption 1 permits the nondisclosure of classified records that are: "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." The CIA contends that the records are classified under the criteria set forth in Executive order 13,526. Shiner's affidavit attested that, in accordance with the criteria set forth in Executive order 13,256 : (1) she was an original classification authority; (2) the information was possessed by the United States Government; and (3) the information sought related to intelligence activities, intelligence source or methods, foreign relations or activities, including confidential sources. Shiner then detailed why "any substantive response would reveal sensitive information about the CIA's intelligence sources, methods, and activities that is protected from disclosure under Exemption 1."
Executive order 13,526 allows records to be kept secret when: "(1) an original classification authority is classifying the information; (2) the information is owned by, produced by or for, or is under the control of the United States Government; (3) the information falls within one or more of the categories of information listed in section 1.4 of this order; and (4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage." Classified National Security Information, Exec. Order. No. 13526, 75 Fed. Reg. 707 (Dec. 29, 2009).
b. Exemption 3
FOIA Exemption 3 applies to records "specifically exempted from disclosure by statute," provided that the statute "requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue." The CIA pointed to Section 102(A)(i)(1) of the National Security Act of 1947, as amended by 50 U.S.C. § 3024(i)(1) (the National Security Act), which mandates that the Director of National Intelligence "shall protect intelligence sources and methods from unauthorized disclosure." Shiner attested that Exemption 3 applied because a substantive "response would reveal information that concerns intelligence sources and methods," which the National Security Act expressly protects from disclosure.
Agent Shiner's affidavits, together with the appropriate deference owed to the agency, carried the CIA's burden of showing that the two exemptions apply. They set forth "logical or plausible" justifications for both Exemption 1 and 3.
Wilner , 592 F.3d at 72-73 (citing Larson , 565 F.3d at 862–63 ) (noting that agencies "need only proffer one legitimate basis for invoking the Glomar response and FOIA Exemptions 1 and 3 are separate and independent grounds in support of a Glomar response").
In sum, we find that both exemptions apply because any substantive response could reveal, as Shiner attested, "whether or not the United States exercised extraordinary legal authorities to covertly influence the political, economic, and/or military conditions in Syria" or "the CIA's connection to such a program, if one existed." At a minimum, a substantive response to whether the CIA had any documents would reveal that the agency had an interest – or lack thereof – that could expose agency priorities, strategies, and areas of operational interest.
II. Official Acknowledgement Doctrine
The Times argues that the CIA's Glomar response, which refuses to confirm nor deny the existence of records related to the covert program at issue, is inappropriate because the President's statements, both in the tweet on July 24, 2017 and in the Wall Street Journal interview the following day, officially acknowledged the existence of the covert program and, therefore, the CIA waived its right to assert a FOIA exemption.
"[W]hen an agency has officially acknowledged otherwise exempt information through prior disclosure, the agency has waived its right to claim an exemption with respect to that information." More than a decade ago, in Wilson v. CIA , we applied a precise and strict test for claims of official disclosure. Classified information that a party seeks to obtain or publish is deemed to have been officially disclosed "only if it (1) ‘[is] as specific as the information previously released,’ (2) ‘match[es] the information previously disclosed,’ and (3) was ‘made public through an official and documented disclosure.’ "
Am. Civil Liberties Union v. C.I.A. , 710 F.3d 422, 426 (D.C. Cir. 2013)
586 F.3d 171 (2d Cir. 2009).
Id . at 186 (quoting Wolf , 473 F.3d at 378 ).
We cautioned in Wilson that courts will "not infer official disclosure of information classified by the CIA from (1) widespread public discussion of a classified matter, (2) statements made by a person not authorized to speak for the Agency, or (3) release of information by another agency, or even by Congress." The consequence of our holding in Wilson is that just because the existence of classified activity may be inferred from publicly available information or from official statements, government waiver will not be found unless all legal criteria have been met. As relevant here, an agency is precluded from issuing a Glomar response if the existence or nonexistence of the specific records sought by the FOIA request has been the subject of an official public acknowledgment.
Wilson , 586 F.3d at 186-87 (internal citations omitted) (collecting cases).
Wilner , 592 F.3d at 70 (emphasis added).
The Times contends that district court: (1) erred by finding that President Trump's statements were too ambiguous to have officially acknowledged the records at issue; and (2) misread Wilner as holding that a Glomar response is appropriate whenever the CIA might have an "interest" in the discussed covert program even if the program is conducted by another agency.
As an initial matter, the district court did not misread Wilner . In Wilner , the "record [was] clear" that the "general existence of the [relevant covert program] ha[d] been officially acknowledged" through express statements by President Bush and CIA Director Michael Hayden, although those statements did not disclose "the specific methods, targets, and information obtained." We held that, even though the general existence of the program had been disclosed, a Glomar response was still appropriate with respect to "those aspects of the program that have not been subject to such disclosures." Additionally, we found that "an agency only loses its ability to provide a Glomar response when the existence or nonexistence of the particular records covered by the Glomar response has been officially and publicly disclosed." This aligns with the district court's reading of Wilner that "a general acknowledgement of the existence of a program alone does not wholesale waive an agency's ability to invoke Glomar where certain aspects of the program remain undisclosed." Even assuming arguendo that President Trump's statements revealed the general existence of the alleged covert program, a Glomar response is still appropriate if none of the relevant statements officially acknowledged the existence or nonexistence of specific records. As we will explain, in light of the Wilson test, the relevant statements did not officially acknowledge the existence of a covert program, much less the existence of corresponding, specific records.
Id . at 69.
Id . at 70.
Id . (emphasis added).
N.Y. Times Co. , 314 F. Supp. 3d at 530.
See Wilner , 592 F.3d at 70.
The Times maintains that Wilner "supplies no basis for the CIA's Glomar response" because, by disclosing the records sought, the CIA would only be revealing its "interest" in the allegedly disclosed program. We disagree. The Shiner affidavits contain sufficiently detailed justifications for invoking Exemptions 1 and 3 that are broader than just a potential interest in the program: they include protecting classified information and sources and methods.
See Executive order 13,526 (allowing classified records to be kept secret when "the information falls within one or more of the categories of information listed in section 1.4 of this order," which includes records that "pertain[ ]" to "intelligence activities (including covert action), intelligence sources or methods"); see also James Madison Project v. Dep't of Justice , 302 F. Supp. 3d 12, 30 (D.D.C. 2018) ("Contrary to Plaintiffs’ contention, ACLU ’s narrow holding is not controlling here because the FBI in this case asserts a broader justification for issuing a Glomar response than merely concealing an ‘interest’ in the Synopsis.").
We have repeatedly advised that official disclosure is a "strict test," and here, we agree with the district court that the President's statements do not satisfy the "specificity" or "matching" requirements set forth in Wilson . Wilson starkly illustrated the specificity requirement. There, plaintiff Valerie Plame Wilson, a former CIA agent, sued the CIA arguing that her pre-2002 service with the CIA could not remain classified. Agent Wilson pointed to a letter, written on CIA letterhead, that specified the actual dates of her prior service. An official from the Agency's personnel department signed the letter, which Wilson claimed to be an official acknowledgment. Aware that the CIA still demanded that her service dates remain secret, Wilson then authorized a member of Congress to publish the CIA letter in the Congressional Record.
See, e.g. , Wilson , 586 F.3d at 186 ; N.Y. Times Co. v. U.S. Dep't of Justice , 756 F.3d 100, 120 (2d Cir. 2014), opinion amended on denial of reh'g , 758 F.3d 436 (2d Cir. 2014), supplemented , 762 F.3d 233 (2d Cir. 2014).
Wilson , 586 F.3d at 173–74.
Id . at 181, 195.
Id . at 174.
In Wilson , we acknowledged that the letter was "reliable as evidence of [plaintiff]’s prior CIA affiliation," but stated that it was "hardly akin to the CIA director personally reading relevant information into the Congressional Record , as took place in Wolf v. CIA ." Accordingly, we held that there had been no official acknowledgement even though the letter specified Wilson's dates of service. It was our view that anything less than the official disclosure upheld in Wolf "necessarily preserves some increment of doubt regarding the reliability of publicly available information," and that the CIA's "refusal to permit the elimination of that remaining doubt ... protects valuable information." Ultimately, we "decline[d] to discount the importance of such ‘lingering doubts’ to maintaining the secrecy of CIA sources and methods." And we do so again here, notwithstanding the public statements by the President and General Thomas regarding governmental activities in Syria.
Id . at 195.
We held that the CIA had not officially acknowledged the plaintiff's pre-2002 service even though the Agency letter expressly stated "Dates of Service: CIA from 11/9/1985 to 1/9/2006 – total 20 years, 7 days." Id . at 181.
Id . at 195.
Id . (internal citation omitted).
Likewise here, even after the public statements by President Trump and General Thomas, lingering doubts remain as to the information sought. The President never specified that there was any program – let alone one led by the CIA – designed to arm and train Syrian rebels. While the matching aspect of the Wilson test does not require "absolute identity," the Times is asking us to draw inferences that the President acknowledged the existence of a covert CIA program. For instance, regarding the President's statement to the Wall Street Journal that the program was "not something that [he] was involved in" and that the decision was "made by people, not me," it remains unclear what "decision," made by unidentified "people," President Trump was not "involved in." While the Times argues that, at a minimum, it "plainly" must be a decision to end a covert CIA program, these statements, even packaged together, do not remove all doubt as to their meaning.
N.Y. Times Co. , 756 F.3d at 120.
See ACLU , 710 F.3d at 428 (holding that official statements left "no doubt" that some agency operates drones and thus this program was officially acknowledged).
We agree with the Times that one reasonable way to interpret President Trump's tweet regarding "massive, dangerous, and wasteful payments to Syrian rebels fighting Assad" is with respect to payments tied to the alleged covert program, as referenced in the antecedent Washington Post article. As the district court suggested, however, these statements "could just as easily be the President relaying what he believed to be the Post's ‘fabricated’ characterizations." Indeed, the tweet and the President's interview both focus on the Washington Post's allegedly inaccurate reporting. The references to payments are incidental to this criticism, which obscures what, if anything, the President actually "disclosed." The tweet and interview thus are not the straightforward disclosures satisfying Wilson that the dissent depicts them to be.
N.Y. Times Co. , 314 F. Supp. 3d at 529.
See Dissent at 123–25.
Further, neither the tweet nor the Wall Street Journal interview mentions the CIA and, therefore, anything other than a Glomar response would likely reveal or refute that the CIA had an intelligence interest in the program, evidenced by a cache of records. The dissent minimizes the fact that neither the tweet nor the interview explicitly references the CIA, but the absence is significant because it means that there are "lingering doubts" as to the CIA's interest in the alleged program. An official response that acknowledged the existence – or nonexistence – of responsive records would eliminate those doubts. The Times points to New York Times Co. v. U.S. Dep't of Justice , to support its contention that the information sought needs only "substantial overlap" with that which is publicly disclosed. This argument is unpersuasive. First, the Times in this case takes the phrase "substantial overlap" in the prior case out of context. In that earlier case, the Times sought an Office of Legal Counsel (OLC) and Department of Defense (DOD) Memorandum containing information regarding targeted killings. We held that the CIA had officially acknowledged its role in targeted killings as a result of numerous, express statements from President Obama, CIA Director Panetta, Director of National Intelligence Clapper, and various senior-ranking members of Congress. We also referenced a publicly-released DOJ White Paper that "virtually parallel[ed]" the sought-after information. Moreover, Attorney General Holder had publicly acknowledged a "close relationship" between the DOJ White Paper and the information sought.
The dissent argues that "while the majority speculates that a Glomar response may additionally be appropriate to disguise any ‘intelligence interest’ the CIA has in the program, the CIA never advances this as a justification for its response and we are thus foreclosed from justifying the CIA's nondisclosure on this basis." Dissent at 123. We disagree. To the contrary, the Shiner affidavits invoke the CIA's "intelligence and regional interests," App'x 60, as a basis for its Glomar response. Agent Shiner declared that a non-Glomar response "would reveal the presence or absence of Agency priorities, capabilities, authorities, interests , resources, and relationships with foreign entities." App'x 22 (emphasis added).
See Dissent at 124, 125–26.
Wilson , 586 F.3d at 195 (holding that "anything short of an [official disclosure] necessarily preserves some increment of doubt regarding the reliability of the publicly available information").
Id . at 103.
We noted three interviews, two instances of congressional testimony, and one speech in which these officials disclosed the CIA's involvement in targeted killings as the basis to conclude that such killings "ha[d] been publicly acknowledged at the highest levels of the Government." Id . at 118-19.
Id . at 116-17.
We then applied the Wilson test to hold that the information contained in the OLC-DOD Memorandum had been officially disclosed because it was "as specific as the information previously released in the DOJ White Paper, it match[ed] the information previously disclosed, and was made public through an official and documented disclosure." We still held, however, that other portions of the Memorandum remained exempted due to a lack of specificity and matching with the official disclosures.
Id . at 120 (citation omitted).
Id . at 117. ("The loss of protection for the legal analysis in the OLC-DOD Memorandum does not mean, however, that the entire document must be disclosed.").
The Times's continued reliance on ACLU v. CIA , which held that the CIA's Glomar response pertaining to drones used for targeted killings was unjustified, is also misplaced. The Times argues that ACLU supports its contention that there is no "basis for the CIA's Glomar response" because the CIA would be revealing nothing more than its "interest" in the allegedly disclosed program. This argument is unavailing for two reasons.
710 F.3d at 422.
First, the pertinent official statements in ACLU were far more precise, thorough, and numerous than those found here. The ACLU court found that the "extent of the official statements" regarding drone strikes was highly significant. President Obama "publicly acknowledged that the United States uses drone strikes against al Qaeda." In a speech, the President's counterterrorism advisor, John Brennan, discussed the United States’ procedures for conducting drone strikes. CIA Director Panetta answered questions about drone strikes during separate public remarks. While no statement expressly indicated "that the CIA has documents relating to drone strikes," the D.C. Circuit had no difficultly concluding that the statements were detailed enough to "le[ave] no doubt that some U.S. agency" operates drones. Thus, it was neither "logical" nor "plausible" to maintain that the CIA had no documents related to drones. The difference between the circumstances in ACLU and this case is stark: here, based upon the doubts left by the statements, we are unable to find an official acknowledgement.
Id . at 429.
Id . at 431.
Id . at 430.
Id . at 429.
Id . at 431.
Second, as in the recent D.C. district court case, James Madison Project , the CIA "asserts a broader justification for issuing a Glomar response than merely concealing an ‘interest’ in the [requested document]." As Agent Shiner attested, acknowledging the existence of responsive documents would: (1) "confirm the existence and the focus of a sensitive Agency activity that is by definition kept hidden to protect U.S. Government foreign policy objectives"; (2) "reveal whether or not the United States Government exercised extraordinary legal authorities to covertly influence the political, economic, and/or military conditions in Syria," which could, "in turn, either compromise a specific foreign policy goal ... or serve as confirmation for U.S. adversaries that there was no such objective"; and "require the disclosure of an intelligence source or method." As we have noted, these justifications are sufficiently specific to support our finding that the claimed Exemptions are "logical and plausible."
302 F. Supp. 3d 12, 30 (D.D.C. 2018).
Even assuming, as the Times argues, that the CIA would have an intelligence interest in arming and training rebel groups in Syria, just as it does with drone strikes, the statements here do not rise to the level of specificity found in ACLU to have waived the CIA's right to claim an exemption. ACLU , 710 F.3d at 425-428. The ACLU court relied on "the extent of the official statements on the subject," before holding that forcing the CIA to reveal whether it had an intelligence interest in drone strikes "would reveal something not already officially acknowledged ." Id . at 428 (emphasis added).
Wolf v. CIA , in the D.C. Circuit, is also distinguishable. There, the CIA issued a Glomar response to a FOIA request for records relating to Jorge Eliecer Gaitan, a Colombia politician, who had been assassinated. The Court held the information was officially acknowledged when the CIA Director testified before Congress and "explicitly read some excerpts of [CIA] dispatches related to" Gaitan's assassination into the record. After finding that the official acknowledgement waiver applied, the D.C. Circuit made clear that it "relates only to the existence or nonexistence of the records about Gaitan disclosed by [the CIA Director]’s testimony." Therefore, the plaintiff was entitled to the disclosure of only "the existence of the CIA records about Gaitan that have been previously disclosed (but not any others)." Finally, the Times contends that U.S. Special Operations Commander General Thomas's statements independently undermine the plausibility of the CIA's justifications for its Glomar response. At oral argument, however, the Times conceded that General Thomas's statements acted only as an "extra add-on" to those made by President Trump. In any event, it is undisputed that General Thomas, a high-ranking officer in the Department of Defense, was not authorized to speak for the CIA, and courts will "not infer official disclosure of information classified by the CIA from ... statements made by a person not authorized to speak for the [CIA]."
Wolf v. CIA , 473 F.3d 370 (D.C. Cir. 2007).
Id . at 373.
Id . at 379.
Id . (emphasis added). We also recognize that a D.C. district court recently held, upon examining the same presidential tweet before us, that the CIA's Glomar response was improper because the tweet was sufficient to officially acknowledge such a program. Leopold v. CIA , 419 F. Supp. 3d 56 (D.D.C. 2019). However, we are not persuaded by the district court's reasoning. As an initial matter, apart from the fact that the ruling is not precedent, the district court itself observed that courts can only "infer such a disclosure when the statement does not explicitly disclose the information, but leaves no doubt as to its existence." Id . at 66-67 (citing Leopold I , 380 F. Supp. 3d 14, 24 (D.D.C. 2019) ) (emphasis added). As discussed, we think lingering doubts remain as to the existence of any program and corresponding records.
Wilson , 586 F.3d at 186 ; see also Frugone v. CIA , 169 F.3d 772, 774 (D.C. Cir. 1999) (holding that disclosures are not "official" when "made by someone other than the agency from which the information is being sought") (collecting cases). Additionally, General Thomas's comments appear to have been made in his personal capacity (e.g. , "based on what I know about that program"), albeit with knowledge gleaned from his position as U.S. Special Operations Commander. Thus, they differ from those in Wilson (e.g. , CIA disclosures on agency letterhead).
As it did before the district court, the Times relies on Florez v. CIA . The Times, however, reads Florez too broadly. In that case, Florez filed a FOIA request seeking "the disclosure and release of any and all records between 1958 and 1990 related to and or mentioning [his] father, Armando J. Florez," who had served in several high-level diplomatic roles on behalf of Cuba. The CIA answered with a Glomar response, which was upheld by district court. During the pendency of Florez's appeal, the FBI "released several declassified documents pertaining" to Florez's father. The narrow issue facing us was whether the FBI disclosures were "relevant" and, if so, whether remand was required. We remanded the case to allow the district court to consider the new FBI disclosures in the first instance, without determining their effect on the Glomar response. Moreover, we confirmed that the official acknowledgement doctrine is "limited only to official and public disclosures made by the same agency providing the Glomar response, and therefore does not ‘requir[e] [the agency] to break its silence’ as a result of ‘statements made by another agency.’ "
829 F.3d 178 (2d Cir. 2016).
Id . at 180.
Id . at 181.
Id . at 183.
Id . at 190.
To be sure, there are times when other agency disclosures can be "relevant evidence" regarding the "sufficiency of the justifications set forth by the CIA in support of its Glomar response." But that is not the case here. As the district court noted, General Thomas's statements are more ambiguous than the ones in Florez . General Thomas stated that he did not "know enough about the [program] to criticize it," that he could not describe the program because it was too complex, and that he offered his opinion based only upon what he gathered the program to be. He also stated (without identifying the agency) that the organization was one that he was not "necessarily ... affiliated with[.]"
Id . at 184, 187.
In Florez , the FBI disclosed that: "(1) the FBI investigated Dr. Florez's background and tracked his career development, official activities, and international relocations; (2) the FBI cultivated informants in order to obtain information concerning Dr. Florez, including material which pertained to both his professional and personal conduct; and (3) several other government departments and agencies provided to or received from the FBI information concerning Dr. Florez." Id. at 178.
In sum, after according appropriate deference to "the uniquely executive purview of national security," we conclude that the President Trump's statements, even when coupled with General Thomas's statements, left lingering doubts and thus were insufficient to amount to an official acknowledgement of the alleged covert program in Syria, much less the existence of records related to the program. It is still "logical or plausible" that disclosing the existence or nonexistence of an intelligence interest in such a program would reveal something not already officially acknowledged and thereby harm national security interests.
Wilner , 592 F.3d at 76.
III. The President's Statements Did Not Declassify the Existence of the Covert Program
The Times next contends that the President's tweet and statements to the Wall Street Journal interviewer declassified the fact that the program existed, thus precluding the CIA from invoking FOIA Exemptions 1 and 3. The Times argues that this "conclusion flows inexorably from the President's supreme authority in matters of classification." This novel argument is without merit.
It is true that the President has broad authority to classify and declassify, derived from the President's dual role "as head of the Executive Branch and as Commander in Chief" of the armed forces. The "authority to classify and control access to information bearing on national security ... flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant."
To make its declassification claim, the Times essentially recasts its "official acknowledgement" claim as one of "inferred declassification." To prevail in any claim of declassification, inferred or otherwise, the Times's must show: first, that President Trump's statements are sufficiently specific; and second, that such statements subsequently triggered actual declassification. The first is easily disposed of because we have already found that the statements are insufficiently specific to quell any "lingering doubts" about what they reference. The second requires further discussion.
Declassification cannot occur unless designated officials follow specified procedures. Moreover, courts cannot "simply assume, over the well-documented and specific affidavits of the CIA to the contrary," that disclosure is required simply because the information has already been made public. The Shiner affidavits, in addition to justifying the two FOIA exemptions, expressly stated that no declassification procedures had been followed with respect to any documents pertaining to the alleged covert program. Moreover, the Times cites no authority that stands for the proposition that the President can inadvertently declassify information and we are aware of none. Because declassification, even by the President, must follow established procedures, that argument fails.
As explained above, Executive order 13,526 established the detailed process through which secret information can be appropriately declassified.
Phillippi v. CIA , 655 F.2d 1325, 1330 (D.C. Cir. 1981). The Times is also concerned that "unless the President declassifies information by formal means or with magic words – or the circumstances are otherwise "exceptional" – a court can never infer declassification[.]" Such concerns are mitigated, however, by the "official acknowledgement" doctrine. If the President publicly discloses the existence of a covert program within the Wilson framework, then there would be no need for courts to "infer declassification."
While the Times argues that the Court is "not bound by conclusory statements" in the CIA Affidavits, it does concede that such affidavits are entitled to "[d]eferential review[.]"
Finally, as the district court recognized, the suggestion that courts can declassify information raises separation of powers concerns. In light of the executive branch's "compelling interest" in preventing declassification of highly sensitive information, we decline to hold that the judiciary may conclude that certain executive branch statements may trigger inadvertent declassification because such determinations encroach upon the President's undisputedly broad authority in the realm of national security.
See N.Y. Times Co. , 314 F. Supp. 3d at 527.
In sum, mindful of the requisite deference courts traditionally owe to the executive in the area of classification, we decline to find that President Trump's statements inadvertently declassified the existence of the alleged covert program.
For the reasons stated above, we AFFIRM the judgment of the district court.
Katzmann, Chief Judge, dissenting:
Unlike the majority, I believe that President Trump's public statements cannot be logically interpreted as anything other than an acknowledgement of the existence of "payments to Syrian rebels." The justifications the CIA provides for issuing a Glomar response are neither "logical [n]or plausible" given the President's public acknowledgement of the program the CIA purportedly seeks to keep secret. Wilner v. Nat'l Sec. Agency , 592 F.3d 60, 73 (2d Cir. 2009). And while the majority speculates that a Glomar response may additionally be appropriate to disguise any "intelligence interest" the CIA has in the program, the CIA never advances this as a justification for its response and we are thus foreclosed from justifying the CIA's nondisclosure on this basis. See id. at 68 (the "agency resisting disclosure of the requested records" bears the burden of justifying application of a FOIA exemption). A Glomar response is "justified only in unusual circumstances, and only by a particularly persuasive affidavit." Florez v. CIA , 829 F.3d 178, 182 (2d Cir. 2016). Because I do not believe this is such a circumstance, I respectfully dissent.
Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, footnotes, and citations are omitted.
It is worth emphasizing the limited nature of the question before us, and the extraordinarily limited practical consequences of requiring the CIA to issue a non-Glomar response. The question before us is not whether the CIA must disclose whether it has run, or even been involved in, any program of covert payments to Syrian rebels. And it is not whether the CIA must disclose any records it possesses concerning such a program, if it indeed possesses any records. The question before us is solely whether the CIA must disclose the fact that records responsive to the Times’ request either do or do not exist. Were we to find a Glomar response unjustified, the CIA could still avoid disclosing the contents of any responsive records by making a proper showing before the district court. See, e.g. , ACLU v. CIA , 710 F.3d 422, 432 (D.C. Cir. 2013) ("The collapse of the CIA's Glomar response does not mark the end of [a] case.").
I. President Trump's Official Acknowledgment
The majority finds that President's Trump's tweet—"The Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad," App. 39—is ambiguous because it could "just as easily" be read in two ways. According to the majority, the President could mean either that: (1) he had ended a program of payments to Syrian rebels that he himself thought was "massive, dangerous, and wasteful;" or (2) the Post fabricated the existence of the payments program and described that fictitious program as involving "massive, dangerous, and wasteful payments to Syrian rebels fighting Assad." See Maj. Op. at 118 (finding that the tweet "could just as easily be the President relaying what he believed to be the Post's ‘fabricated’ characterizations.").
I find only the first reading plausible. Like the D.C. district court to address the same tweet in another FOIA case, I can locate "no logical reading ... in which the tweet does not acknowledge that the U.S. government had some knowledge of some payments to Syrian rebels." Leopold v. CIA , 419 F. Supp. 3d 56, 67 (D.D.C. 2019) (emphasis in original).
Even setting aside what we already understand as ordinary readers, we know that the President was not relaying the Post's characterizations of the fabricated program because the Post never characterized the program as "massive, dangerous, and wasteful." In the Post's reporting, it is the President's decision to end the payments that is dangerous and wasteful, not the payments themselves. The Post article focuses on the perspectives of officials who believed that the payments program was valuable, concluding that "[e]ven those who were skeptical about the program's long-term value[ ] viewed it as a key bargaining chip"—a value that, in the Post's reporting, was lost by the Administration's decision to end the program. App. 37. While some of the officials who were skeptical of the program may have viewed it as "wasteful," the article never uses this word. And nowhere does the article describe the payments to Syrian rebels as "massive" or "dangerous." Only the President describes the payments as "massive, wasteful, and dangerous"—qualities that payments can only have if they exist. The President's comments to the Wall Street Journal the day after the tweet offer yet further confirmation that he was intentionally acknowledging the payments. Discussing "the story about Syria that was in The [Washington Post] the other day," President Trump said that "they didn't write the truthful story" because "[i]t turns out it's—a lot of al-Qaeda we're giving these weapons to." App. 44. Reading the exchange leaves an ordinary reader with no doubt that the President is clearly, consciously acknowledging and discussing the payments program in order to dispute the Post's characterization of the program and to advocate for more serious efforts to root out leaks in his administration.
For instance, the Post reported that some analysts "said the decision to end the program was likely to empower more radical groups inside Syria and damage the credibility of the United States" and might cause the United States to "lose its ability to block other countries, such as Turkey and Persian Gulf allies, from funneling more sophisticated weapons ... to anti-Assad rebels, including more radical groups." App. 36–37. One analyst equated the decision with "falling into a Russian trap" by "making the moderate resistance more and more vulnerable." Id. at 36. Another concluded that "Putin won in Syria." Id. One former official described "ending the aid to the rebels altogether" as "a huge strategic mistake." Id. at 37.
Despite all this evidence of the President's meaning, the majority nevertheless concludes that the President did not acknowledge the payments program because his statements are not clear enough to "remove all doubt as to their meaning." Maj. Op. at 118. But we have never suggested that the ability to read any doubt whatsoever, no matter how implausible or how belied by context, into a statement calls an official acknowledgment into question. The majority's description of the value of even an "increment of doubt" is borrowed from a discussion of a very different kind of doubt, the "lingering doubts" left as to information's accuracy when it is disclosed to the public by unofficial means without official acknowledgment. Wilson v. CIA , 586 F.3d 171, 195 (2d Cir. 2009). In Wilson , we concluded that "anything short" of an official disclosure "necessarily preserves some increment of doubt regarding the reliability of the publicly available information," or, in other words, plausible deniability. Id. ; see also id. at 196–99 (Katzmann, J ., concurring in the judgment). Here, we are not addressing an unofficial statement that would leave this kind of doubt as to accuracy; we are addressing a disclosure that came directly from the President. Had the President himself publicly stated the dates of Ms. Wilson's employment in the CIA—the information there at issue— Wilson would have been a different case entirely.
To the degree that the majority is suggesting that some critical mass of official statements is required to find official acknowledgment, I disagree. I see no support in case law or in logic for the position that more than one official acknowledgment is required, or that a public, official, documented statement directly from the President is insufficient to constitute an official acknowledgment. Rather, even a single statement by the President—who is, after all, the official charged with the functioning of the entire Executive Branch—may suffice, without the need for external corroboration or support. To hold otherwise would fail to accord the proper weight and respect owed to presidential statements.
See Maj. Op. at 118–19 (discussing the number of statements in New York Times Co. v. U.S. Dep't of Justice , 756 F.3d 100, 116–20 (2d Cir.), opinion amended on denial of reh'g , 758 F.3d 436 (2d Cir.), supplemented , 762 F.3d 233 (2d Cir. 2014) ); Maj. Op. at 119–20 (discussing the number of statements in ACLU , 710 F.3d at 422, 429–31 ).
The majority also contends that the President's statements do not meet the "specificity" and "matching" requirements for official disclosure. Maj. Op. at 116–18. But "[i]n the Glomar context, the ‘specific information’ at issue is not the contents of a particular record, but rather the ‘existence vel non ’ of any records responsive to the FOIA request." ACLU , 710 F.3d at 427. As the majority notes, we have on occasion considered official statements that are more "precise" and "thorough" than the President's statements here. Maj. Op. at 119–20. However, the level of precision and detail in an official statement is relevant to what has been officially acknowledged, not whether there has been any official acknowledgment at all. Here, the question before us at this time is only whether the President has officially acknowledged the existence of a payments program, not whether he provided a thorough description of the program. The latter would be relevant to the determination of what records concerning the program must be disclosed were the CIA to issue a non-Glomar response, not whether the CIA can issue a Glomar response declining to disclose the program's existence. President Trump's acknowledgment of the payments’ existence is sufficient for Glomar purposes.
Presumably, in choosing to repeatedly acknowledge the existence of the payments program, the President engaged in a calculus, weighing whether the need to dispute the Post's characterization of the program as valuable and of his administration's termination of it as "falling into a Russian trap," App. 36, outweighed the national security risks posed by acknowledging that such a program had indeed existed. The President evidently determined that the benefits of official disclosure outweighed the risks. It is not our business as judges to second-guess the President's decision, or to create doubt to avoid its consequences. See, e.g. , Wilner , 592 F.3d at 76 (noting "our deferential posture in FOIA cases regarding the uniquely executive purview of national security" given "the relative competencies of the executive and the judiciary"). We must proceed on the basis of whatever decision the President has made as to disclosure, regardless of whether we would have made the same determination had we the authority to do so.
II. The CIA's Justifications
Given the President's acknowledgment of the payments program, the CIA has failed to meet its burden of showing that its justification for invoking Exemptions 1 or 3—that a substantive response would disclose the existence of the program—"appears logical or plausible." Wilner , 592 F.3d at 73.
I agree with the majority that, under our precedent in Wilner , even where a FOIA request concerns "a program whose existence has been publicly revealed," id. at 69, an agency may provide a Glomar response if the request concerns "aspects of the program that have not been the subject of such disclosures," id. at 70. However, unlike in Wilner , a non-Glomar response would not reveal undisclosed aspects of the payments program; it would only reveal the already-disclosed fact that some payments program existed.
In Wilner , the plaintiffs were requesting records showing whether they had been a target of surveillance under the National Security Agency's ("NSA") Terrorist Surveillance Program, See 592 F.3d at 64, which was then "no longer a secret program in light of the government's public acknowledgment of its existence and purpose following its controversial disclosure by the news media," id. at 69. We held that the NSA could still issue a Glomar response because, although the program was public, the fact of whether plaintiffs had been a target of surveillance was not and would be revealed by a non-Glomar response to the detriment of national security concerns. Id. at 70-74. But the Wilner plaintiffs’ request is not analogous to the Times’ request in the instant case. Unlike in Wilner , here the CIA did not simply refuse to confirm or deny the existence of particular records relating to the payments program, but refused to confirm or deny that any records related to such program exist—even though, as discussed above, the President himself has acknowledged the existence of the program.
The CIA argues that a Glomar response is justified because acknowledging the existence of responsive documents would: (1) "confirm the existence and the focus of a sensitive Agency activity that is by definition kept hidden to protect U.S. Government foreign policy objectives," App. 21; (2) reveal "whether or not the United States Government exercised extraordinary legal authorities to covertly influence the political, economic, and/or military conductions in Syria," which "could, in turn, either compromise a specific foreign policy goal ... or serve as confirmation for U.S. adversaries that there was no such objective," App. 60; and (3) reveal "whether or not the CIA is exercising covert action" and thereby "require the disclosure of an intelligence source or method," App. 60. In other words, the CIA argues that a Glomar response is necessary to keep the program secret. Given that the President has already disclosed the program, this justification is no longer plausible. To the extent that the CIA also argues that a non-Glomar response would reveal additional details of the program's focus or methods, this may serve as justification for withholding release of the contents of certain specific responsive documents, but does not justify a blanket Glomar response. A non-Glomar response would not result automatically in disclosure of the contents of any responsive records and therefore would not disclose whether the CIA was involved in the payments, only that it had records concerning them.
The majority conjectures that a Glomar response additionally may be required to avoid revealing whether the CIA had an "intelligence interest" in the payments. Maj. Op. at 122. The majority leaves unclear the degree to which it actually believes that any "lingering doubts as to the CIA's interest in the alleged program" can be maintained, id . at 118, at some points describing the need to avoid disclosing any CIA "interest" and at other points stressing the fact that the CIA "asserts a broader justification for issuing a Glomar response than merely concealing an interest in the requested document," id. at 120; see also id. at 117 ("The Shiner affidavits contain sufficiently detailed justifications ... that are broader than just a potential interest in the program ....").
But even if it could be plausibly maintained that there are any lingering doubts about whether the CIA might be interested in the existence of a program providing payments and training to Syrian rebels, the CIA has never justified its Glomar response on the ground that it is necessary to conceal any "intelligence interest," likely because the Central Intelligence Agency itself does not consider it "logical" or "plausible" that "an agency charged with gathering intelligence affecting the national security does not have an ‘intelligence interest’ in [such payments], even if that agency does not operate the [payment program] itself." ACLU , 710 F.3d at 430 (addressing the plausibility of the CIA having no intelligence interest in drone strikes). As a recent D.C. district court opinion addressing a Glomar response to a similar FOIA request observed, "it seems wildly unlikely that, in the eight and a half years since the Syrian civil war began, the Central Intelligence Agency has done no intelligence-gathering that produced a single record even pertaining to payments Syrian rebels are receiving from somewhere , or a single record even mentioning or referring to any program to arm or train anti-Assad rebels." Leopold , 419 F. Supp. 3d at 67.
To defend its reliance on the purported need to avoid disclosure of an "intelligence interest," the majority refers to two paragraphs in the Shiner affidavits that claim that the CIA's "interests" would be impaired by a non-Glomar response. Maj. Op. 118 n.37. But each paragraph only asserts that the CIA's interests would be harmed by the disclosure of CIA involvement in any covert payments program. See App. 22 ("A response other than Glomar as to the existence or nonexistence of a program and any CIA involvement would disclose a classified fact. ... [I]t would reveal the presence or absence of Agency priorities, capabilities, interests, resources, and relationships with foreign entities.") (emphasis added); id . at 60 ("Further, the CIA's connection to such a program , if one existed, would tend to reveal the Agency's capabilities, intelligence and regional interests, accesses, funding, and relationships or lack thereof.") (emphasis added). The government's brief confirms—relying upon the very same paragraphs cited by the majority—that the CIA's objection is only to disclosure of its involvement with a covert payments program. See Appellee's Brief at 9 ("A confirmation or a denial of the CIA's connection with any such program would therefore reveal the presence or absence of CIA priorities, capabilities, intelligence and regional interests, resources, and relationships with foreign entities.") (citing App. 22, 60) (emphasis added). Therefore, in my view, the record does not support the majority's position that, even if the program's existence has been confirmed, the CIA has asserted a need to hide any interest in the program.
To the contrary, the CIA has been clear that it seeks only to conceal its actual "involvement or non-involvement" in the payments. Appellee's Br. 23; See also id. at 24 (arguing that issuing a non-Glomar response "would be tantamount to disclosing ... whether the CIA was in fact involved in such a program" (emphasis added)). Indeed, the CIA argues that a non-Glomar response would "reveal more than the CIA's general intelligence interest in a program"—thus implicitly conceding that such an interest would not, standing alone, be sufficient—and urges that non-disclosure is justified because a non-Glomar response would reveal "information about a CIA operational role or lack or one." Id. at 25–26.
There is no question that it is the CIA's burden to present and prove its justification for a Glomar response. Wilner , 592 F.3d at 68. Our role is merely to ensure that the justifications the CIA puts forth are logical and plausible, not to advance bases for the agency's action that the agency itself has not claimed. Accordingly, avoiding disclosure of the CIA's intelligence interest in payments to foreign rebels is not a basis for us to affirm.
Reversing the district court would leave the CIA free to argue on remand that every single responsive document or even that any information about those documents other than their mere existence is exempt from disclosure. Instead of reversing and remanding to district court to allow the CIA the opportunity to make such a showing, the majority decision puts its "imprimatur to a fiction of deniability that no reasonable person would regard as plausible"—that the President never acknowledged the existence of payments to Syrian rebels. ACLU , 710 F.3d at 431. Accordingly, I respectfully dissent.