Judicial Watch, Inc. v. U.S. Dep't of Def.

• Decision Date: 21 May 2013
• Docket Number: No. 12–5137.,12–5137.
• Citation: 715 F.3d 937
• Parties: JUDICIAL WATCH, INC., Appellant v. UNITED STATES DEPARTMENT OF DEFENSE and Central Intelligence Agency, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

715 F.3d 937

JUDICIAL WATCH, INC., Appellant

v.UNITED STATES DEPARTMENT OF DEFENSE and Central Intelligence Agency, Appellees.

No. 12–5137.

United States Court of Appeals,District of Columbia Circuit.

Argued Jan. 10, 2013.

Decided May 21, 2013.

Appeal from the United States District Court for the District of Columbia (No. 1:11–cv–00890).

Michael Bekesha argued the cause and filed the briefs for appellant. Paul J. Orfanedes and James F. Peterson entered appearances.

Robert M. Loeb, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Stuart Delery, Principal Deputy Assistant Attorney General, Ronald C. Machen Jr., U.S. Attorney, and Matthew Collette, Attorney.

Before: GARLAND, Chief Judge, ROGERS, Circuit Judge, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

PER CURIAM:

Judicial Watch filed a Freedom of Information Act request seeking disclosure by the Central Intelligence Agency of 52 post-mortem images of Osama bin Laden. The agency refused on the ground that the images were classified Top Secret. Judicial Watch sued, and the district court granted summary judgment for the agency. We affirm because the images were properly classified and hence are exempt from disclosure under the Act.

I

On May 1, 2011, President Obama announced that American personnel had killed al Qaeda leader Osama bin Laden in Abbottabad, Pakistan and buried his body at sea. Shortly thereafter, Judicial Watch filed Freedom of Information Act (FOIA) requests with the Department of Defense and the Central Intelligence Agency (CIA) seeking any photographs or videos depicting bin Laden “during and/or after the U.S. military operation in Pakistan.” The Defense Department responded that it had no such images. The CIA acknowledged that it had 52 responsive records, but said that it intended to withhold them because they were classified Top Secret.¹ Judicial Watch sued, and the parties filed cross-motions for summary judgment.

The Government supported its motion with three declarations that are relevant on appeal.² The first, a lengthy declaration by John Bennett, Director of the CIA's National Clandestine Service, stated that all 52 responsive records contained “post-mortem images of [bin Laden's] body.” Bennett Decl. ¶ 11. Many, he said, were “quite graphic” and “gruesome” pictures displaying the bullet wound that killed bin Laden; some showed bin Laden's face in a way intended to enable facial recognition analysis; and some documented the transportation and burial of bin Laden's corpse. Id. Bennett attested that he had personally reviewed each image and concluded that all of them were properly classified Top Secret because, if disclosed, they could be expected to lead to retaliatory attacks against Americans and aid the production of anti-American propaganda. Id. ¶¶ 4, 12, 23. Bennett analogized the bin Laden images to post-mortem photographs of al Qaeda leader Abu Musab al-Zarqawi, which had been portrayed in Pakistan as an “ad for jihad,” id. ¶ 26, and to images of abuse at Abu Ghraib prison, which had been used “very effective[ly]” by al Qaeda to recruit supporters and raise funds, id. ¶ 24. He said that al Qaeda had already produced propaganda relating to bin Laden's death, and that its new leader had questioned whether bin Laden had in fact received a proper burial at sea. Id. ¶ 25. Bennett also noted that a subset of the records, including those used to conduct facial recognition analysis, could enable foreign intelligence services to infer certain CIA intelligence techniques. Id. ¶ 29.

Lieutenant General Robert Neller, the Director of Operations, J–3, on the Joint Staff at the Pentagon, affirmed that he, too, had personally reviewed the images. See Neller Decl. ¶ 2. Like Bennett, Neller believed that their release would “pose a clear and grave risk of inciting violence and riots against U.S. and Coalition forces,” and “expose innocent Afghan and American civilians to harm.” Id. ¶ 6. Neller cited the fatal riots that had followed both the publication of a Danish cartoon of the Prophet Muhammad and an erroneous report that American soldiers had desecrated the Koran. Id. ¶¶ 7–8. Neller believed that a similar violent reaction could be expected to follow the release of the bin Laden images. Id. ¶ 9.

Admiral William McRaven, Commander of the United States Special Operations Command, submitted a third, partially classified declaration. ³ In the non-classified portions of the declaration, McRaven attested, again on the basis of first-hand review, that disclosure of some of the images would enable identification of the special operations unit that participated in the Abbottabad operation, thereby exposing its members and their families to great risk of harm. McRaven Decl. ¶ 5. He explained that other images would reveal classified methods and tactics used in U.S. special operations. Id. ¶ 6. As a result, he believed release “could reasonably be expected to cause harm to the national security.” Id. ¶ 8.

In its cross-motion for summary judgment, Judicial Watch argued that the CIA's declarations failed to demonstrate either substantive or procedural compliance with the criteria for classification. With respect to the latter, Judicial Watch argued that the declarations failed to identify the “original classification authority” who had classified the records, or to attest that the records had been properly marked. The CIA responded by filing a fourth declaration, written by Elizabeth Culver, the Information Review Officer for the CIA's National Clandestine Service. Culver explained that the images had initially been “derivatively classified” by a CIA official in accordance with the criteria set out in a classification guide written by the CIA's Director of Information Management. Culver Decl. ¶ 8. At the time Director Bennett had filed his declaration, the records each contained the marking “Top Secret.” Id. ¶ 7. Since then, “out of an abundance of caution,” other markings had been added to the records, including the identity of the derivative classifier, citations to the classification guide and the reasons for classification, and the applicable declassification instructions. Id. Culver said she had confirmed, after personally reviewing the records, that each now contained all the required classification markings. Id.

On the basis of these declarations, the district court concluded that the CIA had sustained its burden of showing that the images of bin Laden satisfied the substantive and procedural criteria for classification. See Judicial Watch, Inc. v. U.S. Dep't of Def., 857 F.Supp.2d 44, 52 (D.D.C.2012). The CIA's declarations, the court said, gave a “plausible” and “logical” account of the harm to national security that might result from the release of these images. Id. at 63. While the record left uncertain whether the images had been classified according to proper procedures at the time Judicial Watch made its FOIA request, the court said the declarations submitted by Bennett and Culver demonstrated that the agency had since remedied whatever procedural defects might have existed. Id. at 57–58. Accordingly, the court held that the CIA had properly withheld these records under FOIA Exemption 1.⁴Id. at 63–64. Judicial Watch appealed.

II

FOIA requires agencies to disclose records on request unless one of nine exemptions applies. See Milner v. Dep't of the Navy, ––– U.S. ––––, 131 S.Ct. 1259, 1262, 179 L.Ed.2d 268 (2011). Exemption 1, which the CIA invokes in this case, permits agencies to withhold records that are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). Agencies may establish the applicability of Exemption 1 by affidavit (or declaration). See ACLU v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C.Cir.2011). We accord such an affidavit “substantial weight”: so long as it “describes the justifications for withholding the information with specific detail, demonstrates that the information withheldlogically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, ... summary judgment is warranted on the basis of the affidavit alone.” Id. (internal quotation marks omitted); see Larson v. Dep't of State, 565 F.3d 857, 862 (D.C.Cir.2009); Wolf v. CIA, 473 F.3d 370, 374–75 (D.C.Cir.2007); Miller v. Casey, 730 F.2d 773, 776 (D.C.Cir.1984). “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’ ” ACLU, 628 F.3d at 619 (quoting Larson, 565 F.3d at 862 (quoting Wolf, 473 F.3d at 374–75)).

Executive Order No. 13,526, 75 Fed.Reg. 707 (Dec. 29, 2009), the operative classification order under Exemption 1, sets forth both substantive and procedural criteria for classification. See, e.g., Lesar v. U.S. Dep't of Justice, 636 F.2d 472, 481 (D.C.Cir.1980) (explaining that the Executive Order's substantive and procedural criteria must be satisfied for an agency to properly invoke Exemption 1); H.R.Rep. No. 93–1380, at 228–29 (1974) (same). The Order's substantive criteria, as relevant here, are twofold. First, classified information must pertain to at least one of eight subject-matter classification categories. SeeExec. Order No. 13,526, §§ 1.1(a)(3), 1.4. Second, disclosure of that information must reasonably be expected to cause some degree of harm to national security—in the case of Top Secret information, “exceptionally grave” harm—that is identifiable or describable. See id. §§ 1.1(a)(4), 1.2(a)(1), 1.4. The Order also establishes two pertinent procedural requirements. Information may be classified only by an individual with original or derivative classification authority. See id. §§ 1.1(a)(1), 2.1. And classified documents must...