Hettena v. CIA, No. 22-877, 2024 WL 1239705 (D.D.C. Mar. 22, 2024) (Boasberg, C.J.)

Hettena v. CIA, No. 22-877, 2024 WL 1239705 (D.D.C. Mar. 22, 2024) (Boasberg, C.J.)

Re:  Request for records concerning CIA Inspector General’s November 2005 report following investigation of death of Iraqi national while in CIA custody

Disposition:  Granting defendant’s motion for summary judgment; denying plaintiff’s motion for summary judgment

• Exemption 1:  The court “finds that CIA has adequately justified the redactions it made pursuant to Exemption 1.”  The court first notes that, “to be clear, all material redacted under Exemption 1 is also withheld under Exemption 3 and vice versa.”  “The CIA thus need only prevail on either to obtain summary judgment.”  Regarding Exemption 1, the court relates that, “[h]ere, the Government classified the 2005 OIG report under Executive Order 13,526.”  “[T]he CIA bears the burden of showing that it withheld ‘only such material as conforms to the [executive order’s] substantive criteria for classification.’”  The court finds that “Defendant’s submission here clears this bar.”  “Start with the first two prongs of the Executive Order.”  “There is no dispute that the report in question has been properly classified by an ‘original classification authority.’”  “Nor is there any disagreement on the fact that the OIG report is ‘owned by and is under the control of the U.S. Government.’”  “As the Agency explains, moreover, the withheld portions of the OIG report comprise sensitive information that ‘would reveal specific intelligence sources, methods, and activities’ and thus meet EO 13,526’s third prong.”  “More particularly – as the Court’s in camera review confirmed – the redacted material includes the location of CIA facilities, the ‘existence of specific CIA intelligence activities abroad,’ intelligence methods that are still used by CIA, and details on the ‘foreign liaison partners that work with the CIA.’”  “[Defendant’s] declaration further describes the kind of information found in the 2005 report category by category and provides a more than ‘plausible assertion that’ this report falls within the category of intelligence methods or sources.”  “The Government has accordingly satisfied this prong, too.”  “Last, the CIA has shown that disclosure of the OIG report ‘reasonably could be expected to result in damage to the national security.’”  “As [defendant’s] declaration attests, for example, disclosure could reveal the location of clandestine Agency facilities.”  “This in turn could ‘harm the CIA’s continued ability to obtain accurate and timely foreign intelligence’ and could even lead to terrorist backlash.”  “Disclosure would also arm ‘hostile groups’ with sensitive information, such as the Agency’s involvement in covert operations, that could be used to ‘thwart CIA activities and attack the United States and its interests.’”  “And disclosure of the Government’s intelligence methods would empower its targets to ‘take countermeasures.’”  “On this fourth and final prong, the CIA has established that ‘the predicted danger is a reasonable expectation.’”
  
  “Plaintiff does not take these conclusions head on, but instead objects that the information redacted from the OIG report cannot qualify as ‘intelligence sources or methods’ because it constitutes evidence of CIA personnel’s efforts to cover up [the] death.”  “Since misconduct such as ‘destroying evidence’ and ‘lying to’ OIG is plainly beyond Defendant’s remit, [plaintiff] reasons, it cannot be classified under Executive Order 13,526 and cannot be protected by Exemption 1.”  “As [plaintiff] himself seems to recognize, this argument proves too much.”  “He admits, for instance, that the CIA ‘need not disclose its investigation into the possible cover-up to the extent doing so would reveal exempt information.’”  “Yet that is precisely the kind of information that the 2005 OIG report contains – viz., information revealing ‘intelligence activities (including covert action)’ and ‘intelligence sources or methods.’”  “And, based upon the Court’s in camera review, information relating to the cover-up is inextricably intertwined with the rest of the report and cannot be released in any intelligible form.”  “What is more, even if the Court agreed that the specific instances of agent misconduct fell beyond ‘the Agency’s mandate to conduct foreign intelligence,’ . . . it does not follow that an OIG report investigating this mischief cannot be properly classified under this Executive Order.”  “Were this otherwise, as [plaintiff] suggests, the CIA and other intelligence agencies would effectively be penalized for investigating misconduct.”  “Plaintiff can cite to no case or FOIA provision that mandates such an unlikely result.”  “In any event, [plaintiff’s] contention that information or records stemming from illegal conduct can never be classified finds no support in the caselaw.”  “‘In fact, history teaches the opposite.’”  “Our Circuit and other courts in this district have time and again held that the fruits of illegal governmental activities ‘may nevertheless contain information of a sensitive nature, the disclosure of which could compromise legitimate secrecy needs.’”
   
• Exemption 3:  “[T]he Court . . . concludes that Defendant also properly invoked Exemption 3 to justify its redactions.”  The court relates that “the CIA relies upon two statutes:  the National Security Act, which governs the protection from disclosure of ‘intelligence sources and methods,’ 50 U.S.C. § 3024(i)(1), and the Central Intelligence Agency Act, which prevents disclosure of ‘the organization or functions of the Agency, or of the names, official titles, salaries, or numbers of personnel employed by the Agency.’”  “‘Both the National Security Act and the CIA Act qualify as Exemption 3 statutes.’”  “The only remaining question is whether the withheld material comes within the ambit of either of these statutes.”  “On this point, the Court begins and ends with the National Security Act.”  “Because both the Executive Order analyzed above (EO 13,526) and this statute protect intelligence sources or methods, courts have unsurprisingly analyzed them ‘in the same manner’ when both Exemptions 1 and 3 are invoked.”  “As our Circuit has explained, applicable precedent in fact ‘gives even greater deference to CIA assertions of harm to intelligence sources and methods under the National Security Act” than under EO 13,526.’”  “Having already found that [defendant’s] declaration adequately shows that the OIG report contains sensitive information comprising intelligence sources and methods, it follows a fortiori that this record is also protected from disclosure by the National Security Act and Exemption 3.”  “Resisting this outcome, Plaintiff re-ups his objection to the classification of information detailing ‘agents[ ] possibly covering up their misconduct,’ but there is no need to revisit this already-rejected contention.”
   
• Waiver and Discretionary Disclosure, Waiver:  “The Court . . . finds that the CIA has not officially acknowledged any portion of the report.”  The court relates that “Plaintiff points to two prior disclosures that meet this high bar – or so he says.”  “The first is a report of [the] death authored by the Criminal Investigation Division of the Army.”  “This report contains, inter alia, ‘statements made by [Department of Defense] witnesses to [the] death,’ and it details the circumstances of the prisoner’s apprehension, interrogation, and eventual demise.”  “The second is an order signed by the then-Director of the CIA, admitting that Agency personnel were present during [the] capture and ‘questioned [the subject] at Abu Ghraib prison,’ and that the CIA’s Inspector General was investigating allegations of misconduct surrounding his death.”  “These sources, [plaintiff] posits, prove that Defendant has officially acknowledged nearly all information ‘regarding [the] interrogation and CIA agents’ possible cover-up.’”  “The Court is not convinced.”  “Starting with the Army CID report, Plaintiff concedes that the CIA is bound only ‘by its own prior disclosures but not those of another agency.’”  “There is only one exception to this general rule – namely, that a ‘public disclosure made by an authorized representative of the agency’s parent . . . is official as to the subordinate agency.’”  “Since the CIA has no parent agency, . . . this exception does not apply here.”  “[Plaintiff] nevertheless urges this Court to recognize a new exception for situations where an agency’s involvement in creating the disclosed record ‘is apparent from the face of the previously released records and the surrounding circumstances.’”  “Because the CIA allegedly reviewed the Army CID report and consulted with the Department of Defense during that review period, Plaintiff insists that this public disclosure should be attributed to Defendant.”  “Plaintiff deserves some points for creativity, but his proposed exception cannot be squared with binding precedent.”  The court discusses two situations, one where the Court of Appeals for the District of Columbia Circuit “rejected the proposition that the CIA’s ‘screening and approval of the books brought them into the official realm,’” and another where, “despite proof that the FBI and CIA had coordinated their response to the plaintiff’s FOIA request – the Circuit concluded that the CIA was not bound by the FBI’s disclosures.”  “The second disclosure Plaintiff submits – i.e., the CIA Declassification Order – at the very least comes from the CIA itself.”  “Yet it, too, falls short of the demanding standard for public acknowledgement.”  “For starters, the Agency’s disclosure here only divulges general information . . . .”  “Having reviewed the disputed report in camera, the Court cannot help but conclude that there are ‘substantive differences’ between this general public disclosure and the ‘comprehensive’ information contained in the report.”  “Put another way, because the CIA acknowledgment he points to does not disclose any portions of the 2005 report he now seeks, he cannot show that the disclosed information ‘duplicate[s]’ the material redacted from the OIG report.”