IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________ STEVEN AFTERGOOD ) Plaintiff, ) ) Case No. 02-1146 (RMU) v. ) ) CENTRAL INTELLIGENCE AGENCY ) Washington, DC 20505 ) Defendant. ) ___________________________________)
DEFENDANT'S CONSOLIDATED: (1) REPLY IN SUPPORT
OF ITS MOTION FOR SUMMARY JUDGMENT; (2) OPPOSITION TO
PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT; AND (3) REPLY
IN SUPPORT OF ITS REQUEST FOR LEAVE TO TENDER THE CLASSIFIED
DECLARATION OF DCI TENET FOR EX PARTE, IN CAMERA REVIEW
In our opening brief, we demonstrated that settled law bars plaintiff's attempt to use the FOIA to obtain the classified U.S. intelligence budget for FY 02. We demonstrated that in similar cases, attempts to use the FOIA to obtain information about the U.S. intelligence budget have been universally rejected. And we demonstrated that in this case, the classified FY 02 intelligence budget is exempt from the FOIA's disclosure requirements.
We demonstrated that there are two reasons why that figure is exempt from disclosure. First, that figure is exempt under FOIA Exemption 1, which protects national security information. Second, that figure is exempt under FOIA Exemption 3, which protects intelligence methods statutorily protected against disclosure. In demonstrating that the classified U.S. intelligence budget is exempt from disclosure under both Exemption 1 and Exemption 3, we relied upon a detailed, unclassified declaration by Director of Central Intelligence George Tenet. We also rely upon DCI Tenet's highly classified, ex parte declaration.
In his opposition to our motion, plaintiff tacitly concedes that DCI Tenet's unclassified declaration on its face establishes that the FY 02 budget is subject to Exemption 1 and Exemption 3. Rather than arguing that DCI Tenet's unclassified declaration fails on its face to establish the applicability of Exemptions 1 and 3, plaintiff argues that DCI Tenet's classification decision is wrong. Based upon that disagreement, plaintiff attempts to substitute the judgment and opinions of declarants Aftergood, Pike, and Siebert for the judgment of DCI Tenet about the proper classification status of the FY 02 budget.
Courts routinely reject such attempts. DCI Tenet possesses a panoramic view of all the relevant information; plaintiff and plaintiff's declarants lack that knowledge. Equally to the point, DCI Tenet has duties and concerns that plaintiff and plaintiff's declarants lack. DCI Tenet is charged with the responsibility of making determinations about the classification status of the FY 02 budget, protecting intelligence sources and methods, and protecting against disclosures of information which would harm America's national security.
Settled law precludes plaintiff from supplanting DCI Tenet's informed judgment with the opinions of individuals who lack both knowledge of the relevant facts and the legal responsibility for determining whether to release information relating to the FY 02 intelligence budget total.
Plaintiff also argues that DCI Tenet's unclassified declaration should be ignored. More specifically, he argues that DCI Tenet's unclassified declaration should be ignored because it is "controverted by both contrary evidence in the record and by evidence of agency bad faith." Plaintiff's allegations of "contrary record evidence" and "agency bad faith" should [be] rejected by the Court because, as demonstrated below, they are baseless. Application of common sense and settled legal principles to plaintiff's allegations yields the conclusion that he has failed to bear the heavy burden of proving "contrary record evidence" or "agency bad faith." Accordingly, plaintiff has failed effectively to oppose defendant's motion for summary judgment.
Plaintiff's case relies upon arguments that are located, often repetitively, in several different papers: (1) plaintiff's cross-motion and opposition; (2) the declaration of Steven Aftergood; (3) the declaration of Bryan Siebert; (4) the declaration of John Pike; and (5) plaintiff's opposition to defendant's request for leave to tender DCI Tenet's classified declaration for ex parte, in camera review.
Irrespective where they are found, each of plaintiff's arguments is intended to support one of the three propositions urged by plaintiff: (1) the DCI's judgment is wrong; (2) the DCI's declaration is contradicted by contrary evidence; or (3) the DCI's declaration is tainted by bad faith.
We demonstrate below that plaintiff's papers fail to establish any of these propositions, and therefore the Court should grant defendant's motion for summary judgment, and deny plaintiff's cross-motion for summary judgment. We also demonstrate that there is no merit to plaintiff's opposition to defendant's request for leave to tender the classified declaration of DCI Tenet for the Court's ex parte, in camera review.
I. THE COURT SHOULD PERMIT DEFENDANT TO TENDER THE CLASSIFIED DECLARATION OF DCI TENET FOR THE COURT'S EX PARTE, IN CAMERA REVIEW
In our opening papers, we requested leave to provide DCI Tenet's classified declaration upon the Court's request for the Court's ex parte, in camera review. Submission of classified declarations in national security cases is routine. As the D.C. Circuit instructed in February 2003: "Precisely because it is often difficult for a court to review the classification of national security information, '[w]e anticipate that in camera review of affidavits, followed if necessary by further judicial inquiry, will be the norm.'" Stillman v. Central Intelligence Agency, 319 F.3d 546, 548 (D.C. Cir. 2003) (quoting McGehee v. Casey, 718 F.2d 1137, 1149 (D.C. Cir. 1983)) (emphasis added).
Plaintiff's opposition to our request lacks merit. Plaintiff fails to identify any case in which rejection of an ex parte declaration was approved by the D.C. Circuit. Indeed, the case relied upon by plaintiff supports our request. Pl.'s Opp. to Def's Request for Leave to Submit Classified Decl. of DCI Tenet at 2, citing Arieff v. United States Dep't of the Navy, 712 F.2d 1462 (D.C. Cir. 1983).
In Arieff, the D.C. Circuit noted that FOIA cases involving secret information require the Court to accept and examine ex parte declarations. 712 F.2d at l469-71. The court further noted that in a prior FOIA case involving secret information, the district court's refusal to receive an in camera affidavit required reversal. Id. at 1469.
Arieff establishes that the Court should accept an ex parte, in camera declaration in a FOIA case where: "(1) the validity of the government's assertion of exemption cannot be evaluated without information beyond that contained in the public affidavits and in the records themselves; and (2) public disclosure of that information would compromise the secrecy asserted." Id. at 1470-71. Both of those tests are met here; accordingly, as is the "norm" in national security cases, the Court should permit the submission of DCI Tenet's classified declaration for the Court's ex parte, in camera review.
Notwithstanding these governing legal principles, plaintiff argues that the Court should refuse to review the classified declaration. Review should be refused, according to plaintiff, because "DCI Tenet has squandered his credibility ... by asserting material false statements under oath, by presenting evidence in a tendentious and misleading manner, and by other acts of bad faith." Pl.'s Opp. to Def.'s Request for Leave to Submit Classified Decl. of DCI Tenet at 3. Plaintiff's argument, so far as we can determine, is novel. Equally to the point, if not more so, it is factually unsupported. As demonstrated below, plaintiff's allegations of misconduct by DCI Tenet lack merit.
II. THE COURT SHOULD GRANT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENY PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT
In our opening papers, we established both (a) the facts material to our motion for summary judgment, and (b) our entitlement to judgment as a matter of law under both Exemption 1 and Exemption 3. Plaintiff's opposition to our summary judgment motion and his cross-motion for summary judgment both hinge upon his establishing that: (1) the Court should substitute the judgment of plaintiff and his declarants for the judgment of DCI Tenet; (2) DCI Tenet has made materially false statements; and (3) DCI Tenet has acted in bad faith.
As demonstrated below, plaintiff fails to establish any of these propositions. Accordingly, our summary judgment motion should be granted, and plaintiff's cross-motion denied.
A. Plaintiff's Challenges To DCI Tenet's Judgment Fail As A Matter Of LawThe bulk of plaintiff's arguments and declarations simply seek to substitute the judgment of plaintiff and his declarants for the judgment of DCI Tenet. Plaintiff is convinced that DCI Tenet erred by concluding that disclosure of the FY 02 intelligence budget would reveal intelligence sources and methods and harm national security. Plaintiff therefore offers his conclusion, and that of his declarants, that disclosure of the FY 02 intelligence budget would be perfectly safe. Pike Decl. ¶10 (arguing that "disclosing the total intelligence budget would not reveal meaningful new information about the content or conduct of U.S. intelligence programs."); Aftergood Deel. ¶ 24 (arguing that "aggregate spending figures do not compromise sensitive information"); Siebert Decl. ¶¶ 10 & 11 (arguing that "disclosure of the ... aggregate budget total would [not] place properly classified information at risk or compromise intelligence sources and methods with which I am familiar"; and that "[i]n my opinion, the classification of the intelligence budget total is unnecessary and therefore unwise.").
Plaintiff's attempt to substitute his and his declarants' judgment for DCI Tenet's judgment is legally inadequate. Officials such as the DCI are due substantial deference in national security FOIA cases. This point was re-emphasized by the D.C. Circuit in June 2003. Center for National Security Studies v. U.S. Dep't of Justice, 331 F.3d 918 (D.C. Cir. 2003).
In Center for National Security, the D.C. Circuit quoted the Supreme Court in CIA v. Sims, which explained that ... [t]he decisions of the Director [of Central Intelligence], who must of course be familiar with 'the whole picture,' as judges are not, are worthy of great deference given the magnitude of the national security interests and potential risks at stake.'" 331 F.3d at 927, quoting Sims, 471 U.S. 159, 179 (1985) (emphasis added). Accord, e.g., McGehee v. Casey, 718 F.2d 1137, 1148 (D.C. Cir. 1983) (holding in a CIA FOIA case that "Courts are to 'accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record.'") (emphasis added).
The D.C. Circuit further noted that the Court held that "'it is the responsibility of the Director of Central Intelligence, not that of the judiciary, to weigh the variety of subtle and complex factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the Agency's intelligence-gathering process.'" Center for National Security, 331 F.3d at 927, quoting Sims, 471 U.S. at 180. This is so because "the judiciary is in an extremely poor position to second-guess the executive's judgment in this area of national security." Id. at 928. Accord Krikorian v. Department of State, 984 F.2d 461, 464 (D.C. Cir.1993) ("Judges ... lack the expertise necessary to second-guess such agency opinions in the typical national security FOIA case."); cf. United States v. Yunis, 867 F.2d 617, 623 (D.C. Cir. 1989) ("Things that did not make sense to the District Judge would make all too much sense to a foreign counter-intelligence specialist who could learn much about this nation's intelligence-gathering capabilities from what these documents revealed about sources and methods.").
In short, courts give "great deference" to the judgment of the DCI for several reasons: (1) the DCI sees "the whole picture"; (2) the DCI has expertise to recognize and assess potential risks to national security that may be unrecognized by those less knowledgeable; and (3) the DCI is charged by law with the responsibility of making the decision whether to disclose information.
These same rationales support giving no weight to opinions of persons other than the DCI when the courts review the propriety of the DCI's classification determinations. Accordingly, courts have accorded little or no weight to such opinions. E.g., Gardels v. Central Intelligence Agency, 689 F.2d 1100, 1106, n.5 (D.C. Cir. 1982).
No weight should be given the declarations of plaintiff and Messrs. Pike and Siebert in this case. They amount to no more than uninformed speculation. Plaintiff and his declarants do not know the facts contained in the classified declarations for the 1999 case and this case. They therefore have no idea of the full range of facts and concerns that brought DCI Tenet to his decisions to protect the FY 1999 and FY 2002 budgets. Consequently, they are in no position to opine about the relative sensitivity of various budget figures or to challenge his classification decisions. Their opinions are irrelevant as a matter of law, and as demonstrated below, their attempts to substitute their opinions for DCI Tenet's judgment should be rejected.
In his declaration, plaintiff argues that the DCI's prior releases of the FY 97 and FY 98 budgets demonstrate "that the intelligence budget total could be declassified without damage to national security and without compromising intelligence sources and methods." Aftergood Decl. ¶2. Plaintiff's argument that prior disclosures demonstrate that disclosure is proper in this instance is barred as a matter of law.
1. Plaintiff's Attempt To Use The Prior Disclosures To Force Disclosure In This Instance Is Incorrect And Is Barred As A Matter Of Law
Plaintiff is essentially arguing waiver, and that argument should be rejected. In July 2003, the D.C. Circuit ruled that, to successfully establish a waiver in a national security FOIA case, a plaintiff must show that the agency previously disclosed exactly the same information plaintiff now seeks. Assassination Archives & Research Ctr. v. Central Intelligence Agency, --- F.3d ---, 2003 WL 21523360, *4-*5 & *4, n.6 (D.C. Cir. 2003) ("we also noted that a practical matter waiver ... yields the FOIA plaintiff little new information").
This rule is based upon a sound policy of encouraging disclosure:
Implying such a waiver could tend to inhibit agencies from making any disclosures other than those explicitly required by law because voluntary release of documents exempt from disclosure requirements would expose other documents [of a related nature] to risk of disclosure. An agency would have an incentive to refuse to release all exempt documents if it wished to retain an exemption for any documents .... [R]eadily finding waiver of confidentiality for exempt documents would tend to thwart the [FOIA's] underlying statutory purpose, which is to implement a policy of broad disclosure of government records.Mobil Oil Corp. v. EPA, 879 F.2d 698, 701 (9th Cir. 1989).
Equally to the point, as the DCI's classified declarations from the 1999 case1 and from this case make clear, plaintiff and his declarants have no idea of the full range of facts and concerns that brought DCI Tenet to his decisions to protect the FY 1999 and FY 2002 budgets. They therefore have no idea what distinctions exist that differentiate the FY 1999 and FY 2002 budgets from the FY 1997 and FY 1998 budgets.
2. Plaintiff's Argument That "Reverse Engineering Is Impossible" Is Entitled To No Weight
Through the declaration of John Pike, plaintiff argues that, contrary to DCI Tenet's testimony, the intelligence budget is "not ajigsaw puzzle," and cannot be "reverse engineered." Pike Decl. ¶¶ 5 & 7. For the reasons discussed above, DCI Tenet's declaration is entitled to great deference. Mr. Pike's declaration is entitled to no deference. Mr. Pike has no statutory duty to make decisions about classification. He lacks the DCI's panoramic overview of the relevant facts, and he lacks the DCI's expertise in recognizing and assessing risks to national security.
3. The Court Should Reject Plaintiff's Argument That Publication Of The Tiny DOE Intelligence Budget Demonstrates That The Total Budget Can Be Published
Finally, plaintiff also seeks to substitute his judgment for DCI Tenet's based upon the publication of the intelligence budget of the Department of Energy (DOE). Plaintiff argues that because DOE publishes its aggregate intelligence budget, it should be possible to publish aggregate U.S. intelligence budget.
Plaintiff is seeking to compare two budgets that are incomparable. According to Bryan Siebert, plaintiff's witness on this point, in FY 2003 "the executive branch openly requested, and Congress appropriated, $41,246,000 for the DOE intelligence program." Siebert Decl. ¶ 3. By comparison, the FY 1998 aggregate U.S. intelligence community budget was $26,700,000,000. Tenet Decl. ¶ 17. The 2003 DOE intelligence budget thus amounts to less than one percent, indeed, less than two-tenths of one percent, of the 1998 U.S. intelligence budget. Given the size disparity, disclosure of the DOE budget is incomparable to disclosure of the overall intelligence budget.
B. Plaintiff Fails To Establish That DCI Tenet's Declaration Is Materially Contradicted By Contrary Evidence
Plaintiff also contends that DCI Tenet's unclassified declaration is "controverted by contrary evidence." E.g., Pl.'s Cross-Mot. at 2. DCI Tenet's unclassified declaration [is] extensive: it is 28 pages long, and contains 45 separate numbered paragraphs. Out of those 28 pages, plaintiff takes out of context a few statements and contends that they are materially contradicted by contrary evidence. None of plaintiff's contentions withstand scrutiny.
Plaintiff identifies two pieces of purported evidence that he contends establish that statements in DCI Tenet's unclassified declaration are "controverted by contrary evidence." Neither of those pieces of "evidence" materially contradict DCI Tenet's unclassified declaration.
Plaintiff insists that DCI Tenet made a "false and misleading statement" when he said: "Congress provides funding for the various intelligence programs of the United States through separate appropriations acts enacted for several departments and agencies. The specific amounts or purposes of the intelligence appropriations inserted into those acts are not publicly identified Pl.'s Opp. at 2, quoting Tenet Decl. ¶ 14. Plaintiff argues that this [is] "a material falsehood" because the Department of Energy intelligence budget is published each year in unclassified form. Id. at 2-3.
1. The DOE Budget Information Is Consistent With DCI Tenet's Declaration
A review of the entire section of DCI Tenet's unclassified declaration dealing with Congressional treatment of the intelligence budget (paragraphs 10-15) reveals that he acknowledges exceptions to the general rule stated in the challenged language. For example, in paragraph 12 he states: "The open bills contain limited general information about intelligence objectives and specific information about some programs. For example, House Report 107-592, on the Intelligence Authorization Act for Fiscal Year 2003, revealed at page 15 that the fiscal year 2002 intelligence budget supplemental was $1.694 billion." In paragraph 13 he acknowledges that "most," as opposed to "all," of the specific budget numbers remain protected. DCI Tenet's classified declaration notes additional instances in which the budgets of specific intelligence programs are made public.
Simply stated, plaintiff takes a statement out of context in his attempt to create the appearance of an inconsistency. When DCI Tenet's statement is read in context, plaintiff's argument collapses. Plaintiff fails to establish a "material contradiction" of DCI Tenet's declaration.
Plaintiff also insists that DCI Tenet has "misled the Court with the assertion that 'we will continue to protect from disclosure any and all subsidiary information concerning the intelligence budget: whether the information concerns particular intelligence agencies or particular intelligence programs.'" Aftergood Decl. ¶ 18 (quoting Tenet Decl. ¶ 16, which was quoting the DCI's 1997 statement). Plaintiff further insists that "[i]t is also misleading to state, as Mr. Tenet has done, that intelligence appropriations figures have been protected to conceal 'any correlation between specific spending figures and particular intelligence programs.'" Aftergood Decl. ¶ 16 (quoting Tenet Decl. ¶ 11). According to plaintiff, these statements are misleading because plaintiff identifies one purported example where an specific Army intelligence appropriation (the GUARDRAIL appropriation) was revealed. Aftergood Decl. ¶ 17.
2. The GUARDRAIL Appropriation Is Consistent With DCI Tenet's Declaration
Once again, plaintiff has taken these statements out of context. As discussed above, DCI Tenet's declaration makes clear that in some circumstances, some budget figures are disclosed. For instance, in paragraph 13, DCI Tenet acknowledges that "most," as opposed to "all," of the specific budget numbers remain protected. And DCI Tenet's classified declaration notes additional instances in which the budgets of specific intelligence programs are made public.
In short, plaintiff's attempts to establish a "material contradiction" between DCI Tenet's declaration and "contrary evidence" lack merit.
C. Plaintiff Fails To Establish That DCI Tenet Acted In "Bad Faith"Plaintiff also attempts to establish that DCI Tenet has acted in "bad faith." Plaintiff identifies two instances of alleged "bad faith." First, plaintiff alleges that DCI Tenet acted in "bad faith" by "truncating" the exhibit to his unclassified declaration. Second, plaintiff accuses DCI Tenet of "bad faith" because the CIA has not provided plaintiff with certain other budgets, and those budgets are the subject of pending litigation brought by plaintiff. Neither of plaintiff's accusations of "bad faith" withstand scrutiny.
1. Omission Of Footnotes To Attachment 1 Does Not Establish "Bad Faith"
Plaintiff accuses DCI Tenet of "bad faith" because Attachment 1 to DCI Tenet's unclassified declaration was "truncated in a way that was likely to mislead the Court by obscuring its date, its footnoted sources and the location of the complete document." Pl.'s Opp. at 6. Attachment 1 is an example of the kind of publicly-available hypothetical U.S. intelligence budgets produced by non-Governmental budget analysts. As DCI Tenet explains in the footnote citing Attachment 1, that attachment was included for the purpose of "demonstrat[ing] the kind of conclusions, right or wrong, about the intelligence budget that a sophisticated analyst can derive using available information. It also shows the relative ease with which someone may obtain detailed and free analyses of the U.S. intelligence budget." Tenet Decl. at 14, n.2. Accord Def's Mem. at 15, n. 6 (citing Attachment 1).
Notwithstanding that Attachment 1 was included in DCI Tenet's declaration to illustrate a footnote point, plaintiff argues that the omission of Attachment 1's footnotes demonstrates that DCI Tenet acted in "bad faith." Specifically, plaintiff argues that "if the date of the document (1996) had been included it would have been clear that it was written before 1997 and 1998, and that the analysis in the document presented no impediment to DCI Tenet's declassification of the 1997 and 1998 budgets." Pl.'s Opp. at 6. Plaintiff misapprehends the purpose of Attachment 1, which was illustrative only; DCI Tenet does not say that Attachment 1 was (or was not) an impediment to declassifying any budget. Attachment 1's date, footnotes and its location on the Internet are irrelevant to the point DCI Tenet was making by including it.2
Plaintiff also accuses DCI Tenet of "bad faith" because the CIA has failed to declassify 1947-48 budget totals, as plaintiff has demanded in a separate, on-going civil action. E.g. Pl.'s Opp. at 5. In effect, plaintiff requests that the Court decide the merits of that separate civil action in this case. That request is improper; a determination of the propriety of the withholding of the other budget totals must await a decision after briefing in that separate civil action. Plaintiff's attempt to turn his unproven allegations in another case into proof of "bad faith" in this case should be rejected.
2. Defendant's Failure To Accede To Plaintiff's Demands In A Separate, On-going Civil Action Does Not Constitute "Bad Faith"
CONCLUSIONFor the foregoing reasons, as well as those set forth in our opening papers and the classified declaration of DCI Tenet, the Court should: (1) enter summary judgment for defendant; (2) deny plaintiff's cross-motion for summary judgment; and (3) permit defendant to tender the classified declaration of DCI Tenet for the Court's ex parte, in camera review.
Respectfully submitted,Dated: July 11, 2003.
ROSCOE C. HOWARD, JR., D.C. Bar #246470
United States Attorney
MARK E. NAGLE, D.C. Bar #416365
Assistant United States Attorney
ROBERT E. LEIDENHEIMER, JR., D.C. BAR #420959
Assistant United States Attorney
Judiciary Center Building
555 4th St., N.W., Room 10-816
Washington, D.C. 20530
1. We stand ready to make DCI's classified declaration from the 1999 case available to the Court for the Court's ex parte, in camera review.
2. Moreover, defendant's brief identifies the Internet site that is the source of Attachment 1. Def.'s Mem. at 15, n.6.