N.Y. Times Co. v. Cent. Intelligence Agency

314 F. Supp. 3d 519
CourtDistrict Court, S.D. Illinois
DecidedJune 29, 2018
Docket1:17–cv–06354 (ALC)
StatusPublished
Cited by7 cases

This text of 314 F. Supp. 3d 519 (N.Y. Times Co. v. Cent. Intelligence Agency) is published on Counsel Stack Legal Research, covering District Court, S.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
N.Y. Times Co. v. Cent. Intelligence Agency, 314 F. Supp. 3d 519 (S.D. Ill. 2018).

Opinion

ANDREW L. CARTER, JR., United States District Judge:

Plaintiffs, the New York Times Company and Matthew Rosenberg, bring this action challenging Defendant Central Intelligence Agency's Glomar response to Plaintiffs' request pursuant to the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA") for any records related to an alleged covert CIA operation to arm and train Syrian rebels. The parties cross-move for summary judgment. For the reasons outlined below, Defendant's motion is GRANTED , and Plaintiffs' motion is DENIED .

BACKGROUND

On July 24, 2017, President Donald Trump, using his Twitter handle @realdonaldtrump, "tweeted": "The Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad." Decl. of David E. McCraw ("McGraw Decl."), Ex. 3, July 24, 2017 Tweet. Though the President's tweet does not reference any particular article published by the Post, the paper ran an article on July 19, 2017 reporting that "President Trump has decided to end the CIA's covert program to arm and train moderate Syrian rebels battling the government of Bashar al-Assad, a move long sought by Russia, according to U.S. officials." Greg Jaffe & Adam Entous, Trump ends covert CIA program to arm anti-Assad rebels in Syria, a move sought by Moscow , Wash. Post, July 19, 2017, https://wapo.st/2IB0Pi2.

The following day, President Trump appeared to reference the Post article again during an interview with the Wall Street Journal. In response to a question regarding President Trump's disappointment with the Justice Department and Attorney General Jeff Sessions, President Trump responded:

Number one, they should go after the leakers in intelligence.... I'm talking about intelligence leaks. I'm talking like the story about Syria that was in The New York Times the other day. I'm-which by the way, was a decision made by people, not me. But, you know, they wrote it 100-it was in the-... It was *524in The Washington Post. That was not something that I was involved in, other than they did come and they suggested. It turns out it's-a lot of al-Qaeda we're giving these weapons to. You know, they didn't write the truthful story, which they never do. So all of those things are very important. But, no, I'm very disappointed in the fact that the Justice Department has not gone after the leakers. And they're the ones that have the great power to go after the leakers, you understand. So-and I'm very disappointed in Jeff Sessions.

McGraw Decl., Ex. 4, at 5, "Excerpts: Donald Trump's Interview with the Wall Street Journal," Wall St. J., July 25, 2017, ECF No. 14.

Prior to President Trump's tweet and statements, the alleged covert program was also referenced by General Raymond "Tony" Thomas, U.S. Special Operations Commander, during a talk at the 2017 Aspen Security Forum in response to a question from Catherine Herridge, Chief Intelligence Correspondent for the Fox News Channel:

Ms. Herridge: It's now out in the public reporting that these anti-Assad rebels are very unhappy that this covert program to arm them has been rolled up. Is it your assessment that this was done to create favor with Russia, or that it was not an effective program?
General Thomas: Absolutely-absolutely not in my-at least from what I know about that program and the decision to end it. Absolutely not a sop to the Russians. It was I think based on assessment of the nature of the program, what we're trying to accomplish, the viability of it going forward, and a tough, tough decision. I mean we're all reading the editorials now of are we leaving people at the altar, you know, people have we manned and equipped, but they're-it is so much more complex than even I can describe, and again that's not necessarily an organization that I've been affiliated with, but a sister-a parallel activity that was-that had a tough, you know, some would argue impossible mission based on the approach we took. It might have been scoped too narrowly or not empowered sufficiently. I don't know enough about it to criticize it in that direction, but it had a tough [row] to [hoe].

McCraw Decl., Ex. 5, Excerpts from General Tony Thomas's Statements at the 2017 Aspen Security Forum, July 21, 2017, ECF No. 12.

On July 25, 2017, the Times submitted a FOIA request to the CIA seeking "[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 in which he stated: 'The Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad.' " Compl. 2, ECF No. 1. On August 22, 2017, after 20 business days had elapsed without a response from the CIA, Plaintiffs filed the instant action requesting that the Court, inter alia , declare that the documents sought by the FOIA request are public and must be disclosed, and to order the CIA to provide said documents. Id. at 3. The following day, the CIA issued a "Glomar response"1 to the Times's FOIA request, informing the Times that "in accordance with section 3.6(a) of *525Executive Order 13526, the CIA can neither confirm nor deny the existence or nonexistence of records responsive to this request" because the existence or nonexistence of such records was properly classified and because the information is related to intelligence sources and methods, which are exempt from disclosure by statute. Def.'s Mem. Supp. Mot. Summ. J. 2, ECF No. 10. Parties have now cross-moved for summary judgment.

STANDARD OF REVIEW

Actions brought under FOIA are typically resolved by summary judgment. See Bloomberg L.P. v. Bd. of Governors of Fed. Reserve Sys. , 649 F.Supp.2d 262, 271 (S.D.N.Y. 2009), aff'd sub nom. Bloomberg, L.P. v. Bd. of Governors of the Fed. Reserve Sys. , 601 F.3d 143 (2d Cir. 2010) (citing Amnesty Int'l USA v. C.I.A. , No. 07 CIV. 5435 (LAP), 2008 WL 2519908, at *8 (S.D.N.Y. June 19, 2008) ). Summary judgment must be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett ,

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