Turse v. U.S. Department of Defense

• Court: District Court, District of Columbia
• Decided: February 24, 2025
• Docket: Civil Action No. 2022-2970
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) NICK TURSE, ) ) Plaintiff, ) ) v. ) Case No. 22-cv-2970 (APM) ) U.S. DEPARTMENT OF DEFENSE, et al. ) ) Defendants. ) _________________________________________ )

MEMORANDUM OPINION

I.

On March 15, 2019, Plaintiff Nick Turse, an investigative journalist, made a demand under

the Freedom of Information Act (FOIA) to the United States Special Operations Command

(SOCOM) for “the after action review, including the credibility assessment on potential civil

casualties for an incident on 4/1/2018 IVO Buur, Somalia.” Defs.’ Mot. for Summ. J., ECF No.

24 [hereinafter Defs.’ Mot.], Decl. of James C. Boisselle, ECF No. 24-2 [hereinafter Boisselle

Decl.], ¶¶ 10–11. The request pertained to a drone strike near El Buur, Somalia, on April 1, 2018,

which killed two civilians, a mother and her 4-year-old daughter. See Pl.’s Opp’n to Defs.’ Mot.

& Cross-Mot. for Summ. J., ECF No. 27 [hereinafter Pl.’s Opp’n], at 2–3.

SOCOM conducted a search and identified three responsive records. Boisselle Decl. ¶ 14.

It fully redacted Document 1 pursuant to Exemption 1. Id. ¶ 15.a. It partially redacted Document 2

(a single Power Point slide) and Document 3 (a 117-page Army Regulation 15-6 Report of

Investigation (ROI)) on various grounds, including Exemptions 1, 3, 5, 6, 7(C), and 7(E). Id.

¶¶ 15.b, 51. SOCOM referred a single six-page exhibit to the ROI to the Office of the Secretary of Defense/Joint Staff for further review (“Exhibit”). Id. ¶ 15.c; Defs.’ Mot., Decl. of Lt. General

Alexus G. Grynkewich, ECF No. 24-3 [Grynkewich Decl.], ¶ 6. That office reviewed the record,

released it in part, and asserted Exemptions 1 and 6 as the basis for withholdings. Grynkewich

Dec. ¶ 6.

The parties are now before the court on cross-motions for summary judgment. See Defs.’

Mot.; Pl.’s Opp’n. The actual contested issues are narrow. Plaintiff expressly states that he does

not contest the adequacy of Defendants’ searches, the withholding of Document 1 in full, or the

invocations of Exemption 3. Pl.’s Opp’n at 8; Compl., ECF No. 1, ¶ 15. He also implicitly

concedes the withholdings made pursuant to Exemptions 6 and 7(C), as he makes no argument as

to them. See generally Pl.’s Opp’n at 8–11; see Shapiro v. Dep’t of Justice, 239 F. Supp. 3d 100,

106 n.1 (D.D.C. 2017) (explaining that a court need not consider on summary judgment the

propriety of an uncontested exemption because “there is no case or controversy sufficient to sustain

the Court’s jurisdiction”). Finally, with respect to Exemption 7(E), Plaintiff refers to it in passing

but advances no reason why the invocation is improper. See Pl.’s Opp’n. at 8. The court is not

required to address an argument a party itself has not developed. See Jankovic v. Int’l Crisis Grp.,

822 F.3d 576, 593 (D.C. Cir. 2016) (stating that the “court does not consider the merits of such

underdeveloped arguments”).

That leaves only Exemptions 1 and 5. But, as explained in the Declaration of James C.

Boisselle, SOCOM initially asserted Exemption 5 by itself only as to two sentences on page seven

of the ROI. Boisselle Decl. ¶ 51. SOCOM later clarified in its Vaughn index that Exemption 1

also applies to those sentences. Id. So, if Defendants’ assertion of Exemption 1 is proper, the court

does not need to take up Plaintiff’s challenge to Exemption 5. The court thus turns to assess

Defendants’ reliance on Exemption 1.

2 II.

Most FOIA cases are appropriately resolved on motions for summary judgment. Brayton

v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). The agency bears

the burden of proving that it withheld certain materials responsive to a plaintiff’s FOIA request

pursuant to a statutory exemption. Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of

Justice, 746 F.3d 1082, 1088 (D.C. Cir. 2014). “The agency may carry that burden by submitting

affidavits that ‘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. (quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). “To successfully

challenge an agency’s showing that it complied with the FOIA, the plaintiff must come forward

with specific facts demonstrating that there is a genuine issue with respect to whether the agency

has improperly withheld extant agency records.” Span v. U.S. Dep’t of Justice, 696 F. Supp. 2d

113, 119 (D.D.C. 2010) (internal quotation marks omitted).

III.

Exemption 1 allows the government to withhold matters that are “specifically authorized

under criteria established by an Executive order to be kept secret in the interest of national defense”

and “are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1).

“Recognizing that national security is primarily the province of the Executive,” the D.C. Circuit

has cautioned that courts should not “micromanage agency determinations that such information

should remain secret.” Schaerr v. Dep’t of Just., 69 F.4th 924, 929 (D.C. Cir. 2023). A court is

“simply [to] consider whether the agency has plausibly asserted that the matters are in fact properly

classified pursuant to an executive order.” Id.

3 Here, Defendants rely on Executive Order 13,526, which authorizes the classification of

information at three levels—TOP SECRET, SECRET, and CONFIDENTIAL—depending upon

whether release of information would cause, respectively, exceptionally grave damage, serious

damage, or damage to national security. See Classified National Security Information, Exec.

Order No. 13,526 § 1.2(a), 75 Fed. Reg. 707, 707–08 (Jan. 5, 2010) [hereinafter EO 13,526];

Boisselle Decl. ¶ 9. As relevant here, the Executive Order permits classification of the following

categories of information: (1) “military plans, weapons systems, or operations,” EO 13,526,

§ 1.4(a); (2) “intelligence activities (including covert action), intelligence sources or methods, or

cryptology,” id., § 1.4(c); (3) “foreign relations or foreign activities of the United States, including

confidential sources,” id., § 1.4(d); (4) “vulnerabilities or capabilities of systems, installations,

infrastructures, projects, plans, or protection services relating to the national security,” id., § 1.4(g);

and (5) “[c]ompilations of items of information that are individually unclassified,” which “may be

classified if the compiled information reveals an additional association or relationship that” both

“meets the standards for classification” under the Executive Order and “is not otherwise revealed

in the individual items of information,” id., § 1.7(e).

Defendants’ declarants and their accompanying Vaughn indices 1 explain the reasons for

classifying and withholding information from the ROI, the associated Exhibit, and the Power Point

Slide. The ROI and Slide are both classified at the level of “SECRET//NOFORN,” with the latter

classification meaning that “the document is not to be distributed to foreign governments, foreign

nationals, or foreign organizations.” Boisselle Decl. ¶ 25. The ROI and Slide contain information

relating to “specific units, assigned teams, objectives, missions; details as to how the mission was

1 “A Vaughn Index ‘consists of a detailed affidavit, the purpose of which is to permit the court system effectively and efficiently to evaluate the factual nature of disputed information’ in a FOIA case.” Hall & Assocs. v. EPA, 956 F.3d 621, 627 n. 2 (D.C. Cir. 2020) (quoting John Doe Agency v. John Doe Corp., 439 U.S. 146, 149 n.2 (1989)).

4 to be implemented, how it was implemented, what operational protocols were to be followed and

specific parameters of the mission to be accomplished, i.e., Tactics, Techniques, and Procedures

(TTPs).” Id. ¶ 26; see also id., Ex. at 20 (CM/ECF pagination) (Vaughn index discussing similar

information in Slide). The six-page Exhibit, classified as “SECRET//REL TO USA//FVEY,” 2

“includes operational details such as the mission, tasks, approval level for different operational

activities, rules of engagement, caveats placed on approved operational activities, coordination

procedures for different operational activities, and command and control mechanisms for the

conduct of military operations.” Grynkewich Decl. ¶¶ 13, 15. It also includes “intelligence

activities, sources, and methods incident to the conduct of military operations,” a description of

“certain activities intended to take place in foreign countries,” and “operational associations and

methods for Special Operations Forces (SOF) planning and conduct of operations.” Id. ¶¶ 16–18.

Both declarants also explain how disclosure of this information potentially would harm

national security. Disclosure “would affect how SOF conducts future operations, lessen the

effectiveness on intelligence gathering and give the enemy insight into the vulnerabilities of SOF”;

“[t]he enemy would be able to circumvent SOF TTPs and protocols for conducting future military

operations”; and the “enemy would also be able to ascertain SOF vulnerabilities and exploit those

vulnerabilities in future operations.” Boisselle Decl. ¶ 26. Furthermore, because the withheld

information contains details about military operations, “[t]errorist organizations, violent extremist

organizations, or hostile foreign governments could use the information to better plan attacks or

evade justice.” Grynkewich Decl. ¶ 19. Disclosure would “jeopardize ongoing special operations

by potentially giving enemy forces information that would allow them to avoid or counter the

2 “‘REL TO USA/FVEY’ means the document may only be released in full to appropriately cleared personnel within the “Five Eyes” nations (Australia, Canada, New Zealand, the United Kingdom, and the United States), and may not otherwise be distributed to foreign governments, foreign nationals, or foreign organizations.” Grynkewich Decl. ¶ 13.

5 operational activity in question” and “would allow them to better target U.S. forces for attack.”

Id.

Defendants have adequately justified their withholdings under Exemption 1. Their

declarants’ representations “have more than plausibly explained why” the withheld information is

classified and have offered “credible reasons for classifying this information, including that

unauthorized disclosure would damage national security[.]” Schaerr, 69 F.4th at 930. Accordingly,

the court holds that Defendants properly invoked Exemption 1.

IV.

Plaintiff argues that classifying the information at issue was not justified—and therefore

the improperly withheld—because it was done for a prohibited purpose under Executive Order

13,526. Pl.’s Opp’n at 8–9. Specifically, Plaintiff contends that the Executive Order bars

classification to “conceal violations of law, inefficiency, or administrative error” or to “prevent

embarrassment to a person, organization, or agency.” EO 13,526, § 1.7(a)(1)–(2); see Pl.’s Opp’n

at 8. Plaintiff concedes that he must provide more than mere “conjecture” to overcome the

presumption that the government has properly applied the classification rules. Pl.’s Opp’n at 8–9

(quoting Canning v. U.S. Dep’t of Justice, 848 F. Supp. 1037, 1048 (D.D.C. 1994)). So, he points

to a series of news articles and public statements, which he claims establish the following facts:

(1) the civilian victims—a mother and child—“were easily visually distinguishable from an adult

man”; (2) they were killed by a second drone strike as they ran from a pickup truck hit by the initial

strike; (3) the drone operators were inexperienced and under time pressure; and (4) the

U.S. military failed to acknowledge the civilian deaths for a year. Id. at 9; see also id. at 2–7.

These facts, according to Plaintiff, “provide a solid basis—not foundationless conjecture—that the

6 government has withheld information because it would reveal violations of international or

domestic law, error, or information that would cause embarrassment to the military.” Id. at 9.

The court is unpersuaded. Exemption 1 cannot be defeated simply by surpassing the low

bar of offering more than “conjecture.” To prevail, a party must present evidence either

contradicting the propriety of the classification or evidence of bad faith in making the

withholdings. See Larson, 565 F.3d at 864 (rejecting challenge to Exemption 1 withholding where

the parties presented “no evidence to the contrary or evidence suggesting bad faith on the part of

the CIA in withholding” the information). That is a tough hill to climb. Agency declarations

asserting Exemption 1 “enjoy ‘a presumption of good faith [that] cannot be rebutted by purely

speculative claims’ of agency malfeasance.” Schaerr, 69 F.4th at 930 (quoting In re Clinton, 973

F.3d 106, 113 (D.C. Cir. 2020) (cleaned up)). “This presumption applies with special force in the

national security context, where [the court must] give substantial weight to an agency’s affidavit

and will not second-guess its conclusions even when they are speculative to some extent.” Id. at

930–31 (internal quotation marks omitted). “If an agency’s statements supporting exemption

contain reasonable specificity of detail as to demonstrate that the withheld information logically

falls within the claimed exemption and evidence in the record does not suggest otherwise, . . . the

court should not conduct a more detailed inquiry to test the agency’s judgment and expertise or to

evaluate whether the court agrees with the agency’s opinions.” Larson, 565 F.3d at 864.

Plaintiff here has not overcome the good faith presumption afforded Defendants’

declarants. He has done no more than offer links to media stories that raise questions about a drone

strike that killed two civilians. See, e.g., Pl.’s Opp’n at 2–3 (citing Nick Turse, Civilian Harm, The

Intercept, Nov. 12, 2023, available at https://theintercept.com/2023/11/12/somalia-drone-strike-

civilian-deaths/) (last visited Feb 24, 2025), and Nick Turse, The US Military Ignores and Neglects

7 the Civilian Victims of Its Air Strikes, The Nation, Feb. 2, 2024, available at

https://www.thenation.com/article/world/somalia-civilian-air-strikes-dodi/ (last visited Feb. 24,

2025)). In fact, one of the articles, Civilian Harm, written by Plaintiff himself, relies extensively

on declassified information contained within the records released to Plaintiff via FOIA. See Turse,

Civilian Harm (embedding image of disclosed records at issue). That Defendants have disclosed

facts causing Plaintiff to question the legality of the drone strike, if anything, supports the good

faith of the declarants, not the inference that they are improperly classifying information or are

acting in bad faith. See Grynkewich Decl. ¶ 12 (expressly stating that information from the Exhibit

was not classified to “conceal violations of law” or “to prevent embarrassment to a person,

organization, or agency”).

Next, Plaintiff contends that Defendants have not carried their burden under the FOIA

Improvement Act, Pub. L. No. 114-185, 130 Stat. 538 (2016), to show “how the release of the

information would reasonably be expected to cause identifiable damage to national security or law

enforcement interests.” Pl.’s Reply in Supp of Cross-Mot. for Summ. J., ECF No. 31 [hereinafter

Pl.’s Reply], at 2; see also Pl.’s Opp’n at 10.3 But they have. Defendants’ declarants both

explained how disclosure would have adverse national security consequences. Boisselle Decl. ¶

26 (stating, among other things, that disclosure would “give the enemy insight into the

vulnerabilities of SOF” and that“[t]he enemy would be able to circumvent SOF TTPs and protocols

for conducting future military operations”); Grynkewich ¶ 19 (explaining that disclosure would

“jeopardize ongoing special operations by potentially giving enemy forces information that would

allow them to avoid or counter the operational activity in question” and “put U.S. forces at risk by

3 In his Opposition, Plaintiff cites “Exemption 5” when making this argument, Pl.’s Opp’n at 9–10, but given the context the court presumes that the reference to Exemption 5 is a typographical error and Plaintiff means Exemption 1. See also Pl.’s Reply at 2 (discussing the FOIA Improvement Act’s foreseeable harm requirement in the context of Exemption 1).

8 potentially giving enemy forces information that would allow them to better target U.S. forces for

attack”). Plaintiff offers no evidence that would call into doubt the good faith presumption

afforded these predictions of potential ham.

Finally, Plaintiff invites the court to review the withheld information in camera.

Pl.’s Opp’n at 10–11. The court declines to do so. See Larson, 565 F.3d at 870 (finding summary

judgment appropriate without in camera review where agency affidavits provide sufficient

information to place redactions within Exemption 1, nothing in the record contradicts that

information, and there is no evidence of bad faith).

V.

For the foregoing reasons, Defendants’ Motion for Summary Judgment, ECF No. 24, is

granted, and Plaintiff’s Cross-Motion for Summary Judgment, ECF No. 27, is denied.

A final, appealable order accompanies this Memorandum Opinion.

Dated: February 24, 2025 Amit P. Mehta United States District Court Judge