United States District Court, S.D. New York
AMERICAN LIBERTIES UNION and AMERICAN LIBERTIES UNION FOUNDATION, Plaintiffs,
DEPARTMENT OF DEFENSE, CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF JUSTICE, and DEPARTMENT OF STATE, Defendants.
OPINION & ORDER
A. ENGELMAYER, DISTRICT JUDGE.
lawsuit under the Freedom of Information Act, 5 U.S.C. §
552 (“FOIA”), concerns a request by the American
Civil Liberties Union (“ACLU”) for records held
by federal agencies related to an intelligence-gathering raid
(“the Raid”) in al Ghayil, Yemen that was
disclosed and discussed at a series of press briefings by
then-White House Press Secretary Sean Spicer.
ACLU has sought such records from four federal agencies: the
Department of Defense (“DoD”), the Central
Intelligence Agency (“CIA”), the Department of
Justice (“Justice”), and the Department of State
(“State”). Of these, all but the CIA have
proceeded in this litigation by identifying responsive
records and determining whether particular records are
properly withheld pursuant to one or more FOIA exemptions. To
the extent these three agencies have declined to produce
records, summary judgment briefing is underway as to whether
the claims of withholding are justified.
CIA, however, pursuant to its customary practice, has issued
a “Glomar response, ” in which it
refused to confirm or deny the existence of responsive
records on the ground that to do so would itself reveal
information (the existence of a CIA intelligence interest in
the Raid and/or CIA operational involvement in it) which FOIA
protects from disclosure. The ACLU and CIA have now
cross-moved for summary judgment on the propriety of the
CIA's Glomar response. The ACLU argues that the
White House's statements, per Spicer, about the Raid (and
earlier statements by CIA officials regarding its interest in
Yemen generally) constitute an official acknowledgment of its
interest in the Yemen Raid that precludes the CIA from
relying on the instant Glomar response. The ACLU
also argues that a substantive response to its FOIA requests
would not reveal the CIA's operational involvement in the
Raid. The CIA argues that the Glomar response was
proper. For the reasons that follow, the Court agrees with
the ACLU that the White House's statements sufficiently
acknowledged a CIA interest in the Raid as to preclude the
CIA's Glomar response as formulated.
The Air Raid in Yemen
January 29, 2017, the U.S. conducted an
“intelligence-gathering raid” in al Ghayil,
Yemen. One service member and an unspecified number of
civilians died. According to news reports cited by the ACLU,
in anticipation of the Raid, President Trump declared the
area around al Ghayil, Yemen, a temporary “area of
hostilities.” This designation exempted the Raid from
existing policy guidance that limited, in the interest of
minimizing civilian casualties, the circumstances under which
such a raid can lawfully be conducted.
days that followed, White House Press Secretary Spicer three
times fielded questions at press briefings about the Raid.
Because their content is central to this dispute, and
particularly to whether there was an official acknowledgement
of the CIA's interest in the Raid, and if so what the
scope was of that acknowledgement, the Court quotes them in
January 31, 2017, the following exchange occurred during
Spicer's daily press briefing:
Q (Reporter): Thanks, Sean. Just following
up again about the strike over the weekend in Yemen. Can you
confirm that the eight-year-old-the reports that the
eight-year-old daughter of Anwar al-Awlaki was killed in that
strike? And if you can address sort of the killing of the
American citizen in this anti-terrorism operation.
MR. SPICER: I'm not going to go any
further than what the Department of Defense has released.
Obviously, we recovered a tremendous amount of information,
and we killed an estimated 14 members of al Qaeda in-AQAP
individuals. And then we suffered the loss of life of a
service member, and four people were injured. That's as
far as I'm willing to go at this time.
Dkt. 37 (“Daikun Decl.”), Ex. 6 at 12.
February 2, 2017, during a daily press briefing, the
following exchange occurred:
Q (Reporter): On Yemen, it was initially
described, the raid over the weekend, as a successful raid by
the administration. There are now some questions and comments
raised about the possibility of additional civilian
casualties. So I've got a couple of questions for you on
this one. Would you still stand by your characterization of
the raid as “successful”? Was the President given
multiple options about this raid, or just one? And were there
consultations with the prior administration's national
security officials, military officials about the raid moving
MR. SPICER: Thank you. Actually, I'd
like to just walk through that. I appreciate you bringing
this up. There is-let's go through the tick-tock on that
raid. On November 7th, CENTCOM submitted the plan to DOD.
Clearly, that was under the last administration. Legal teams
were involved immediately when it was submitted to DOD. On
December 19th, the plan was approved by the Department of
Defense and recommended that it be moved ahead. It was sent
then to the National Security Council staff here in the White
House. Again, this all happened under the previous
On January 6th, there was an interagency deputies meeting.
The deputies recommended at that time that they go ahead. It
was so easily approved it was sent straight up. The
conclusion to hold was, at that time, to hold for what they
called a “moonless night, ” which, by calendar,
wouldn't occur until then-President-elect Trump was
On January 24th, shortly after taking office, Secretary of
Defense-then Mattis [sic] read the memo, resent it back up to
the White House conveying his support. On the 25th of
January, the President was briefed by General Flynn on
Secretary Mattis's recommendation and the status of the
operation, or potential operation.
The President asked to see Secretary Mattis and Joint Chiefs
[sic] of Staff Dunford. He then, on that evening, had a
dinner meeting, which included the President, the Vice
President, Secretary Mattis, Chairman Dunford, Chief of Staff
Priebus, Jared Kushner, Chief Strategist Bannon, General
Kellogg, General Flynn, and CIA Director Pompeo where the
operation was laid out in great extent. The indication at
that time was to go ahead on Friday the 26th.
In the morning, the deputies committee met again. It was not
a necessary step because they had previously recommended and
also reaffirmed their support for that. On January 26th, the
President signed the memo authorizing the action. So it was a
very- not only was it a very, very though-out [sic] process
by this administration, it had started back on November 7th
in terms of-clearly well before that, but it was a move
forward by CENTCOM on November 7th. This was a very, very
well thought-out and executed effort.
Q: Where was the President the night of the
raid? How did he learn about Chief Owens's death? And do
you still stand by your characterization that it was
MR. SPICER: The President was here in the
residence. He was kept in touch with his national security
staff. Secretary Mattis and others had kept him updated on
both the raid and the death of Chief Owens, as well as the
four other individuals that were injured. So he was kept
apprised of the situation throughout the evening.
And again, I think-I would go back to what I said yesterday:
It's hard to ever call something a complete success when
you have the loss of life, or people injured. But I think
when you look at the totality of what was gained to prevent
the future loss of life here in America and against our
people and our institutions, and probably throughout the
world in terms of what some of these individuals could have
done, I think it is a successful operation by all standards.
And again, I want to reiterate, it is tough to ever use the
word “success” when you know that somebody has
lost their life. But when you go back and look at an
individual that dedicated their life to serving this country,
and went over and over and over again knowing that this not
only the risk that he took but wanted to do it because he
knew the threat that these kind of individuals pose to our
country and to our people, that's-while not a success
that you lost to [sic] him, you know that he died in
sacrifice for someone else here in this nation.
Daikun Decl., Ex. 5 at 10-11.
on February 7, 2017, during a daily press briefing, the
following exchange occurred:
Q (Reporter): I have a question for you,
Sean, though, on Yemen.
MR. SPICER: Yes.
Q: I did say two.
Q: One of the world's most wanted
terrorists is now taunting President Trump, calling him a
“fool” after that raid.
MR. SPICER: Right.
Q: Any response from the White House? And do
you still stand by your characterization that it was a
MR. SPICER: Absolutely. That-he was not-that
was-the raid that was conducted in Yemen was an
intelligence-gathering raid. That's what it was. It was
highly successful. It achieved the purpose it was going to
get-save the loss of life that we ...