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American Liberties Union v. Department of Defense

United States District Court, S.D. New York

June 27, 2018


          OPINION & ORDER


         This 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.

         The 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.

         The 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.

         I. Background[1]

         A. The Air Raid in Yemen

         On 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.

         In the 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 full.

         On 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.

         On 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 forward?
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 administration.
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 President Trump.
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 successful?
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.

         Finally, 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.
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 successful raid?
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 ...

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