CIA Can Shield Records on Syrian Rebel Funding

WASHINGTON (CN) — Twitter may have banned former President Donald Trump, but his disruptive use of the platform is still being argued in court.  

On Tuesday morning, the D.C. Circuit sided with the CIA in a dispute involving a Freedom of Information Act request from BuzzFeed stemming from a Trump tweet.  

 “The Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad,” Trump tweeted out in July 2017.

Just days earlier, the Washington Post published a story reporting that Trump had ended an Obama-era policy of sending money to train moderate rebels in Syria with the hopes of overthrowing Syrian President Bashar Assad.

Following the tweet, BuzzFeed reporter Jason Leopold sent a FOIA request to the CIA for any records relating to “payments to Syrian rebels fighting Assad.”

The agency denied the request and that denial was upheld by a federal judge. BuzzFeed and Leopold then filed a second complaint in April 2019 seeking “agency records relating to payments to Syrian rebels.”

“President Trump’s tweet constitutes official [acknowledgement] that the United States had been making payments to Syrian rebels fighting Assad,” Washington attorney Jeffrey L. Light wrote in the lawsuit.  

The CIA again argued the records were exempt from release under FOIA, but this time U.S. District Judge Rudolph Contreras ruled for the plaintiffs.

Contreras, a Barack Obama appointee, found the tweet was indeed an acknowledgment of “the government’s intelligence interest in the broader categories of records that BuzzFeed has requested” and said it’s likely some responsive records exist related to the nearly decade-long conflict in the Middle East.   

“Because the president’s tweet makes it implausible for any reasonable person to truly doubt the existence of at least some CIA records that are responsive to at least some of the nine categories of documents that Buzzfeed requested, Buzzfeed has managed to overcome the agency’s Glomar response and the agency has failed to meet its burden in this case,” the judge wrote. (Emphasis in original.)

The CIA appealed to the D.C. Circuit, which reversed the lower court and slapped away BuzzFeed’s suit on Tuesday.

Writing for a unanimous three-judge panel, Senior U.S. Circuit Judge A. Raymond Randolph said Contreras’ opinion assumed too much.

“One would hope that the district court’s assumption is accurate but who knows for sure? To establish official acknowledgment our precedents require certainty, not assumptions of this sort,” wrote the George H. W. Bush appointee. “The tweet here leaves too much doubt.” 

Randolph concluded the Trump tweet at issue “was not an official acknowledgment of the existence (or not) of agency records.” (Parentheses in original.)  

He was joined on the panel by U.S. Circuit Judges Robert Wilkins and Gregory Katsas, appointed by Obama and Trump, respectively.  

A spokesperson for the Department of Justice declined to comment on the ruling. 

Light said in an email that he and his clients “were disappointed in the court’s decision and reviewing our options for further proceedings.”

A prolific tweeter, Trump was banned from Twitter on Jan. 8, just two days after a horde of his supporters ransacked the U.S. Capitol in a riot that is the basis for his second impeachment trial. 

But the former president’s use of Twitter has long been a source of legal scrutiny. 

The Second Circuit held in July 2019 that his blocking of online critics violated their constitutional rights, but that didn’t stop him from hitting the block button. Trump was facing renewed First Amendment claims over blocking users as recently as last summer. That fight, initiated by press advocacy group The Knight Foundation, is ongoing. 

The actual text of Trump tweets has often made appearances in complaints and hearings, most notably linked to immigration policy disputes.

In January 2018, a federal judge called out the then-president’s “recurring, redundant drumbeat of anti-Latino commentary” via his favorite online platform in a hearing over his administration’s rollback of the Deferred Action for Childhood Arrivals program.

Trump’s tweets were also often mentioned in his long-running travel ban dispute, in which the U.S. Supreme Court eventually sided with him. 

“People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” Trump tweeted during the summer of 2017 as the dispute heated up.

But a key part of his defense over the executive order limiting immigration from several majority-Muslim countries aimed to distance the president from anti-Islam bias. Civil rights groups and states argued the travel ban was meant to keep Muslims from entering the country, but the Trump administration insisted it was a matter of national security.

While a conservative majority of the nation’s highest court found the executive branch has exclusive authority to limit inbound travel, Justice Sonia Sotomayor wrote in a dissent that Trump’s tweets and public comments made clear the policy’s intent to discriminate.

“There was strong evidence that impermissible hostility and animus motivated the government’s policy,” she wrote. 

The FOIA case over funding for Syrian rebels isn’t the only document-related dispute keeping Trump’s name in the courts.

Following Trump’s call to declassify documents related to the investigation into Russian interference in the 2016 election, BuzzFeed and other outlets filed suit asking for those documents to be released. The DOJ argued Trump’s comments were too ambiguous to be taken literally, an argument a district judge didn’t appear to buy. That dispute is ongoing.

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