CIA Can Withhold Info on Bin Laden Book

     WASHINGTON (CN) – A federal judge dealt “a significant blow” to an open government group’s effort to wrest documents from six government agencies that opposed the publication of “No Easy Day,” a Navy SEAL’s book about the raid that killed Osama bin Laden.
     The James Madison Project filed suit in August 2015 after the Justice Department, Department of Defense, the Central Intelligence Agency and their sub-agencies denied requests for internal memos, emails and other documents that would show why they government opposed the release of the book by Matt Bissonnette that chronicled the mission that killed bin Laden.
     Judge Rosemary Collyer ruled Thursday that each agency except the Department of Defense had either proved it conducted a reasonable search for the records sought or properly claimed exemptions allowing it to withhold documents.
     “This is a significant blow to the case,” James Madison Project attorney Bradley Moss said. “The agencies have largely been able to withhold everything that they’ve found under these exemptions.”
     The government claimed that Bissonnette, whose pen name was Mark Owen, broke a non-disclosure agreement when he did not let the Pentagon review the book before publication, and that the book disclosed top secret information.
     The Justice Department eventually launched a criminal investigation into the book’s publication, according to The New York Times. Bissonnette told the New York Daily News that his decision to skip the Pentagon review cost him $4.5 million.
     Though the CIA and the Departments of Justice and Defense are the only defendants listed at the top of the original complaint, the James Madison Project included the Executive Office for the U.S Attorneys, the Department of Justice Civil Division, the Navy and the Defense Intelligence Agency in the text of the original lawsuit.
     The James Madison Project accepted the Defense Intelligence Agency’s search, and did not file a timely appeal after the Executive Office for the U.S. Attorneys said it could not find any of the records requested, Collyer wrote.
     She dismissed both as defendants in short paragraphs in the 37-page opinion.
     She took only slightly longer to dismiss claims against the Navy, finding credible the Navy’s contention that it never received the James Madison Project’s request, and that the Madison Project had not proven the Navy did anything wrong.
     “Plaintiff offers no evidence that the Navy has acted in bad faith, rather, it just contends that it did, in fact, send a FOIA request to Navy on July 30, 2013,” Collyer wrote.
     She had a more difficult time dismissing the claims against the Department of Justice Civil Division and the CIA.
     Collyer noted that agencies that have submitted affidavits saying they conducted a reasonable search are given a “presumption of good faith” and can be rebutted only with solid evidence that they did not.
     “Hypothetical assertions are insufficient to raise a material question of fact with respect to the adequacy of an agency’s search,” Collyer wrote.
     This presumption helped doom the claims against the Department of Justice Civil Division and the CIA, as Collyer found the Madison Project group had not done enough to cast doubt on the agencies’ declarations.
     Collyer also accepted a host of exemptions that both agencies said protected the documents they did find.
     For example, she accepted the Civil Division’s Glomar response, a privilege that allows agencies to say they can neither confirm nor deny the existence of records targeted in a FOIA request.
     The Civil Department’s Glomar response claimed the records would violate the author’s privacy, forcing Collyer to determine if the potential privacy violation is outweighed by the public interest in the documents.
     Rejecting claims from the Madison Project that the publicity of Bissonnette’s fight with the government reduced his privacy interests, Collyer accepted the Civil Department’s Glomar exemption.
     She also accepted the CIA’s claims that it could withhold records because they could shed light on law enforcement tactics.
     “CIA states that the records withheld contain information regarding specific CIA investigative techniques and that knowledge of those techniques could allow individuals to circumvent detection and, therefore, circumvent the law,” Collyer wrote. “The court finds that explanation adequate to justify withholding records under exemption 7(E).”
     While Collyer was generally kind to the Civil Department and the CIA, she said the Department of Defense had not done enough to warrant the same treatment.
     The Department of Defense did not even assert it conducted a search in its Glomar response claiming personal privacy and attorney-client and work product exemptions.
     Collyer found these exemptions “inappropriate,” even if the Madison Project’s request specified it was looking for legal resources.
     “Although plaintiff’s requests seek ‘legal analyses’ and ‘assessments,’ DoD cannot know, without search, whether some of its responsive records may contain segregable, non-exempt information and DoD has no articulated why ‘it can neither confirm nor deny the existence of responsive records,’ as required in a Glomar response,” Collyer wrote.
     Moss said the James Madison Project will focus now on the still-live claims against the Department of Defense, not on appealing the other rulings.

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