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Motion for Summary Judgment Case 1:11-cv-00890-JEB Document 22 Filed 12/14/11 Page 1 of 58 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JUDICIAL WATCH, INC., ) ) Plaintiff, ) Civil Action No. 11-00890 (JEB) ) v. ) ) U.S. DEPARTMENT OF DEFENSE, ) et al., ) ) Defendants. ) ____________________________________) PLAINTIFF=S CROSS-MOTION FOR SUMMARY JUDGMENT Plaintiff Judicial Watch, Inc., by counsel and pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, hereby cross-moves for summary judgment against Defendants U.S. Department of Defense and Central Intelligence Agency. As grounds therefor, Plaintiff respectfully refers the Court to the accompanying Plaintiff=s Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment and in Support of Plaintiff=s Cross-Motion for Summary Judgment and Plaintiff=s Response to Defendants’ Statement of Material Facts Not in Dispute and Plaintiff=s Statement of Material Facts in Support of Cross-Motion for Summary Judgment. Dated: December 14, 2011 Respectfully submitted, /s/ Michael Bekesha D.C. Bar No. 995749 JUDICIAL WATCH, INC. 425 Third Street S.W., Suite 800 Washington, DC 20024 (202) 646-5172 Counsel for Plaintiff Case 1:11-cv-00890-JEB Document 22 Filed 12/14/11 Page 2 of 58 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JUDICIAL WATCH, INC., ) ) Plaintiff, ) Civil Action No. 11-00890 (JEB) ) v. ) ) U.S. DEPARTMENT OF DEFENSE, ) et al., ) ) Defendants. ) ____________________________________) PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT; REQUEST FOR HEARING Paul J. Orfanedes D.C. Bar No. 429716 Michael Bekesha D.C. Bar No. 995749 JUDICIAL WATCH, INC. 425 Third Street S.W., Suite 800 Washington, DC 20024 (202) 646-5172 Counsel for Plaintiff Case 1:11-cv-00890-JEB Document 22 Filed 12/14/11 Page 3 of 58 TABLE OF CONTENTS Page TABLE OF CONTENTS ............................................................................................................... i TABLE OF AUTHORITIES ....................................................................................................... iii MEMORANDUM OF LAW ...........................................................................................................1 I. INTRODUCTION ...............................................................................................................1 II. FACTUAL BACKGROUND ............................................................................................3 A. Public Information on the May 1, 2011 Raid on Osama bin Laden’s Compound ................................................................................3 B. Public Information on the Content of and the Decision to Release Post Mortem Photographs and Video Recordings of Osama bin Laden .....................................................................................................5 C. Executive Order 13526 Establishes a Uniform System for Classifying National Security Information ......................................................12 III. SUMMARY OF THE ARGUMENT ................................................................................14 IV. ARGUMENT .....................................................................................................................15 A. Defendants’ Search for and Decision to Withhold All 52 Records Are Reviewed De Novo ...........................................................................15 B. Defendants Fail to Demonstrate that They Conducted an Adequate Search for Responsive Records .............................................................15 C. Defendants’ Vaughn Declarations Are Inadequate ................................................18 D. Defendants Fail to Demonstrate that All 52 Records Are Being Properly Withheld under Exemption 1 .................................................................................22 1. Defendants fail to demonstrate that they have complied with the classification procedures of EO 13526 ......................................................23 2. Defendants fail to demonstrate that all 52 records conform to EO 13526’s substantive criteria for classification .....................................27 i Case 1:11-cv-00890-JEB Document 22 Filed 12/14/11 Page 4 of 58 a. Defendants fail to demonstrate that all 52 records pertain to one or more of the classification categories of EO 13526, § 1.4 .........................................................................28 b. Defendants fail to demonstrate that all 52 records reasonably could be expected to cause identifiable or describable exceptionally grave damage to the national security .............................................................................34 E. Defendants Fail to Demonstrate that All 52 Records Are Being Properly Withheld under Exemption 3 .................................................................................43 V. CONCLUSION ..................................................................................................................44 ii Case 1:11-cv-00890-JEB Document 22 Filed 12/14/11 Page 5 of 58 TABLE OF AUTHORITIES Cases ACLU v. U.S. Department of Defense, 389 F. Supp. 2d 547 (S.D.N.Y. 2005) ............................37 ACLU v. U.S. Department of Defense, 628 F.3d 612 (D.C. Cir. 2011) .................................27, 40 Allen v. Central Intelligence Agency, 636 F.2d 1287 (D.C. Cir. 1980) ................................. 26-27 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................................................................15 * Campbell v. U.S. Department of Justice, 164 F.3d 20 (D.C. Cir. 1998) .................................................. 22, 28, 31, 33-34, 39, 41-42 Campbell v. U.S. Department of Justice, 231 F. Supp. 2d 1 (D.D.C. 2002) ................................19 Coastal States Gas Corporation v. U.S. Department of Energy, 617 F.2d 854 (D.C. Cir. 1980) .........................................................................................18 Council for a Livable World v. U.S. Department of State, 96-CV-1807, 1998 U.S. Dist. LEXIS 23643 (D.D.C. Nov. 23, 1998) .............................27 Dellums v. Powell, 642 F.2d 1352 (D.C. Cir. 1980) ....................................................................18 Fitzgibbon v. Central Intelligence Agency, 911 F. 2d 755 (D.C. Cir. 1990) ...............................43 * International Counsel Bureau v. U.S. Department of Defense, 723 F. Supp. 2d 54 (D.D.C. 2010) ................................... 22, 28, 29, 31, 34, 39, 41-42, 44 James Madison Project v. Central Intelligence Agency, 605 F. Supp. 2d 99 (D.D.C. 2009) ...................................................................................43 Judicial Watch, Inc. U.S. Postal Service, 297 F. Supp. 2d 252 (D.D.C. 2004) ...........................15 Judicial Watch, Inc. v. Food and Drug Administration, 449 F.3d 141 (D.C. Cir. 2006) .........................................................................................18 * King v. U.S. Department of Justice, 830 F.2d 210 (D.C. Cir. 1987) ............................. 18-22, 27 Larson v. U.S. Department of State, 565 F.3d 857 (D.C. Cir. 2009) .....................................22, 27 iii Case 1:11-cv-00890-JEB Document 22 Filed 12/14/11 Page 6 of 58 Lesar v. U.S. Department of Justice, 636 F.2d 472 (D.C. Cir. 1980) ..........................................23 Mead Data Central, Inc. v. U.S. Department of the Air Force, 566 F.2d 242 (D.C. Cir. 1977) ...................................................................................18, 22 Morley v. Central Intelligence Agency, 508 F.3d 1108 (D.C. Cir. 2007) ....................................43 * Nation Magazine v. U.S. Customs Service, 71 F.3d 885 (D.C. Cir. 1995) .......................... 15-17 Paisley v. Central Intelligence Agency, 712 F.2d 686 (D.C. Cir. 1983) ................................ 18-19 Shoenman v. Federal Bureau of Investigation, 575 F. Supp. 2d 136 (D.D.C. 2008) .................................................................................23 Steinberg v. U.S. Department of Justice, 23 F.3d 548 (D.C. Cir. 1994) ......................................18 Summers v. U.S. Department of Justice, 140 F.3d 1077 (D.C. Cir. 1998) ....................................31 * Sussman v. U.S. Marshals Service, 494 F.3d 1106 (D.C. Cir. 2007) ...................... 31-32, 42, 44 Truitt v. U.S. Department of State, 897 F.2d 540 (D.C. Cir. 1990) .............................................15 Washington Post v. U.S. Department of Defense, 766 F. Supp. 1 (D.D.C. 1991) .......................23 Weisberg v. U.S. Department of Justice, 745 F.2d 1476 (D.C. Cir. 1984) ............................15, 18 Rules, Statutes, and Executive Orders 5 U.S.C. § 552(b)(1) .....................................................................................................................22 5 U.S.C. § 552(b)(3) .....................................................................................................................43 * Executive Order 13526, 3 C.F.R. 707 (2010) .............................................. 12-14, 24, 26-27, 34 Fed.R.Civ.P. 56(c) ........................................................................................................................15 iv Case 1:11-cv-00890-JEB Document 22 Filed 12/14/11 Page 7 of 58 Plaintiff Judicial Watch, by counsel, respectfully submits this memorandum in opposition to Defendants’ motion for summary judgment and in support of
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