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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JUDICIAL WATCH, INC., ) ) Plaintiff, ) ) v. ) ) U.S. DEPARTMENT OF DEFENSE, ) et al., ) ) Defendants. ) ___________________________________ )

Civil Action No. 11-00890 (JEB)

PLAINTIFFS REPLY IN SUPPORT OF ITS CROSS-MOTION FOR SUMMARY JUDGMENT Plaintiff Judicial Watch, Inc., by counsel and pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, respectfully submits this reply in support of its cross-motion for summary judgment. As grounds thereof, Plaintiff states as follows: MEMORANDUM OF LAW I. Introduction. Despite two rounds of briefing and the submission of five declarations, as well as multiple requests by Plaintiff to provide additional information, Defendants U.S. Department of Defense (DoD) and Central Intelligence Agency (CIA) (collectively Defendants) have failed to demonstrate that all of the 52 unique records at issue in this Freedom of Information Act (FOIA) lawsuit are being withheld lawfully. Plaintiff requested photographs and video recordings of Osama bin Laden. Defendants admit that at least some of the requested records portray a scene that they have described in the following official statement:

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Todays religious rites were conducted for the deceased on the deck of the USS Carl Vinson, which is located in the North Arabian Sea. Preparations for at-sea burial began at 1:10 a.m. Eastern Standard Time and were completed at 2:00 a.m. Eastern Standard Time. Traditional procedures for Islamic burial were followed. The deceaseds body was washed and then placed in a white sheet. The body was placed in a weighted bag, a military officer read prepared religious remarks, which were translated into Arabic by a native speaker. After the words were complete, the body was placed on a prepared flat board, tipped up, whereupon the deceaseds body was eased into the sea. U.S. Dept of Defense News Transcript, Background Briefing with Senior Defense Officials from the Pentagon and Senior Intelligence Officials by Telephone on U.S. Operations Involving Osama Bin Laden, May 2, 2001, attached as Exhibit B to the Declaration of Michael Bekesha (Plfs Mem. at 5). Plaintiff did not request any other records about the May 1, 2011 raid. Plaintiff did not request images or information about the identity of U.S. personnel or their equipment, tools, tactics, techniques, methods, or procedures. Nor did Plaintiff request images or information about classified technology. Plaintiff certainly does not seek the production of anything that is reasonably likely to cause harm to the United States. Plaintiff seeks only to hold Defendants to the requirements of the law. Because Defendants have failed to satisfy their burden of proof under FOIA despite multiple opportunities to do so, summary judgment must be entered against them and they they must be ordered to disclose all responsive records not lawfully exempt from production under FOIA.

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II.

Argument. A. Defendants Fail to Prove That They Followed the Procedural Requirements of Executive Order 13526.

Defendants submit the declaration of National Clandestine Service Information Review Officer Elizabeth Anne Culver to try to bolster their claim that they satisfied the procedural requirements of Executive Order 13526. Ms. Culvers declaration only further confirms that Defendants have failed to satisfy their burden of proof. In her declaration, Ms. Culver testifies

that the CIA derivatively classified the 52 unique records identified as being responsive to Plaintiffs FOIA only after the CIA received these records. Culvers testimony is important for at least two reasons. First, Ms. Culvers testimony is an admission that the CIA did not possess the records initially, but instead obtained them from another source. most likely is DoD. Plaintiff believes that this other source Culver Decl. at 8. Ms.

This conclusion is consistent with the fact that the raid on bin Ladens

compound, the subsequent preparation of bin Ladens body for burial at sea, and the actual burial at sea were carried out by DoD personnel (a Navy Seal team) using DoD facilities (a hanger at Bagram Air Base) and a DoD ship (the USS Carl Vinson). Presumably, DoD personnel created the records, possessed them for a time, and then transferred them to the CIA. Otherwise, Ms. Culver would not have testified that the records were derivatively classified after the CIA received these records. Culver Decl. at 8 (emphasis added).

Second, derivative classification, as defined by Executive Order 13526, means the incorporating, paraphrasing, restating, or generating in new form information that is already classified, and marking the newly developed material consistent with the classification markings that apply to the source information. Executive Order 13526, 6.1(o). -3By contrast, original

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classification means an initial determination that information requires, in the interest of the national security, protection against unauthorized disclosure. Id. at 6(ff). An original

classification authority is an individual authorized in writing, either by the President, the Vice President, or by agency heads or other officials designated by the President, to classify information in the first instance. Id. at 6(gg). An official who derivatively classifies Id. at

information is required to observe and respect original classification decisions. 2.1(b)(2).

If the CIA derivatively classified the records at some point after receiving them,

then, obviously, some other, unidentified official from outside the CIA must have made an original classification determination at some unidentified point in time before the CIA received the records. The CIAs subsequent derivative classification of the records only observe[d] Id. at 2.1(b)(2). Thus, by the CIAs own

and respect[ed] this earlier classification.

admission, it neither created nor possessed the records, at least initially, and it did not classify them originally. Rather, it only classified the records derivatively after they were transferred to the CIA. Defendants have always been coy about the provenance and classification of the records, but Ms. Culvers testimony further highlights Defendants failure to satisfy their burden of proving that the records were classified properly. As Plaintiff demonstrated in its opening brief,

Executive Order 13526 contains a multitude of procedural requirements that must be satisfied in order for a record to be classified properly. Perhaps most importantly, Executive Order 13526

requires that an original classification authority is classifying the information and that the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security. -4Plfs Mem. at 12

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(citing Executive Order 13526, 1.1).

Executive Order 13526 also contains requirements about

the duration of the classification, the identification of the original classifying authority, and the markings that a properly classified record must bear. 1.5 and 1.6). Id. at 13 (citing Executive Order 13526,

It also unambiguously and unconditionally states, Information may be

originally classified under the terms of this order only if all of [these] conditions are met. Executive Order 13526, 1.1(a) (emphasis added). Ms. Culver testimony makes clear that Defendants have completely and totally failed to present any evidence about the person who purportedly served as the original classification authority for each of the 52 unique records at issue. It also makes clear that Defendants have

completely and totally failed to present any evidence about whether this person determined that the unauthorized disclosure of these records reasonably could be expected to result in damage to the national security, or that he or she satisfied the numerous other requirements of Executive Order 13526 in originally classifying the records. Defendants attempt to invoke Executive

Order 13526 suffers from a complete failure of proof. In addition, Executive Order 13526 also contains additional procedural requirements when a FOIA request has been made for records before the records have been classified. Unclassified records requested under FOIA may subsequently be classified only if such classification meets the requirements of this order and is accomplished on a document-bydocument basis with the personal participation or under the direction of the agency head, the deputy agency head, or the senior agency official designated under section 5.4 of this order. Executive Order 13526, 1.7(d). Defendants have been dismissive of Plaintiffs arguments about these additional requirements. They argue that the the date of the classification is -5-

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unimportant and emphasize the fact that the CIA did not receive Plaintiffs FOIA request until May 5, 2011. Ms. Culvers testimony confirms that Defendants are wrong.

Defendants try to ignore the fact that Plaintiffs FOIA request to DoD was sent on May 2, 2011, only one day after the raid, and was received by DoD the following day, May 3, 2011. light of Ms. Culvers testimony that the CIA did not initially possess the records, but instead obtained them from another source after an original classification determination had purportedly been made, the date of the original classification determination is all the more crucial to evaluating whether Defendants complied with the additional procedural requirements of Section 1.7(d) of Executive Order 13526. Plaintiff submits that that the operative date for analyzing In

whether Defendants complied with Section 1.7(d) is the date the request was received by DoD. Regardless, if the date of the purported original classification was on or after May 3, 2011, in the case of DoD, or on or after May 5, 2011, in the case of both agencies, Defendants were required to follow the additional procedural requirements set forth in Section 1.7(d), including classifying the records on an document-by-document basis and having particular officials involved in the process. Executive Order 13526, 1.7(d). Defendants have failed to provide this clearly

relevant information despite repeated opportunities to do so.1 The obvious conclusion is that Defendants cannot prove that they complied with the additional procedural requirements of Section 1.7(d). Ms. Culvers testimony also is revealing for several other reasons. Ms. Culver makes

clear that, at least until some point after September 26, 2011, the records did not contain the
1

Mr. Bennett only testified that he reviewed the derivatively classified records document-by-document. Bennett Decl. at 4. He did not testify that he classified them document-by-document, as required by Section 1.7(d). -6-

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markings required by Executive Order 15326 for both original classification determinations and for derivative classification determinations. See Executive Order 13526, 1.6 and 2.1(b).

Ms. Culver testifies, At the time of Mr. Bennetts declaration, these records were marked TOP SECRET . . . .2 Culver Decl. at 7. She continues, Since then, the CIA has, out of an abundance of caution, take additional steps to ensure that each of these records contains all of the markings required by the Executive Order . . . . September 26, 2011. Id. Mr. Bennetts declaration is dated

The obvious conclusion is that Defendants did not even attempt to

comply with the marking requirements of Executive Order 13526 until at some point after September 26, 2011, nearly five months after Plaintiff served its FOIA requests. In addition, Ms. Culver testifies that after their creation these extraordinarily sensitive images were considered to be classified by the CIA and were consistently maintained in a manner appropriate for their classification level. testimony is revealing. Culver Decl. at 7, n.1. Ms. Culvers

If the records had been classified properly, then there would be no

reason for Ms. Culver to testify about whether the CIA always considered them to be classified or consistently maintained them as if they had been classified at a particular level. with Defendants complete and total failure to provide any evidence about the original classification of the records and Defendants subsequent admission that the records were derivatively classified by an unidentified official after being transferred to the CIA on some unidentified date, Ms. Culvers testimony effectively acknowledges that the records were not classified properly in the first instance. Combined

John Bennett, the Director of the National Clandestine Services, submitted a declaration in support of Defendants motion for summary judgment. -7-

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Finally, Ms. Culvers testimony also makes clear that the classification review conducted by Mr. Bennett was limited to a review of the derivative classification determinations made by some unidentified official at some unidentified time prior to September 26, 2011. Culver Decl.

at 8 (When Mr. Bennett . . . later reviewed each of these records for the purpose of this litigation, he reaffirmed that these prior classification determinations were correct . . . .). Mr. Bennett was not the original classification authority of the records, nor did he even derivatively classify them. Id. He only reviewed earlier, derivative classifications.3 Id. Defendants

provide no evidence about these earlier, derivative classifications.

Like with the purported

original classifications, Defendants provide no evidence about who derivatively classified the records, what procedures he or she followed, and whether all of the requirements outlined in Section 2.1 of Executive Order 13526 were satisfied. They only submit declarations Culver

reaffirming that these prior derivative classification determinations were correct. Decl. at 8. The law is clear.

In order to withhold records requested under Exemption 1, an agency

must demonstrate that withheld records were classified in accordance with the procedural criteria of the governing Executive Order. Lesar v. U.S. Department of Justice, 636 F.2d 472, 483 (D.C. Cir. 1980).
3

An agency may not rely on declarations that are conclusory, merely

In addition, Ms. Culvers testimony also bolsters Plaintiffs argument that Defendants searches for records were inadequate. The fact that the 52 responsive records were derivatively classified upon transfer to the CIA implies that additional originally classified records likely exist. Since Ms. Culver claims to possess personal knowledge and information about both this lawsuit and Plaintiffs requests (Culver Decl. at 5), Defendants cannot ignore what [they] cannot help but know. Kowalczyk v. Department of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996). Therefore, Defendants have failed to demonstrate beyond material doubt that [their] search[es] w[ere] reasonably calculated to uncover all relevant documents. Nation Magazine v. U.S. Customs Service, 71 F.3d 885, 890 (D.C. Cir. 1995) (quoting Truitt v. U.S. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). -8-

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recite statutory standards, or are vague or sweeping.

Allen v. Central Intelligence Agency, 636

F.2d 1287, 1291-92 (D.C. Cir. 1980) (rejecting affidavits that indicate[d] neither the identity of the original classifier nor the date or event for declassification or review). Defendants have

failed to make the required evidentiary showing despite having multiple opportunities to do so. Stripped down to their essence, Defendants declarations contain nothing more than generalized, conclusory assertions that the records at issue were classified properly under Executive Order 13526. Defendants have failed to satisfy their burden as a matter of law. B. Defendants Fail to Prove That They Satisfy the Substantive Requirements of Executive Order 13526. 1. Defendants Vague, Sweeping Descriptions of the Records At Issue Are Insufficient to Satisfy Their Burden.

Defendants also fail to demonstrate that they satisfy the substantive requirements of Executive Order 13526. They continue to rely on vague, sweeping descriptions of the 52

records at issue rather than identify each unique record individually, pinpointing the classification category of Section 1.4 into which each record allegedly falls, and demonstrating how the release of each record would cause exceptionally grave harm to national security. Defendants refusal to provide a Vaughn index or otherwise identify each record individually and to correlate that record to a legal theory justifying its withholding is important because, not only does it fail to satisfy Defendants burden as a matter of law, but it also cuts off any meaningful evaluation or analysis of Defendants claims of exemption. See Plfs Mem. at 18-19; see also

Animal Legal Defense Fund, Inc. v. Dept of Air Force, 44 F. Supp. 2d 295 (D.D.C. 1999). Plaintiff requested images of bin Laden. Plaintiff did not request images of the equipment or tools used during the May 1, 2011 raid. -9Nor did Plaintiff request information

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about the identities of the members of the U.S. Navy SEAL team that carried out the raid, site exploitation tactics, techniques, or procedures used by the team, or methods used by the team or by other U.S. military personnel to identify bin Ladens body or used generally by Defendants to identify persons who have been captured or killed. Nor did Plaintiff request information about

the CIAs facial recognition capabilities and techniques. Anything other than images of bin Ladens body are not responsive to Plaintiffs requests. By focusing on background material

and other information that Plaintiff did not request, Defendants obscure, if not intentionally obfuscate, what is truly at issue in this litigation, which are the images of bin Laden himself. By way of example, in their latest brief, Defendants describe the records as follows: Many of the records show the fatal bullet wound to bin Ladens head and other similarly graphic images of the corpse; many were taken inside bin Ladens compound in Abbottabad, Pakistan, where he was killed, while others were taken as his corpse was being transported from the Abottabad compound to the location where he was buried at sea; other images show the preparation of bin Ladens body for burial; and other images show the burial itself. Defs Reply at 8; see also Bennett Decl. at 11. Defendants continue:

. . . some of these records were taken for purposes of facial recognition analysis . . . Other record reveal other intelligence equipment or tools used during this highly sensitive intelligence information. Some of the records reveal unique information about the Special Operations unit that participated in this operation, making its members readily identifiable in the future. Multiple photographs show equipment used by the particular Special Operations unit during the operation. Classified Military Sensitive Site Exploitation tactics, Techniques, and Procedures are also depicted in the photos. Certain records reveal the methods that special operations forces use for identification of captured and killed personnel. Defs Reply at 8-9. Conspicuously absent from Defendants argument is any proof of how, for example, images of bin Ladens body as it was being prepared for burial at sea or images of the actual - 10 -

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burial at sea itself would reveal information about the identities of the members of the U.S. Navy SEAL team that carried out the raid or the tools and equipment used by the SEAL team during the raid. Similarly, Defendants make no effort to describe how images of bin Ladens body

taken as it was being transported to the location of its burial at sea would reveal site exploitation tactics, techniques, or procedures employed at bin Ladens compound in Abottabad, Pakistan. Obviously, images taken on board the USS Carl Vinson of the burial at sea are not going to reveal site exploitation tactics, techniques, or procedures used in the Abottabad compound or even facial recognition techniques or capabilities. Defendants have completely failed to

correlate particular records to specific legal theories and therefore have failed to satisfy their burden as a matter of law. 251 (D.C. Cir. 1977). Defendants assert that this failure does not matter, but it clearly does. Defendants do Mead Data Central, Inc. v. U.S. Dept of Air Force, 566 F.2d 242,

not claim that all of the records, as opposed to only some subset of them, contain the background material or other information about which Defendants have expressed concern. If only some

of the records, multiple photographs, or certain records contain this background material and other information, then at least some of the 52 unique records containing images of bin Laden do not. Because Defendants refuse to identify the records that contain the background material and other information about which Defendants have expressed concern, the have failed to satisfy their burden of proof that all 52 records must be withheld.4 566 F.2d at 251. Mead Data Central, Inc.

To the extent that some or certain of records are images taken for purposes of facial recognition analysis and were classified properly, Plaintiff would consider foregoing its claim for - 11 -

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Moreover, Defendants have a clear obligation to segregate responsive material from non-responsive material and exempt material from non-exempt material. See, e.g., Sussmann v.

U.S. Marshalls Service, 494 F.3d 1106, 1116 (D.C. Cir. 2007). Defendants have not disputed that they possess the technical capability to pixelate, blur, or otherwise segregate out the background material in question from the records containing images of bin Laden. Reply at 10. See Defs

Mr. Bennetts brief, bald, and barren assertion that any non-exempt records

containing images of bin Laden are so inextricably intertwined with allegedly exempt background material that they cannot be segregated and disclosed merely parrots the case law concerning segregability and therefore fails to satisfy Defendants burden. Animal Legal

Defense Fund, 44 F. Supp. 2d at 301(noting that neither the plaintiff nor the Court was obliged to accept the agencys conclusory assertions about segregability); Army Times Publishing Co. v. Dept of the Air Force, 990 F.2d 1067, (D.C. Cir. 1993); Allen v. Central Intelligence Agency, 636 F.2d 1287, 1292 (D.C. Cir. 1980). Finally, Defendants assert that they cannot disclose any additional information about the records because doing so could potentially reveal[] classified information. Defs Reply at 11 (emphasis added). Defendants clearly are wrong. For example, Defendants could assign a

Bates number to a particular record and state that the record depicts both bin Ladens body and a piece of equipment without identifying the particular piece of the equipment. Defendants also

could assign a range of Bates number to the records depicting bin Ladens burial at sea and identify each such record by Bates number without revealing any classified information. They do not claim that the number of records of the burial at sea is classified. Indeed, in most cases

their production. Because Defendants fail to provide even generic identifiers such as Bates numbers for any of the 52 records, Plaintiff is not in a position to do so. - 12 -

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the agency should not have difficulty describing the context and nature of the withheld information without revealing its substance. Campbell v. U.S. Dept of Justice, 164 F.3d 20,

31 (D.C. Cir. 1998) (citing Hayden v. Natl Security Agency, 608 F.2d 1381, 1385 (D.C. Cir. 1979). Defendants clearly can provide additional information about the withheld records; they just refuse to do so. In sum, the evidence submitted by Defendants consists of no more than conclusory declarations with overly vague and sweeping statements. Dept of Defense, 723 F. Supp. 2d 52, 63 (D.D.C. 2010). International Counsel Bureau v. U.S. The declarations submitted and the It is Defendants burden

arguments presented raise more questions than they provide answers. to provide sufficient evidence, and Defendants should provide it. 2.

They failed to do so.

Defendants National Security Argument Fails.

Even if Defendants could show which they have not that the classification of all 52 unique records satisfied the procedural requirements of Executive Order 13526, that each record has been adequately described and correlated to a particular exemption supporting the decision to withhold it, and that all non-responsive or exempt material had been segregated, Defendants still fail to demonstrate that the disclosure of all 52 unique records reasonably could be expected to cause identifiable or describable exceptionally grave damage to the national security that the original classification authority is able to identify or describe. Executive Order 13526, 1.4. Shorn of all background images and concerns about disclosure of facial recognition capabilities (see footnote 4, supra), Defendants national security argument boils down to the claim that even images of bin Ladens body, cleaned and prepared for burial at sea, as well as images of the the burial at sea itself, would provide terrorist groups and other entities hostile to - 13 -

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the United States with information to create propaganda, which, in turn could lead to violence and deadly attacks, could generate fodder for extremist commentary that could further incited attacks against the United States and its citizens, and could be interpreted as a deliberate attempt to humiliate the late al-Qaida leader that, combined with other images could cause feelings of denigration and could trigger violence, attacks, or acts of revenge . . . . Decl. at 24 and 26-27. Bennett

Based on this concern about potential propaganda and the emotional

sensitivities of unidentified persons or populations overseas, Defendants conclude that exceptionally grave damages to the United States could reasonably be expected. Neller Decl. at 6. Defendants provide no legal authority in which such hypothetical speculation about potential propaganda and hurt feelings leading to acts of violence was sufficient to satisfy an agencys burden of proof. No court appears to have ever held that Exemption 1 allows a Id.; see also

government agency to withhold requested records simply because their release might be used for propaganda purposes or inflame tensions overseas.5 rely are inapposite. The authorities on which Defendants

In American Civil Liberties Union v. U.S. Dept of Defense, 628 F.3d 612, 624 (D.C. Cir. 2011), the Court declined to reach a similar argument by the CIA that release of records regarding the capture, detention, and interrogation of prisoners held at Guantanamo Bay, Cuba would provide al Qaeda with material for propaganda. Also, in American Civil Liberties Union v. Dept of Defense, 543 F.3d 59, 67 n.3 (2d Cir. 2008), an Exemption 7(F) case, the Court assumed, but expressly stated that it need not decide, that the photographs at issue in that litigation could reasonably be expected to incite violence against United States troops, other Coalition forces, and civilians in Iraq and Afghanistan. That decision was later vacated by the U.S. Supreme Court. Dept of Defense v. American Civil Liberties Union, __ U.S. __, 130 S.Ct. 777 (2009).

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At issue in Miller v. Casey, 730 F.2d 773 (D.C. Cir. 1984), was information concerning alleged efforts by the United States and other countries to infiltrate intelligence agents and potential guerrillas into Albania during the period 1945-53. Id. at 774. The Court held that (1) prevent

the confirmation of a covert intelligence mission reasonably could be expected to:

foreign countries from participating in future covert missions; (2) hamper future relations with Albania; (3) permit hostile nations to piece together a catalog of U.S. covert missions; (4) enable the Soviet Union to ascertain the reliability of its double agent; (5) jeopardize sources and sympathizers still within Albania; (6) hamper future recruitment of sources; and (7) reveal the particular intelligence method allegedly used in the mission. Id. at 775-776. Release of

images of bin Ladens body particularly those images showing the body cleaned and prepared for burial and being buried at sea would not reveal any previously unknown covert intelligence missions. Defendants have freely and repeatedly acknowledged that the May 1, 2011 raid took

place, that bin Laden suffered a fatal bullet wound to his head, and that his body was washed in accordance with Islamic custom and buried at sea. Exhibit B. At issue in Afshar v. Department of State, 702 F.2d 1125 (D.C. Cir. 1983) were records that would have confirmed or denied a covert relationship between intelligence officials in the United States and their counterparts in Iran. The Court concluded that the release of the requested records would reveal the existence of and details concerning activities that had not been officially acknowledged. In that instance, the government asserted and the Court agreed that a national security concern existed because such intelligence relationships are conducted on the understanding of absolute confidentiality, so that their official acknowledgment would - 15 Bennett Decl. at 11; Bekesha Decl. at

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jeopardize all existing and future cooperative relationships and would strain or disrupt United States relations with other countries. Id. at 1129. Obviously, the release of the images of bin Laden are different. As Plaintiff demonstrated in its opening brief, the government has already officially acknowledged many aspects of the raid itself and the subsequent documenting of its success. Release of the records would provide no more than visual images of facts that have already been officially acknowledged. Similarly, in International Counsel Bureau, supra, and Riquelme v. CIA, 453 F. Supp. 2d 103 (D.D.C. 2006), the Court held that records were properly classified and withheld from production because the release of the records would reveal specific persons, methods, and resources that the CIA used to collect and analyze intelligence information. The revelation of intelligence techniques would therefore prevent the CIA from using such persons, methods, and resources in the future. Clearly, these cases have no bearing on the instant matter because release of the the images of bin Laden would not hinder future intelligence gathering and analysis. Defendants themselves do not claim as much. Nor do images of bin Laden especially those of his body cleaned and prepared for burial or actually being buried at sea present the typical scenario in which courts defer agencies assessments of harm to national security. See American Civil Liberties Union v. U.S. The Court is fully capable of

Dept of Defense, 628 F.3d 612, 623-25 (D.C. Cir. 2011).

reaching its own determination about the logic and plausibility of Defendants assertions of harm, taking into account not only Defendants declarations, but also the substantial information that Defendants have already released to the world about the May 1, 2011 raid, the death of bin Laden, and his burial at sea, as well as the undisputed historical material presented by Plaintiff. - 16 -

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Finally, even in the national security context deference is not equivalent to acquiescence; the declaration may justify summary judgment only if it is sufficient to afford the FOIA requester a meaningful opportunity to contest, and the district court an adequate foundation to review, the soundness of the withholding. Campbell, 164 F.3d at 30; see also International Counsel Bureau, 723 F. Supp. 2d at 63. Among the reasons that a declaration might be insufficient are lack of detail and specificity, bad faith, and failure to account for contrary record evidence. Campbell, 164 F.3d at 30. Based

on the record before the Court, Defendants generalized and conclusory claims of harm fail to satisfy its burden of proof. C. Defendants Fail to Prove That They Satisfy the Requirements of Exemption 3.

Like with their arguments regarding Exemption 1, Defendants continue to rely on vague and sweeping assertions to support their claims of withholding under Exemption 3. Although

the underlying statutes they invoke apply to intelligence sources and methods only (see 50 U.S.C. 403-1(i) and 403(g)), Plaintiff never requested information about intelligence sources or methods. Plaintiff only requested photographs and videos of bin Laden. Defendants

steadfastly refuse to identify with any degree of detail, even by Bates numbers, the 52 unique records containing images of bin Laden. Defendants also fail to explain how these two statutes,

which expressly apply to the CIA and the Director of National Intelligence, could prevent the release of DoD records and/or records of events that were carried out by DoD personnel using DoD facilities and a DoD ship. At the same time, Defendants concede that only some of the records were created for purposes of facial recognition analysis or contain images showing equipment or tools used - 17 -

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during the raid, displaying information about the the identities of members of the U.S. Navy SEAL team that carried out the raid, or depicting methods used for identification of captured or killed personnel. Defs Reply at 8-9. Defendants fail to prove why these images cannot be Sussman, 494

pixilated, blurred, or segregated to protect intelligence sources and methods. F.3d at 1116.

Nor do Defendants make any effort to prove why images of bin Laden that were

not taken for purposes of facial recognition analysis or do not show equipment or tools or display information identifying members of the SEAL team or depict methods of identifying captured or killed personnel cannot be produced. Mr. Bennett testifies that several images depict the Bennett Decl. at 11.

preparation of bin Ladens body for burial as well as the burial itself.

At a minimum, Defendants have failed to satisfy their burden of proving that disclosure of this subset of records showing the preparation of bin Ladens body for burial and bin Ladens burial actual at sea would reveal intelligence sources and methods. Again, Plaintiff only seeks images of bin Laden, not information about intelligence sources or methods or any other subject matter. Defendants have failed to demonstrate that

each and every of the 52 unique records are being lawfully withheld under Exemption 3 and that the images these records contain cannot be pixelated, blurred, or otherwise segregated to protect intelligence sources and methods while also satisfying Plaintiffs requests.

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III.

Conclusion. For the reasons set forth in Plaintiffs opening memorandum and the additional reasons

set forth above, Plaintiffs cross-motion for summary judgment should be granted. Dated: February 8, 2012 Respectfully submitted, /s/ Paul J. Orfanedes Paul J. Orfanedes (D.C. Bar No. 429716) /s/ Michael Bekesha 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

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