18-2112-cv 1 arming and training rebel forces in Syria. 19 the statements did not officially The district court acknowledge or BACKGROUND 20 Plaintiffs-Appellants, the New York Times and Matthew 21 Rosenberg, a reporter for the New York Times (collectively, the 22 Times), submitted a FOIA request on July 25, 2017, seeking to compel 23 disclosure by the CIA of records pertaining to a covert program 4 No. 14 (Carter, J.) granted summary judgment for the CIA, holding that the 15 relevant statements did not strip the CIA of the claimed exemptions 16 because 17 inadvertently declassify the existence of such a program. The 13 parties cross-moved for summary judgment. The Times filed a 11 complaint asserting that certain statements made by the President 12 and another individual precluded use of the Glomar response. Claiming that 7 such a disclosure was not required under two FOIA exemptions, the 8 CIA responded to the Times’ initial FOIA request with a so-called 9 Glomar response that that the Agency could neither confirm nor deny 10 the existence or nonexistence of such records. WALKER, JR., Circuit Judge: 2 New York Times and Matthew Rosenberg (collectively, the 3 Times) brought this Freedom of Information Act (FOIA) action 4 seeking acknowledgement from the Central Intelligence Agency 5 (CIA) that it was aware of the existence of records regarding a covert 6 program of arming and training rebel forces in Syria. Berman, United States Attorney for Southern District of New York, NY, for Defendant-Appellee. MCCRAW, The New York Times Company, Legal Department, New York, NY for Plaintiffs-Appellants. 15 16 CHIEF JUDGE KATZMANN dissents in a separate opinion. The District Court for the Southern 10 District of New York (Carter, J.) granted summary judgment for the 11 CIA, holding that the relevant statements did not strip the CIA of the 12 two claimed exemptions because the statements did not officially 13 acknowledge or inadvertently declassify the existence of such a 14 program. The parties cross- 9 moved for summary judgment. The Times then filed a complaint 7 asserting that certain statements made by the President and another 8 individual precluded use of the Glomar response. Claiming that 3 such a disclosure was not required under two FOIA exemptions, the 4 CIA responded to the request with a so-called Glomar response stating 5 that the Agency could neither confirm nor deny the existence or 6 nonexistence of such records. 18-2112-cv 1 (CIA) that it was aware of the existence of records regarding a covert 2 program of arming and training rebel forces in Syria. _ 30 31 New York Times and Matthew Rosenberg (collectively, the 32 Times) brought this Freedom of Information Act (FOIA) action 33 seeking acknowledgement from the Central Intelligence Agency 2 No. _ 26 27 28 29 Before: KATZMANN, Chief Judge, and WALKER, and PARK, Circuit Judges. _ 22 23 24 25 Appeal from the United States District Court for the Southern District of New York. 18 19 20 21 CENTRAL INTELLIGENCE AGENCY, Defendant-Appellee. 18-2112-cv 13 14 15 THE NEW YORK TIMES, MATTHEW ROSENBERG, Plaintiffs-Appellants, 16 17 v. Central Intelligence Agency 1 2 In the 3 United States Court of Appeals 4 For the Second Circuit 5 _ 6 7 AUGUST TERM, 2019 8 9 10 ARGUED: SEPTEMDECIDED: J11 12 No. The court also held that President Trump's tweet and statements to the Wall Street Journal interviewer did not declassify the existence of the covert program.ġ8-2112 The New York Times, et al., v. The court stated that it is still logical or plausible that disclosing the existence or nonexistence of an intelligence interest in such a program would reveal something not already officially acknowledged and thereby harm national security interests. After according appropriate deference to the uniquely executive purview of national security, the court held that President Donald Trump's statements, even when coupled with General Raymond (Tony) Thomas's statements, left lingering doubts and thus were insufficient to amount to an official acknowledgement of the alleged covert program in Syria, much less the existence of records related to the program. The Second Circuit affirmed the district court's grant of summary judgment in favor of the CIA. The CIA responded to the request with a Glomar response, stating that it could neither confirm nor deny the existence or nonexistence of such records. The Times filed a Freedom of Information Act (FOIA) action seeking acknowledgement from the CIA that it was aware of the existence of records regarding a covert program of arming and training rebel forces in Syria.
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