Judge Prods CIA on Request for Israel-Related Budget Items

[8/27/17/ BRITAIN EAKIN] A federal judge rejected the CIA’s request to reconsider a court order that it respond to a Freedom of Information Act request on the dollar amount of U.S. intelligence support for Israel.

U.S. District Judge Tanya Chutkan in March ordered the CIA to process a March 2015 FOIA request from Grant Smith, director of the Institute for Research: Middle Eastern Policy.

Smith, who is handling the litigation himself, wants intelligence budget line items from 1990 to 2015 as part of his public interest research on how U.S. nuclear knowhow, material and technology have been diverted to support Israeli entities engaged in clandestine nuclear weapons research and development.

The CIA had issued a Glomar response to Smith’s request in April 2015, saying it would not confirm or deny the existence of the information.

But Smith argued that statements by President Barack Obama constituted an official acknowledgment that the records he seeks do exist. Once an agency officially acknowledges something, it can no longer issue a Glomar response to deny FOIA requests.

Judge Chutkan said the CIA needed to release the records or identify a basis for withholding them.

The CIA asked Chutkan to reconsider, saying the court had made “factual misimpressions” by interpreting Obama’s statement to indicate that the CIA had some connection to the records.

Sixteen other intelligence agencies can offer intelligence assistance, the CIA said, and nothing in Obama’s statement confirmed or denied that the CIA has the records Smith seeks.

On Wednesday, Chutkan disagreed.

“Based on the current record, the court cannot grant the CIA’s motion for summary judgment because the court does not have sufficient information to decide whether President Obama’s statement constitutes an official acknowledgment of records that the CIA keeps or regularly accesses,” the 8-page order states.

The CIA declined to comment.

Smith expressed mixed feelings about it.

“It’s good in the sense that she didn’t just acquiesce to their demands to throw the case out,” he said in an interview. But Smith said the order could leave room for the CIA to acknowledge it has the records, but invoke an exemption to withhold them.

“She left the door wide open for that, unfortunately,” Smith said.

Chutkan acknowledged in the order that the court recognized that Obama’s statements did not offer explicit confirmation or denial of the CIA’s intelligence support to Israel.

Smith, however, asked for budget items, not confirmation of the agency’s support for Israel, the order states.

“President Obama’s statement, while perhaps not an official acknowledgment that the CIA is the actual intelligence agency that provides support to Israel, is an acknowledgement that some intelligence agency does so, and therefore that intelligence agency would have budget line items,” the order states.

Chutkan cited a D.C. Circuit ruling in the American Civil Liberty Union’s quest for CIA records on drone strikes. In that case, the court held that a Glomar response was precluded by public acknowledgement of the drone program, which the court found elicited an inference that the agency had at least some intelligence interest in the program, and would therefore likely have some records about it.

Smith’s case differs because he is seeking only budget line items, but Chutkan said that if the CIA keeps copies of other intelligence agency budgets that include line items, it would need to disclose the information or withhold it under a FOIA exemption.

Smith said he will challenge the CIA if it admits it has the information but refuses to release it under a FOIA exemption.

“It’s kind of sad, really, that they won’t play ball,” he said. “We’re all spending time and money on this very basic question to the top recipient of all foreign aid, and we’re acting as though these things are sacred. And they’re not.”