Case 1:08-cv-01468-EGS Document 17 Filed 07/01/2009 Page 1 of 10

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND )

ETHICS IN WASHINGTON, )
)
Plaintiff )
) No. 1:08-cv-01468 (EGS)
v. ) Hon. Emmet G. Sullivan
)
U.S. DEPARTMENT OF JUSTICE, )
)
Defendant. )
____________________________________ )

UNITED STATES DEPARTMENT OF JUSTICE’S SUPPLEMENTAL

MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

Pursuant to the Court’s direction at the June 18, 2009 hearing and the Court’s Order of

June 20, 2009, the United States Department of Justice submits this Supplemental Memorandum

to address (1) two cases identified by the Court at the hearing and (2) known instances of senior

White House officials engaging in interviews with law enforcement investigators outside the

presence of the grand jury.1

1
The Court’s Order also directed DOJ to submit the three documents listed in its Vaughn
index to the Court for in camera review, and to file appropriate declarations. DOJ is submitting
the three documents to the Court today. Material that is exempt pursuant to Exemptions 1, 2, 3,
5 (deliberative process), and/or 5 (Presidential communications privilege) is bracketed with the
appropriate exemption(s) annotated in the margin. Declarations setting forth the bases for each
of these exemptions as well as Exemption 7(A), Exemption 5 (law enforcement privilege), and
Exemption 5 (work product privilege) are attached. The law enforcement privilege and
Exemption 7(A) apply to the documents in their entirety. Work product privilege applies to the
typed written outline of questions (but not the handwritten notes of answers) on one of the sets of
notes.
 Case 1:08-cv-01468-EGS Document 17 Filed 07/01/2009 Page 2 of 10

I. Sussman v. United States Marshals Service and Antonelli v. Bureau of Alcohol,

Tobacco, Firearms & Explosives

A. Sussman and “Specific Information About the Impact of the Disclosures”

In Sussman v. United States Marshals Service, 494 F.3d 1106 (D.C. Cir. 2007), the D.C.

Circuit reiterated the basic principles of Exemption 7(A):

Exemption 7(A) covers materials compiled for law enforcement purposes whose
disclosure “could reasonably be expected to interfere with enforcement
proceedings.” 5 U.S.C. § 552(b)(7)(A). The enforcement proceedings need not
be currently ongoing; it suffices for them to be “reasonably anticipated.”
Mapother v. DOJ, 3 F.3d 1533, 1540 (D.C. Cir. 1993) (emphasis omitted).

494 F.3d at 1113-14.

The court went on to note that to successfully assert Exemption 7(A), an agency

declaration must contain “specific information about the impact of the disclosures” on pending

or reasonably anticipated law enforcement proceedings. Id. at 1114. In this matter, both the

formal letter from Attorney General Mukasey and the Declaration of the Assistant Attorney

General currently in charge of DOJ’s Criminal Division, Lanny A. Breuer, set forth such specific

information about the impact of the disclosures sought by plaintiff.

As Mr. Breuer states, given the history of law enforcement investigations that have

involved obtaining information from senior White House officials, “the Department of Justice

believes that there is a reasonable probability of future law enforcement investigations by the

Department of Justice that will require and benefit from obtaining information from White

House officials, possibly at the highest level of government.” Breuer Decl. ¶ 2.2 Mr. Breuer

2
A “reasonable probability” is clearly sufficient to meet the “reasonably anticipated”
standard for application of Exemption 7(A). Indeed, courts have indicated that Exemption 7(A)
is applicable even with a substantially lower showing. See, e.g., Bevis v. Dep’t of State, 801 F.2d
1386, 1389 (D.C. Cir. 1986) (Exemption 7(A) appropriate where the court “cannot discount the

2
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further explains that “[a] non-public interview can be particularly important in gaining the

cooperation of senior-level White House officials given the public role of such witnesses, the

sensitive nature of the subject matters that may be discussed, the potential politicization of these

sensitive issues, and the possibility that whatever matter is being investigated ultimately may not

warrant any law enforcement action.” Id. ¶ 4. “[I]f law enforcement interviews of the President,

Vice President or other senior White House officials become subject to routine public disclosure,

even upon the conclusion of an investigation, there is an increased likelihood that such officials

could feel reluctant to participate in voluntary interviews or, if they agree to such voluntary

interviews, could decline to answer questions on certain topics.” Id. ¶ 5; accord Mukasey letter,

at 4 (attached as Bradbury Decl. Ex. B) (“Were future Presidents, Vice Presidents or White

House staff to perceive that such voluntary cooperation would create records that would likely be

made available to Congress (and then possibly disclosed publicly outside of judicial proceedings

such as a trial), there would be an unacceptable risk that such knowledge could adversely impact

their willingness to cooperate fully and candidly in a voluntary interview.”); see also United

States v. Nixon, 418 U.S. 683, 705 (1974) (“Human experience teaches that those who expect

public dissemination of their remarks may well temper candor with a concern for

appearances . . . .”).

As Mr. Breuer further states, “[a] White House official’s reluctance to submit voluntarily

to an interview or share certain information in an interview could hamper an investigation in

prospect” of future law enforcement proceedings within the class of proceedings that would be
impacted by disclosure); Hildago v. FBI, 541 F. Supp. 2d 250, 256 (D.D.C. 2008) (“An ongoing
search for – and possible future trials of – indicted and unindicted fugitives satisfies that
[concreteness] standard, even if the possibility of actual prosecution is ultimately remote.”).

3
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several important ways.” Breuer Decl. ¶ 6; accord Mukasey letter, at 4 (“Such a result would

significantly impair the Department’s ability to conduct future law enforcement investigations

that would benefit from full White House cooperation.”). For example, obtaining information

through interviews early in an investigation “often assists law enforcement agents in obtaining

important background information,” “help[s] law enforcement investigators determine where to

concentrate or focus the investigation,” and may “obviate the need to convene a grand jury at all

or circumscribe the focus of the grand jury’s inquiry.” Breuer Decl. ¶ 6. “A law enforcement

investigation based upon interviews subject to an expectation of confidentiality also benefits

from senior officials more inclined to provide identifiable leads, name percipient witnesses, offer

credibility assessments of the accuser or other witnesses, and even articulate inferences, insight

or hunches that can be invaluable to a law enforcement investigator.” Id. Additionally, if a

senior White House official were to require the investigators to go through the grand jury

process, “[s]uch a decision could impose considerable practical difficulties and burdens upon

investigators and prosecutors that at best could prolong investigations and at worst thwart

investigations.” Id. ¶ 7.

Mr. Breuer also expresses a concern about politicization of law enforcement

investigations: “In addition, forcing White House officials to be brought before grand juries

could have the effect of injecting the law enforcement investigation itself into the political

process, which could intrude upon government operations at the highest level of government,

and which could risk the perception that the investigation itself was political, thus undermining

public faith in the impartiality of the judicial system. Baseless, partisan allegations that easily

could be investigated and dismissed through voluntary interviews now may have to be

4
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investigated through the specter of the grand jury process. In addition, if law enforcement

interviews are routinely subject to public disclosure, there could be a significant risk of

politicization of law enforcement files and investigation, which could undermine the integrity

and effectiveness of, and public confidence in, those investigations.” Id. ¶ 8.3

B. Antonelli and “Concrete Prospective Law Enforcement Investigations”

In Antonelli v. Bureau of Alcohol, Tobacco, Firearms & Explosives, No. Civ. A. 04-1180,

2005 WL 3276222 (Aug. 16, 2005), the court addressed the meaning of “reasonably anticipated”

in the Mapother 7(A) analysis, stating that “‘[r]easonably anticipated’ means a ‘concrete

prospective law enforcement proceeding.’” 2005 WL 326222, at *4 (quoting Bevis v. Dep’t of

State, 801 F.2d 1386, 1389 (D.C. Cir. 1986)). The Antonelli court did not specify the meaning of

“concrete” in this analysis. It did, however, find that the anticipated proceedings in the case

before it were sufficiently concrete for Exemption 7(A) to apply. The court further found that

the agency’s declaration stating, inter alia, that release “could . . . ‘discourage future witnesses

from cooperating with ATF’” presented a “proper justification” for invoking Exemption 7(A).

3
Pursuant to the Court’s Order, DOJ is also submitting two additional declarations
providing support for the invocation of the other applicable exemptions (i.e., other than
Exemption 7(A) and the law enforcement privilege that is incorporated into FOIA via Exemption
5). See Declaration of David J. Barron; Declaration of Ralph S. DiMaio. Because the Court’s
directives regarding supplemental briefing were limited to certain discrete topics, DOJ does not
discuss these declarations here, except to note that the Barron Declaration explains the
applicability of two exemptions that were not discussed in the Bradbury Declaration –
Exemption 2 which protects purely administrative information and the work product privilege
(through Exemption 5) which protects the question outline prepared by the Special Counsel.
While these exemptions should have been asserted in Mr. Bradbury’s declaration, see Maydak v.
United States Dep’t of Justice, 218 F.3d 760 (D.C. Cir. 2000), this inadvertent error does not
prevent the Court from considering them now, see Senate of Puerto Rico v. United States Dep’t
of Justice, 823 F.2d 574, 580-81 (D.C. Cir. 1987) (Ginsburg, Ruth Bader, J.) (affirming District
Court’s consideration of exemption that, while not raised in initial filing, was raised prior to the
District Court’s entry of judgment).

5
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Id. at *4 (quoting agency declaration).

While Antonelli does not discuss the meaning of the term “concrete,” the recent D.C.

Circuit case of Boyd v. Criminal Division, 475 F.3d 381 (D.C. Cir. 2007), makes it clear that

establishing “concreteness” does not require identification of a particular statute that has been

violated or a particular crime that has been committed. See id. at 386. Rather, there the court

found “sufficient specificity” in the agency’s generalized identification of the targets of the

investigation: “‘individuals . . . to some degree, related [to], controlled [by], or influenced by’”

the plaintiff. Id. (quoting agency declaration) (alterations in original). This suggests that

sufficient “concreteness” is present where a class of potential investigations is described with

“sufficient specificity.” Here, while there is no identification of the targets, there is an

identification of a narrow, specified class of criminal investigations – those that require

assistance from senior White House officials, including possibly the President and the Vice

President – that could reasonably be expected to be impeded by release of the documents at issue

here. And, as DOJ’s earlier discussion of Mapother v. Department of Justice, 3 F.3d 1533 (D.C.

Cir. 1993), demonstrates, identification of a class of prospective proceedings, even in the

absence of an identification of specific targets, is sufficient to meet the “reasonably anticipated”

standard, under Exemption 7(A). See Docket No. 11, at 5-6.

II. Prior Interviews of Senior White House Officials

DOJ is aware of the following interviews of senior White House officials conducted by

law enforcement investigators outside the grand jury:4

4
While DOJ has endeavored to find as many law enforcement interviews of senior White
House officials as possible, we cannot assure the Court that this is a comprehensive list.
Additionally, DOJ has only identified in this public filing those interviewees that the Department

6
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As part of the Iran-Contra investigation, then-Vice President Bush was interviewed by

the FBI. See I Final Report of the Independent Counsel for Iran/Contra Matters, Ch. 28.

National Security Advisor Robert McFarlane was interviewed by the Independent Counsel. See

id. Ch. 1. Former White House Chief of Staff (and then-Attorney General) Edwin Meese III was

interviewed by the Independent Counsel. See id. Ch. 31. White House Counsel C. Boyden Gray

was interviewed by the Independent Counsel. See Walter Pincus, Past Attorney-Client Issue

Resonates, Wash. Post, A3 (June 7, 1997). Former President Reagan was interviewed by the

Independent Counsel in 1992. See I Final Report of the Independent Counsel for Iran/Contra

Matters, Part II:9.

Former President George H. W. Bush and former Vice President Quayle were

interviewed as part of the investigation into possible access to the passport file of then-Governor

Bill Clinton while he was running for President. See I Final Report of the Independent Counsel

In Re: Janet G. Mullins, 378.

As part of the investigation into the death of Vincent Foster, numerous White House

officials were interviewed, including President Clinton, First Lady Hillary Rodham Clinton,

White House Chief of Staff Thomas McLarty, Assistants to the President Bruce Lindsey, John

Podesta, Ricki Seidman, and George Stephanopoulos, and former White House Counsel Bernard

Nussbaum. See Report of the Independent Counsel In Re: Vincent W. Foster, Jr., at 3.

Nussbaum was also interviewed as part of the investigation related to the White House Travel

Office. See Report of the Independent Counsel In Re: David Watkins, at 194.

has confirmed have previously been publicly disclosed. If the court requires DOJ to submit a
filing discussing interviews that the Department has not previously made public, the Department
requests the opportunity to do so in camera.

7
 Case 1:08-cv-01468-EGS Document 17 Filed 07/01/2009 Page 8 of 10

Associate Counsel to the President William Kennedy III was interviewed as part of the

investigation into the Whitewater land deal. See III Final Report of the Independent Counsel In

Re: Madison Guaranty Savings & Loan Ass’n, Part E.

The Campaign Finance Task Force interviewed President Clinton, Vice President Gore,

and Senior Presidential Advisor Harold Ickes. See Tenth Report by the Committee on

Government Reform, H.R. Rep. 106-1027, at 149 (December 13, 2000).

As part of the investigation that led to the creation of the documents at issue here, Special

Prosecutor Patrick Fitzgerald interviewed White House officials, including President George W.

Bush, Vice President Cheney, White House of Chief of Staff Andrew Card, National Security

Advisor Condaleeza Rice, Deputy National Security Advisor Stephen Hadley, Senior Advisor to

the President Karl Rove, Counselor to the President Dan Bartlett, White House Press Secretary

Scott McClellan, and Chief of Staff to the Vice President I. Lewis Libby. See Draft Report of

the Committee on Oversight and Government Reform, at 4 (attached as Exhibit B to Plaintiff’s

Opposition Mem.).5

The above interviews of senior White House officials in various administrations

demonstrate that there is a reasonably probability of future instances in which investigators will

want or need to interview such officials. Regarding these interviews, the Department of Justice

5
For the vast majority of these interviews, no transcript, FBI 302 report, or similar
summary has been released to the public. The transcript of President Reagan’s 1992 interview is
available to the public at the National Archives and Records Administration. This interview,
which occurred approximately four years after President Reagan left office contains little
information about White House or other governmental activity. FBI 302 reports of the
interviews of President Clinton and Vice President Gore by the Campaign Finance Task Force
were provided to a Congressional committee by the Department of Justice. DOJ does not know
whether these reports were released to the public by Congress. DOJ is not aware of any other
interview transcript or report listed above having been released to the public.

8
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is unaware of any formal confidentiality agreements between interviewees and prosecutors. In

any event, a prosecutor or other law enforcement investigator has no power to override statutes

such as the Freedom of Information Act and a promise of confidentiality has no bearing on the

applicability of Exemption 7(A).6

6
At the June 18 hearing, plaintiff’s counsel indicated that White House Counsel C.
Boyden Gray may have negotiated an agreement with the Independent Counsel. DOJ has no
knowledge of this other than what is contained in the Iran-Contra Independent Counsel Report,
which suggests that Gray attempted to negotiate over privilege rather than confidentiality with
regard to a second interview sought by the Independent Counsel.

According to the Report, Gray and his deputy produced certain documents to the
Independent Counsel subject to an agreement that the act of production did not waive any pre-
existing privileges over the documents. See I Final Report of the Independent Counsel for
Iran/Contra Matters, Ch. 28. This non-waiver agreement provided: “This review will not waive
and will be without prejudice to any privilege against disclosure that may exist with respect to
any of the documents, including the attorney-client privilege.” Id., Ch. 28 n.52. The
Independent Counsel sought to interview Gray, but Gray sought a non-waiver provision
protecting his own as well as President Bush’s privileges. Id., Ch. 28. When the Independent
Counsel refused to agree to these terms, Gray declined to be interviewed. Id.

9
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CONCLUSION

For the reasons stated above and in DOJ’s prior memoranda, DOJ’s Motion for Summary

Judgment should be granted.

July 1, 2009 Respectfully submitted,

TONY WEST
Assistant Attorney General

IAN GERSHENGORN
Deputy Assistant Attorney General

CHANNING D. PHILLIPS
Acting United States Attorney

JOHN TYLER
Assistant Branch Director

/s/ Jeffrey M. Smith

JEFFREY M. SMITH (D.C. Bar # 467936)
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW,
Washington, D.C. 20001
Room 7144
Tel: (202) 514-5751
Fax: (202) 616-8202

Counsel for the United States Department of Justice

10
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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND

ETHIC S IN WASHINGTON,

Plaintiff
No. 1:08-cv-01468 (EGS)
V. Hon. Emmet G. Sullivan

U.S. DEPARTMENT OF JuSTICE,

Defendant.

DECLARATION OF LANNY A. BREUER,

ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION

I, Lanny A. Breuer, declare as follows:

1. I am the Assistant Attorney General of the Criminal Division at the United States

Department of Justice. In this position, I oversee the operations of the Criminal Division, which

develops, enforces, and supervises the application of all federal criminal laws, except those

specifically assigned to other divisions.

2. There have been law enforcement investigations by Independent Counsel and the

Department of Justice that have involved obtaining information from high-level White House

officials in nearly every administration since the Johnson Administration. Given this history, the

Department of Justice believes that there is a reasonable probability of future law enforcement

investigations by the Department of Justice that will require and benefit from obtaining

information from White House officials, possibly at the highest level of government.

3. In any such investigation, it will be important that White House officials be able

to provide law enforcement officials with a full account of relevant events. Any such

investigation may delve into or require a full accounting of internal White House deliberations or
 Case 1:08-cv-01468-EGS Document 17-2 Filed 07/01/2009 Page 2 of 5

other government operations. Questions may cover, for example, conversations between the

President or Vice President and senior advisors, the decision-making process on specific policy

matters, advice given to the President or direction provided by the President, and internal

discussions relating to White House interactions with other Executive Branch entities and with

Congress. Particularly during the early stages of an investigation, questioning can range over a

wide variety of subjects, many of which may ultimately prove to be unrelated to or without value

to the investigation.

4. In any law enforcement investigation, interviews are a powerful investigatory

tool, in large part because such interviews allow law enforcement to efficiently gather

information in a non-public setting, very early in an investigation, without the formalities of the

grand jury process. As a general matter, the non-public nature of law enforcement interviews

can be a significant factor in securing the voluntary cooperation of witnesses. Indeed, it is not

uncommon for prosecutors and law enforcement investigators to inform witnesses that, subject to

applicable statutes, regulations and rules, they will attempt to maintain the confidentiality of

information provided. A non-public interview can be particularly important in gaining the

cooperation of senior-level White House officials given the public role of such witnesses, the

sensitive nature of the subject matters that may be discussed, the potential politicization of these

sensitive issues, and the possibility that whatever matter is being investigated ultimately may not

warrant any law enforcement action.

In addition, as a general rule, a prosecutor cannot tell a White House official how

long he or she believes an investigation may last, and the official may thus believe that

information provided could become public while the official is still in office. Therefore, if law

-2-
 Case 1:08-cv-01468-EGS Document 17-2 Filed 07/01/2009 Page 3 of 5

enforcement interviews of the President, Vice President or other senior White House officials

become subject to routine public disclosure, even upon the conclusion of an investigation, there

is an increased likelihood that such officials could feel reluctant to participate in voluntary

interviews or, if they agree to such voluntary interviews, could decline to answer questions on

certain topics.

6. A White House official's reluctance to submit voluntarily to an interview or share

certain information in an interview could hamper an investigation in several important ways. A

law enforcement investigation often benefits from conducting interviews early in an

investigation, well before a grand jury has been convened. Indeed, obtaining such evidence

early in an investigation often assists law enforcement agents in obtaining important background

information relevant to understanding the allegations being investigated. Voluntary interviews

also help law enforcement investigators determine where to concentrate or focus the

investigation, not only for the collection of evidence, such as documents, but also the most likely

candidates for interview. Indeed, voluntary interviews might obviate the need to convene a

grand jury at all or circumscribe the focus of the grand jury's inquiry. A law enforcement

investigation based upon interviews subject to an expectation of confidentiality also benefits

from senior officials more inclined to provide identifiable leads, name percipient witnesses, offer

credibility assessments of the accuser or other witnesses, and even articulate inferences, insight

or hunches that can be invaluable to a law enforcement investigator. A law enforcement

investigation could lose these potential benefits if the senior official believes his or her statement

will be subject to public disclosure.

-3-
 Case 1:08-cv-01468-EGS Document 17-2 Filed 07/01/2009 Page 4 of 5

7. Moreover, if interviews of senior-level White House officials become subject to

routine public disclosure, the White House official may agree to talk only in response to a grand

jury subpoena in order to obtain the confidentiality protection of Rule 6(e) of the Federal Rules

of Criminal Procedure. Such a decision could impose considerable practical difficulties and

burdens upon investigators and prosecutors that at best could prolong investigations and at worst

thwart investigations. As described above, as a general rule, law enforcement investigators

interview witnesses in the early stages of an investigation to help focus the investigation and as a

means of predicating document requests. Absent such interviews, prosecutors could have to

confront and choose from several undesirable choices, including: (a) grand jury appearances for

witnesses too early in an investigation, including at a stage when prosecutors are still developing

a factual record to understand the background and basis for the potential criminal allegations,

identifying leads and potential witnesses, predicating documents requests, and conducting other

preliminary, investigative steps normally best left for voluntary interviews; (b) relaying

information developed in the grand jury to law enforcement investigators to pursue identifiable

leads or predicate document requests without the benefit of the investigators having obtained that

information first-hand; (c) multiple grand jury appearances for some witnesses as the

investigation uncovers relevant documents and conducts other grand jury sessions in order to

correct or refine previously sworn testimony; and (d) grand jury appearances for other witnesses

who simply have no information relevant to the allegations being investigated; or, alternatively,

(e) delaying the grand jury appearances of all witnesses to some later, undefined phase of the

investigation in order to prevent the creation of unproductive, potentially inaccurate grand jury

testimony. All of these choices are unproductive and inefficient, and impose burdens,

-4-
 Case 1:08-cv-01468-EGS Document 17-2 Filed 07/01/2009 Page 5 of 5

inconveniences and stretches of unavailability on senior officials who may have pressing

national security and other issues to address on a daily basis.

In addition, forcing White House officials to be brought before grand juries could

have the effect of injecting the law enforcement investigation itself into the political process,

which could intrude upon government operations at the highest level of government, and which

could risk the perception that the investigation itself was political, thus undermining public faith

in the impartiality of the judicial system. Baseless, partisan allegations that, easily could be

investigated and dismissed through voluntary interviews now may have to be investigated

through the specter of the grand jury process. In addition, if law enforcement interviews are

routinely subject to public disclosure, there could be a significant risk of politicization of law

enforcement files and investigations, which could undermine the integrity and effectiveness of,

and public confidence in, those investigations;

I declare under penalty of perjury that the foregoing is true and correct.

Executed ( 2009.

-5-
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 NO. 3~)Zl P. 2
Case 1:08-cv-01468-EGS Document 17-4 Filed 07/01/2009 Page 1 of 26

IN THE ~,TITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY )

AND ETHICS IN WASHINGTON, )
)
Plaintiff,

Civil Action No. 08-1468 (EGS)

DEPARTMENT OF JUSTICE,

Defendant.

DECLARATION OF RALPH S, DIMAIO,

INFORMATION REVIEW OFFICER, NATIONAL
CLANDESTINE SERVICE, CENTRAL INTELLIGENCE AGENCY

INTRODUCTION

I, PJ~LPH S. DIMAIO, hereby declare:

i. I am the Information Review Officer ("IRO") for the

National Clandestine Service ("NCS")~ of the Central Intelligence

Agency ("CIA") . I was appointed to this position on Ii June

2007. I have held several senior operational and administrative

positions in the CIA since 1983.

2. The NCS is the organization within the CIA responsible

for conducting the CIA’s foreign intelligence and

counterintelligence activities; coordinating liaison with

foreign intelligence and security services; serving as the

repository for foreign counterintelligence information

supporting clandestine technical collection; and coordinating

CIA support to the Department of Defense and other U.S.

The NCS was formerly known as the Directorate of Opei’ations or "DO.

 Case 1:08-cv-01468-EGS Document 17-4 Filed 07/01/2009 Page 2 of 26

Government agencies. Specifically, the NCS is responsible for

the conduct of foreign intelligence collection activities

through the clandestine use of human sources. The NCS maintains

official records of all clandestine foreign intelligence and

counterintelligence activities and operations conducted by the

CIA with respect to human sources. These records are maintained

by the CiA in the regular course of business and it is the CIA’s

regular practice to maintain such records.

3. As the NCS/IRO, I am responsible for both the

protection and review of documents originated by the NCS, or

otherwise implicating NCS interests, which may be the subject of

court proceedings. As part of my official duties, I ensure that

any determinations as to the release or withholding of such

information are proper and do not jeopardize NCS interests or

ondanger NCS personnel or facilities. As the NCS/IRO, I have

access to all official NCS records. My official

responsibilities include the search for, and retrieva! of, NCS

records pursuant to requests for information concerning

operational and intelligence activities.

4. For the purposes of this litigation, I have been

designated CIA Records Validation Officer ("RVO"). As RV0, I am

authorized to access all CIA records relevant to this

litigation. I also am authorized to task appropriate personnel

to conduct record searches within any office or component of the

3~!_. 1.1:08-cv-01468-EGS
2009 6,27~k~ Document
.... l, lO, 39z+1 P, 4
Case 17-4 Filed 07/01/2009 Page 3 of 26

C!A, including, but not limited to, the NCS. Similarly, I am

authorized to sign declarations on behalf of the CIA re~arding

searches of CIA record systems and the contents of records

located during these searches.

5. As a senior CIA official under a written delegation of

authority pursuant to section 1.3(c) of Executive Order 12958,

as amended, I hold original classification authority at the TOP

SECRET level.~ Therefore, I am authorized to make original

classification and declassification decisions, As the RVO in

this case, my original classification and declassification

authority extends to all CIA information.

6. Through the exercise of my official duties, I am

familiar with this civil action. I make the following

statements based upon my personal knowledge and information made

available to me in my official capacity.

7. Pursuant to the Court’s 20 June 2009 Order in this

case, this declaration: (I) describes the CIA information that

the Freedom of Information Act (’~FOIA") exempts from disclosure

in this case; (2) identifies the FOIA exemptions applicable to

the CIA information that is exempt from disclosure in this case;

and (3) explains why the cited FOIA exemptions apply.

~ Executive Order $2958 was amended by Executive Order 13292. See Exec. Order
No. 13,292, 68 Fed. Reg, 1~,315 (Mar. 28, 2003). All citations to Executive
Order 12958 are to the Order as amended by Executive Order 13292. See
Exec, Order No. 12,958, 60 Fed. Reg. 19,025 (Apr~ 20, 1995), reprinted as
amend÷d in Z0 U.g.C.A. ~ 435 note at 193 (West Supp. 2008).
!I.IL. 1.2(;<)9 <,27P~/ \10. 2,941~F’. 5
Case 1:08-cv-01468-EGS Document 17-4 Filed 07/01/2009 Page 4 of 26

8. For the Court’s convenience, this declaration has been

divided into five parts: Part I is the introduction; Part II

provides background on Plaintiff’s FOIA request and the

procedural history of this case; Part Ill describes the exempt

CIA information withheld from the documents in this case; Part

I~v asserts FOIA exemptions (b) (1) and (b) [3) (hereinafter

referred to as "FOIA Exemption t" and "FO!A Exemption 3"

respectively) over the CIA information withheld from the

documents in this case and explains why these FO!A exemptions

apply; Part V discusses the segregability of the documents

responsive to Plaintiff’s FOIA request.

II, PLAINTIFF’S FOIA REQUEST AND PROCEDUF~AL HISTORY

9. By letter dated lq July 2008, Plaintiff Citizens for

Responsibility and Ethics in Washington ("CREW") submitted a

FOIA request to the Office of Information Privacy ("OIP") at the

U.S. Department of Justice ("DOJ") . CREW’s request sought

"transcripts, reports, notes and other documents relating to any

interviews outside the presence of the grand jury of Vice

President Richard B. Cheney that are part of Special Counsel

Patrick Fitzgerald’s investigation into the leak of the identity

of Valerie Plame Wilson." CREW’s letter noted its FOIA request

was "coextensive with the subpoena issued by the House of

Representative Committee on Oversight and Government Relations

4
Case 1:08-cv-01468-EGS Document 17-4 Filed 07/01/2009 Page 5 of 26

Reform to Attorney General Michael B, Mukasey on June 16, 2008,

for the same records concerning Vice President Cheney."

10. After an initial search, OIP determined DOJ’s Office

of Lega! Counsel ("OLC") had the documents responsive to

Plaintiff’s FOIA request. Accordingly, OIP referred CREW’s FOIA

request to OLC on 4 September 2008.

ii. In the course of processing CREW’s FOIA request, OLC

located three documents responsive to Plaintlff’s request

(hereinafter collectively referred to as "the documents"), The

documents totaled 67 pages.

12. The first document is a FBI document summarizing an

interview of Vice President Cheney lhereinafter referred to as

"the FBI Interview Report"). The FBI Interview Report is 28

pages and is dated 8 May 2004,

13. The second document (Document Number IA-242) is a copy

of FBI handwritten notes summarizing an interview of Vice

President Cheney (hereinafter referred to as "the Handwritten

FBI Notes"). The Handwritten FBI Notes is 22 pages (including

the FD-340 cover sheet) and is dated 8 May 2004.

14. The third document (Document Number IA-178) is an

outline of q~/estions with handwritten annotations summarizing an

interview of Vice President Cheney (hereinafter referred to as

"the Annotated Outline"). The Annotated Outline is 17 pages

(including the FD-340 cover sheet) and is dated 8 May 2004.

Case 1:08-cv-01468-EGS Document 17-4 Filed 07/01/2009 Page 6 of 26

15. in an effort to protect CIA equities and information,

DOJ sent the documents to the CIA fbr coordination.

16, OLC responded to CREW’s FOIA request on 18 September

2008. OLC asserted the documents were exempt from disclosure

pursuant to FOIA Exemptions 5 and 7(A). OLC also stated it was

withholding portions of the documents pursuant to POIA

Exemptions 1 and 3.

17. CREW filed its Complaint for Injunctive and

Declaratory Relief in this case on 25 August 2008.

i8. DOJ moved for summary judgment on l0 October 2008.

its Motion for Summary Judgment, DOJ stated "a number of

paragraphs [in the documents] are protected under FOIA

Exemptions One and Three because they contain information

currently classified at the SECRET level by the Central

Intelligence Agency." See Defo’s Mot. Summ. J. 18-19; see also

Bradbury Decl. ~ 16, DOJ further stated "It]he CIA has

dezermined that the documents contain information concerning

intelligence sources and methods." See Def.’s Mot. SUmmo J. 18-

19; see also Bradbury Decl. ~ 16.

III, EXEMPT CIA INFORMATION AT ISSUE IN THIS CASE

19. During its coordination of the documents, the CIA

determined that a number of the paragraphs in the FBI Interview

Report and portions of the Handwritten FBI Report and 7knnotated

Omtline contain exe~t information regarding the CiA’s

~!t. 1.20~t’i B.27PM 1,10, 394,1 P, 8
Case 1:08-cv-01468-EGS Document 17-4 Filed 07/01/2009 Page 7 of 26

intelligence sources and methods. Regarding intelligence

sources, the CIA withheld exempt information related to foreign

government information and liaison relationships. Regarding

intelligence methods, the CIA withheld exempt information

related to practices and procedures that the CIA uses to assess

and evaluate intelligence and to inform policy makers.

A. ~ence Sources

20. The CIA’s primary mission is to gather intelligence

from around the world that the President and other government

officials can use in making important national security and

policy decisions. TO do this, the CIA often must rely on

:information that it only can obtain from knowledgeable

clandestine human intelligence sources under an agreement of

~secrecy. Intelligence sources rarely will furnish information

unless they are confident that they are protected from

retribution or embarrassment by the secrecy surrounding the

source-CIA relationship. In other words, intelligence sources

must be certain the CIA can and will do everything in its power

to prevent the public disclosure of their association with the

CIA.

21. Intelligence sources .include clandestine human

intelligence sources, foreign intelligence and security

services, foreign governments generally, and liaison services.

In this case, the exempt CIA source-related information relates

7
Case 1:08-cv-01468-EGS Document 17-4 Filed 07/01/2009 Page 8 of 26

to foreign liaison information, foreign government information,

and liaison relationships.

22. Foreign liaison information is information that the

CIA obtains clandestinely from foreign intelligence and security

services. In this way, the foreign service itself functions as

an intelligence source.

23. Similarly, foreign government information is

information that the CIA obtains clandestinely from officials of

foreign governments with whom the CIA maintains an official

liaison relationship. In this way, the official of the foreign

government functions as the intelligence source.

24. Liaison relationships with foreign intelligence

services and other liaison services offer the United States a

force-multiplier for its intelligence collection activities,

especially in the present conflict against global terrorism.

Intelligence services with which the CIA has a close or robust

liaison relationship will provide the CIA with the intelligence

reported by many of its own intelligence sources. Such services

may even task their own sources to gather information at the

request of the CIA. Therefore, through liaison relationships,

the CIA can gather and provide intelligence information to

United States national security and foreign policy decision-

makers that is critical to informed decision making. Harm to

Case 1:08-cv-01468-EGS Document 17-4 Filed 07/01/2009 3941
Page 9 ofP,26
10

these relationships can be particularly damagin~ to the fight

against terrorism.

25. Both foreign liaison services and individual foreign

~overnment officials provide sensitive information in strict

confidence to the CIA on issues of importance to United States

foreign relations and national security. These services and

officials of such services convey information to the CIA with

the CIA’s express agreement that the content of the information,

as well as the mere fact of the relationship through which they

provided the information, will remain secret.

26. If the CIA were to violate this express agreement,

internal or external political pressure on the foreign

government could cause the foreign liaison service or foreign

government official to limit or even end the CIA relationship,

causing the United States Government to lose valuable foreign

intelligence. In fact, this political pressure could compel the

foreign government to take defensive actions against the CIA,

such as reducing the approved CIA presence in that country.

Such an action would further damage the CIA’s ability to collect

intelligence about other countries or persons operating in that

country.

27. In many cases, the very nature of the information that

the foreign liaison service or foreign government official

 Case 1:08-cv-01468-EGS Document 17-4 Filed 07/01/2009 Page 10 of 26

provides necessarily tends to reveal the identity of the source

of the information and, therefore, the relationship itself.

28. In this way, disclosing the fact of the relationship

or the information itself would suggest to other foreign liaison

services and foreign government officials that the CIA is unable

or unwilling to observe an express agreement of secrecy. This

perception could cause the liaison services and government

officials to limit their provision of information to the CIA or

even to end the relationship altogether, thus causing the United

States Government to lose valuable foreign intelligence.

29. Moreover, this perception could discourage foreign

liaison services and governments from entering into any kind of

relationship with the CIA, thus preventing altogether the

collection of information from these sources.

30. As such, any official acknowledgment by the CIA of a

past or current liaison relationship, or any revelation of

information by the CIA that implicates a past or current

relationship, with a foreign intelligence gervice or a foreign

government official could cause serious damage to relations with

that foreign government and possibly other relationships with

other governments as well. This could result in a significant

loss of intelligence information for the United States

Government and thereby cause serious damage to national

security.
Case 1:08-cv-01468-EGS Document 17-4 Filed 07/01/2009 Page 11 of 26

Bo Intelli~ence Methods

31. Intelligence methods are the means by which the ClA

accomplishes its objectives. Intelligence methods include the

basic business practices and methodological "tools" that the CIA

uses to accomplish its mission.

32. The CIA must protect its intelligence methods from

disclosure in every situation where a certain intelligence

interest, capability, or technique is unknown to those groups

that could take countermeasures to nullify its effectiveness.

To adequately safeguard its intelligence methods, the CIA must

protect the methods it uses to obtain intelligence as well as

the information produced by those intelligence methods,

33. One of the primary missions of foreign intelligence

services is to discover the particular methods that the CIA

uses. To this end, foreign intelligence services scour open

sources for officially released intelligence information. These

foreign intelligence services are capable of gathering

information from myriad sources, analyzing this information, and

deducing means to defeat CIA collection efforts from disparate

and seemingly unimportant details. What may seem trivial to the

uninformed may, in fact, be of great significance, and may put a

questioned item of information in its proper context. The CiA

must protect the fact that it uses a particular intelligence

ll
Case 1:08-cv-01468-EGS Document 17-4 Filed 07/01/2009 Page 12 of 26

method in & particul&r situation in addition to the method

itself.

34. A particular intelligence method is effective only so

long as it remains unknown and unsuspected to its target. When

an intelligence method is revealed, this causes the target of

the method to take countermeasures. Once the target discovers

the n&t~]re of an intelligence method or the fact of its use in a

certain situation, the method usually ceases to be effective.

Moreover, once an intelligence method or its use is discovered,

the method may be used against the CIA.

35. Disclosing CIA intelligence methods and practices

materially assists those who would seek to detect, penetrate,

prevent, evaluate, and/or damage the intelligence operations of

the United States generally and the CIA specifically. In fact,

without legal protection against the public release of

intelligence methods, the CIA likely would become impotent.

36. When a particular inte!ligence method ceases to be

effective, the United States endures a significant loss. This

is because the cost of developing and validating an intelligence

method is hugely disproportionate to the cost of destroying that

method via public disclosure. A single intelligence method can

cost many millions of dollars, but a single newspaper story

generated by a single disclosure can often end the utility of

the method. Moreover, the actual damage and loss to the United

12
Case 1:08-cv-01468-EGS Document 17-4 Filed 07/01/2009 Page 13 of 26

States from the loss of the intelligence method is not only the

cost of the method itself but also the !oss of intelligence

during the time it takes to fund and field a replacement method.

37. In short, the disclosure of a CIA intelligence method

inevitably leads to the neutralization of that method, whether

the method is used for the collection of intelligence

information, the conduct of clandestine activities, or the

analysis, evaluation, and dissemination of intelligence

information.

IV, FOIA EXEMPTIONS

A. FOIA Exem_m_m_m_m_m_m_m_m_m~ion 1

38. FOIA Exemption i provides that FOIA does not require

disclosure of information that is: "(A) specifically authorized

under criteria established by an Executive Order to be kept

secret in the interest of national defense or foreign policy and

(B) are in fact properly classified pursuant to such Executive

Order.,,~

39~ The authority to classify information is derived from

a succession of Executive Orders, the most recent of which is

Executive Order 12958, as amended. Personne! from the CIA’s IRO

Offices reviewed the documents in this case under the criteria

established by Executive Order 12958, as amended, and have

described the information contained therein. I have determined

~ 5 U.S.C. ~ 552(b)(!) (2000).

13
 Case 1:08-cv-01468-EGS Document 17-4 Filed 07/01/2009 Page 14 of 26

the information withheld from the documents pursuant to FOIA

Exemption 1 is in fact properly classified.

40. Section 6.1(h) of Executive Order 12958, as amended,

defines "classified national security information" or

"classified informatlon as "information that has been

determined pursuant to this order or any red,~ces~or order to

require protection a~ainst unauthorized disclosure and is marked

to indicate its classified status when in documentary form.’’~

Section 6.1(y) of Executive Order 12958, as amended, defines

"national security" as the "national defense or foreign

relations of the United States.’’s Section i 2(a) of Executive

Order 129~8, as amended, establishes three levels of

classification for national security information. Information

shall be classified TOP SECRET if its unauthorized disclosure

reasonably could be expected to result in exSremely ~rave damage

to the national security; SECRET if its unauthorized disclosure

reasonably could be expected to. result in serious damage to the

national security; and CONF!DENTIAZ if its unauthorized

disclosure reasonably could be expected to result in damage to

the national security.

41. Section l.l(a) of Executive Order ~2958, as amended,

provides information may be originally classified under the

~ Exec. Order No. 12,958, 60 Fed. Reg. 19,825 {Apr. 20, 199~), re~rinted as
amended in 50 U.S.C.A, ~ 435 note at ~93 (West Supp. 2008) .
~ Id.

14
Case 1:08-cv-01468-EGS Document 17-4 Filed 07/01/2009 Page 15 of 26

terms of this Executive Order only if all of the following

conditions are met;

(I) an original classification

authority is classifying the information;

(2) the information is owned by,

produced by or for, or is under the control
of the United States Government;

(3) the information falls within one

or more of the categories of information
listed in Section i.4 of this order; and

(4) thl original classification

authority determines that the unauthorized
disclosure of the information reasonably
could be expected to result in damage to the
national security, which includes defense
against transnational terrorism, and the
original classification authority is able to
identify or describe the damage.6

I. Original Class£fication Authority

42. Section 1.3(a) of Executive Order 12958, as amended,

provides the authority to classify information originally may be

exercised only by the President and, in the performance of

executive duties, the Vice President; agency heads and officials

designated by the President in the Federal Reqister; and U.S.

Government officials delegated this authority pursuant to

section 1.3(c) of Executive Order 12958, as amended.~ Section

i.3(c) (2) provides TOP SECRET original classification authority

may be delegated only by the President; in the performance of

executive duties, the Vice President; or an agency head or

~ Id.
~ See id

15
Case 1:08-cv-01468-EGS Document 17-4 Filed 07/01/2009 Page 16 of 26

officia! designated pursuant to section 1.3(a) 2) of Executive

Order 12958, as amended,e

43. In accordance with section !.3(a) (2) the President

designated the Director of the CIA as an official who may

classify information originally as TOP SECRET.~ Under the

authority of section 1.3(c) (2), the Director of the CIA

delegated original TOP SECRET classification authority to me.

Section 1.3(b) of the Executive Order provides that original TOP

SECRET classification authority includes the authority to

classify information originally as SECRET and CONFIDENTIAL.i°

determined the classified CIA information redacted from the

documents in this case is currently and properly classified

SECRET and CONFIDENTIAL.

2. U.S. Government Information

44. Information may be originally classified only if the

information is owned by, produced by or for, or. is under the

control of the U.S. Government. ! determined the CIA

information redacted from the documents in this case is owned by

~ See id~
~ Se__~e Presidential Order of April 21, 2005, Designation under Executive Order
1295~, 70 Fed. Reg. 21,609 (Apr. 26, 2005), reprinted in 50 U.S.C. ~ 435 note
(S~lpp. v 200S) . Similarly, the Presidential Order of 13 October 1995
designates the Director of the C~A a~ an official authorized to claesify
information originally as TOP SECRET. See Presidential Order o£ Oct. 13,
1995, 60 Fed. Reg. 53,8~15 (Oct. 17, 1995), reprinted in 50 U.S.C. ~ .125 note
(2000).
~0 Exec. order No. 12,958, 60 Fed. Reg. 19,825 (Apr. 20, 1995), reprinted a~
aniended ~n 50 U.S.C.A. S 435 note at 193 (west Supp. 2009).

16
Case 1:08-cv-01468-EGS Document 17-4 Filed 07/01/2009 Page 17 of 26

the U.S, Government, produced by zhe U,S. Government, and under

the control of the U.S. Government.

3o Categories of Information Listed in Section 1.4 of

Executive Order 12958

45. Executive Oxder 12958, as amended, addresses

classification of information relating to intelligence and

national security. Section 1.4 provides information shall be

classified only when it includes, among other things,

information concerning "intelligence activities (including

special activities), intelligence sources or methods, or

cryptology." i determined the CIA information redacted from the

documents in this case contain information concerning the CIA’s

intelligence sources and/or methods.

4. Damage to the National Security

46. Disclosure of the SECRET information redacted from the

documents in this case reasonably could be expected to cause

serious damage to the national security. Disclosure of the

CONFIDENTIAL information redacted from the documents in this

case reasonably could be expected to cause damage to the

national security. I further describe this classified

information and its relation to CiA intelligence sources and

methods in Paragraphs 50 through 55 below.

17
 Case 1:08-cv-01468-EGS Document 17-4 Filed 07/01/2009 Page 18 of 26

5. Proper Purpose

47. I determined there is no reason to believe that any of

the CIA inform&tion contained in the documents at issue in this

case has been classified in order to conceal violations of law,

inefficiency, or administrative error; prevent embarrassment to

a person, organization or agency; restrain competition; oy

prevent or delay the release of information that does not

require protection in the interests of national security.

6. Marking

48. I determined that each of the documents at issue in

this case bear one of the three classification levels defined in

section 1.2 of Executive Order 12958, as amended.

7. Proper Classific~tion

49, I determined the CIA information redacsed fxom the

documents in this case is currently and properly classified in

accordance with the substantive and procedural requirements of

Executive Order 12958, as amended.

8, Classified CIA Information at Issue in this Case

50. Pursuant to FOIA Exemption I, the CIA redacted the

following exempt, classified information from the documents in

this case:

® information that would identify foreign

government information;

18
Case 1:08-cv-01468-EGS Document 17-4 Filed 07/01/2009 Page 19 of 26

® information that would identify a foreign

government and liaison services with whom
the CiA had/has a relationship;

the true name of & covert CIA employee;

® information the would reveal intelligence

methods the CIA uses to assess and
evaluate intelligence~ and

® information that would reveal intelligence

methods the CIA usesto inform policy
makers.

51. Disclosure of the classified ClA information redacted

from the documents in this case would reveal classified

information regarding the CIA’s intelligence sources and

methods. Such disclosures would provide the United States’

adversaries with keen insights into the CIA’s intelligence

activities, sources, and methods and reasonably could be

expected to cause serious damage to the national security.

(a) The CIA Redacted the Names of CIA Sources

52, Specifically, the CIA redacted the names of a foreign

government and liaison services from pages 2, 7, and 9 of the

FBI Interview Report and pages 5 and 7 of the Handwritten

Notes. The disclosure of this SECRET information would damage

the national security by damaging the CIA’s liaison

relationships. As an initial matter, the disclosure of this

.information would suggest to other foreign governments and

liaison services that the CIA is unable or unwilling to observe

an express agreement of secrecy. This perception could

19
Case 1:08-cv-01468-EGS Document 17-4 Filed 07/01/2009 Page 20 of 26

discourage foreign governments from entering into any kind of

relationship with the CIA, thus preventing altogether the

collection of information from these sources. Similarly,

disclosing the CIA’s affiliation with the foreign government and

liaison services identified in the documents at issue in this

case also could cause these liaison services to limit or even

end the CIA relationship. Disclosure also could compel foreign

governments to take defensive actions against the CIA, such

reducing the approved CIA presence in thau country. Al! of

these actions would severely limit the CIA’s ability to collect

critical foreign intelligence.

(b) The CIA Redacted the Name of a Covert

Employee

53. The CIA also redacted the name of a covert employee

from page 3 of the PBI Interview Report, page 3 of the

Handwritten FBI Notes, and page 3 of the Annotated Outline. The

disclosure of this SECRET information would provide hostile

intelligence services with valuable information that they could

use to uncover CIA activities, sources, methods. If hostile

intelligence services knew the identity of the CIA’s covert

officers, these intelligence services reasonably could identify

the officer’s activities, sources, and methods.

2O
Case 1:08-cv-01468-EGS Document 17-4 Filed 07/01/2009 Page 21 of 26

(e) The CIA Redacted In£oz~nation that Would

Reveal CIA Intelligence Methods

54. Similarly, the CIA redacted information on pages 6,

16, and 17 of the FBI Interview Report and pages 5, 12, and 13

of the Handwritten FBI Notes that would reveal intelligence

methods the CiA uses to assess and evaluate intelligence and

inform policy makers. When viewed together, this information is

classified CONFIDENTIAL. The disclosure of this information, in

totality, would provide %he United S~ates’ adversaries with

insight into how the CIA analyzes, evaluates, compiles, and

disseminates intelligence. Such a disclosure could allow

hostile governments and intelligence agencies to influence and

potentially manipulate the CIA’s intelligence analysis.

Similarly, the disclosure of this CIA me~hod could further

hostile government services’ attempts to disrupt the CIA’s

dissemination of key intelligence to policy makers. Simply put,

the disclosure of this redacted information likely weuld lead to

neutralization of this intelligence method.

55. Significantly, the CIA information that is exempt from

disclosure pursuant to FOIA Exemption I is also protected from

disclosure under FOIA Exemption 3.

B. FOIA Exem~

56. The FBI Interview Report, the Handwritten FBI Notes,

and the Annotated Outline contain information disclosing CIA

21
Case 1:08-cv-01468-EGS Document 17-4 Filed 07/01/2009 Page 22 of 26

intelligence sources, intelligence methods, organization,

functions, employee names, official titles, and personnel

strength. This information is exempt from disclosure under FOIA

Exemption 3. FOIA Exemption 3 provides FOIA does not apply to

matters that are:

specifically exempted from disclosure by

statute (other than section 552b of this
title) provided that such statute (A)
requires that the matters be withheld from
the public in such a manner as to leave no
discretion on the issue, or (B) establishes
particular criteria for withholding or
refers to particular types of matters to be
withheld.~

! was advised that the National Security Act, 50 U.S.C. § 403-1,

as amended and the Central Intelligence Agency Act of 1949

(~’CIA Act" , 50 U.S.C. § 403g, as amended, are the withholding

statutes applicable to this case.

i. National Security Act of 1947

57. Section 102A(i) (i) of the National Security Act, as

amended, requires the protection of intelligence sources and

methods. Disclosure of exempt information withheld from the

documents in this case would reveal intelligence sources and

methods. Accordingly, the CIA relies on the National Security

Act to withhold any information that would reveal intelligence

sources and methods

~"~ S U.$.C. ~ $52(b] (3] 2000) ,

22
Case 1:08-cv-01468-EGS Document 17-4 Filed 07/01/2009 3941--P.
Page 23 of 2624

58. In contrast to Executive Order 12958, as amended, the

National Security Act’s statutory requirement to protect

intelligence’methods does not require the CIA to identify or

describe the damage to national security that reasonably could

be expected to result from their unauthorized disclosure.

2o Central Intelligence Agency Act of 1949

59. Section 6 of the CIA Act, as amended, provides:

In the interests of the security of the

foreign intelligence activities of the
United States and in order to furzher
implement section 403-i(i) of this title
that the Director of National Intelligence
shall be responsible for protecting
intelligence sources and methods from
unauthorized disclosure, the [CIA]
shall be exempted from the provisions
of any other law which require the
publication or disclosure of the
organization, functions, names, official
titles, salaries, or numbers of personnel
employed by the Agency.

As the CIA’s primary function is to collect intelligence through

human sources and by other appropriate methods, section 6 of the

CIA Act authorizes the C~A to withhold intelligence sources and

methods that are related to the CiA’s core function. Moreover,

CIA employees’ names and personal identifiers (for example,

employee.signatures, emp!oyee identification numbers, or

initials), titles, file numbers, and internal organizational

information are specifically protected from disclosure by the

CIA Act.

23
 P, 2r~
Case 1:08-cv-01468-EGS Document 17-4 Filed 07/01/2009 Page 24 of 26

60. In contrast to Executive Order 12958, as amended the

CIA Act’s statutory requiremen< to further protect intelligence

sources and methods by protecting CIA org&nization and functions

does not require the CIA to identify or describe the damage to

national security that reasonably could be expected to result

from their unauthorized disclosure. Stated simply, section 6

requires no showing of harm.

61. The CIA properly withheld exempt information and

documents from release under FOIA Exemption 3 where disclosure

would re~eal CIA sources, methods, organization, functions,

employee names, and the number of personnel employed by the CIA.

(a) The CIA Redacted the Names of CIA Sources

62. Specifically, the CIA redacted information that would

identify clandestine intelligence sources, that is, the names of

a foreign government and foreign liaison services from pages 2,

7, and 9 of the FBI Interview Report and pages 5 and 7 of the

Handwritten FBI Notes.

(b) The CIA Redacted the Names o£ CIA Employees

63. The CIA redacted the name of CIA employees from pages

3 and 6 of the FBI Interview Report, pages 3 and 5 of the

Handwritten FBI Notes, and page 3 of the Annotated Outline.

24
Case 1:08-cv-01468-EGS Document 17-4 Filed 07/01/2009 Page 25 of 26

(c) The ClA Redacted Informmtion that Would

Reveal CIA Intelligence Methods

64. The CIA also redacted exempt information on pages 6,

16, and 17 of the FBI Interview Report and pages 5, 12, and 13

of the Handwritten FB! Notes. The disclosure of this

information would provide insight into CIA organization,

functions, staffing, activities, capabilities, vulnerabilities,

intelligence sources, and intelligence methods. As noted above,

the disclosure of this information would reveal intelligence

methods the CIA uses to assess and evaluate intelligence and

inform policy makers.

65. Section 6 of the CIA Act and, thus, FOIA Exemption 3,

unambiguously protect this information from disclosure.

SEGREGABILITY

66. The CIA conducted a line-by-line review of the

documents at issue in this case, individually and as a whole, to

determine whether meaningful, reasonably segregable, non-exempt

Z5
Case 1:08-cv-01468-EGS Document 17-4 Filed 07/01/2009 Page 26 of 26

portzons of documents could be released. The CIA released any

infor~,ation that was segregable and not otherwise exempt,

I hereby declare under penalty of perjury ~hat the

foregoin@ is true and correct,

Executed th~s ~ day of July, 2009.

Ralph DiMaio
Information Review Officer
Nation~l Cl~n~estine set zce
Central Intelligence Agency

26