Evans v. Central Intelligence Agency
Filing
58
OPINION AND ORDER granting 53 Motion for Summary Judgment by Chief Judge Marcia S. Krieger on 9/2/14.(dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 11-cv-02544-MSK-KLM
KEVIN D. EVANS,
Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY,
Defendant.
______________________________________________________________________________
OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
______________________________________________________________________________
THIS MATTER comes before the Court pursuant to the Defendant’s (“CIA”) Motion
for Summary Judgment (# 53), Mr. Evans’ response (# 56), and the CIA’s reply (# 57).
Mr. Evans1 brings this action pursuant to the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552. In May 2011, Mr. Evans made a FOIA request on the CIA seeking “copies of the
photographs of Osama Bin Laden’s deceased body taken during the raid in Abottabad, Pakistan.”
In an Amended Complaint (# 40) filed in March 2014, Mr. Evans narrowed his request to “one
photograph of the CIA’s choosing, taken of and depicting Osama (a/k/a Usama) Bin Laden
1
Mr. Evans appears to be pursuing this case pro se, insofar as he has signed his pleadings
and filings himself. The Court notes, without necessarily finding, that Mr. Evans’ e-mail address
on each pleading refers to a web domain belonging to the law firm of Seese, Evans, and Frankel,
P.C., a named partner of which is Kevin D. Evans. Although pro se litigants are entitled to
liberal construction of their pleadings, Haines v. Kerner, 404 U.S. 519, 520 (1972), the 10th
Circuit has held that licensed attorneys appearing pro se do not enjoy that same benefit. Mann v.
Boatright, 477 F.3d 1140, 1148 n. 4 (10th Cir. 2007). Ultimately, this Court need not dwell on
whether Mr. Evans is entitled to the liberal construction afforded pro se parties, as the outcome
of this proceeding would not change.
1
during or immediately after the May 2011 raid in Abottabad,” subject to redactions by the CIA
“to exclude confidential or state secret information.”
Shortly after Mr. Evans commenced this action, the CIA moved to stay the action due to
the pendency of litigation over a similar FOIA request in the District of Columbia, Judicial
Watch, Inc. v. U.S. Dept. of Defense, 857 F.Supp.2d 44 (D.D.C. 2012). The Court granted the
stay, with limited exceptions, pending final resolution of the Judicial Watch case. In April 2012,
the District Court for the District of Columbia granted summary judgment in favor of the
Government, finding that the CIA had properly invoked FOIA’s Exemption 1 (permitting
withholding of records “specifically authorized under . . . an Executive Order to be kept secret in
the interest of national defense”) in refusing to turn over the photographs. Id., 857 F.Supp.2d at
55, citing 5 U.S.C. § 552(b)(1). The court found that the photographs in question were properly
classified as “top secret” pursuant to Executive Order 13526 (2009), id. at 55-60, and that the
CIA’s contention that the release of the images “reasonably could be expected to cause
exceptionally grave damage to the national security” was “comprehensive, logical, and
plausible,” id. at 60-64.
Judicial Watch appealed the denial to the Court of Appeals for the District of Columbia
Circuit. On May 21, 2013, that court affirmed the trial court’s grant of summary judgment,
adopting essentially the same reasoning. Judicial Watch, Inc. v. U.S. Dept. of Defense, 715 F.3d
937 (D.C. Cir. 2013). Judicial Watch petitioned the Supreme Court for certiorari, but that
request was denied in January 2014. Judicial Watch, Inc. v. Dept. of Defense, 134 S.Ct. 900
(2014) (mem.).
The CIA then filed the instant Motion for Summary Judgment (# 19) in this case. It
2
asserts essentially the same arguments and evidence it previously presented to the District Court
for the District of Columbia and the D.C. Circuit. In response (# 8), Mr. Evans does not directly
address the reasoning of the Judicial Watch cases; rather, his argument here turns entirely on the
fact that, in or about May 2011, CIA Director Leon Panetta made comments to the effect that he
believed that “ultimately a photograph would be presented to the public,” and that “I think we
have to reveal to the rest of the world the fact that we were able to get him and kill him.” Mr.
Evans argues that Mr. Panetta’s comments “create a genuine issue of fact” preventing summary
judgment where “the Director of the Agency in question takes a position that disclosure would
be forthcoming, only to be contradicted by a subsequent position advanced by the Agency in the
face of a FOIA request.”
The Court need not engage in recitations of the familiar summary judgment standard or
extensive analyses of FOIA to resolve this matter; to the extent necessary, the Court fully adopts
the reasoning of both Judicial Watch opinions. The sole question presented here is whether Mr.
Panetta’s predictions about future public access to the photographs, made in a television
interview three days after the Abottabad raid, somehow creates a genuine dispute of fact as to an
essential element of a challenge to an agency’s invocation of FOIA Exemption 1.
As the Judicial Watch opinions note, the CIA need only show that the photographs were
properly classified -- that is, that the procedural requirements for classification were met and that
disclosure of the records could reasonably be expected to cause grave damage to national
security). Judicial Watch, 857 F.Supp.2d at 55, 60. Mr. Panetta’s comments do not bear on
those questions. Obviously, Mr. Panetta’s remarks do not address the procedural classification
of the documents, and his stated belief that a photograph would eventually be released makes no
3
comment on the question of whether such a release would be undertaken regardless of its
perceived effect on national security. Rather, it is obvious that Mr. Panetta was making a
prediction about what was likely to happen given the public and political pressure he anticipated
would surround the question. That prediction is entirely irrelevant to the question of whether the
CIA’s subsequent invocation of Exemption 1 to deny Mr. Evans’ FOIA request was proper.2
22
Moreover, the Court takes judicial notice of the fact that the very same source Mr. Evans
relies upon for the text of Mr. Panetta’s statement, www.nbcnews.com, published a story the day
after Mr. Panetta’s remarks with the headline “Obama decides not to release bin Laden death
photo.” http://www.nbcnews.com/id/42900991/ns/world_news-death_of_bin_laden/t/obamadecides-not-release-bin-laden-death-photo/ (May 5, 2011). That story stated:
President Barack Obama has decided not to release photographs of
al-Qaida leader Osama bin Laden's body, the White House said
Wednesday.
The announcement came after a senior administration official told
NBC News of the decision not to release post-mortem photos and
Obama revealed the decision during an interview Wednesday with
CBS' "60 Minutes."
The White House had been weighing the release of a photo, in part
to offer proof that bin Laden was killed during a raid on his
compound early Monday. However, officials had cautioned that
the photo was gruesome and could prove inflammatory.
"It is important for us to make sure that very graphic photos of
somebody who was shot in the head are not floating around as an
incitement to additional violence or as a propaganda tool. That's
not who we are. We don’t trot out this stuff as trophies," Obama
told CBS News, according to White House spokesman Jay Carney.
"We don't need to spike the football. And I think that, given the
graphic nature of these photos, it would create some national
security risk," the president said, according to Carney's account.
Thus, to the extent Mr. Evans contends that Mr. Panetta’s statements were somehow bound the
CIA to release one or more photos, it is clear that Mr. Panetta’s comments were premature and
subsequently overruled by Mr. Panetta’s boss. Thereafter, the official position of the United
4
Accordingly, the CIA’s Motion for Summary Judgment (# 53) is GRANTED. The Clerk
of the Court shall enter judgment in favor of the CIA on all claims in this action.
Dated this 2nd day of September, 2014.
BY THE COURT:
Marcia S. Krieger
Chief United States District Judge
States government became that the release of the photographs would indeed pose a national
security risk, the very assertion they made here and in Judicial Watch.
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?