Open Society Justice Initiative v. Central Intelligence Agency et al

Filing 1

COMPLAINT against Central Intelligence Agency, Department of Defense, National Security Agency, Office of the Director of National Intelligence. (Filing Fee $ 400.00, Receipt Number ANYSDC-16163411)Document filed by Open Society Justice Initiative. (Attachments: #1 Exhibit A - Plaintiffs FOIA requests)(Amirfar, Catherine)

Catherine Amirfar ([e-mail])
Ashika Singh ([e-mail])
DEBEVOISE & PLIMPTON LLP
919 Third Avenue
New York, NY 10022
Tel.: [phone]
Attorneys for Open Society Justice Initiative
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OPEN SOCIETY JUSTICE INITIATIVE,
Plaintiff,
v.

Civil Action No. _____________

CENTRAL INTELLIGENCE AGENCY,
DEPARTMENT OF DEFENSE, NATIONAL
SECURITY AGENCY and OFFICE OF THE
DIRECTOR OF NATIONAL
INTELLIGENCE,
Defendants.

COMPLAINT FOR INJUNCTIVE RELIEF
INTRODUCTION
1.

This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C.

§ 552. In this lawsuit, Plaintiff seeks injunctive relief to compel defendants Central Intelligence
Agency (“CIA”), the Department of Defense (“DOD”), the National Security Agency (“NSA”),
and the Office of the Director of National Intelligence (“ODNI”) (together, the “Defendants”) to
immediately release records related to the killing of U.S. resident Jamal Khashoggi in response
to Plaintiff’s properly filed FOIA requests.

2.

Plaintiff is bringing this action because, to date, Defendants have not issued

determinations on Plaintiff’s requests within the statutorily-prescribed time limit nor disclosed
any responsive records.
JURISDICTION AND VENUE
3.

This Court has both subject matter jurisdiction over this action and personal

jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(B). This Court also has jurisdiction
over this action pursuant to 28 U.S.C. § 1331. Venue lies in this district under 5 U.S.C.
§ 552(a)(4)(B) because Plaintiff’s principal place of business is in this district.
PARTIES
4.

The Open Society Justice Initiative (“OSJI”) is an operating public interest law

center dedicated to upholding human rights and the rule of law through litigation, advocacy,
research, and technical assistance. It is part of the Open Society Institute, a tax-exempt, nonpartisan, not-for-profit organization, headquartered in New York City. OSJI is a “person” within
the meaning of 5 U.S.C. § 551(2). Disseminating information is among OSJI’s core activities.
To accomplish these goals, OSJI maintains a website, http://www.justiceinitiative.org, through
which it disseminates publications, articles, and multimedia files relating to its mission. It also
directly distributes hard copies of publications and disseminates information through quarterly
email newsletters, blogs, Twitter, and Facebook.
5.

Defendant CIA is an “agency” within the meaning of 5 U.S.C. § 552(f)(1). The

CIA has possession and control over some or all of the requested records.
6.

Defendant DOD is an “agency” within the meaning of 5 U.S.C. § 552(f)(1). The

DOD has possession and control over some or all of the requested records.

2

7.

Defendant NSA is an “agency” within the meaning of 5 U.S.C. § 552(f)(1). The

NSA has possession and control over some or all of the requested records.
8.

Defendant ODNI is an “agency” within the meaning of 5 U.S.C. § 552(f)(1). The

ODNI has possession and control over some or all of the requested records.
STATEMENT OF FACTS
9.

Jamal Khashoggi, a Saudi national, was a Washington Post columnist and a U.S.

resident who had been a vocal critic of the Saudi government and Saudi Crown Prince
Mohammed bin Salman.1 On October 2, 2018, he disappeared after entering the Saudi Consulate
in Istanbul. 2

Since then, Mr. Khashoggi’s disappearance has been the subject of intense

Congressional and public debate.
10.

On October 10, 2018, a bipartisan group of 22 senators (including Sen. Bob

Corker (R-Tenn.) and Sen. Robert Menendez (D-N.J.), the chairperson and the ranking member
of the Senate Foreign Relations Committee, respectively) wrote a letter to President Trump
requesting that he make a determination on the imposition of sanctions pursuant to the Global
Magnitsky Human Rights Accountability Act with respect to any foreign person responsible for
a gross violation of internationally recognized
Khashoggi.3

human rights in relation to

Mr.

Because the letter was co-signed by the two leaders of the Committee, the

President is required, within 120 days of receiving the request, to determine, in the context of
1

Donna Abu Nasr, Who is Jamal Khashoggi? A Saudi Insider Who Became an Exiled Critic, Bloomberg
(Oct. 20, 2018), https://www.washingtonpost.com/business/who-is-jamal-khashoggi-a-saudiinsider-whobecame-an-exiled-critic/2018/10/20/0a996bea-d492-11e8-a4db-184311d27129_story.html?utm_
term=.b99447153753.

2

Id.

3

Press Release, Chairman of the Senate Comm. on Foreign Relations, Corker, Menendez, Graham, Leahy
Letter Triggers Global Magnitsky Investigation Into Disappearance of Jamal Khashoggi (Oct. 10, 2018),
https://www.foreign.senate.gov/press/chair/release/corker-menendez-graham-leahy-letter-triggers-globalmagnitsky-investigation-into-disappearance-of-jamal-khashoggi.

3

Mr. Khashoggi’s case, whether one or more foreign persons has engaged in or is responsible for
“extrajudicial killings, torture, or other gross violations of internationally recognized human
rights”; and to submit to the two leaders a classified or unclassified report that includes “a
statement of whether or not the President imposed or intends to impose sanctions with respect to
the person” along with a description of any such sanctions. 4
11.

After repeatedly saying that Mr. Khashoggi had left the Consulate alive, the Saudi

government finally acknowledged on October 19, 2018 that he had been killed inside the Saudi
Consulate in Istanbul. 5 CIA Director Gina Haspel reportedly traveled to Turkey to review the
case and listened to audio recordings that the Turkish government claimed captured Mr.
Khashoggi’s murder.6 On November 16, 2018, the Washington Post reported that the CIA had
“concluded that Saudi Crown Prince Mohammed bin Salman ordered the assassination of
journalist Jamal Khashoggi in Istanbul.”7
12.

On November 20, 2018, President Trump issued a statement standing with Saudi

Arabia. 8 He stated, “After great independent research, we now know many details of this
horrible crime. . . . King Salman and Crown Prince Mohammad bin Salman vigorously deny any

4

Global Magnitsky Human Rights Accountability Act, § 1263(d) (22 U.S.C. § 2656 note).

5

Kevin Sullivan et al., Saudi Arabia fires 5 top officials, arrests 18 Saudis, saying Khashoggi was killed in
fight at consulate, Wash. Post (Oct. 19, 2018),
https://www.washingtonpost.com/news/world/wp/2018/10/19/saudi-government-acknowledges-journalistjamal-khashaoggi-died-while-in-that-countrys-consulate-in-istanbul/?utm_term=.76d983cad529.

6

Khashoggi murder: CIA director Gina Haspel briefs Trump, BBC News (Oct. 26, 2018), https://www.bbc.
com/news/world-us-canada-45977041.

7

Shane Harris et al., CIA concludes Saudi crown prince ordered Jamal Khashoggi’s assassination, Wash.
Post (Nov. 16, 2018), https://www.washingtonpost.com/world/national-security/cia-concludes-saudicrown-prince-ordered-jamal-khashoggis-assassination/2018/11/16/98c89fe6-e9b2-11e8-a9399469f1166f9d_story.html?utm_term=.b940c2f30d5b.

8

Statement from President Donald J. Trump on Standing with Saudi Arabia (Nov. 20, 2018), https://www.
whitehouse.gov/briefings-statements/statement-president-donald-j-trump-standing-saudi-arabia/.

4

knowledge of the planning or execution of the murder of Mr. Khashoggi. Our intelligence
agencies continue to assess all information, but it could very well be that the Crown Prince had
knowledge of this tragic event – maybe he did and maybe he didn’t!”9 On another occasion,
citing the CIA report in his possession, President Trump noted that the CIA “did not come to a
conclusion” about the Crown Prince’s involvement in the murder, adding that “[t]hey have
feelings certain ways, but they didn’t – I have the report.”10
13.

The President’s statement standing with Saudi Arabia has been the subject of

extensive public debate. Senators have vigorously disputed the President’s characterization of
the CIA’s report.11 When asked if the President was lying about the CIA’s conclusion, Senator
Jack Reed (D-R.I.) said, “Yes. The CIA concluded that the crown prince of Saudi Arabia was
directly involved in the assassination of Khashoggi.”12 A Wall Street Journal editorial wrote,
“we are aware of no President, not even such ruthless pragmatists as Richard Nixon or Lyndon
Johnson, who would have written a public statement like this without so much as a grace note
about America’s abiding values and principles,” and that it was “startling to see a U.S. President
brag [about commercial deals with Saudi Arabia] in a statement about a bloodthirsty murder.”13
A State Department official who had seen the CIA’s assessment on Mr. Khashoggi’s killing

9

Id.

10

Kate Sullivan & Zachary Cohen, Senate Dem on Armed Services panel: Trump lying about CIA report on
Khashoggi, CNN (Nov. 23, 2018), https://www.cnn.com/2018/11/23/politics/senate-dem-armed-servicescia-khashoggi/index.html.

11

Id.; Karoun Dimirjian et al., Rebuking Trump, senators back effort to suspend U.S. support for Saudi-led
war in Yemen, Wash. Post (Nov. 28, 2018), https://www.washingtonpost.com/powerpost/pompeo-mattisto-brief-senate-on-saudi-arabia-khashoggi-and-yemen/2018/11/27/ee4e36c0-f28a-11e8-bc7968604ed88993_story. html?utm_term=.4dde49d6aeeb.

12

Sullivan & Cohen, supra note 10.

13

Editorial, Trump’s Crude Realpolitik, Wall St. J. (Nov. 20, 2018), https://www.wsj.com/articles/trumpscrude-realpolitik-1542763629.

5

reportedly told ABC News that it was “blindingly obvious” that Crown Prince Mohammad bin
Salman had ordered the killing and that there was “overwhelming consensus that the [Saudi]
leadership is involved – no one is debating it within the government.”14 On November 20, 2018,
former CIA Director John Brennan called for Congress to declassify the report, tweeting, “Since
Mr. Trump excels in dishonesty, it is now up to members of Congress to obtain & declassify the
CIA findings on Jamal Khashoggi’s death. No one in Saudi Arabia – most especially the Crown
Prince – should escape accountability for such a heinous act.”15
14.

On November 28, 2018, Secretary of State Mike Pompeo and Defense Secretary

James Mattis briefed Senators behind closed doors in relation to Saudi Arabia, Yemen and the
Khashoggi case. Despite bipartisan frustration at not hearing directly from CIA Director Gina
Haspel on the Khashoggi case, she did not attend.16 After that briefing, Secretary Pompeo
refused to answer reporters’ questions about why Gina Haspel did not attend, and told them, “I
do believe I’ve read every piece of intelligence . . . . There is no direct reporting connecting the
crown prince to the order to murder Jamal Khashoggi.”17
15.

Subsequent news reports suggest that Secretary Pompeo’s choice of words

obscure the CIA’s conclusion that Crown Prince Mohammad bin Salman is culpable. The Wall
Street Journal, based on its review of excerpts of the CIA’s assessment of the murder, has

14

Tara Palmeri, ‘Blindingly obvious’ that Saudi crown prince ordered Khashoggi murder: Source, ABC
News (Nov. 20, 2018), https://abcnews.go.com/Politics/blindingly-obvious-saudi-crown-prince-orderedkhashoggi-murder/story?id=59305430.

15

John O. Brennan (@JohnBrennan), Twitter (Nov. 20, 2018, 10:31 AM), https://twitter.com/JohnBrennan/
status/1064949331868954629.

16

Dimirjian et al., supra note 11.

17

Dierdre Shesgreen, Lawmakers livid after CIA director Gina Haspel a no-show for closed-door briefing on
Khashoggi murder, USA Today (Nov. 28, 2018), https://www.usatoday.com/story/news/world/2018/11/28/
mike-pompeo-blasts-lawmakers-over-jamal-khashoggis-murder-saudi-arabia-yemen/2136140002/.

6

reported that the excerpts “state that the CIA has ‘medium-to-high confidence’ that Prince
Mohammed ‘personally targeted’ Khashoggi and ‘probably ordered his death.’”18 The CIA
reportedly notes in its assessment that it “‘lack[s] direct reporting of the Crown Prince issuing a
kill order,’” but its “judgment on Prince Mohammed’s likely culpability . . . is based on the
crown prince’s personal focus on Mr. Khashoggi, his tight control over the Saudi operatives sent
to Istanbul to kill him, ‘and his authorizing some of the same operators to violently target other
opponents.’”19 The CIA assessment reportedly states, “We assess it is highly unlikely this team
of operators . . . carried out the operation without Muhammed bin Salman’s authorization.”20
16.

In a December 4, 2018 editorial in the Wall Street Journal, Senator Lindsey

Graham (R-S.C.) said, “Given the evidence U.S. intelligence has gathered on Khashoggi’s
killing, denying the crown prince’s involvement amounts to willful blindness.”21
17.

On December 4, 2018, after CIA Director Gina Haspel briefed senators in a

closed session on the Khashoggi killing, Senator Graham told reporters, “I think [Crown Prince
Mohammad bin Salman is] complicit in the murder of Mr. Khashoggi to the highest level
possible.”22 He said that it was clear that Secretary Pompeo and Secretary Mattis were being
“good soldiers” for the White House when they briefed senators the previous week, but that their

18

Warren P. Strobel, CIA Intercepts Underpin Assessment Saudi Crown Prince Targeted Khashoggi, Wall St.
J. (Dec. 1, 2018), https://www.wsj.com/articles/cia-intercepts-underpin-assessment-saudi-crown-princetargeted-khashoggi-1543640460.

19

Id. (quoting excerpts from the report).

20

Id.

21

Lindsey Graham, Editorial, Congress Gets Tough on the Saudis, Wall St. J. (Dec. 4, 2018),
https://www.wsj. com/articles/congress-gets-tough-on-the-saudis-1543880186.

22

Eric Schmitt & Nicholas Fandos, Saudi Prince ‘Complicit’ in Khashoggi’s Murder, Senators Say After
C.I.A. Briefing, N.Y. Times (Dec. 4, 2018), https://www.nytimes.com/2018/12/04/us/politics/cia-senatekhashoggi-.html.

7

assessments had been misleading.23 In reference to Secretary Mattis’s insistence that American
officials had seen “no smoking gun” to indicate Crown Prince Mohammad bin Salman was to
blame in Mr. Khashoggi’s killing, Senator Graham said, “There is not a smoking gun, there’s a
smoking saw . . . . You have to be willfully blind [not to see it].”24
18.

Similarly, Senate Foreign Relations Committee Chairman Bob Corker (R.-Tenn.)

told reporters, “I have zero question in my mind that the crown prince directed the murder and
was kept apprised of the situation all the way through . . . . If he was in front of a jury, he would
have a unanimous verdict in about 30 minutes – a guilty verdict.”25
19.

On December 13, 2018, a bipartisan group of senators unanimously approved a

resolution holding Crown Prince Mohammad Bin Salman responsible for the murder of Jamal
Khashoggi.26 In late December 2018, further debate centered around a video broadcast on
Turkish television showing men carrying large suitcases inside the Saudi Consul General’s gated
residence in Istanbul, not far from the Saudi Consulate.27 Turkish officials had previously said
that Saudi officials had dissembled Mr. Khashoggi’s body with a bone saw and carried them out
of the Consulate in suitcases.28 In January 2019, public debate on Mr. Khashoggi’s killing

23

Id.

24

Id.

25

Kristina Peterson & Nancy A. Youssef, Senators Conclude the Saudi Crown Prince Ordered Journalist’s
Killing, Wall St. J. (Dec. 4, 2018), https://www.wsj.com/articles/bolton-calls-khashoggi-death-a-heinouscrime-1543942052.

26

Clare Foran et al., Senate rebukes Trump, condemns Saudi crown prince for Khashoggi murder, CNN
(Dec. 13, 2018), https://www.cnn.com/2018/12/13/politics/corker-saudi-crown-princekhashoggi/index.html.

27

Alan Yuhas, Video on Turkish TV Is Said to Show Khashoggi’s Remains Being Moved, N.Y. Times (Dec.
31, 2018), https://www.nytimes.com/2018/12/31/world/middleeast/khashoggi-video-turkey.html.

28

Id.

8

continued after Netflix blocked a comedy show in Saudi Arabia critical of Crown Prince
Mohammad Bin Salman and his role in Mr. Khashoggi’s murder.29
20.

The question of accountability for Mr. Khashoggi’s murder remains pressing and

unresolved. On January 3, 2019, Saudi Arabia announced the opening of a criminal trial against
11 individuals accused of killing Mr. Khashoggi. 30 The initial court hearing on January 3, 2019
was not public and the suspects were not named. It is unclear whether high-level officials such
as Saud-al Qahtani, a top aide to Crown Prince Mohammad bin Salman, who is the subject of
U.S. sanctions for his suspected integral role in the murder, are among the accused.31

A

spokesperson from the Office of the United Nations High Commissioner for Human Rights
stated that the trial was “not sufficient” and called for an independent investigation with
international involvement.32 The Washington Post Editorial Board has lambasted the trial as a
“pathetically weak” measure that is a “travesty of justice.”33 As a result, the Editorial Board has
called for Congressional action, urging “[t]he new Democratic leadership in the House [to]

29

James Griffiths & Euan McKirdy, Netflix pulls ‘Patriot Act’ episode in Saudi Arabia after it criticized
official account of Khashoggi killing, CNN (Jan. 2, 2019),
https://www.cnn.com/2019/01/01/middleeast/netflix-patriot-act-hasan-minhaj-jamal-khashoggiintl/index.html.

30

Jamal Khashoggi murder trial opens in Saudi Arabia, BBC News (Jan. 3, 2019),
https://www.bbc.com/news/world-middle-east-46747332.

31

Kareem Fahim, Named as a key Saudi suspect in Khashoggi killing, former top royal adviser drops out of
sight, Wash. Post (Jan. 7, 2019), https://www.washingtonpost.com/world/named-as-a-key-saudi-suspect-inkhashoggi-killing-top-royal-adviser-drops-out-of-sight/2019/01/06/2aed0cae-0790-11e9-89420ef442e59094_story.html?utm_term=.81856e6c02c2.

32

Khashoggi trial in Saudi Arabia falls short of independent, international probe needed: UN rights chief,
UN News (Jan. 4, 2019), https://news.un.org/en/story/2019/01/1029772.

33

Editorial Board, Saudi Arabia’s trial for Khashoggi’s murder is a travesty. Congress must insist on justice,
Wash. Post (Jan. 6, 2019), https://www.washingtonpost.com/opinions/global-opinions/saudi-arabias-trialfor-khashoggis-murder-is-a-travesty-congress-must-insist-on-justice/2019/01/06/c76531a8-1053-11e98938-5898adc28fa2_story.html?utm_term=.c34e0eb2d04b.

9

advance new measures requiring U.S. sanctions on all those responsible for the murder,
including Mohammed bin Salman . . . .”34
21.

Senator Patrick Leahy (D.-Vt.) has stated that Senate and House committees

should examine the killing and call Secretary Pompeo to testify, and incoming chair of the
Foreign Affairs Committee Eliot Engel (D.-N.Y. 16th District) has committed to conducting a
“top to bottom” review of U.S. relations with Saudi Arabia. 35
22.

In a press briefing on January 4, 2019, a State Department official stated that

Secretary Pompeo has “been consistent . . . to really push the two points of accountability and
credibility” with Saudi Arabia but that neither “the narrative emerging from the Saudis or the
legal process has yet hit that threshold of credibility and accountability.”36 The official further
stated that the removal of senior Saudi officials from their posts due to their involvement in the
killing did not amount to holding them responsible for the killing. 37
23.

According to the January 4, 2019 press briefing, Secretary Pompeo is planning to

seek an update on Saudi Arabia’s investigation into Mr. Khashoggi’s murder, emphasize the
need for a credible legal process, and press Saudi officials on diplomatic conclusions that the
Kingdom has failed to sufficiently answer for the killing when he visits the country during a trip

34

Id.

35

Colum Lynch, Getting Away with Murder, Foreign Affairs (Jan. 4, 2019), https://foreignpolicy.com/2019/
01/04/getting-away-with-murder/.

36

Lesley Wroughton, U.S. says has yet to see credible version of Khashoggi’s killing from Saudis, Reuters
(Jan. 4, 2019), https://www.reuters.com/article/us-saudi-khashoggi-usa/u-s-says-has-yet-to-see-credibleversion-of-khashoggis-killing-from-saudis-idUSKCN1OY19T.

37

Edward Wong, Pompeo Plans to Press Saudi Leaders Over Killing of Jamal Khashoggi, N.Y. Times (Jan.
4, 2019).

10

to the Middle East scheduled for January 8, 2019 to January 19, 2019.38 However, on January 7,
2019, Politico reported that two people briefed on the plans for Secretary Pompeo’s trip stated
that Secretary Pompeo “is due to applaud Saudi Arabia” for bringing Mr. Khashoggi’s killers to
justice in an upcoming speech during the trip. 39
24.

The ongoing debate in the media and in Congress over the circumstances of Mr.

Khashoggi’s killing indicates that it remains a matter of urgent interest to the public. The
immediate release of the requested records is imperative for the public to properly and timely
evaluate Congressional and Executive responses to Mr. Khashoggi’s killing, including, but not
limited to, President Trump’s sanctions determination that is due to be submitted to the
chairperson and ranking member of the Senate Foreign Relations Committee by about February
8, 2019.
PLAINTIFF’S FOIA REQUESTS
25.

On December 4, 2018, Plaintiff submitted FOIA requests to all Defendants

seeking disclosure of “all records relating to the killing of U.S. resident Jamal Khashoggi,
including but not limited to the CIA’s findings on and/or assessment of the circumstances under
which he was killed and/or the identities of those responsible.”40 Based on information and
belief, all Defendants received the FOIA requests by December 6, 2018.
26.

Plaintiff requested expedited processing of all of the requests on the ground that it

is an organization “primarily engaged in disseminating information” and there is a “compelling

38

Pompeo to Seek Khashoggi Case Update on Middle East trip: Statement, Reuters (Jan. 4, 2019),
https://www.voanews.com/a/pompeo-to-seek-khashoggi-case-update-on-middle-east-trip-statement/
4729006.html; Wroughton, supra note 36; Wong, supra note 37.

39

Nahal Toosi, Pompeo, in Cairo speech, to rebuke Obama’s Mideast vision, Politico (Jan 7. 2019),
https://www.politico.com/story/2019/01/07/pompeo-middle-east-speech-rebuke-obamas-1085570.

40

Copies of these requests are attached hereto as Exhibit A.

11

need” for the records sought because they contain information “urgent[ly]” needed to “inform
the public concerning actual or alleged

Federal Government

activity.” 5 U.S.C.

§ 552(a)(6)(E)(v)(II).
27.

Plaintiff requested fee waivers for all of the requests on the grounds that it is a

“representative of the news media” within the meaning of FOIA and that disclosure of the
requested records is in the public interest because it is “likely to contribute significantly to public
understanding of the operations or activities of the government and is not primarily in the
commercial interest of the requester.” 5 U.S.C. §§ 552(a)(4)(A)(ii)(II); 552(a)(4)(A)(iii).
AGENCY RESPONSES
28.

By letter dated December 7, 2018, Defendant CIA acknowledged receipt of

Plaintiff’s request and assigned it reference number F-2019-00604. In the same letter, the CIA
informed Plaintiff that it had denied Plaintiff’s request for expedited processing and that it had,
as a matter of administrative discretion, waived the fees for the request. On December 26, 2018,
Plaintiff called the CIA’s FOIA requester service center and confirmed that the CIA’s FOIA
services remained operational despite the government shutdown. Defendant CIA has not made a
determination on Plaintiff’s request as required by FOIA and has not disclosed any responsive
records.
29.

To date, Defendant DOD has not responded to Plaintiff’s request. On December

26, 2018, Plaintiff called a DOD FOIA officer and confirmed that the DOD’s FOIA services
remained operational despite the government shutdown.

Defendant DOD has not made a

determination on Plaintiff’s request as required by FOIA and has not disclosed any responsive
records.

12

30.

By letter dated December 11, 2018, Defendant NSA acknowledged receipt of

Plaintiff’s request and assigned it case number 105847. In the same letter, the NSA informed
Plaintiff that it had denied Plaintiff’s request for expedited processing and that because there
would be no processing fees, it had not addressed Plaintiff’s request for a fee waiver. On
December 26, 2018, Plaintiff called the NSA’s FOIA requester service center and confirmed that
the NSA’s FOIA services remained operational despite the government shutdown. Defendant
NSA has not made a determination on Plaintiff’s request as required by FOIA and has not
disclosed any responsive records.
31.

By letter dated December 13, 2018, Defendant ODNI acknowledged receipt of

Plaintiff’s request and assigned it reference number DF-2019-00078. In the same letter, the
ODNI informed Plaintiff that it had denied Plaintiff’s request for expedited processing and
granted Plaintiff’s request for a fee waiver.
32.

By email dated December 21, 2018, Defendant ODNI, purporting to “perfect”

Plaintiff’s request, asked Plaintiff whether it was seeking disclosure of “any and all records that
mention, either directly, or indirectly the killing of Khashoggi, such as emails, that may contain a
news article, or non-substantive comments from one employee to another” or “specific reports or
documents created by ODNI that directly describe the killing, and the circumstances associated
with the killing.” ODNI informed Plaintiff that it would hold the request in abeyance for 30
days, until midnight on January 20, 2019, waiting for Plaintiff to “clarify/narrow the scope” of its
request and that if ODNI had not heard from Plaintiff by then, it would “close” the request.
ODNI did not inform Plaintiff of any right to appeal. By email dated December 25, 2018,
Plaintiff responded that the scope of its FOIA request was clear and that it was requesting, inter
alia, both categories of information identified by ODNI in its email. By email dated December

13

26, 2018, Defendant ODNI responded that it had forwarded Plaintiff’s email to the ODNI/FOIA
Chief, who would “review and respond to . . . [Plaintiff] directly.”
33.

On December 26, 2018, Plaintiff called an ODNI FOIA officer and confirmed that

the ODNI’s FOIA services remained operational despite the government shutdown. Defendant
ODNI has not made a determination on Plaintiff’s request as required by FOIA and has not
disclosed any responsive records.
34.

Plaintiff has constructively exhausted administrative remedies on account of

Defendants’ failure to comply with the 20-day time limit for making a determination on
Plaintiff’s FOIA requests as required by FOIA.

14

CAUSES OF ACTION
Violation of the Freedom of Information Act for
Improper Withholding of Agency Records
1.

Plaintiff repeats, re-alleges, and incorporates the foregoing paragraphs as if set

forth in full.
2.

Defendants have improperly withheld the requested records from Plaintiff by

failing to comply with the statutory time limit for rendering a determination on Plaintiff’s FOIA
requests in violation of 5 U.S.C. § 552(a)(6)(A)(i) and Defendants’ corresponding regulations.
3.

Defendants’ failure to make reasonable efforts to search for records responsive to

Plaintiff’s requests violates FOIA, 5 U.S.C. § 552(a)(3)(C), and Defendants’ corresponding
regulations.
4.

Defendants’ failure to promptly disclose records responsive to Plaintiff’s requests

violates FOIA, 5 U.S.C. § 552(a)(3)(A), and Defendants’ corresponding regulations.
5.

Defendants’ failure to grant Plaintiff’s requests for expedited processing violates

FOIA, 5 U.S.C. § 552(a)(6)(E), and Defendants’ corresponding regulations.
6.

Defendant DOD’s failure to grant Plaintiff’s request for a waiver of search,

review, and duplication fees violates FOIA, 5 U.S.C. § 552(a)(4)(A)(ii)(II), (iii) and Defendant’s
corresponding regulations.
7.

Plaintiff has exhausted all applicable administrative remedies.

8.

Plaintiff is entitled to injunctive relief with respect to the prompt disclosure of the

requested documents.

15

PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that this Court:
A.

Expedite its consideration of this action pursuant to 28 U.S.C. § 1657(a);

B.

Order Defendants immediately to conduct a thorough search for records
responsive to Plaintiff’s requests;

C.

Order Defendants immediately to process any responsive records for disclosure
and produce such records to Plaintiff;

D.

Enjoin Defendants from charging Plaintiff search, review, and duplication fees
relating to the requests;

E.

Award Plaintiff its costs and reasonable attorneys’ fees incurred in this action; and

F.

Grant such other relief as the Court may deem just and proper.

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Dated: January 9, 2019
New York, New York

Respectfully submitted,

/s/ Catherine Amirfar
Catherine Amirfar
([e-mail])
Ashika Singh
([e-mail])
DEBEVOISE & PLIMPTON LLP
919 Third Avenue
New York, New York 10022
Tel.: [phone]
Amrit Singh
James A. Goldston
OPEN SOCIETY JUSTICE INITIATIVE
224 West 57th Street
New York, New York 10019
Tel.: [phone]
David L. Sobel
(pro hac vice motion forthcoming)
5335 Wisconsin Avenue, N.W., Suite 640
Washington, DC 20015
Tel.: [phone]
Attorneys for Plaintiff

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