UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 17- 00160 (TNM)
____________________________________
ASSASSINATION ARCHIVES AND :
RESEARCH CENTER :

Plaintiff,

v.

CENTRAL INTELLIGENCE AGENCY :

Defendant.
____________________________________ :
AARC’S REPLY IN SUPPORT OF AARC’S CROSS-MOTION FOR
SUMMARY JUDGMENT TO REQUIRE CIA TO PERFORM AN
ADEQUATE SEARCH AND RELEASE NON-EXEMPT RECORDS, OR
PORTIONS

Case 1:17-cv-00160-TNM Document 26 Filed 02/20/18 Page 1 of 17

TABLE OF CONTENTS
Page No.
PRELIMINARY STATEMENT………………………………… 4
A. CIA reveals that its Chief Historian participated
in responding to AARC’s request, and CIA ignores
President Trump directive…………………………………… 4
ARGUMENT…………………………………………………… 6
A. CIA’s Search was Inadequate……………………………. 6
B. CIA’s Vaughn Index is Deficient……………………….. 11
C. CIA’s b(1) Exemption Claim Fails……………………… 13
D. CIA’s b(3) Exemption Claim Fails………………………. 14
E. CIA’s b(5) Exemption Claim Fails………………………. 15
F. CIA’s b(6) Exemption Claim Fails………………………. 15
CONCLUSION…………………………………………………. 16

TABLE OF AUTHORITIES
Federal cases
Founding Church of Scientology,Inc. v. Nat. Sec. Agency,
610 F.2d 824 (D.C.Cir.1979)……………………………………… 7
King v. United States Department of Justice ,
830 F.2d 210, 218 (D .C .Cir .1987)………………………………. 11
Neugent v. U.S. Dept. of Interior (Neugent),
640 F.2d 386,391 (D.C. Cir. 1981)…………………………………. 11
Reporter’s Committee for Freedom of the Press v. FBI,
877 F.3d 399 (D.C. Cir. 2017)…………………………………….. 7,8,9
Truitt v. Department of State,
897 F.2d 540 (D.C.Cir. 1990)……………………………………… 7
Vaughn v. Rosen,
484 F.2d 820, 824-825 (D.C.Cir. 1973)…………………………… 11,12
Rules and Statutes
Freedom of Information Act 5 U.S.C. Sec. 552(a)……………………. passim
National Security Act of 1947, 50 U.S.C. Sec. 3024…………………. 15
Miscellaneous
Executive Order 13,526 ……………………………………………….. 13,14

Plaintiff AARC replies in support of its Cross-motion for summary judgment
(ECF #21) and incorporates by reference the arguments and evidence supporting
its own Cross-motion and will not restate them here except as necessary for
clarification and emphasis.

PRELIMINARY STATEMENT

A. CIA reveals that its Chief Historian participated in responding to AARC’s
request, and CIA ignores President Trump directive.

CIA in its response to AARC’s cross-motion attempts to minimize the
significance of the records requested, but contradicts this position by revealing that
the Chief Historian of the CIA (David Robarge) was personally involved in
formulating CIA’s response to AARC’s FOIA request.1 According to CIA, Chief
Historian Robarge advised on Agency-wide searches in response to AARC’s
request and searched his own files for responsive records, due to his familiarity
with the subject matter. See pp. 3-4 of text of CIA’s Reply and Opposition, ECF #
24. However, there is no declaration by Robarge submitted by CIA. This
omission requires further exploration by way of a deposition of Robarge on his
participation in this search.

1 CIA Chief Historian Robarge authored a report in 2013 in which he contended that CIA
Director John McCone was at the heart of a “benign cover-up” of the assassination of President
Kennedy by withholding information from the Warren Commission about CIA plots to
assassinate Fidel Castro. “Yes, the CIA Director Was Part of the JFK Assassination Cover-Up”,
Politico Magazine, Philip Shenon, Oct. 6, 2015, attached as Exhibit 1.

CIA’s response is curiously silent on the October 2017 directives by President
Donald J. Trump cited in AARC’s brief that agencies should, in the public interest,
expeditiously release the maximum amount of material related to the assassination
of President John F. Kennedy, as are the records at issue. Trump Directive cited at
pp. 11, 27-28, AARC cross-motion, ECF #21. CIA does not even acknowledge
these cited instructions from the President even though he is the officer of the
government with authority over CIA and these issues. The Court should treat the
CIA’s silence as a concession that the President has directed prompt release of
such material, as he has in fact done, demonstrating the high public interest and
significance of the information requested. As set forth in AARC’s cross-motion,
the information requested relates in part to U.S. government efforts to overthrow
Fidel Castro in Cuba in the fall of 1963. Such activities have been the subject of
multiple government investigations to determine if there is a relationship between
such activities and the assassination of President Kennedy on November 22, 1963,
including CIA Chief Historian Robarge’s 2013 report finding a CIA “benign
cover-up” of such activities. See footnote 1.

Further, President Trump has recently utilized the public interest provision of
Executive Order 13526 to release Top Secret classified information in other
contexts, in particular release of the House of Representatives Intelligence
Committee report on compliance with the Foreign Intelligence Surveillance Act.

Statement of White House Counsel McGahn, February 2, 2018, attached as Exhibit
2. Clearly the President is the responsible officer of the government on issues of
classification and release of classified documents. CIA must acknowledge
President Trump’s directives to release JFK assassination related material such as
the information requested in this case, and demonstrate it has complied with them.
CIA entirely fails to explain its confused and contradictory handling of the
multiple searches in this case, instead stating the barest possible explanation at the
end of a footnote that this confusion was the result of “administrative error” with
no further explanation. 3rd Shiner Decl. p. 2 n.1 ECF # 24-1. CIA’s inadequate
response leaves unresolved material issues of fact that preclude a grant of summary
judgment to the government. AARC must be allowed to take discovery on the
searches as requested, including a deposition of CIA Chief Historian David
Robarge, who has been injected into this matter by CIA’s latest filing as a key
participant in the search, thereby opening the door to exploration of Robarge’s role
in this case. Further CIA must acknowledge the instructions of its superior officer
in the government, President Trump, and explain what it is doing to carry out his
instructions.

ARGUMENT

A. CIA’s Search was Inadequate.

When the adequacy of the agency’s search is in dispute, summary judgment for
an agency is inappropriate as to that issue. See Founding Church of Scientology,
Inc. v. Nat. Sec. Agency, 610 F.2d 824, 836-37 (D.C.Cir.1979).If doubt exists as to
the adequacy of the search, Truitt counsels, “summary judgment for the agency is
not proper.” Truitt v. Department of State, 897 F.2d 540 (D.C.Cir. 1990). In this
case, as noted above, there is growing substantial doubt as to the adequacy of the
search.

The Court of Appeals has recently emphatically restated that decisions in this
circuit have long held that declarations must describe in detail how searches were
conducted, including search terms that were used, and results yielded in the search
of each component of an agency. Reporter’s Committee for Freedom of the Press
v. FBI, D.C. Circuit Case No. 17-5042, 2017 WL 6390484 (D.C. Cir. Dec. 15,
2017) pp. 7-8 slip opinion, 877 F.3d 399 (D.C. Cir. 2017).

In this case, CIA has still failed to state all of its search terms, and is hiding the
results yielded by searches of agency components. Further, CIA apparently has
not searched under the most relevant search terms, “July 20 plot” and “plot to kill
Hitler” despite AARC calling these terms to their attention in its cross-motion.
Nor has CIA searched the terms “Joint Chiefs meeting September 25, 1963”,
‘Rolando Cubela”, or “Castro overthrow” or “Manuel Artime”, “Desmond
Fitzgerald”, or “Walter Higgins” as suggested in AARC’s cross-motion. As noted
above, CIA now points to the involvement of its Chief Historian David Robarge in
this search, but provides no declaration from Mr. Robarge documenting his search
activities. Nor has CIA documented what it has done to comply with President
Trump’s directive to release the maximum amount of material related to the JFK
assassination, as set forth above. As the Court of Appeals made clear in its recent
Reporter’s Committee opinion, summary judgment for the agency is not
appropriate in such circumstances, and instead AARC’s cross-motion for summary
judgment on the search issue should be granted.

First, CIA has provided contradictory information as to the results of its search,
initially claiming it found no records, then withdrawing that letter as sent in error,
then reinstating that letter, and finally conducting another search once litigation
was initiated that found responsive records. CIA’s only explanation of these
problems is a short footnote calling them “administrative error’ without further
explanation. 3rd Shiner Decl. p. 2 n.1 ECF # 24-1. AARC must be allowed to take
discovery on these searches and errors, including the deposition of CIA Chief
Historian David Robarge, who CIA reveals was involved in formulating and
conducting the searches in this case and himself has authored a report finding a
“benign cover-up” by the CIA of the JFK assassination. See footnote 1.
Second, CIA withholds the crucial information that would document its search
and search results, by withholding the contents of five documents that record the
search process. Instead of adequately documenting the search, CIA has taken the
opposite approach and is actively hiding the breadth and results of the search.
Such active withholding of relevant information to the search issue makes
summary judgment for CIA inappropriate under the recent Reporter’s Committee
decision. The Court has authority under FOIA 5 USC Sec. 552(a)(4)(B) to make a
de novo review of the handling of plaintiff’s request and such review includes
knowing how the request was handled by employees of the government.
Third, the documentary record of the Higgins Memorandum evidences the
likelihood of more of a documentary record than CIA has produced to date. The
Higgins memo records a briefing of the Joint Chiefs of Staff of the U.S. military by
the CIA’s head of Cuban activities during a period in which the U.S. relationship
with Cuba was one of the highest priority items of U.S. foreign policy. The CIA’s
detailed study of the 1944 plot to kill Hitler in order to develop an approach to
Fidel Castro was therefore one of the most important activities of the U.S.
government at that time. Yet CIA has failed to produce any such records or
explain the failure to do so. CIA attempts improperly to reverse the burden it
carries under FOIA 5 USC Sec. 552(a)(4)(B) and impose it instead on plaintiff.

The FOIA statute is clear that the burden is on the agency to justify its actions in
response to a request, not on the requester to prove otherwise.

AARC has supplied CIA with explicit leads and information to assist its search
and CIA is required to follow up on those leads. Reporter’s Committee v. FBI, p.
14. In addition to the explicit references in the Higgins Memo, AARC has
provided references to the Church Committee investigations and an unrebutted
declaration from author William E. Kelly, Jr. as to his findings as to places where
the plot to kill Hitler appears in the circumstances surrounding the assassination of
President Kennedy. FOIA requires CIA to pursue those compelling leads and
information and does not require AARC to prove what CIA has in its possession
but cannot or will not find.

Fourth, it is illogical and contrary to history that the CIA has only one record
related to the 1944 plot to kill Adolf Hitler, which CIA director (and Warren
Commissioner) Allen Dulles was in contact with at the time. The fact that the one
document produced in this case, the Propagandist’s Guide, relates to the twentieth
anniversary of the plot to kill Hitler supports the importance of the event. Even an
anniversary was important enough to receive written discussion in CIA records, yet
we are to believe that detailed study of the event to develop an avenue to deal with
Fidel Castro was not important enough to create records. Nor was any record
created about this event in the history of the CIA other than a document related to
the twentieth anniversary. Such a result is illogical and contrary to history.
In addition to ordering a new and competent search, this Court should allow
AARC to conduct discovery on CIA’s handling of this search in the form of a
deposition or depositions of CIA Chief Historian David Robarge and other officials
who conducted the searches and are responsible for the contradictory responses.
Neugent v. U.S. Dept. of Interior (Neugent), 640 F.2d 386,391 (D.C. Cir. 1981)
(holding that discovery sought prior to summary judgment should be answered in
the interests of clarifying the matter).

B. CIA’s Vaughn Index is deficient.

As noted in AARC’s cross-motion memorandum, in King, 830 F.2d 210,218,
“[t]he significance of agency affidavits in a FOIA case cannot be underestimated.”
The reason for this is that ordinarily the agency alone possesses knowledge of the
precise content of documents withheld. Thus, “the FOIA requester and the court
both must rely upon its representations for an understanding of the material sought
to be protected.” Id .The agency’s statements are critical because “[t]his lack of
knowledge by the party see[k]ing disclosure seriously distorts the traditional
adversary nature of our legal system’s form of dispute resolution, ‘with the result
that ‘[a]n appellate court, like the trial court, is completely without the
controverting illumination that would ordinarily accompany a lower court’s factual
determination.” . Id., quoting Vaughn v. Rosen, 484 F.2d 820, 824-825 (D.C.Cir.
1973).

As King also stated: Specificity is the defining requirement of the Vaughn
index and affidavit; affidavits cannot support summary judgment if they are
“conclusory, merely reciting statutory standards or sweeping.” To accept an
inadequately supported exemption claim “would constitute an abandonment of the
trial court’s obligation under the FOIA to conduct a de novo review.” Id., at 219
(citations omitted). This index “must describe each document or portion thereof
withheld, and for each withholding it must discuss the consequences of disclosing
the sought after information.” Id, at 223-224 (emphasis in original).

In this case, the Vaughn index and declaration submitted by CIA are wholly
deficient. They fail to specifically link asserted FOIA exemptions to rationales for
withholding, and instead make blanket assertions for multiple FOIA exemptions.
Since FOIA exemptions were enacted to meet specific factual situations, this
blanket assertion of rationales for exemptions is inappropriate and does not justify
the withholdings.

Further, there is no context given for the Court or counsel to understand the
asserted exemptions. Documents are released related to Propaganda techniques,
yet CIA seems to claim an exemption for these same Propaganda techniques,
which is illogical and inappropriate. Vital information related to the searches
undertaken and the results found are withheld under exemption claims.
Also, CIA has now identified its Chief Historian David Robarge as a key
participant in the search but has provided no declaration by him to document his
activities. Nor has CIA stated what it has done to comply with President Trump’s
directive to release the maximum amount of information related to the JFK
assassination such as the records in this case.

In addition, CIA has not identified a reasonably foreseeable harm to a protected
government interest to justify its withholdings, as required by the FOIA
Improvement Act of 2016, codified at 5 U.S.C. Sec. 552(a)(8)(A). CIA cannot
withhold records and information without making a determination of reasons to
foresee harm to a protected government interest.

C. CIA’s b(1) exemption claim fails

CIA fails to find an exemption from the automatic declassification provisions of
Executive Order 13526 for documents over 50 years in age, and these records must
be released. CIA does not deny that it fails to meet the exceptional circumstances
test of section 3.3(h) of that executive order, as pointed out by AARC in its crossmotion.
Nor does CIA meet the test of section 3.3(j) of that order, which states
(1) The notification shall include:
(A) a detailed description of the information, either by reference to information in
specific records or in the form of a declassification guide;
(B) an explanation of why the information should be exempt from automatic
declassification and must remain classified for a longer period of time; and
(C) a specific date or a specific and independently verifiable event for automatic
declassification of specific records that contain the information proposed for
exemption.

CIA asserts that all information it describes by the general term intelligence
method is exempt from automatic declassification under section 3.3(j). There
could hardly be a more generalized description of information, and it is certainly
not a detailed description of the information nor identification of specific records
as required in subsection (j)(1)(A). Nor has CIA provided a specific date or a
specific independently verifiable event for automatic declassification of the
withheld records, as required by subsection (j)(1)(C) The requirements of EO
13526 section 3.3(j) are not met on this record, rather the 54 year old documents at
issue must be treated as the Executive order states- they must be automatically
declassified for reasons of their age being over 50 years.2
CIA does not deny that the Propagandist’s Guide document does not contain
classification markings that comply with the requirements of Executive Order
13,526 Section 1.6.

D. CIA’s b(3) exemption claim fails

Because the records at issue under exemption b(3) are properly automatically
declassified under EO 13526, CIA’s b(3) exemption claim also fails. As noted, the
2 CIA’s failure to follow the automatic declassification provisions of EO 13526 and its failure to
acknowledge President Trump’s directive to release Kennedy assassination records are troubling.
Both circumstances involve executive authority over the CIA.
Executive order reflects Presidential authority over the CIA on matters of
classification and declassification. Records automatically declassified under the
executive order are properly approved for release and not subject to a b(3)
exemption claim pursuant to the National Security Act of 1947 (“NSA Act”) 50
U.S.C. §3024, which guards against unauthorized disclosure.

E. CIA’s b(5) exemption claim fails

The material withheld under b(5) is the result of CIA’s searches for responsive
records in this matter. CIA asserts that deliberative process should exempt such
material as it contains CIA’s determinations as to whether to release or account for
apparently responsive material. The Freedom of Information Act 5 USC Sec. 552
(a)(4)(B) empowers this Court to make a de novo review of the handling of a FOIA
request to see that it was handled properly under the law. The court must review
these results of CIA’s search to make such a de novo determination. This statutory
provision overrides CIA’s assertion of deliberative privilege because by statute,
CIA’s actions are at issue in this case.

F. CIA’s b(6) exemption claim fails

CIA concedes that the subject matter of this request, the assassination of
President Kennedy, is a matter of very high public interest. Nor does CIA contest
that its handling of the searches in this matter have been confused, contradictory
and in error. CIA does not offer any explanation of these events other than that
they were in “administrative error”. These errors and contradictions add to the
public interest in knowing what the government is doing in responding to this
request. Further, CIA has revealed in its opposition the identity of one of the key
personnel participating in and directing the search- CIA Chief Historian David
Robarge. Obviously CIA felt it necessary to reveal the identity of this officer
because of the public interests in the subject matter of this request. In this context,
the public interest outweighs privacy interests in knowing who else conducted the
searches in question so that they might be deposed as to their knowledge.

CONCLUSION
In consideration of the foregoing and AARC’s memorandum in support of its
cross-motion for summary judgment, plaintiff AARC hereby moves the court for
summary judgment that defendant CIA has not conducted an adequate search for
records responsive to AARC’s FOIA request, and that CIA be ordered to conduct
an adequate search for responsive records, including operational files, and provide
them to AARC. Further, in light of the confusion and admitted error evident in
CIA’s search for responsive records in this case AARC moves that the Court order
that AARC be permitted to conduct discovery of CIA’s search activities and
location of responsive records and that such discovery include taking the
deposition of CIA Chief Historian David Robarge, who personally participated in
and directed the search due to his expertise in the subject matter. Further AARC
prays the Court for an order compelling CIA to release to plaintiff the material
withheld improperly under exemption claims as set forth above.

Respectfully submitted,
__/s/_Daniel S. Alcorn_____
Daniel S. Alcorn
Counsel for Plaintiff
Assassination Archives
and Research Center

James H. Lesar
Co-counsel for Assassination
Archives and Research Center