Gov't Accountability Project v. Cent. Intelligence Agency

548 F.Supp.3d 140

GOVERNMENT ACCOUNTABILITY PROJECT, Plaintiff,

v.CENTRAL INTELLIGENCE AGENCY, Defendant.

Civil Action No. 19-449 (RDM)

United States District Court, District of Columbia.

Signed July 7, 2021

Conor M. Shaw, Citizens for Responsibility and Ethics in Washington, Anne L. Weismann, Washington, DC, for Plaintiff.

Patricia K. McBride, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

In this Freedom of Information Act case, 5 U.S.C. § 552 ("FOIA"), the Plaintiff, a non-profit public-interest law firm, requested that the Central Intelligence Agency ("CIA")—as well as the Departments of Commerce, Treasury, Defense, and Energy—produce records discussing the provision of certain nuclear technologies to countries in the Middle East. Dkt. 1 at 28–30 (Compl. ¶¶ 85–95). The CIA demurred: It would not say whether it had the records or not. Doing so, the agency claimed, would threaten national security.

The propriety of that response is at issue here, contested in cross-motions for summary judgment filed by each party. Dkt. 24; Dkt. 26. Plaintiff, the Government Accountability Project ("GAP"), wants the CIA to acknowledge and to disclose the records that it has. The CIA, meanwhile, stands by the non-response response it provided. For the reasons that follow, the Court will GRANT in part and DENY in part the CIA's motion, and will DENY GAP's cross-motion.

I. BACKGROUND

"In extending abroad, under proper security safeguards, the evolving technology of atomic energy for peaceful purposes, we shall tighten the bonds that tie our friends abroad to us, we shall assure material resources that we need, and we shall maintain world leadership in atomic energy—leadership which today is such a large element of our national prestige." S. Rep. No. 83-1699, at 101 (1954). These were the lofty goals of the Atomic Energy Act of 1954, enacted just shy of nine years after World War II concluded. To meet its ends, the Act governs how the United States may cooperate with other countries on the subject of nuclear material. The Act requires, for example, that nuclear cooperation agreements contain certain terms, like a guarantee by the cooperating party that it will protect any nuclear material the United States provides. 42 U.S.C. § 2153(a)(1). The Act also establishes certain processes that the executive branch must follow before cooperation is permitted—mandating, for instance, the submission of proposed cooperation agreements to Congress for review and approval. Id. § 2153(c). The rationale for these rules was simple: "Almost any cooperation with any foreign country can be said to involve some risk to the common defense and security of the United States. The provisions are designed to permit cooperation where, upon weighing those risks (of proliferation) in the light of the safeguards provided, there is found to be no unreasonable risk to the common defense and security." S. Rep. No. 83-1699, at 22.

At issue here, according to GAP, is the fidelity of certain officials in the Trump Administration to the Atomic Energy Act's safeguards. In April 2015, Retired Lieutenant General Michael Flynn ("Flynn"), while acting as an advisor to a private firm, ACU Strategic Partners ("ACU"), allegedly began developing "the Middle East Marshall Plan"—an ambitious effort to "work with Russia to build nuclear reactors in the Middle East." Dkt. 1 at 5 (Compl. ¶ 18); see also Dkt. 26-2 at 2 (Pl.’s SUMF ¶ 4).¹ The following year Flynn became an advisor to another private firm, International Peace Power & Prosperity ("IP3"), which, GAP alleges, was itself promoting a plan to build nuclear reactors in the Middle East. Dkt. 1 at 7 (Compl. ¶ 25). In January 2017, Flynn joined the Trump administration as National Security Advisor. Dkt. 26-2 at 2 (Pl.’s SUMF ¶ 4). Thereafter, "Flynn ‘talked favorably’ about the nuclear proposal with Thomas Barrack, Jr., a businessman and long-time Trump confidante who was heading up the Trump Inauguration Committee," id. at 3 (Pl.’s SUMF ¶ 5), and who "also was considering buying a stake in Westinghouse Electric Company, a producer of nuclear reactors," id. (Pl.’s SUMF ¶ 6).

Shortly after Flynn joined the National Security Council ("NSC"), "IP3's co-founder Robert McFarlane emailed documents to Flynn, which included an outline of the Middle East nuclear plan and ‘a draft memo for the president to sign authorizing the project’ and instructing cabinet secretaries to implement it." Id. (Pl.’s SUMF ¶ 8) (quoting Dkt. 1 at 13 (Compl. ¶ 42)). NSC staff raised concerns with Derek Harvey, a retired Army colonel that Flynn had installed on the NSC, "that any plan to transfer nuclear technology must comply with Section 123 of the Atomic Energy Act, which requires consultation with experts at the NSC, Department of State, Department of Defense, and Department of Energy." Id. at 4 (Pl.’s SUMF ¶ 9).²

Later that year, after the murder of journalist Jamal Khashoggi, "it was reported that Energy Secretary Rick Perry was ‘pressing ahead with efforts to strike a deal that would allow U.S. companies such as Westinghouse Electric Co. [to] build ... nuclear reactors in Saudi Arabia,’ " id. (Pl.’s SUMF ¶¶ 10–11) (quoting Dkt. 1 at 20 (Compl. ¶ 65)), despite opposition from bipartisan groups in Congress, id. (Pl.’s SUMF ¶ 10). Then, in February 2019, at the behest of IP3's co-founder, Jack Keane, "U.S. nuclear energy developers, including Westinghouse, met with President Trump to seek assistance in winning contracts to build power plants in the Middle East and other countries." Id. (Pl.’s SUMF ¶ 12). According to GAP, the "[d]iscussions included efforts to secure Section 123 Agreements with Saudi Arabia and Jordan that would allow U.S. nuclear power companies to share their technology with those countries and others in the Middle East." Id. (Pl.’s SUMF ¶ 13).

That same month, "the House Committee on Oversight and Reform released its first interim staff report about ‘efforts inside the White House to rush the transfer of highly sensitive U.S. nuclear technology to Saudi Arabia in potential violation of the Atomic Energy Act and without review by Congress as required by law—efforts that may be ongoing to this day.’ " Id. at 5 (Pl.’s SUMF ¶ 14) (quoting First Interim Staff Report, Whistleblowers Raise Grave Concerns with Trump Administration's Efforts to Transfer Sensitive Nuclear Technology to Saudi Arabia , at 2, Comm. on Oversight and Reform U.S. House of Representatives, https://oversight.house.gov/sites/democrats.oversight.house.gov/files/Trump% 20Saudi% 20Nuclear% 20Report% 20-% 202-19-2019.pdf). "The report states that multiple whistleblowers came forward to express ‘significant concerns about the potential procedural and legal violations connected with rushing through a plan to transfer nuclear technology to Saudi Arabia.’ " Id. (Pl.’s SUMF ¶ 15) (quoting same).

Several months later, "[i]n July 2019, the House Oversight Committee, based on a review of more than 60,000 pages of documents obtained since February 2019, released a second interim report, which concluded that ‘contacts between private and commercial interests and high-level Trump Administration officials were more frequent, wide-ranging, and influential than previously known—and continue to the present day.’ " Id. (Pl.’s SUMF ¶ 16) (quoting Second Interim Staff Report, Corporate and Foreign Interests Behind White House Push to Transfer U.S. Nuclear Technology to Saudi Arabia , Comm. on Oversight and Reform U.S. House of Representatives, https://oversight.house.gov/sites/democrats.oversight.house.gov/files/Trump% 20Saudi% 20Nuclear% 20Report% 20July% 202019.pdf). The report included three references to then-CIA Director Mike Pompeo and recounted two correspondences from IP3 to certain members of the intelligence community. Id. at 5–6 (Pl.’s SUMF ¶ 18). Although the references to Pompeo are opaque, they suggest (at least) that IP3 attempted "to promote [its] plan with high-level stakeholders[,] including ... Pompeo" among others. Id.

On August 29, 2018, GAP submitted a FOIA request to the CIA seeking records "from January 20, 2017 to the present regarding: (1) civil nuclear cooperation with Middle Eastern countries, most notably Saudi Arabia; (2) the Middle East Marshall Plan; (3) negotiation of a U.S.-Saudi ‘123’ Civil Nuclear Cooperation Agreement; (4) the IP3 Corporation and its proposal for nuclear and cyber cooperation with various Middle Eastern countries; and (5) Westinghouse, including its March 2017 bankruptcy and the subsequent policy response of the U.S. Government." Id. at 6 (Pl.’s SUMF ¶ 19); see also Dkt. 1 at 28 (Compl. ¶ 85); Dkt. 24-2 at 1 (Def.’s SUMF ¶ 1). "To help focus the CIA's search for responsive records, GAP provided [the CIA] four categories of additional information," Dkt. 26-2 at 6 (Pl.’s SUMF ¶ 20); "identified 18 White House staff likely to have been referenced in the requested documents and communications," id. at 7 (Pl.’s SUMF ¶ 21); "identified [six] individuals at the IP3 Corporation for which the CIA would have correspondence," id. (Pl.’s SUMF ¶ 22); and "identified [groups of] individuals at the CIA ... most likely to have responsive information in their emails, archived documents, or other stored files," id. (Pl.’s SUMF ¶ 23); see also Dkt. 24-2 at 1 (Def.’s SUMF ¶ 1).

On December 4, 2018, "the CIA requested further clarity from [GAP] with respect to the first category of information [ ] requested in order to allow the CIA to conduct a reasonable search." Dkt. 24-2 at 2 (Def.’s SUMF ¶ 3); see also Dkt. 26-2 at 8 (Pl.’s SUMF ¶ 24). "GAP responded by letter dated January 8, 2019, clarifying that its request for records regarding civil nuclear cooperation with Middle Eastern countries, most notably Saudi Arabia, should be interpreted to mean records regarding cooperation between the United States and one or more of the following: Egypt, Jordan,...