Poitras v. Dep't of Homeland Sec.

303 F.Supp.3d 136

Laura POITRAS, Plaintiff,

v.DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

Civil Action No. 15–1091 (BAH)

United States District Court, District of Columbia.

Signed March 29, 2018

David L. Sobel, Washington, DC, for Plaintiff.

Sam M. Singer, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

The plaintiff, Laura Poitras, a journalist and documentary filmmaker, Compl. ¶ 2, ECF No. 1, challenges the responses of the Federal Bureau of Investigation ("FBI"), a component of the Department of Justice ("DOJ"), and U.S. Customs and Border Protection ("CBP"), a component of the Department of Homeland Security ("DHS"), to her records requests submitted pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552.¹ The requests at issue seek "all agency records concerning, naming, or relating" to the plaintiff and arise from repeated detentions, searches, and questioning of the plaintiff during her international travel over a span of six years. Compl. ¶¶ 15–27. Pending before the Court are the defendants' second motion for summary judgment and the plaintiff's second cross-motion for summary judgment. See generally Defs.' Second Mot. Summ. J. ("Defs.' Mot."), ECF No. 24; Pl.'s Second Cross–Mot. Summ. J. ("Pl.'s Cross–Mot."), ECF No. 26. For the reasons set forth below, the defendants' motion is granted and the plaintiff's cross-motion is denied.

I. BACKGROUND

Summarized below is the factual background underlying the plaintiff's FOIA requests and a review of the defendants' responses.

A. Background on the Plaintiff

The plaintiff is a U.S. citizen and "professional documentary filmmaker, journalist, and artist" based in New York. Pl.'s Cross–Mot, Ex. 3, Pl.'s Second Statement of Material Facts ("Pl.'s SMF") ¶ 3, ECF No. 26–3.² For the past decade, the plaintiff has been documenting "post–9/11 America" and often travels to Europe and the Middle East for her work. Pl.'s First Cross–Mot. Summ. J. ("Pl.'s First Cross–Mot."), Ex. 2, Declaration of Laura Poitras ("Pl.'s First Decl.") ¶ 1–2, ECF No. 18–2; Pl.'s SMF ¶¶ 3–4. The plaintiff initiated this action due to her "desire to understand why she was stopped, detained, and questioned at the U.S. border by her own government for every international flight she took entering her own country for six years ." Pl.'s Cross–Mot. at 1 (emphasis in original). The exhibits submitted by the plaintiff appear to provide an explanation: namely, that her presence at, followed by her dissembling about, a fatal ambush of U.S. soldiers in Iraq raised suspicions about her prior knowledge of, and complicity in, the ambush.

The plaintiff submitted exhibits that describe a harrowing ambush of U.S. Forces, on November 20, 2004, in Adhamiya, Iraq, that resulted in the death of one American soldier and serious injuries to several others. See Pl.'s Reply Supp. Second Cross–Mot Summ. J. ("Pl.'s Reply"), Ex. A, Letter from U.S. Army Criminal Investigation Command ("USACIC") to FBI ("USACIC Package") at A–1, ECF No. 35–1. In the midst of this ambush, two soldiers witnessed an "unusual" sight, id. at A–17: "a white female and an Iraqi male on the roof of a building" overlooking the site of the ambush, id. at A–9, with the woman holding, "over her head," an "expensive looking" video camera "with a sound boom microphone on top," id. at A–17. The soldiers' description of this woman resembled the plaintiff, Laura Poitras. Id.

Two days after the ambush, a Lieutenant Colonel from the U.S. Army met at the military base in the area with the Chairman and Vice–Chairman of the Adhamiya District Council. Id. at A–11. The plaintiff also attended this meeting and was denied permission to film the meeting. Id. During the ensuing discussion, the Lieutenant Colonel asked the Vice–Chairman whether he had been present during the ambush. Id. at A–13. The Vice–Chairman said he was not, but Army officers "noticed he was looking up and to the left, as if he were creating a memory, or about to not tell the truth." Id. The plaintiff was then asked directly "if she had ever seen any of these attacks or gotten these attacks on video." Id. at A–14. The plaintiff, "who had thus far sat through the entire meeting without saying a word, suddenly appeared nervous" and "made a sound that sounded like no, but her lower lip seized up as she spoke and all that came out was a nervous sound." Id.

A second Army officer who was present also observed that "Ms. Poitras' lower lip began quivering" when these questions were asked and that "her body instantly became tense and she leaned forward and crossed her arms" when the Vice–Chairman was asked about his whereabouts at the time of the ambush. Id. This behavior "was not consistent with her average body language throughout the meeting." Id. The Lieutenant Colonel explained that he asked the plaintiff and the Vice–Chairman these questions because two soldiers at the ambush had "witnessed a white female and an Iraqi male on the roof of a building overlooking" the ambush site. Id. In fact, after the meeting concluded, the plaintiff "was deliberately walked past these two soldiers who agreed later that Laura POITRAS was in fact the woman they observed on the roof top," id. at A–20. This identification of the plaintiff by two eyewitnesses was directly contrary to her mumbled denial about being present at the ambush.

After returning from Iraq, the Lieutenant Colonel was interviewed about his war experiences by a historian, who later provided a sworn statement to the FBI as well as copies of his communications with the plaintiff. In her communications with the historian, the plaintiff confirmed that she "was in Adhamiya on the 19th ... and 20th filming" and had been "staying in the house of an Iraqi family." Id. at A–22. She further confirmed that "yes, indeed, I was the western woman w/camera & unarmed Iraqi civilians on the roof." Id. at A–24. In addition, she stated that her "footage is really focusing on the family. [T]here are a couple telephoto shots of the street, but nothing I'd consider a document of events." Id.

According to the historian's sworn statement, before the ambush, "all the businesses along the streets were closed," "metal gates were barring many of the store fronts," and "[t]here was no one on the streets, which is unusual for a Saturday morning in downtown Baghdad." Id. at A–20. In addition, "some of the windows had been taped from the inside to prevent glass from flying into stores and residences should they break," indicating to him that "[i]t's obvious that the neighborhood knew about and was prepared for an attack." Id.³ Based on his communications with the plaintiff and his own observations, the historian reported in his sworn statement that "I believe Laura POITRAS had prior knowledge and the ability to report the forthcoming attack; however, purposely did not report this so she could obtain footage of the attack for her documentary." Id.

On January 31, 2006, the Lieutenant Colonel's final debrief memorandum was sent to USACIC. Id. at A–1. In early 2006, USACIC conducted its own investigation into the plaintiff's involvement in the ambush, ultimately concluding that "credible information does not presently exist to believe Ms. Poitras committed a criminal offense," while noting that "this could quickly change if Ms. Poitras were to be interviewed and admitted she had knowledge of the ambush and refused to notify US Forces in order to further her documentary and media interest." Id. at A–2. USACIC sent this package of documents and reports to the FBI on April 6, 2006, "for any action you deem appropriate." Id. The FBI opened an investigation into the plaintiff and her possible involvement in the ambush. See Defs.' Reply Supp. Second Mot. Summ. J. ("Defs.' Reply") at 2, ECF No. 30; Pl.'s Reply at 7–8.

In July 2006, shortly after the FBI opened its investigation, the plaintiff began being detained and questioned at the U.S. border when she returned to the United States from international travel. Compl. ¶¶ 9–10. The plaintiff claims that from July 2006 through April 2012, she was detained every time she entered the country and occasionally was detained in foreign countries before boarding a return flight to the United States. Id. ¶¶ 10–25; Pl.'s SMF ¶ 7. Each time she returned to the United States, CBP agents met her at the gate when her flight landed, detained and questioned her, and searched her bags before eventually allowing her to reenter the country. Pl.'s SMF ¶¶ 7–8. Agents frequently would make photocopies of the plaintiff's travel documents during these encounters, and on about ten occasions, agents made photocopies of the plaintiff's "reporters' notebooks and/or the contents of her pockets and wallet, including receipts, credit cards, and business cards." Id. ¶ 9. The plaintiff estimates that during this time, she was "detained, questioned, and searched on almost 40 occasions." Id. ¶ 8.

In April 2012, another journalist published an article about the plaintiff's detentions and questioning while traveling, and a group of documentary filmmakers submitted a petition to DHS protesting the plaintiff's routine detentions. Compl. ¶ 10. In June 2012, the plaintiff "was detained, questioned, and searched for the last time and has not been detained at the U.S. border since." Pl.'s SMF ¶ 8.

B. Plaintiff's FOIA Request and the Agencies' Responses

On January 24, 2014, the plaintiff sent FOIA requests, pursuant to 5 U.S.C. § 552, to DHS, CBP, U.S. Citizenship and Immigration Services ("USCIS"), U.S. Immigration and Customs Enforcement ("ICE"), and the Transportation Security Administration ("TSA"), seeking "all agency records concerning, naming, or relating to Ms. Poitras." Compl. ¶ 27; see also Defs.' First Mot. Summ. J. ("Defs.' First Mot."), Ex. 9, Declaration of Kevin L. Tyrrell (DHS) ("Tyrrell Decl.") ¶ 7, ECF No. 14–8; Defs.' First Mot., Ex. 4, Declaration of Sabrina Burroughs (CBP) ("Burroughs Decl."),...