De Sousa v. Cent. Intelligence Agency, Civil Action No. 14–1951 (BAH)

239 F.Supp.3d 179

Sabrina DE SOUSA, Plaintiff,

v.CENTRAL INTELLIGENCE AGENCY, et al., Defendants.

Civil Action No. 14–1951 (BAH)

United States District Court, District of Columbia.

Signed March 9, 2017

Jeffrey Louis Light, Law Offices of Jeffrey Light, Washington, DC, for Plaintiff.

Brigham John Bowen, Caroline J. Anderson, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

The plaintiff, Sabrina De Sousa, brings this action against the U.S. Central Intelligence Agency, the U.S. State Department, and the U.S. Department of Defense, pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act ("PA"), 5 U.S.C. § 552a, challenging various aspects of the defendants' responses to the plaintiff's six FOIA requests. Pending before the Court are the defendants' motion for summary judgment and the plaintiff's cross-motion for summary judgment. See generally Defs.' Mot. Summ. J. ("Defs.' MSJ"), ECF No. 22; Pl.'s Cross–Mot. Summ. J. ("Pl.'s Cross–MSJ"), ECF No. 25. For the reasons set out below, the defendants' motion is granted in part and denied in part, and the plaintiff's motion is denied.

I. BACKGROUND

The plaintiff served as a Foreign Service Officer for the U.S. State Department from 1998 to 2009. See De Sousa v. Dep't of State (De Sousa I) , 840 F.Supp.2d 92, 96 (D.D.C. 2012). News reports indicate that, on February 17, 2003, while the plaintiff was stationed at the U.S. Consulate in Milan, U.S. and Italian intelligence agents kidnapped an Islamic cleric and suspected terrorist, Hassan Mustafa Osama Nasr, also known as "Abu Omar," in Milan and flew him to Egypt to be interrogated and tortured, an act known as an "extraordinary rendition." Id. Although the plaintiff maintains that she was vacationing at a ski resort approximately 130 miles outside Milan when the alleged rendition occurred, Compl. ¶ 11, ECF No. 1, she was ultimately convicted in connection with the rendition in absentia , id. ¶ 37, after unsuccessfully imploring the U.S. government to assert diplomatic or consular immunity on her behalf, id. ¶¶ 23–27, 31. Thereafter, the plaintiff sued the CIA and the State Department alleging that their failure to assert immunity on her behalf violated her constitutional rights. See generally De Sousa I , 840 F.Supp.2d 92 (holding, inter alia , that the plaintiff's entitlement vel non to diplomatic or consular immunity is a non-justiciable political question). Seeking additional information as to the government's decision not to assert immunity on her behalf, the plaintiff filed six FOIA requests with the CIA, State Department, and Department of Defense. These FOIA requests, and the government's responses, are described below.¹

A. The Plaintiff's FOIA Requests to the CIA

The plaintiff filed two FOIA requests with the CIA seeking a total of fourteen separate categories of records or information. First, on May 8, 2014, the plaintiff requested records discussing the CIA's consideration of reactive steps to the Italian prosecution and trial of U.S. citizens who had allegedly participated in the rendition, including the following ten categories of records: (1) "whether or not to take steps to defend or protect [the plaintiff] (including but not limited to invoking immunity) against the charges that [she] participated in the rendition/kidnapping ... of Abu Omar;" (2) "whether or not to take steps to defend or protect any other individual (including but not limited to invoking immunity) charged with participation in the rendition;" (3) "whether or not to allow the trial of 26 U.S. citizens to proceed to convictions on charges of participating in the rendition;" and (4) "authorization for the rendition." Defs.' Statement of Undisputed Material Facts ("Defs.' SMF") ¶¶ 1–2, ECF No. 22–6. The request further sought records involving communications between CIA officials and (5) "Department of Justice representative(s) at the U.S. Embassy in Rome, mentioning or referring to the charges or trial of 26 U.S. citizens accused of participating in the rendition/kidnapping," (6) "officials at the U.S. Department of State (including ... those at the U.S. Embassies in Cairo and Rome) mentioning or referring to the rendition," (7) "officials at the U.S. Department of Defense mentioning or referring to the rendition;" and (8) "members of Congress or their staff mentioning or discussing whether or not to take steps to defend or protect (including but not limited to invoking immunity) any of the 26 U.S. citizens accused of participating in the rendition." Id. Finally, the request sought records (9) "mentioning whether or not the CIA Office of the Inspector General can or should investigate the rendition," as well as any (10) "[r]eports or other results from the Accountability Review Board on accountability for those responsible for the rendition." See id. In response to the plaintiff's first request, the CIA issued a Glomar response, stating that "the CIA can neither confirm nor deny the existence or nonexistence of records responsive to [the] request." Id. ¶ 3.²

The plaintiff's second request to the CIA, dated September 3, 2014, id. ¶ 4, sought an additional four categories of records concerning whether to seek clemency on behalf of the plaintiff and others in connection with the rendition convictions, id. ¶ 5. In particular, the request asked for records involving communications between CIA officials and (11) Avv. Fabio Cagnola, an Italian defense attorney, and (12) the office of the President of Italy that mention "clemency for the CIA officers (including [the plaintiff] ) convicted in the Milan rendition case," as well as any other records that (13) mention clemency for the individuals convicted of participating in the rendition. Id. ¶ 5. The request also sought any records (14) mentioning the plaintiff's July 2, 2014 letter to Avv. Cagnola, Hon. John R. Phillips, Kathleen A. Doherty, and William Nardini regarding "clemency for the CIA officers (including [the plaintiff] ) convicted in the Milan rendition case." Id. The CIA acknowledged receipt of the request on February 11, 2015. Id. ¶ 6.

B. The Plaintiff's FOIA Requests to the State Department

The plaintiff also filed two FOIA requests with the State Department. On May 8, 2014, the plaintiff requested four categories of records, including those: (1) "[c]ommunications constituting or mentioning the Secretary of State's concurrence in 2002 or 2003 for authorization to proceed with the rendition/kidnapping of Abu Omar;" (2) "discussing whether or not to take steps to defend or protect [the plaintiff] (including but not limited to invoking immunity) against the charges that [the plaintiff] participated in the rendition/kidnapping of Abu Omar;" (3) "discussing whether or not to take steps to defend any other individual (including but not limited to invoking immunity) charged with participation in the rendition/kidnapping of Abu Omar;" and (4) "discussing or mentioning the letters [the plaintiff] sent to the Secretaries of State and the Assistant Secretary of State for Democracy, Human Rights, and Labor requesting immunity and an investigation into allegations of torture of Abu Omar." Id. ¶ 12. The State Department acknowledged the request by letter, dated May 28, 2014. Id. ¶ 13.

The plaintiff submitted a second request to the State Department on September 3, 2014, seeking six categories of records, including those (1) "[c]onstituting or reflecting communications between [State Department] officials and Avv. Fabio Cagnola which mention, discuss, or refer to clemency for the CIA officers (including [the plaintiff] ) convicted in the Milan rendition case;" (2) "[c]onstituting or reflecting communications between CIA officials and the office of the President of Italy which mention, discuss, or refer to clemency for the CIA officers (including [the plaintiff] ) convicted in the Milan rendition case;" (3) "[m]entioning, discussing, or referring to clemency for the CIA officers (including [the plaintiff] ) convicted in the Milan rendition case;" (4) "[m]entioning, discussing, or referring to [the plaintiff's] July 2, 2014 letter to Avv. Fabio Cagnola, Hon. John R. Phillips, Kathleen A. Doherty, and William Nardini regarding clemency for the CIA officers (including [the plaintiff] ) convicted in the Milan rendition case;" (5) "[c]onstituting or reflecting communications by or to [State Department] officials ... requesting the assistance of Avv. Cagnola in file [sic] clemency action on behalf of all 25 of the remaining convicted CIA officers;" and (6) "[c]onstituting or reflecting communications between the U.S. Embassy and Avv. Cagnola which mention, discuss, or refer to obtaining approval to proceed on the convicted CIA officers' behalf, payment of Avv. Cagnola's fees, or which CIA officers' behalf clemency will be sought." Id. ¶ 14. The State Department acknowledged the request by letter, dated April 13, 2015. Id. ¶ 15.

C. The Plaintiff's FOIA Requests to the Department of Defense

The plaintiff submitted a FOIA request to the Department of Defense, also on May 8, 2014, id. ¶ 7, seeking records "discussing whether or not to assert the Status of Forces Agreement for any individual charged with participation in the rendition/kidnapping of Abu Omar" and records "discussing pardons or potential pardons for individuals convicted of participation in the rendition/kidnapping of Abu Omar, for the period of 2009–2013," id. ¶ 8. The Department of Defense notified the plaintiff that it had received this request by email on May 29, 2014. Id. ¶ 9. On June 4, 2014, the plaintiff filed an identical request with the United States Air Force, a component of the Department of Defense, which acknowledged the request by letter, dated June 9, 2014. Id. ¶¶ 10–11.

D. The Plaintiff's Instant Claims, and the Government's Document Production

Unsatisfied by the responses to her FOIA requests, the plaintiff filed this lawsuit on November 19, 2014. Id. ...