IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________ STEVEN AFTERGOOD ) Plaintiff, ) ) Case No. 02-1146 (RMU) v. ) ) CENTRAL INTELLIGENCE AGENCY ) Washington, DC 20505 ) Defendant. ) ___________________________________)
DEFENDANT'S STATEMENT OF GENUINE ISSUES
Pursuant to Local Civil Rules 7.1(h) and 56. 1, defendant Central Intelligence Agency submits this statement of genuine issues in response to "plaintiff's statement of material facts as to which there is no genuine dispute" (filed on or about May 5, 2003).
We are aware of the provisions of Local Civil Rules 7.1(h) and 56.1. We are also aware that this Court has specifically ordered, in at least one non-FOIA case, that a party opposing summary judgment must submit a statement of disputed material facts in chart form. In the usual case, therefore, we would set forth each of plaintiff's statements of "fact" and respond to each with a citation to the record evidence demonstrating a genuine issue concerning that "fact." This case is different, however. In this case, each "fact" set forth by plaintiff is immaterial under the legal principles governing the Court's determination.
In this case, the Court must determine whether the FY 02 intelligence budget total is subject to Exemption 1 and Exemption 3. In making that determination in this national security case, the Court focuses upon whether those Exemptions are supported by: (1) DCI Tenet's extensive, 28-page, 45-paragraph unclassified declaration in this case; (2) DCI Tenet's highly classified declaration in this case; and (3) DCI Tenet's highly-classified declaration from the 1999 case (should the Court choose to review it, and we respectfully suggest that the DCI's classified 1999 declaration would provide the Court important additional information in determining the applicability of Exemptions 1 and 3).
Plaintiff's "facts are only material to plaintiff's request that the Court, rather than the DCI, "weigh the variety of subtle and complex factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the Agency's intelligence-gathering process." Center for National Security Studies v. U.S. Dep't of Justice, 331 F.3d 918, 927 (D.C. Cir. 2003). All of plaintiff's "facts" are drawn from public documents issued by agencies other than CIA, or from the declarations of Messrs. Aftergood, Pike, and Siebert, and are disposed of in our brief. Moreover, as demonstrated in our brief, and as the D.C. Circuit recently reemphasized, the governing legal principles preclude plaintiff's request. Accordingly, plaintiff's "facts" are immaterial.1
Respectfully submitted,Dated: July 11, 2003.
ROSCOE C. HOWARD, JR., D.C. Bar #246470
United States Attorney
MARK E. NAGLE, D.C. Bar #416365
Assistant United States Attorney
ROBERT E. LEIDENHEIMER, JR., D.C. BAR #420959
Assistant United States Attorney
Judiciary Center Building
555 4th St., N.W., Room 10-816
Washington, D.C. 20530
1. Because plaintiff's "facts" are immaterial, we are not responding to them in the usual manner. This should not be taken to mean that we agree that those "facts" are accurate or undisputed. For example, paragraph 7 of plaintiff's proposed facts is not only wrong, but is also directly contrary to the DCI's judgment and testimony. E.g., Tenet Decl. ¶ 43 (testifying in essence that it is possible to "reverse engineer" the intelligence budget).