The New York Times v. Central Intelligence Agency, No. 18-2112 (2d Cir. 2020)
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The Times filed a Freedom of Information Act (FOIA) action seeking acknowledgement from the CIA that it was aware of the existence of records regarding a covert program of arming and training rebel forces in Syria. The CIA responded to the request with a Glomar response, stating that it could neither confirm nor deny the existence or nonexistence of such records.
The Second Circuit affirmed the district court's grant of summary judgment in favor of the CIA. After according appropriate deference to the uniquely executive purview of national security, the court held that President Donald Trump's statements, even when coupled with General Raymond (Tony) Thomas's statements, left lingering doubts and thus were insufficient to amount to an official acknowledgement of the alleged covert program in Syria, much less the existence of records related to the program. The court stated that it is still logical or plausible that disclosing the existence or nonexistence of an intelligence interest in such a program would reveal something not already officially acknowledged and thereby harm national security interests. The court also held that President Trump's tweet and statements to the Wall Street Journal interviewer did not declassify the existence of the covert program.
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