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By Matthew Russell Lee, Patreon
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SDNY COURT, Dec 8 – The video of the murder of Jamal Khashoggi in the Saudi consulate in Turkey, which it is clear the US government has a copy of, is being sought under the Freedom of Information Act.

On October 15 U.S. District Court for the Southern District of New York Paul A. Engelmayer held oral arguments. Inner City Press live tweeted them, here and below.

 Now on December 8 Judge Engelmayer has ruled against the Trump Administration's argument that it did not have to include the video in its FOIA Vaughn Index, even after the public acknowledgement(s). From the Dec 8 ruling: "if more were need by way an official acknowledgment, that Vice President Pence’s statement situates the tape (as central evidence of the killing) as having been reviewed specifically by the CIA, making it realistic to infer that the CIA is a particular entity within the Government that possessed the tape. Arg. Tr. at 18. The Court agrees, and rejects the Government’s bid not to specifically identify the tape, to the extent possessed by either defendant agency, on a Vaughn index. President Trump’s statement literally admitted that U.S. “intelligence agencies” had reviewed the tape and that the Government possesses it. That alone deprives the Government of the ability to claim that a Vaughn index listing the tape would disclose new information. And, although not necessary to this conclusion, to the extent that the CIA might disclaim its own possession of the tape as a fact not publicly known, the Vice President’s official statement realistically acknowledged at least the historical possession of it by the CIA at the time of its investigation. These official statements by the top two officials in the Executive Branch sufficiently acknowledge the tape to preclude the Government from claiming that its identification on a Vaughn index would reveal undisclosed classified information. See Am. Civil Liberties Union v. Dep’t of Def., 322 F. Supp. 3d 464, 475 (S.D.N.Y. 2018) (“An official acknowledgement can also occur indirectly, when the substance of an official statement and the context in which it is made permits the inescapable inference that the requested records in fact exist.” (quotations omitted)); see also Pl. Reply at 8–9. In response, the agencies do not seriously dispute that the above statements have admitted the possession by one or more U.S. intelligence agencies of the tape of the Khashoggi murder. Case 1:19-cv-00234-PAE Document 176 Filed 12/08/20 Page 19 of 29  20  They seize instead on the President’s lack of attribution to the two defendant intelligence agencies, noting that the statement “[w]e have the tape,” does not, in haec verba, reveal whether the CIA or ODNI, or perhaps some other federal instrumentality, had physical possession of it. Def. Opp’n at 18. But that argument does not carry the day. The President acknowledged that “intelligence agencies” were “assess[ing] all information” and that the CIA in particular had investigated whether the Crown Prince was involved in the killing. Def. Mem. at 10. These statements—corroborated by the Vice President’s account of CIA Director Haspel’s review of evidence into the killing and Director Haspel’s testimony that the CIA had spent significant time assessing “what happened to Mr. Jamal Khashoggi” and briefing and developing “written products” on that issue—effectively admit the intelligence agencies’ possession, at least at some point, of the tape, which logically would have been a central piece of evidence in any such investigation. And the Government does not coherently explain why the physical possession as between the intelligence agencies, once the possession by at least one has been acknowledged, could reveal undisclosed classified information. The Government does not, for example, suggest that either agency had any hand in creating the tape, such that possession by a particular agency might shed light on the agency’s undercover or operational capabilities. And to the extent that intelligence value could attach for some reason to the fact that more than one intelligence agency had accessed the tape, the President’s statement—that U.S. “intelligence agencies [would] continue to assess all information”—effectively disclosed that too. Id. The Court accordingly finds that the official disclosures of the tape satisfy the “strict test” of Wilson, 586 F.3d at 186, and thus waive FOIA Exemption One as to the duty to include the tape on the agencies’ Vaughn indexes. See id. (“Classified information that a party seeks to obtain . . . is deemed to have been officially disclosed only if it (1) [is] as specific as the Case 1:19-cv-00234-PAE Document 176 Filed 12/08/20 Page 20 of 29  21  information previously released, (2) match[es] the information previously disclosed . . . .” (alterations in original) (quotations omitted)). The above official disclosures acknowledging the possession of the tape capturing Khashoggi’s killing by multiple intelligence agencies, including specifically the CIA, is as specific as, and matches the information sought by, OSJI’s request for a Vaughn index as to that unique record. The agencies thus must produce a Vaughn index for that tape." That's due in two weeks. Watch this site

From the October 15 arguments, live tweeted by Inner City Press:

Plaintiff's lawyer: The CIA director told Congress his agency produced many reports. But we don't know how many.

Judge Engelmayer: Would it make sense for me to review, ex parte and in camera, some sort of summary, and not all the responsive documents?

Plaintiff's lawyer: Yes. The President spoke about it, and even the result, that maybe Prince MBS did it. So yes, your Honor should review it. It can no longer be withheld as exempt. Judge Engelmayer: Are there are document I ought to review directly?

 Plaintiff's lawyer: There is a tape of the murder. They can't really denying having it. You can see it on C-SPAN.

Judge Engelmayer: Maybe the word "I" interrupted. I'm not sure what was meant by that bumpy sentence from the President. Judge Engelmayer: He went on to say, from those things, you can conclude that the Crown Prince did, or that he didn't. Meaning, draw your own conclusion. Plaintiff's lawyer: He said, "They say he may have done it." I read that as a summary of the CIA's report.

Judge Engelmayer: The tape is like the Zapruder film of the killing. Let me turn to the government, Mr. Aronoff.

AUSA Aronoff: What we're talking about is a narrow set of statements by public officials. Judge Engelmayer: What if want more? That's in my discretion

AUSA Aronoff: The amount of information the government has about this is itself classified... The volume could be significant to foreign adversaries, showing if we have a lot or a little.

Judge Engelmayer: Let's drill down on the President's remarks. The "They" here seems to be the CIA. So he's acknowledging the CIA dug into it. AUSA Aronoff: That is probably fair. (Laughs). The CIA director acknowledged that CIA had written products.

Judge Engelmayer: Unless the US had something to do with the killing [of Khashoggi], you only came upon the tape afterward. So how can you withhold it under FOIA? AUSA Aronoff: I don't want to resist the question, but...

Judge Engelmayer makes his second reference to Zapruder, asking How could the CIA review the killing without reviewing the tape? It'd be like the Warren Commission reviewing the Kennedy killing without watching the Zapruder film.

Judge Engelmayer has heard arguments from both sides, revolving at the end around whether the video of the murder of Jamal Khashoggi should be made public under the Freedom of Information Act. He's taken motions for summary judgment under advisement.

The case is Open Society Justice Initiative v. Central Intelligence Agency et al., 19-cv-234 (Engelmayer)

   Meanwhile as Inner City Press reported earlier this month, Open Society Justice Initiative and a group of law professors, represented by a Washington lobbyist firm, has sued on the theory that their First Amendment rights to support the UN-affiliated International Criminal Court have been impaired. Fine. Interesting.  

Now on October 9, the plaintiffs have asked for oral argument on their motion for a preliminary injunction: "Re: Open Society Justice Initiative, et al. v. Trump, et al. Case No. 1:20-cv-8121-KPF – Request for Oral Argument Dear Judge Polk Failla: We represent Plaintiffs in the above-referenced action. We write in compliance with Your Honor’s Individual Rules of Practice 4(E) to request that the Court schedule oral argument on Plaintiffs’ Motion for Preliminary Injunction. Plaintiffs’ Motion seeks to protect their rights under the First and Fifth Amendments to the U.S. Constitution and to prevent the government from acting ultra vires under the governing statute. Plaintiffs respectfully suggest that oral argument would assist the Court in making its decision by elucidating the key points of difference between the parties on these issues."

But the parties should be aware: the UN is no friend of free speech.   

 Under current Secretary General Antonio Guterres, the UN roughed up and has banned Inner City Press 823 days now, for its questions about Guterres' failures on Cameroon (a France-supported mass killing event not taken up by the ICC) and his undisclosed links to convicted UN bribers at CEFC China Energy. Video here, background here. 

 Guterres' spokesman Stephane Dujarric - a US as well as French citizen - helped organize the rough up then initially promised on camera to at least answer Inner City Press' request questions, here. He has since stopped, and said "Mr. Lee's status remains unchanged."

 With that unacted on, and Guterres' head of media accreditation Melissa Fleming - a US citizen - denying Inner City Press' application for re-accreditation last months without even giving a reason, the ICC / Trump complaint says:

“The executive order and the regulations impermissibly restrict plaintiffs’ First Amendment rights to freedom of speech by prohibiting them from providing the speech-based services and assistance described above, including with respect to ICC investigations and prosecutions that the United States supports. The executive order and the regulations also lack the clarity required by the Fifth Amendment as to which acts subject a person to enforcement or designation, or which persons they cover.”   Yeah.  

The plaintiffs' lawyers are Shrutih Ramlochan-Tewarie and Nicholas Marcus Renzler of Foley Hoag LLP. The plaintiffs are The Open Society Justice Initiative, Diane Marie Amann, Milena Sterio, Margaret deGuzman and Gabor Rona.    Are these professors, and Foley Hoag, really for free speech with regards to the UN and ICC? So far, it seems not.

Their case is Open Society Justice Initiative et al v. Trump et al, 1:20-cv-08121 (Failla)

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