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01/11/13 - Courthouse News Service - Satellite Images Demand Goes to Reluctant Circuit

PASADENA, Calif. (CN) - There is no reason for the U.S. government to
shield the existence of satellite images showing the Cuban government
shoot down airplanes, a group told the 9th Circuit.
     In 2010, the Center for Human Rights and Constitutional Law filed a
[1]federal complaint under the Freedom of Information Act against NASA and
the National Geospatial-Intelligence Agency (NGA).
     The group wants access to any satellite pictures taken on Feb. 24,
1996, of an area near the north coast of Cuba, where Cuban MiGs shot down
two aircraft flown by Cuban exiles in the group Brothers to the Rescue,
killing four U.S. citizens.
     The center and attorney Leonard Weinglass believe that such
information is critical to a habeas corpus petition for Gerado Hernandez,
who is serving life in prison based on charges that he fed Cuba the
information that led to the 1996 shooting.
     Hernandez belongs to a group of Cuban men known as the Cuban Five,
detained for spying on Brothers to the Rescue on American soil.
     After Hernandez was found guilty of conspiracy to commit murder, an
appeals court briefly overturned the convictions against him and his
compatriots. The full 11th Circuit eventually reinstated the convictions,
and the U.S. Supreme Court refused to grant certiorari.
     The Center for Human Rights said confirmation of the satellite images
would help it determine where the shoot-down occurred to undermine
Hernandez's conviction.
     But the NGA refused even to confirm or deny the existence of the
records or images that the group seeks.
     Refusing to acknowledge the existence of an item requested under FOIA
is known as a Glomar response, named after the Hughes Glomar Explorer, a
ship used in a classified CIA project to raise a sunken Soviet submarine
from the Pacific Ocean.
     Responding to the center's lawsuit, NGA director Barry Barlow
explained the reasoning behind the agency's decision in a declaration to
the court.
     U.S. District Judge Margaret Morrow in Los Angeles found this
explanation credible and granted the government [2]summary judgment in
2011.
     "The court holds that the NGA has met its burden of showing that it
acted permissibly in determining that acknowledging the existence or
nonexistence of records responsive to plaintiffs' request might disclose
sources or methods of foreign intelligence and harm national security,"
Morrow wrote.
     Represented by its executive director, Peter Schey, the Center for
Human Rights & Constitutional Law urged the 9th Circuit on Wednesday to
revive the case.
     Schey said this case represents the "very first time" an intelligence
agency had taken the position that it would apply a Glomar response to
every Freedom of Information Act request.
     Confirming the existence of the images would only confirm what the
world already knows: that America gathers foreign intelligence, he argued.
     Skeptical, Judge Margaret McKeown told Schey: "That hardly trumps the
view that there's a significant national security interest."
     Schey insisted that Barlow's declaration was inadequate, calling it a
"cookie cutter" affidavit that the agency could wield to deny all future
requests for satellite images under the Freedom of Information Act.
     Judge Milan Smith seemed convinced by Barlow's declaration. He noted
that the plaintiffs had a mountain to climb because of lack of case law.
     Matters of national security are an "area of expertise" for the
government, not the courts, he added.
     In response, Schey questioned NGA's authority to deny the request at
all.
     He argued that the director of national intelligence, not the NGA,
must protect intelligence sources.
     But Justice Department attorney Thomas Byron said the agency was
"authorized" to use a Glomar response. He also disputed the notion that
all future requests of a similar nature would be denied using the same
exemption.
     Chief Judge Alex Kozinski asked Bryon why it would threaten national
security to confirm the existence of the images.
     "I'm not sure how saying that we have a picture at a particular time
and place reveals anything at all," the chief said.
     Bryon stuck to the line that America's enemies might gather
information on U.S. intelligence-gathering capabilities and limitations,
even if the agency did no more than confirm or deny the existence of the
images.
     He said foreign spies could track where the satellites operate, and
glean intelligence from the resolution of the image, and the angle at
which a picture was taken.
     Kozinski pressed for an answer as to whether the agency would use an
exemption to deny all Freedom of Information Act requests for images.
     After some back and forth, Bryon conceded that, when it came to
images taken at a certain time and place, the exemption could apply.
     The attorney also said that the agency was happy to provide the court
with more detail in camera, but argued that such an examination should be
a "last resort."
     "I'm not asking to see the pictures," Kozinski said to chuckles from
the courtroom. "I have enough trouble with the fact that you can see my
house on Google maps. If you look close enough, you might see me
sunbathing on the patio."

References

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1. http://www.courthousenews.com/2013/01/11/Cuban%20Aircraft.pdf
2. http://www.courthousenews.com/2013/01/11/Cuban%20Aircraft%20Ruling.pdf


Original Source / Fuente Original:
http://www.courthousenews.com/2013/01/11/53847.htm