Many questions remain about the brutal murder of journalist Jamal Khashoggi in the Saudi consulate in Istanbul last October. Among them is a question that goes to the heart of concerns over the U.S.'s commitment to protecting press freedom and human rights: did American intelligence agencies know of the plot against Khashoggi, and did they try to warn him of it?
Under an Intelligence Community Directive known as the “Duty to Warn,” when a U.S. intelligence agency acquires information indicating an impending threat to kill, kidnap, or seriously harm someone, the agency must “warn the intended victim or those responsible for protecting the intended victim.” In January, the Knight Institute and the Committee to Protect Journalists filed a Freedom of Information Act lawsuit to find out what, if anything, the U.S. government knew about threats to kill or harm Khashoggi and what it did with that knowledge. After negotiations, all five of the defendant federal agencies have agreed to produce responsive records by the end of this month.
Recently, however, the Office of the Director of National Intelligence sent us a one-page letter that includes this passage:
This sort of neither-confirm-nor-deny reply, known as a Glomar response, was first used by the CIA in a 1976 case seeking records about a submarine-retrieval ship called the Glomar Explorer. In court, the government successfully argued that the CIA shouldn’t be required to confirm or deny the existence of responsive records about the ship, because doing so could reveal sensitive information that itself was exempt from FOIA. (To learn the full history, listen to the Radiolab episode, “Neither Confirm Nor Deny.”)
While there may be cases in which a Glomar response is legitimate, this isn’t one of them. It’s difficult to see how merely acknowledging that the ODNI has documents relating to Khashoggi and the duty to warn would reveal legitimate state secrets. On the other hand, acknowledging that it had documents relating to threats aimed at Khashoggi would indeed throw into sharp relief the question of whether and how the ODNI and other intelligence agencies carried out their duty to act on this information. That is the key question in this lawsuit, and the government shouldn’t be able to Glomar its way around it.
Ramya Krishnan is a staff attorney at the Knight First Amendment Institute.