Last week, the Knight Institute and the Committee to Protect Journalists received new documents in response to our Freedom of Information Act lawsuit concerning the U.S. government’s compliance—or failure to comply—with its “duty to warn” journalist Jamal Khashoggi. Specifically, we received two documents from the NSA and three documents from the CIA. Each of these documents sets out procedures and guidance for determining whether to warn, and for delivering a warning to, an individual where the agency has acquired information indicating an impending threat to kill, kidnap, or seriously harm him or her. The NSA documents, far less redacted than their CIA counterparts, are particularly significant for how clearly they spell out the agency’s obligation to document certain steps of the duty-to-warn process—up to and including the form intelligence officers are required to complete as they carry out this duty. These procedural documents strongly suggest that if the agency knew Khashoggi was in danger, it should have documents recording whether and how it complied with its obligation to alert him.
Unfortunately, the NSA and CIA also issued what’s called a “Glomar response,” in which the agencies refused to confirm or deny the existence of records concerning the duty to warn as it relates to Khashoggi. For reasons we’ve already articulated, the assertion of a Glomar here is indefensible.
In coming weeks, we expect to receive responses from the FBI and State Department. We remain hopeful that these agencies will be more forthcoming.
Ramya Krishnan is a staff attorney at the Knight First Amendment Institute.