A federal judge categorically knocked down exemptions claimed by the U.S. Navy in a sweeping order that handed a victory to Raw Story in its effort to access records of an investigation into whether a neo-Nazi and Marine Corps veteran mishandled classified materials.
“The court agrees with Raw Story that there is substantial public interest in the requested records,” wrote Judge Loren L. AliKhan, who was appointed to the federal bench in District of Columbia in December 2023, in an order issued on Monday.
The order categorically rejected the Navy’s claims that even acknowledging whether it has the responsive records would both put national security at risk and violate the former service member’s privacy rights.
"It is crucial for Americans to have a comprehensive understanding of the military's policies and actions taken in response to domestic extremism and security," said Raw Story publisher Roxanne Cooper. "This transparency is not merely a matter of curiosity, but a cornerstone of democratic oversight and accountability. We're glad Judge AliKhan agrees."
A federal prosecutor disclosed in court that classified materials were found on an external hard drive belonging to Jordan Duncan when he was arrested in Boise, Idaho in October 2020. Duncan was arrested as part of an alleged neo-Nazi plot to launch a race war by sabotaging the power grid and carrying out an assassination campaign. The case against Duncan, who was previously stationed at Camp Lejeune in North Carolina, and four co-defendants grew out of an investigation initiated by the Naval Criminal Investigative Service.
A prosecutor acknowledged in open court that the FBI was investigating Duncan for potentially mishandling the materials.
In June, Duncan pleaded guilty to aiding and abetting the manufacturing of a firearm, and awaits sentencing in the Eastern District of North Carolina.
AliKhan directly referenced Raw Story’s motion for summary judgment in her order describing the public interest value of the records sought by the news outlet.
“Here, ‘disclosure of the requested records would likely reveal a great deal about law enforcement policy,’ including how defendants handle investigations related to the mishandling of classified information and how the ‘military is addressing extremism in its ranks,’” she wrote. “Thus, disclosure would offer the public visibility into defendants’ ‘performance of [their] statutory duties’ and would further ‘let citizens know ‘what their government is up to.’”
The Navy argued that it did not have to confirm or deny if it possesses the records because “the fact of the existence or non-existence” of the records is classified itself. AliKhan rejected that argument. The Navy had claimed that the existence of the records is classified because the records refer to classified material. But the fact that agencies routinely discuss facts about classified records negates the Navy’s claim, she said.
In a declaration cited by the Navy, a lawyer for Naval Criminal Investigative Service had asserted that if the agency were to acknowledge whether it had the records, “adversaries of the U.S. government… could use such information to better avoid detection and reveal facts about the NCIS’s counterintelligence services and defenses against foreign intelligence threats.”
AliKhan rejected that argument as “as vague and conclusory statements that could apply to any NCIS investigation.”
The judge also dismissed the Navy’s claim that the records should be withheld to protect Duncan’s privacy interests.
“Because the existence of the [Department of Justice] investigation is already public information, it is difficult to see how Mr. Duncan’s privacy interests could be significantly impacted by defendants’ disclosure of records confirming what is already in the public domain,” AliKhan wrote. She also wrote that Duncan’s privacy interests are outweighed by the strong public interest in the records.
Likewise, she wrote that the Navy can’t ignore the records request just because another agency, the Department of Justice, led the investigation into Duncan’s potential mishandling of classified documents.
“To the extent that defendants have arguments about whether the Navy has obtained or controls responsive records in its possession that were generated by DOJ,” AliKhan wrote, the agency can’t make those arguments without acknowledging that it possesses the records, which the Navy refused to do.
Stephen Stich Match, an attorney for Raw Story, hailed the order.
“This order represents a win for transparency over excessive government secrecy, as the court rejected all of the Navy’s exemptions, which involved both national security and privacy,” he said. “On national security, the court held that Navy failed to show either that whether it does (or does not) possess responsive records is a classified fact or that confirming or denying it would harm national security.
“On privacy, it held that Duncan’s privacy interests were diminished by the fact that the public already knows that the Justice Department investigated him, and that they were outweighed by the ‘substantial’ public interest in understanding how the government is addressing extremism in the military,” Match continued.
The order sets a deadline of Oct. 15 for the Navy and Raw Story to file a joint status report proposing next steps.
AliKhan said in her order that “now that the court has dispensed” with the Navy’s claim that it can neither confirm nor deny the existence of the records, it “must acknowledge the existence of responsive records, review them, and offer evidence” that the records are exempt from disclosure.
“Given the court’s order, Navy no longer has a valid basis for refusing to confirm or deny if it possesses responsive records,” Match explained. “As a next step, Navy should search for documents responsive to Raw Story’s request and produce all the documents that it believes are not exempt.”
