ACLU v. DOJ - Lawsuit to Enforce NSA Warrantless Surveillance FOIA Request
Following news reports in December 2005 that President Bush had authorized the National Security Agency (NSA) to conduct warrantless surveillance of Americans, the ACLU filed a Freedom of Information Act (FOIA) request for documents pertaining to this illegal spying program. Among the documents requested were Office of Legal Counsel (OLC) memos that supplied the legal justification for the President's decision to authorize warrantless wiretapping in blatant violation of the Foreign Intelligence Surveillance Act (FISA), a federal statute that prohibited warrantless wiretapping. In February 2006, when the government failed to release the requested documents, the ACLU filed a lawsuit to enforce its rights under FOIA. The lawsuit was consolidated with a similar lawsuit filed by the National Security Archive and the Electronic Privacy Information Center (EPIC).
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The court has twice ordered the government to provide better justification for withholding all of these documents in their entirety—first in September 2007, and again in October 2008. In October 2008, the court ordered the government to produce the withheld OLC memos so that the court could determine for itself whether portions of the memos could be released to the public. The government submitted those OLC memos for review by the Court in November 2008, and we are still awaiting the results of that review.
On July 10, 2009, the Offices of Inspectors General of a number of U.S. agencies—including the NSA and the CIA—released a report on the President's Surveillance Program, which included the NSA's warrantless wiretapping program. The report mentioned several of the OLC memos still being withheld by the government in response to the ACLU's FOIA request. After the ACLU brought the report to the court's attention, the government agreed to reprocess four of the OLC memos. And on March 18, 2011, the government released heavily redacted versions of two of those memos, available below.
Despite this, the vast majority of government documents about the NSA's warrantless wiretapping program remain completely secret, and the government has repeatedly refused to release them. The Obama administration should release the still-secret legal memos. Release of these memos would allow the public to better understand how the Bush administration developed a legal justification for its decision to implement a warrantless surveillance program in violation of federal law and to participate more meaningfully in the ongoing debate about surveillance and civil liberties.
> NSA Wiretapping OLC Memo (Jack Goldsmith)
> Plaintiffs' Status Report
> Plaintiffs' Response to Notice of Filing
> Government's Notice of Filing (re: 2 OLC Memos)
> Attachment: Cover Letter to March 18, 2011 Release of 2 OLC Memos
> Government's Response to Supplemental Memo
> Plaintiffs' Supplemental Memo (re: the OIG Report)
> Exhibit 1: OIG Report on the President's Surveillance Program, July 10, 2009
> Government's Response to Notice of OLC Memos
> Plaintiffs' Notice of OLC Memos
> Exhibit 1: DOJ Press Release, Mar. 2, 2009
> Exhibit 2: OLC Memo, Jan. 15, 2009
> Exhibit 3: OLC Memo, Oct. 23, 2001
> Exhibit 4: OLC Memo, Sept. 25, 2001
> Exhibit 5: DOJ Website Excerpt
> Exhibit 6: Senator Leahy's Comment on Release of the OLC Memos
> Exhibit 7: President Obama's FOIA Memo
> Opinion and Order
> Plaintiffs' Notice of OLC Memo
> Plaintiffs' Renewed SJ Reply
> Defendant's Opposition to Plaintiffs' Renewed Motion and Reply
> Plaintiffs’ Memo in Opposition to the Government’s Renewed Motion for Summary Judgment and in Support of Plaintiffs’ Renewed Cross-Motion for In Camera Review
> Supplemental Submission of the FBI in Support of Defendant's Renewed Motion for Summary Judgment
> Second Declaration of David Hardy
> Second Declaration of David Hardy: Exhibit A
> Second Declaration of David Hardy: Exhibit B, Part 1
> Second Declaration of David Hardy: Exhibit B, Part 2
> Second Declaration of David Hardy: Exhibit B, Part 3
> Government Second Notice of Lodging of Classified Materials
> Government Renewed Motion for Summary Judgment
> Government Exhibit A: Second Redacted Declaration of Steven G. Bradbury
> Government Exhibit B: Second Redacted Declaration of J. Patrick Rowan
> Government Exhibit C: Declaration of Lynne R.
> Government Notice of Lodging Classified Exhibits
> Opinion and Order