Court Denies Government’s Broad Assertions of Secrecy in Refusal to Turn Over NSA Eavesdropping Documents

September 5, 2007 12:00 am

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Court Orders Justice Department to Provide Further Explanation for Withholding Documents

WASHINGTON ‑ A federal judge today rejected the government’s broad claims of secrecy in its refusal to make public documents involving the National Security Agency’s (NSA) warrantless wiretapping program. U.S. District Judge Henry Kennedy’s ruling comes in a Freedom of Information Act lawsuit brought last year by the American Civil Liberties Union, the National Security Archive and the Electronic Privacy Information Center. According to the court order, the Department of Justice must, by October 26, provide more substantial reasons for refusing to turn over certain documents.

“Today’s ruling deals a blow to the administration’s sweeping and often unfounded secrecy claims,” said Nasrina Bargzie, an attorney with the ACLU’s National Security Project. “When documents are withheld under the Freedom of Information Act, the government must have a better excuse for keeping the documents secret than ‘because we said so.’”

In December 2005, the ACLU and the National Security Archive submitted requests under the Freedom of Information Act (FOIA) seeking records relating to the NSA’s warrantless wiretapping program. The ACLU and the Archive filed a lawsuit to enforce the FOIA requests and the case was consolidated with a similar lawsuit brought by the Electronic Privacy Information Center (EPIC). The government asked the court to permit it to keep the NSA documents secret.

Although allowing the government to withhold some information, Judge Kennedy, in today’s 24-page ruling, wrote that the Department of Justice (DOJ), the FBI and the NSA must provide additional explanations for withholding many documents related to the NSA wiretapping program, particularly those that relate to legal justifications for the program. The judge wrote that when documents are withheld under the Freedom of Information Act, the government is required to provide adequate reasons for why the documents are being withheld. Judge Kennedy found that the government’s “justifications for withholding various records…are insufficient.” In addition, Judge Kennedy stated that he would review the documents himself if the government’s future submissions continued to be unsatisfactory.

The court noted the excessiveness of the government’s secrecy claims at various points of the opinion. For example, Judge Kennedy expressed “substantial frustration” with the fact that although his law clerk had received a high level security clearance, the government would not allow the clerk access to relevant materials. Judge Kennedy also rejected the government’s claim that it had to keep secret the number of pages of relevant Office of Legal Counsel memoranda on the NSA program, calling the argument “implausible.”

“The American people deserve information about its government’s surveillance program, particularly documents about the government’s legal justification for choosing to conduct surveillance in violation of a statute for over five years,” said Melissa Goodman, an attorney with the ACLU’s National Security Project. “Time and time again this administration has attempted to keep secret vital information necessary for an informed debate without sufficient explanation, as if justifying its secrecy were optional. That is not acceptable in a democracy. We are heartened that, in this case, the court recognized that.”

In early 2006, soon after the NSA’s illegal activities became public, the ACLU filed a separate lawsuit on behalf of criminal defense attorneys, journalists and scholars challenging the NSA’s warrantless surveillance of Americans’ calls and e-mails. The government responded to the legal challenge not by defending the legality of the NSA’s surveillance activities, but by invoking secrecy as the basis for dismissing the lawsuit. The administration argued that the NSA’s surveillance was so secret that not even a court could determine its legality. On August 17, 2006, a federal court in Michigan agreed with the ACLU that the program was illegal. The government appealed that ruling to the Sixth Circuit Court of Appeals, which dismissed the legal challenge finding that plaintiffs did not have “standing” to bring the case because they could not prove with certainty they were secretly spied upon. The appellate court did not decide the merits of the case. The ACLU is considering its legal options, including appealing to the U.S. Supreme Court.

In another related matter, the ACLU last month filed legal papers with the Foreign Intelligence Surveillance Court (FISC) asking for the release of its orders and legal opinions that reportedly led to the recent expansion of the government’s wiretapping authority under the Foreign Intelligence Surveillance Act. In response to a court order, the government responded on August 31, claiming that the FISC should simply defer to the government’s claims of secrecy. The ACLU plans to file its own response by September 14.

Attorneys in the consolidated FOIA cases are Bargzie, and Jameel Jaffer of the national ACLU, Meredith Fuchs of the National Security Archive, Marc Rotenberg of EPIC, and Art Spitzer of the ACLU of the National Capital Area.

Today’s court order is available online at:

More information on NSA surveillance is online at:

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