Court Orders Justice Department To Submit NSA Wiretapping Memos For Judicial Review

October 31, 2008 12:00 am

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Court Rules Government Has Not Provided Sufficient Explanation For Withholding Legal Memos

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WASHINGTON – A federal judge today said that he would review in chambers a set of Justice Department memos relating to the National Security Agency’s (NSA) illegal warrantless wiretapping program. The judge found for the second time in an American Civil Liberties Union lawsuit that the government had failed adequately to explain why the memos should be kept secret in their entirety.

“The Justice Department has not offered any legitimate justification for its refusal to release these crucial memos,” said ACLU National Security Project Director Jameel Jaffer. “These memos sought to supply a legal basis for a surveillance program that violated both the Constitution and statutory law. The public has a right to see them.”

In 2005, The New York Times disclosed that the NSA was secretly intercepting the telephone calls and e-mails of people in the United States without a warrant in direct violation of the Foreign Intelligence Surveillance Act (FISA). The ACLU, the National Security Archive and the Electronic Privacy Information Center (EPIC) quickly filed Freedom of Information Act (FOIA) requests for documents about the NSA surveillance program. After the government largely ignored the requests, the ACLU and the National Security Archive filed a lawsuit to enforce their rights under FOIA. That suit was consolidated with a separate FOIA lawsuit brought by EPIC.

“For years, the government has refused to disclose legal memos that justified its most controversial and illegal national security policies – whether the NSA’s illegal spying program, or the unlawful kidnapping, torture, and detention of prisoners,” said Melissa Goodman, staff attorney with the ACLU National Security Project. “In our democracy, the government cannot keep vital information from the public by making vague, sweeping, and unsubstantiated claims about the need for blanket secrecy.”

In today’s order, U.S. District Court Judge Henry H. Kennedy ruled that the government must provide the legal memos to him on November 17 so that he can determine for himself whether at least portions of the memos can be released to the public.

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

More information on the case is available online at:

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