592 F.3d 60 (2nd Cir. 2009), 08-4726-cv, Wilner v. National Security Agency

Docket Nº:08-4726-cv.
Citation:592 F.3d 60
Opinion Judge:JOS
Party Name:Thomas WILNER, Gitanjali Gutierrez, Michael J. Sternhell, Jonathan Wells Dixon, Joshua Colangelo Bryan, Brian J. Neff, Joseph Margulies, Scott S. Barker, James E. Dorsey, Asmah Tareen, Richard A. Grigg, Thomas R. Johnson, George Brent Mickum IV, Stephen M. Truitt, Jonathan Hafetz, Tina M. Foster, Alison Sclater, Marc D. Falkoff, David H. Remes, H.
Attorney:Kathryn A. Sabbeth, Georgetown University Law Center Institute for Public Representation (David C. Vladeck, Georgetown University Law Center, on the brief, James R. Rubin, Karen Borg, Mark A. Schwartz, Butler Rubin Saltarelli & Boyd LLP; Shayana Kadidal, Emilou MacLean, Center for Constitutional ...
Judge Panel:Before: CABRANES and LIVINGSTON, Circuit Judges, and KORMAN, District Judge.
Case Date:December 30, 2009
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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592 F.3d 60 (2nd Cir. 2009)

Thomas WILNER, Gitanjali Gutierrez, Michael J. Sternhell, Jonathan Wells Dixon, Joshua Colangelo Bryan, Brian J. Neff, Joseph Margulies, Scott S. Barker, James E. Dorsey, Asmah Tareen, Richard A. Grigg, Thomas R. Johnson, George Brent Mickum IV, Stephen M. Truitt, Jonathan Hafetz, Tina M. Foster, Alison Sclater, Marc D. Falkoff, David H. Remes, H. Candace Gorman, Charles Carpenter, John A. Chandler and Clive Stafford Smith, Plaintiffs-Appellants,

v.

NATIONAL SECURITY AGENCY and Department of Justice, Defendants-Appellees. [*]

No. 08-4726-cv.

United States Court of Appeals, Second Circuit.

December 30, 2009

Argued: Oct. 9, 2009.

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Kathryn A. Sabbeth, Georgetown University Law Center Institute for Public Representation (David C. Vladeck, Georgetown University Law Center, on the brief, James R. Rubin, Karen Borg, Mark A. Schwartz, Butler Rubin Saltarelli & Boyd LLP; Shayana Kadidal, Emilou MacLean, Center for Constitutional Rights, of counsel), for Plaintiffs-Appellants Thomas Wilner et al.

Thomas M. Bondy, Department of Justice, Civil Division, Appellate Staff (Michael F. Hertz, Acting Assistant Attorney General, Lev L. Dassin, United States Attorney, of counsel, Douglas N. Letter, Department of Justice, Civil Division, Appellate Staff, on the brief), for Defendants-Appellees National Security Agency and Department of Justice.

Mark H. Lynch, Jennifer L. Saulino, Covington & Burling LLP, Washington, D.C., Meredith Fuchs, National Security Archive, Washington D.C., for Amicus Curiae National Security Archive.

Before: CABRANES and LIVINGSTON, Circuit Judges, and KORMAN, District Judge.[**]

JOSÉA. CABRANES, Circuit Judge:

Plaintiffs-appellants Thomas Wilner, et al., attorneys representing individuals detained by the United States government at Guantánamo Bay, Cuba, appeal from a July 31, 2008 judgment of the United States District Court for the Southern District of New York (Denise Cote, Judge ) entered after a June 25, 2008 opinion and order granting the motion for summary judgment of defendants-appellees the National Security Agency (" NSA" ) and the Department of Justice (" DOJ" ) in plaintiffs' Freedom of Information Act (" FOIA" ) case. Plaintiffs submitted FOIA requests to the NSA and DOJ seeking records showing whether the government has intercepted plaintiffs' communications relating to the representation of their detainee clients. The NSA and DOJ served and filed so-called Glomar responses-neither confirming nor denying the existence of such records-pursuant to FOIA Exemptions 1 and 3; the FBI also filed a similar response pursuant to FOIA Exemption 1.1 Whether, as a general matter, agencies may invoke the Glomar doctrine and whether, in particular, the NSA may invoke the Glomar doctrine in response to a FOIA request for records obtained under the Terrorist Surveillance Program (" TSP" or " program" ) are both questions of first impression for our Court.

We affirm the judgment of the District Court upholding the NSA's Glomar response and hold that (1) agencies may

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invoke the Glomar doctrine when responding to FOIA requests, and thus may refuse to confirm or deny the existence of the requested records to prevent cognizable harm under a FOIA exemption; (2) Glomar responses are available, when appropriate, to agencies when responding to FOIA requests for information obtained under a " publicly acknowledged" intelligence program, such as the TSP, at least when the existence of such information has not already been publicly disclosed; (3) the NSA properly issued a Glomar response to plaintiffs' request for information pursuant to FOIA Exemption 3 (specifically, pursuant to section 6 of the National Security Agency Act of 1959); (4) the government's affidavits sufficiently support its invocation of the Glomar doctrine in this case and we therefore decline to review ourselves or require the District Court to review ex parte and in camera any classified affidavits the NSA might proffer in further support of its Glomar response; and (5) we find no evidence in this record that the NSA invoked Glomar for the purpose of concealing illegal or unconstitutional activities. We agree with counsel for all parties that we need not determine the legality of the TSP because that question is beyond the scope of this FOIA action.

BACKGROUND

Plaintiffs 2 are law professors and attorneys at " prominent law firms" and " established non-profit organizations," who represent individuals detained by the United States government at Guantánamo Bay, Cuba, for suspected terrorist activity. Appellants' Br. 5. Plaintiffs note that they began representing detainees after undergoing security clearance. Defendants are the NSA and the DOJ. The NSA is an agency within the Department of Defense that is charged with, among other tasks, collecting, processing, and disseminating signals intelligence (" SIGINT" ) information for national foreign intelligence purposes. NSA's SIGINT work includes intercepting communications necessary to national defense, national security, and the conduct of the foreign affairs of the United States. The DOJ is the cabinet department charged with law enforcement relevant to this case.

In the aftermath of the September 11, 2001 attacks on the United States by al Qaeda, President George W. Bush secretly authorized the TSP, which empowered the NSA " to intercept the international communications of people with known links to Al Qaeda and related terrorist organizations." George W. Bush, President's Radio Address (Dec. 17, 2005), excerpted in Bush on the Patriot Act and Eavesdropping, N.Y. Times, Dec. 18, 2005, at 43 (full transcript available at http:// www. nyti mes.com/2005/12/17/politics/17text-bush.html (last visited Oct. 28, 2009)) (" President Bush's Address" ). President Bush described the TSP as " a highly classified program that is crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies." Id. It is not disputed that TSP surveillance was conducted without warrants and without oversight by the Foreign Intelligence Surveillance Court (" FISC" ). The FISC is a United States court that was established by the Foreign Intelligence Surveillance Act of 1978 (" FISA" ) and has " jurisdiction to hear applications for and grant orders

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approving electronic surveillance anywhere within the United States under the procedures set forth" in the FISA, 50 U.S.C. § 1803(a)(1), and " to hear applications for and grant orders approving a physical search for the purpose of obtaining foreign intelligence information anywhere within the United States under the procedures set forth" in the FISA. 50 U.S.C. § 1822(c).

The TSP served as an " early warning" system intended to detect and prevent further terrorist attacks by intercepting communications between known and potential terrorists and their affiliates. To intercept a communication under the TSP, one of the parties to the communication had to be located outside of the United States, and there had to be a reasonable basis to conclude that one party to the communication was a member of al Qaeda, affiliated with al Qaeda, or a member of an affiliated organization. The NSA conducted TSP surveillance in secret until, following news reports revealing the program, President Bush publicly acknowledged the existence of the TSP in a radio address on December 17, 2005. On January 17, 2007, Attorney General Alberto Gonzales announced that TSP electronic surveillance would henceforth be subject to the approval of the FISC and that the President's original authorization of the TSP had lapsed. The TSP itself has ceased to exist and, as counsel for the government noted at oral argument, to the extent that any similar electronic surveillance is taking place, that activity " shifted under the rubric of the FISA court." Tr. 12-13.

By separate letters to the NSA and the DOJ dated January 18, 2006, plaintiffs requested, pursuant to FOIA, seven categories of records.3 Only the first of plaintiffs' FOIA requests (" Request No. 1" ) is at issue on this appeal.4 Request No. 1 sought " records obtained or relating to ongoing or completed warrantless electronic surveillance or physical searches regarding, referencing or concerning any of the plaintiffs."

In response to plaintiffs' Request No. 1, the NSA invoked the Glomar doctrine-

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meaning that it refused to confirm or deny whether the agency possessed records responsive to the request. This lawsuit followed. Plaintiffs' complaint alleged that they " have a statutory right to the records that they seek, and there is no legal basis for the defendants' refusal to disclose them," and sought principally a declaration that defendants' refusal to disclose the requested records was unlawful and an order compelling defendants to produce the records without further delay. J.A. 8 (Second Am. Compl. for Declaratory and Injunctive Relief). The NSA and DOJ filed a Motion for Partial Summary Judgment on the Glomar issue.

In an opinion and order of June 25, 2008, the District Court granted defendants' motion for partial summary judgment, holding that (1) the NSA was permitted to provide a Glomar response to plaintiffs' FOIA requests for information potentially acquired through electronic surveillance because the requested records, if they exist, are protected under FOIA Exemption 3 (specifically, pursuant to section 6 of the National Security Agency Act of 1959 5); (2) revealing whether or not the requested documents exist would not only violate particular statutes, but would also undermine national...

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