Federal appeals court allows FOIA exception for surveillance records

[JURIST] The US Court of Appeals for the Second Circuit [official website] on Wednesday ruled [opinion, PDF] that the National Security Agency (NSA) and the Department of Justice (DOJ) [official websites] are not required to confirm or deny the existence of electronic surveillance records under the Freedom of Information Act (FOIA) [text]. The suit was brought by advocates of former Guantanamo Bay detainees after the agencies invoked FOIA exceptions to information requests regarding warrantless electronic surveillance conducted pursuant to the Terrorist Surveillance Program (TSP). The appellate court affirmed the district court's holding, finding that federal agencies are allowed to file Glomar responses [DOI backgrounder] declining to address the existence of information, and that such responses are allowable in regards to information obtained through publicly known intelligence programs. Plaintiffs had argued that the Glomar doctrine is limited to information obtained by secret programs. The court wrote:

The fact that the public is aware of the program’s existence does not mean that the public is entitled to have information regarding the operation of the program, its targets, the information it has yielded, or other highly sensitive national security information that the government has continued to classify. Indeed, the fact that the TSP’s existence has been made public reinforces the government’s continuing stance that it is necessary to keep confidential the details of the program’s operations and scope.

We therefore hold that, as a threshold matter, and as a general rule, an agency may invoke the Glomar doctrine in response to a FOIA request regarding a publicly revealed matter. An agency only loses its ability to provide a Glomar response when the existence or nonexistence of the particular records covered by the Glomar response has been officially and publicly disclosed.
The court found that the affidavits provided by the agencies met their burden of proof for the FOIA exception. Additionally, the court found no evidence that the NSA used the exception to conceal illegal or improper activities.

The NSA's warrantless surveillance program has been harshly criticized since being disclosed by then-president George W. Bush in 2005. In July, former DOJ attorney John Yoo defended [JURIST report] warrantless wiretapping practices in the Wall Street Journal, criticizing the Foreign Intelligence Surveillance Act (FISA) [text] as being obsolete and contributory in the government's failure to prevent the 9/11 attacks. In April, the DOJ announced that it had limited the NSA's electronic surveillance [JURIST report], but maintained that the information being received was still important. In February, the Ninth Circuit [official website] denied [JURIST report] an appeal by the DOJ seeking to stop a lawsuit [JURIST report] brought by an Islamic charity alleging it was the subject of an illegal NSA wiretap.


 

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