No Easy Answers
Saturday, September 22, 2007
Vance v. Rumsfeld: Order denying Transfer [Doc 63]
CASE #: 1:06-cv-06964
Date Filed: 12/18/2006
The government moved to delay the deadline for filing an answer to the civil complaint, to 30 days post the decision on venue. This venue decision is dated September 19, 2007.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DANIEL VANCE and NATHAN )
ERTEL, )
)
Plaintiffs, )
) No. 06 C 6964
v. )
) Wayne R. Andersen
DONALD RUMSFELD, UNITED ) District Judge
STATES OF AMERICA and )
UNIDENTIFIED AGENTS, )
)
Defendants. )
MEMORANDUM, OPINION AND ORDER
Plaintiffs Donald Vance and Nathan Ertel filed a fifteen-count complaint in this Court
against Defendants Donald Rumsfeld, the United States of America, and Unidentified Agents,
alleging violation of their constitutional rights. This matter is before the Court on Defendants'
motion to transfer venue to the United States District Court for the District of Columbia pursuant
to 28 U.S.C. §1404(a). For the foregoing reasons, Defendants' motion is denied.
BACKGROUND
According to the Complaint, Plaintiffs Donald Vance and Nathan Ertel, both American
citizens, traveled to Iraq in the fall of 2005 to work for a private Iraqi security firm, Shield
Group Security ("SGS"). In the course of their employment, Plaintiffs allegedly observed
payments made by SGS agents to certain Iraqi sheikhs. They also claim to have seen mass
acquisitions of weapons by the company and sales in increased quantities. Questioning the
legality of these transactions, Vance claims to have contacted the FBI during a return visit to his
native town of Chicago to report what he had observed. Vance asserts that he was put in contact
with Travis Carlisle, a Chicago FBI agent, who arranged for Vance to continue to report
suspicious activity at the SGS compound after his return to Iraq. Vance alleges to have complied
with Carlisle's request and continued to report to him daily. Several weeks later, Vance claims
Carlisle put him in contact with Maya Dietz, a United States government official working in
Iraq. Dietz allegedly requested that Vance copy SGS's computer documents and forward them
to her. Vance contends that he complied with that request.
Plaintiff Ertel claims to have been aware of Vance's communications with the FBI and
alleges to have contributed information to that end. Ertel asserts that both he and Vance
communicated their concerns with SGS to Deborah Nagel and Douglas Treadwell, two other
government officials working in Iraq.
Plaintiffs contend that suspicions within SGS grew as to Vance and Ertel's loyalty to the
firm. On April 14, 2006, armed SGS agents allegedly confiscated plaintiffs' access cards which
permitted them freedom of movement into the "Green Zone" and other United States
compounds. This action effectively trapped plaintiffs in the "Red Zone" and within the SGS
compound. Plaintiffs claim to have contacted Nagel and Treadwell who instructed them to
barricade themselves in a room in the SGS compound until United States forces could come
rescue them. Plaintiffs were later successfully removed from the SGS compound by United
States forces.
Plaintiffs were then taken to the United States Embassy. Military personnel allegedly
seized all of plaintiffs' personal property, including their laptop computers, cellular phones, and
cameras. At the Embassy, Plaintiffs claim they were separated and then questioned by an FBI
agent and two other persons from United States Air Force Intelligence. Plaintiffs contend that
they disclosed all their knowledge of the transactions of SGS and directed the officials to their
laptops where most of the information had been documented. Plaintiffs also assert that they
2
informed the officials of their contacts with agent Carlisle in Chicago, and agents Nagel and
Treadwell in Iraq. Following these interviews, Plaintiffs claim they were escorted to a trailer to
sleep for two to three hours.
Plaintiffs claim they were awoken by several armed guards who then placed them under
arrest, handcuffing and blindfolding Vance and Ertel and pushing them into a humvee. Plaintiffs
contend that they were labeled as "security internees" affiliated with SGS, some of whose
members were suspected of supplying weapons to insurgents. According to Plaintiffs, that
information alone was sufficient, according to the policies enacted by defendant Rumsfeld and
others, for the indefinite, incommunicado detention of Plaintiffs without due process or access to
an attorney. Plaintiffs claim to have been taken to Camp Prosperity, a United States military
compound in Baghdad. There they allege they were placed in a cage, strip searched, and
fingerprinted. Plaintiffs assert that they were taken to separate cells and held in solitary
confinement 24 hours per day.
After approximately two days, Plaintiffs claim they were shackled, blindfolded, and
placed in separate humvees which took them to Camp Cropper. Again, Plaintiffs allegedly were
strip searched and placed in solitary confinement. During this detention, Plaintiffs contend that
they were interrogated repeatedly by military personnel who refused to identify themselves and
used physically and mentally coercive tactics during questioning. All requests for an attorney
allegedly were denied.
On or about April 20, 2006, Plaintiffs each received letters from the Detainee Status
Board indicating that a proceeding would be held April 23rd to determine their legal status as
"enemy combatants," "security internees," or "innocent civilians." The letter informed Plaintiffs
they did not have a right to legal counsel at that proceeding. The letter also informed Plaintiffs
3
they would only be permitted to present evidence or witnesses for their defense if they were
reasonably available at Camp Cropper. On April 22nd, Vance and Ertel allegedly each received a
notice stating that they were "security internees." The letter informed Plaintiffs they had the
right to appeal by submitting a written statement to camp officials. Both Vance and Ertel
appealed, requesting each other as witnesses and their seized personal property as evidence.
On April 26, 2006, Plaintiffs allegedly were taken before the Detainee Status Board.
Ertel and Vance claim they were not provided with the evidence requested, nor were they
permitted to testify on the other person's behalf. Plaintiffs assert that they were not permitted to
see the evidence against them or confront any adverse witnesses.
On May 17, 2006, Major General John Gardner authorized the release of Ertel, allegedly
18 days after the Board officially acknowledged that he was an innocent civilian. Vance's
detention continued an additional two months, where he was continuously interrogated. On July
20, 2006, several days after Major General Gardner authorized his release, Vance was permitted
to leave Camp Cropper. Neither Plaintiff was ever charged with any crime.
On December 18, 2006, Plaintiffs initiated this lawsuit against Defendants for the alleged
constitutional violations that occurred in Iraq by the unidentified agents of the United States as
well as for the practices and policies enacted by Rumsfeld which allegedly authorized such
actions by those agents. Both Plaintiffs are residents of the State of Illinois. Although there
appears to be some uncertainty regarding Defendant Rumsfeld's place of residence, he has
recently filed an affidavit stating that his current permanent place of residence is the State of
Maryland. Prior to that, he was domiciled in Illinois.
Defendants have filed a motion to transfer venue to the District Court for the District of
Columbia ("D.C."), alleging that the District of Columbia would be a more convenient forum in
4
which to litigate this claim.
DISCUSSION
Pursuant to Section 1404(a), "[f]or the convenience of the parties and witnesses, in the
interests of justice, a district court may transfer any civil action to any other district or division
where it might have been brought." To succeed on a motion to transfer venue, the defendant
must demonstrate that: (1) venue is proper in the transferor district;(2) venue and jurisdiction are
proper in the transferee district; and (3) the transfer will serve the convenience of the parties, the
convenience of the witnesses, and the interest of justice. See, e.g., Auston v. State, 116 F.3d
1482, n.3 (7th Cir. 1997); Vandeveld v. Christoph, 877 F. Supp. 1160, 1166 (N.D. Ill. 1995).
In evaluating the third prong, courts consider both the private interests of the parties and
the public interest of the court. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947). The
party seeking transfer bears the burden of showing that "the transferee forum is clearly more
convenient than the transferor forum." Coffey v. Van Dorn Iron Works, 796 F.2d 217, 220 (7th
Cir. 1986) (emphasis added). Because "the Court may consider only undisputed facts presented
to the Court by affidavit, deposition, stipulation or other relevant documents," the moving party
must present more than "mere allegations" to support its claim. Midwest Precision Servs., Inc. v.
PTM Indus. Corp., 574 F. Supp. 657, 659 (N.D. Ill. 1983). Transfer is not appropriate if it will
merely transform an inconvenience for one party into an inconvenience for another. See Coffey,
796 F.2d at 220.
In this case, venue and jurisdiction are proper in both this Court and the District of
Columbia. Thus, our analysis will focus on the third factorthe convenience of the parties and
witnesses and the interests of justice.
5
I. The District of Columbia Is Not A More Convenient Forum
In this case, Defendants have failed to meet their burden under the third 1404(a) prong.
Evaluation of the private and public factors that comprise a Section 1404(a) analysis
demonstrates that a transfer of this case to the District of Columbia will not make this litigation
"clearly more convenient."
A. The Private Interest Factors Weigh Against Transfer
There are five private interest factors that courts typically evaluate: (1) Plaintiffs' choice
of forum; (2) the convenience of the forum for the parties; (3) the convenience of the forum for
the witnesses; (4) the situs of material events; and (5) the ease of access to sources of proof. See
Schwartz v. Nat'l Van Lines, Inc., 317 F. Supp.2d 829, 833 (N.D. Ill. 2004). Here, each of these
factors either weighs against transfer or is, at best, neutral.
1. Plaintiffs' Forum Choice
It has long been held that "the plaintiff's choice of forum should rarely be disturbed."
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509 (1947). This is particularly true if plaintiff's choice
of forum is also the plaintiff's home. See Vandeveld v. Christoph, 877 F. Supp. 1160, 1167
(N.D. Ill. 1995). Here, Plaintiffs' choice to file in the Northern District of Illinois is entitled to
deference. Both Plaintiffs reside in Chicago. Mr. Vance has resided in Chicago his entire life.
Mr. Ertel, recently returned from living abroad, and chose to make his home here.
Moreover, Plaintiffs' choice to file suit here is a reasonable one. Many of the material
events leading up to the events alleged occurred right here in Chicago. In addition, Travis
Carlisle and other agents or supervisors in the Chicago FBI are key witnesses. While these
connections alone make Plaintiffs' choice to file here reasonable, we note that Defendant
Rumsfeld also has substantial connections to Chicago.
6
Thus, Plaintiffs here are entitled to the same deference usually afforded a plaintiff's
choice of forum, and that presumption weighs against transfer in this case. See, e.g, Vandeveld,
877 F. Supp. at 1167.
2. Convenience Of The Parties
Similarly, an evaluation of the convenience of the parties makes plain that this case
should not be transferred to the District of Columbia. Plaintiffs are residents of Illinois, and it is
clear from the public record that the only identified Defendant, Mr. Rumsfeld, maintains very
strong ties to Illinois, and to Chicago, in particular. Mr. Rumsfeld's corporation, D.H.R.
Foundation, is in Illinois. Mr. Rumsfeld's wife made political contributions in 2006 from a
Wacker Drive address in Chicago, and Mr. and Mrs. Rumsfeld have several other Chicago
addresses. While Rumsfeld's current permanent place of residence is Maryland, the
inconvenience to him by having to defend a case in Illinois is less than usual due to his
connections to this area.
For these reasons, the convenience of the parties factor, therefore, does not militate in
favor of a transfer of this case.
3. Convenience Of The Witnesses
In addition to the convenience of the parties, courts evaluate the convenience of the
witnesses when resolving a motion to transfer. To be sure, "the convenience of the witnesses is
one of the most important factors to be considered." First Nat'l Bank v. El Camino Resources
Ltd., 447 F. Supp. 2d 902, 913 (N.D. Ill. 2006). In addition to consideration of the number of
potential witnesses located in any one district, courts also consider the nature and quality of their
testimony on the issues that are actually in dispute in the case. Id. Thus, the more significant the
witness is to the issues which will have to be decided, the greater the weight given to that
7
witness' convenience.
Courts cannot weigh these factors in a vacuum. Thus, to satisfy their burden, moving
parties must "clearly specify the key witnesses to be called" and describe their testimony in a
manner that goes beyond vague generalizations. See Heller Fin. Inc., 883 F.2d at 1293.
In this case, this factor appears to be a draw. While Defendants make the valid point that
many of the witnesses with regard to the policies implemented by the government likely will be
located in the District of Columbia, Plaintiffs have also identified several witnesses who reside
in Illinois or another Midwest state whose testimony apparently will be relevant to the material
issues. In addition, Plaintiffs found three other important witnesses who are closer to Illinois
than D.C.-- one in California, one in Texas, and one in South America. As such, and as this
Court has found previously, when witnesses are scattered across the country, "Illinois is a
centrally located forum in which to adjudicate this dispute." See Avery Dennison Corp., 1997
WL 106252, at *3.
For these reasons, Defendants have not met their burden of proving that the District of
Columbia is clearly a more convenient forum for the witnesses.
4. Situs of Material Events
Another factor that courts consider in making their Section 1404(a) determination is the
situs of material events. See Schwartz v. Nat'l Van Lines, Inc., 317 F. Supp.2d 829, 835 (N.D.
Ill. 2004). There is no doubt that the events giving rise to this case occurred in multiple
jurisdictions, notably Iraq, the District of Columbia and Chicago. Iraq was a locus of numerous
events, but it is not a fit place to litigate, and it is also not a venue to which 1404(a) applies.
Between the District of Columbia and Chicago then, Chicago has an edge as the locus of
material events. Chicago is where Mr. Vance and Mr. Carlisle began the relationship by which
8
Plaintiffs became alleged informants to the Chicago FBI office. The reports that resulted in the
alleged retaliation against Plaintiffs occurred in Chicago. To the extent Agent Carlisle's alleged
misrepresentations to Ms. Schwarz prevented Plaintiffs from receiving help to end their
detentions, that too occurred in Chicago. Finally, although Defendants are correct that many of
the policies and practices Plaintiffs allege violated their constitutional rights may have emanated
from the District of Columbia, it is certainly possible that at least some of the acts or failures to
act that caused or extended Plaintiffs' detentions occurred in Chicago. We do not yet know who
was involved in the decision making process regarding Plaintiffs' detentions.
Given this substantial connection to Illinois, it is simply not the case that it would be
"clearly more convenient" to litigate in the District of Columbia.
5. Access to Sources of Proof
The final private interest consideration is the parties' access to sources of proof.
Defendants argue that all of their evidence is located in either Iraq or various government offices
in Washington, D.C., and the surrounding area. Although Defendants did not specify in their
motion to transfer what that evidence is, much of it is almost certain to be documentary in nature
and, therefore, subject to compulsory process for production in this jurisdiction. Such evidence
is not a weighty concern in the transfer analysis. See In re Automotive Refinishing Paint
Antitrust Litigation, 229 F.R.D. 482, 494 (E.D. Pa. 2005). Moreover, there is no doubt that
"each party can efficiently transport to this district those documents necessary for trial." Avery
Dennison Corp.,1997 WL 106252, at *2; see also Midwest Precision Servs., Inc., 574 F. Supp. at
661 n. 6.
Therefore, analysis of the access to sources of proof factor does not weigh in favor of a
transfer.
9
B. Public Factors Also Weigh Against Transfer
Like the private interest factors enumerated above, the public interest factors also weigh
against transfer. Factors traditionally considered in this "interest of justice" analysis relate to the
efficient administration of justice, the court's familiarity with the relevant law, as well as whether
the jurors in a particular district have a stake in the outcome of the litigation. See Coffe, 796
F.2d at 221 & n.4; The Northwestern Corp., 1996 WL 73622, at *4.
In this case, the "interest of justice" factors favor neither district because both courts are
familiar with the law and, presumably, will adminster justice efficiently. Moreover, citizens of
both judicial districts have the same, strong interests in seeing to it that the Constitution is
followed.
While Defendants argue that this case should be transferred to the District of Columbia in
anticipation of possible multi-district litigation, that is not the current posture of the case.
Plaintiffs are the "master[s] of the complaint, and this includes the choice of where to bring suit"
and who to sue. Hyatt Int'l Corp. v. Coco, 302 F.3d 707, 718 (7thº Cir. 2002). Conjecture as to
what may or may not happen in the future is not relevant to the decision we must make today.
At present, Plaintiffs have chosen to bring only one suit and that is the case currently before this
Court.
For these reasons, Defendants have not carried their burden of proving that the public
factors militate in favor of transferring this case to the District of Columbia, and their motion to
transfer venue is denied.
10
CONCLUSION
For the foregoing reasons, Defendants' Motion for transfer of venue [#31] is denied.
This case is set for status on October 11, 2007 at 9:00 a.m.
It is so ordered.
Wayne R. Andersen
United States District Court
Dated: September 19, 2007
11
Thursday, September 06, 2007
Doe v. Gonzales - 2nd Circuit on National Security Letters (May 2006 Opinion)
Source: Doe and ACLU v. Gonzales 05-0570-cv(L) and 05-4896-cv(CON) (2nd Cir. 2005)
This is not the entire opinion, although the entire opinion is necessary to obtain the formal legal posture of the two cases consolidated for appeal.
Why post this now? Because Judge Morrero has today, September 6, 2007, issued a 106 page opinion on the remand, again finding parts of the USA PATRIOT Act to be unconstitutional.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
________________
August Term, 2005
(Argued: November 2, 2005 Decided: May 23, 2006)
Docket Nos. 05-0570-cv(L), 05-4896-cv(CON)
________________
JOHN DOE I, JOHN DOE II, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES
UNION FOUNDATION,
Plaintiffs-Appellees,
v.
ALBERTO GONZALES (IN OFFICIAL CAPACITY AS ATTORNEY GENERAL), ROBERT S. MUELLER III
(IN OFFICIAL CAPACITY AS DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION), MARION E.
BOWMAN (IN OFFICIAL CAPACITY AS SENIOR COUNSEL OF THE FEDERAL BUREAU OF
INVESTIGATION), JOHN ROE,
Defendants-Appellants.
________________
Before:
CARDAMONE, MCLAUGHLIN, B.D. PARKER, Circuit Judges.
________________
Consolidated appeal from (1) a final judgment of the United States District Court for the
Southern District of New York (Victor Marrero, J.) declaring 18 U.S.C. § 2709 unconstitutional
as applied to John Doe I on First and Fourth Amendment grounds, and declaring 18 U.S.C. §
1
2709(c) unconstitutional on its face on First Amendment grounds (Gonzales v. Doe I, No. 05-
0570); and (2) a grant of a preliminary injunction of the United States District Court for the
District of Connecticut (Janet C. Hall, J.) declaring 18 U.S.C. § 2709(c) unconstitutional as
applied to John Doe II on First Amendment grounds (Gonzales v. Doe II, No. 05-4896).
Gonzales v. Doe I, No. 05-0570, is VACATED and REMANDED.
Gonzales v. Doe II, No. 05-4896, is DISMISSED.
Judge Cardamone concurs in the judgment of the Court, and files a separate concurring
opinion.
_________________
CARDAMONE, Circuit Judge, Concurring:
I concur in the judgment of the court. I write separately to address an argument the
government continues to press notwithstanding the recent amendments to 18 U.S.C. § 2709(c).
The question previously before us was whether subsection (c), which imposed a permanent ban
on speech, ran afoul of the First Amendment. The Reauthorization Act has altered the
functioning and perhaps the scope of § 2709(c)'s gag provision, and that is why we are remanding
the New York case (Doe I) for further proceedings and dismissing the Connecticut case (Doe II).
Yet, in its recent letter briefings to the panel, the government perseveres, insisting that a
permanent ban on speech is permissible under the First Amendment. This issue warrants
comment, especially because I suspect that a perpetual gag on citizen speech of the type
advocated so strenuously by the government may likely be unconstitutional.
Prior to the passage of the Reauthorization Act the government sought enforcement of 18
U.S.C. § 2709 (as amended by the USA PATRIOT Act), and specifically § 2709(c), the non-
disclosure provision at the heart of the two appeals. Section 2709(c) provided that no recipient
of a National Security Letter (NSL) "shall disclose to any person" that they received such a letter.
18 U.S.C. § 2709(c) (2000). ^3 By its terms the statute permanently prohibited a recipient from
ever disclosing the fact of having received an NSL. See Butterworth v. Smith, 494 U.S. 624, 626
(1990) (finding similarly worded statute as permanently prohibiting disclosure of grand jury
testimony). The government, while conceding the permanent bar, nonetheless declared that
§ 2709's non-disclosure provision was fully consistent with the First Amendment. Such a
---
3
The new § 2709(c) (as amended by the Reauthorization Act) contains this language
modified by additional language.
11
proposition should be greeted with a healthy dose of judicial skepticism. A permanent ban on
speech seems highly unlikely to survive the test of strict scrutiny, one where the government
must show that the statute is narrowly tailored to meet a compelling government interest. See
Ashcroft v. ACLU, 542 U.S. 656, 665-66 (2004); Kamasinski v. Judicial Review Council, 44
F.3d 106, 109 (2d Cir. 1994) (applying strict scrutiny to Connecticut judicial investigation gag
statute).
It seems to me that courts resolve the tension between the government's interest in
maintaining the integrity of its investigative process and the First Amendment in favor of the
government so long as the ban on disclosure is limited. The cases also hold that a ban on speech
is not constitutionally permissible once the investigation ends. For instance, the Supreme Court
in Butterworth teaches that a "permanent ban on disclosure of [a witness's] own testimony once a
grand jury has been discharged" violates the First Amendment. 494 U.S. at 632. Similarly in
Kamasinski, we "conclude[d] that [a] limited ban on disclosure of the fact of filing or the fact
that testimony was given does not run afoul of the First Amendment." 44 F.3d at 111 (emphasis
added). But, we further held that "the ban on disclosure is constitutional only so long as the
[government] acts in its investigatory capacity." Id. at 112.
The government advanced the "mosaic theory" as one of the reasons to support a
permanent ban on speech. That theory envisions thousands of bits and pieces of apparently
innocuous information, which when properly assembled create a picture. At bottom the
government's assertion is simply that antiterrorism investigations are different from other
investigations in that they are derivative of prior or concurrent investigations. Thus, permanent
12
non-disclosure is necessary because, implicitly in the government's view, all terrorism
investigations are permanent and unending.
The government's urging that an endless investigation leads logically to an endless ban on
speech flies in the face of human knowledge and common sense: witnesses disappear, plans
change or are completed, cases are closed, investigations terminate. Further, a ban on speech and
a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit
comfortably with the fundamental rights guaranteed American citizens. Unending secrecy of
actions taken by government officials may also serve as a cover for possible official misconduct
and/or incompetence.
Moreover, with regard to having something be secret forever, most Americans would
agree with Benjamin Franklin's observation on our human inability to maintain secrecy for very
long. He wrote "three may keep a secret, if two of them are dead." Benjamin Franklin, Poor
Richard's Almanack 8 (Dean Walley ed., Hallmark 1967) (1732). In fact, what happened in the
Connecticut case bears out Franklin's astute observation. While striving to keep the identities of
the Connecticut plaintiffs secret, the government inadvertently revealed their identities through
public court filings. This revelation was widely reported in the media. Thus, the case assumed
the awkward posture where the identities of the Connecticut plaintiffs were published, yet the
government continued to insist that the Connecticut plaintiffs may not identify themselves and
that their identities must still be kept secret. This is like closing the barn door after the horse has
already bolted.
Since the passage of the Reauthorization Act, the government asserts that we should
vacate the District of Connecticut's preliminary injunction rather than leaving it unreviewed on
13
appeal. See per curiam, supra at 7-8. To me, the government's request for vacatur in the
Connecticut case is not surprising, but right in line with the pervasive climate of secrecy. It
sought to prevent, through § 2709(c), the Doe plaintiffs from ever revealing that they were
subjects of an NSL, effectively keeping that fact secret forever. Then, by requesting vacatur of
the decision below, the government attempts to purge from the public record the fact that it had
tried and failed to silence the Connecticut plaintiffs.
While everyone recognizes national security concerns are implicated when the
government investigates terrorism within our Nation's borders, such concerns should be leavened
with common sense so as not forever to trump the rights of the citizenry under the Constitution.
Cf. Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) ("[A] state of war is not a blank check for the
President when it comes to the rights of the Nation's citizens."). As Justice Black wrote in New
York Times Co. v. United States, 403 U.S. 713 (1971): "The word 'security' is a broad, vague
generality whose contours should not be invoked to abrogate the fundamental law embodied in
the First Amendment. The guarding of military and diplomatic secrets at the expense of
informed representative government provides no real security for our Republic." Id. at 719
(Black, J., concurring).
Although I concur in the per curiam that declines to resolve the novel First Amendment
issue before us on this appeal, that does not mean I think that issue unworthy of comment.
Hence, this concurrence.
14
Paracha Rehearing - Government Reply for More Time to File
Hat tip ScotusBlog (click the link for Lyle Denniston's review and comments)
Source: http://www.scotusblog.com/movabletype/archives/US%20reply%20in%20Paracha%209-5-07.pdf OCR Job. Spell checked, but otherwise minimally reformatted.
This is the "trial" end of classified information, and this filing is a particularly clear and concise window into the tension between the Court's desire to see evidence relating to a specific detainee (in order to facilitate evaluation of the objectivity of the detention); and the government's desire to not have to produce any independent evidence -- not even to the Court.
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
)
SAIFKLAH PARACHA, )
Petitioner, )
v. ) No. 06-1038
ROBERT M. GATES, Secretary of Defense, )
Respondent. )
)
REPLY TO PETITIONER'S OPPOSITION TO MOTION FOR STAY
OF ORDER REQUIRING RESPONDENT TO FILE A REVISED
CERTIFIED INDEX
Pursuant to Federal Rule of Appellate Procedure 27, respondent Robert M.
Gates hereby respectfully files this reply to petitioner's opposition to a stay of the
Court's order requiring respondent to file a revised certified index in this case by
September 13, 2007.
1. Respondent explained in its request for a stay that there is an extraordinary
burden in compiling the record on review, as defined in Bismullah v. Gates, No. 06-
1197 - which is a prerequisite to preparing the certified index - and that a temporary
stay of the order requiring production of the certified index is therefore warranted.
Petitioner contends that the Court should disregard that burden because the
Government did not produce any declarations to support it.
The Government, however, will be filing extensive declarations, signed by
high-level officials, including the Deputy Secretary of Defense, the Director of the
National Security Agency, and the Director of the Central Intelligence Agency, in
support of its petition for rehearing in Bismullah (to be filed on Sept. 7, 2007). Those
declarations will explain in detail and substantiate the Government's assertions
regarding the extraordinary burdens and the national security risks that would be
brought to bear if the Government were required to produce the "record" pursuant to
the Court's decision in Bismullah. At a minimum, therefore, this Court should grant
a temporary stay until the Court has an opportunity to examine those declarations and
assess for itself the likelihood of harm in requiring the Government to produce the
record and certified index by September 13.
2. Petitioner further contends that production of the Government Information
to cleared counsel cannot constitute irreparable injury, even if the Court, on rehearing
of Bismullah, were subsequently to determine that such production is not legally
required. That is incorrect.
Some of the material contained at issue involves highly classified material that,
even within the intelligence agencies, is closely held. As will be explained in the
declaration of the Central Intelligence Agency accompanying the Government's
rehearing petition in Bismullah, producing such sensitive information to the Court
and counsel in this and in many of the other more than 130 other DTA cases would
have results that would be harmful to national security. The declaration will explain
2
that such disclosure to court and counsel of these materials would violate
confidences, reveal sources and methods, and could deter sources and other entities
from cooperating with our Government and from providing information in the future.
In addition, the more widely classified information is disseminated, the greater
the risk of inadvertent or intentional disclosure. That is why even within the
intelligence agencies, where the employees have extensive training in the handling
of classified material, the information is limited to a small group of individuals.
At bottom, the Government has a very real and significant interest in
safeguarding classified information by limiting its disclosure. That interest is
impaired even by disclosure to an individual with a security clearance, if it turns out
that there is no need for that individual to have access to the classified information.
3. Initially, petitioner argues that because the Government is already in the
midst of compiling the record, there is no need for a stay in this case. As the
Government explained in its motion (at 9), however, regardless of whether rehearing
of Bismullah is granted, production of the record and certified index in this case by
September 13 is simply not feasible. The Government does not have the
"Government Information" readily available, but instead must gather and index the
record materials, which is an onerous and time-consuming process involving, inter
alia, line-by-line review of classified documents by intelligence analysts to determine
3
which information counsel has a "need to know." The Court's timeline for
production of the record and certified index does not provide the Government
sufficient time to carehlly and conscientiously conduct this task, to ensure that all
appropriate information is produced and that "highly sensitive information" that
counsel has no "need to know" is properly withheld, in accordance with the Court's
decision in Bismullah. See Slip Op. at 17. As we explained in our supplemental
filing, the current deadlines cannot possibly be met without compromising both the
reliability of the production and national security interests. At a minimum, therefore,
a thirty-day extension is warranted.
4
CONCLUSION For the foregoing reasons, respondent respectfully requests that its obligation to file a revised certified index be stayed until thirty days after this Court has disposed of the Government's rehearing petition in Bismullah. In the alternative, the Government seeks a thirty-day extension of time.
CERTIFICATE OF SERVICE I hereby certify that on this 5th day of September, 2007, I served the foregoing Reply to Petitioner's Opposition to Motion for Stay of Order Requiring Respondent to File a Revised Certified Index, by causing an original and four copies to be served on the Court via hand delivery and one copy to be sent to the following counsel via e-mail and first-class U.S. mail:
Wednesday, September 05, 2007
DC District Court on FISA Rejection of TSP
Hat tip HowAppealing.law.com.
Source: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2006cv0214-34
This is related to an attempt to obtain the legal rationale underlying the Terrorist Surveillance Program. The government response to this FOIA request and subsequent litigation is illuminating of the kind of response that is apt to be obtained in a FOIA request for the legal rationales submitted to the FISA Court when the FISA Court rejected certain applications for surveillance orders sometime between January and July 2007.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELECTRONIC PRIVACY
INFORMATION CENTER,
Plaintiff,
v.
Civil Action 06-00096 (HHK)
DEPARTMENT OF JUSTICE,
Defendant.
AMERICAN CIVIL LIBERTIES UNION,
et al.,
Plaintiffs,
v.
Civil Action 06-00214 (HHK)
DEPARTMENT OF JUSTICE,
Defendant.
MEMORANDUM OPINION AND ORDER
In these consolidated actions, plaintiffs Electronic Privacy Information Center ("EPIC"),
American Civil Liberties Union, American Civil Liberties Union Foundation (collectively
"ACLU"), and The National Security Archive Fund, Inc. ("NSAF") ^1 bring claims against the
Department of Justice ("DOJ") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552,
seeking the release of agency records regarding the Bush Administration's policy of conducting
surveillance of domestic communications without the prior authorization of the Foreign
---
1
Hereinafter, the court will refer to all plaintiffs collectively as "EPIC" unless otherwise
stated.
Intelligence Surveillance Court ("FISA Court"). ^2 Before the court are two motions: DOJ's
motion for summary judgment and EPIC's motion for in camera review of withheld records.
Upon consideration of the motions, the oppositions thereto, and the record of the case, the court
concludes that the motion for summary judgment must be granted in part, denied in part, and
held in abeyance in part, and that the motion for in camera review must be denied without
prejudice.
I. FACTUAL BACKGROUND
A. Plaintiffs' FOIA Requests
On December 16, 2005, the New York Times first reported that President Bush "secretly
authorized the National Security Agency to eavesdrop on Americans and others inside the United
States to search for evidence of terrorist activity without the court-approved warrants ordinarily
required for domestic spying." James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers
Without Courts, N.Y. TIMES, Dec. 16, 2005; Pls.' Mot. for Prelim. Inj. Ex. 1. The Times also
reported that the purported legal justification for the warrantless surveillance program had been
developed by DOJ attorneys and officials, that DOJ "audited the N.S.A. program," and that DOJ
"expanded and refined a checklist to follow in deciding whether probable cause existed to start
monitoring someone's communications." Ibid. ^3
In response to this news, EPIC submitted four FOIA requests that same day to four DOJ
departments -- the Office of the Attorney General ("OAG"), the Office of Intelligence Policy
---
2
"FISA" refers to the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et seq.
3
In its submissions, DOJ has identified the surveillance activities at issue to be the so-
called "Terrorism Surveillance Program," or "TSP." Def.'s Ex. A ¶¶ 1820 (Decl. of Bradbury).
2
and Review ("OIPR"), the Office of Legal Counsel ("OLC"), and the Office of Legal Policy
("OLP") -- citing the Times article and requesting records "from September 11, 2001 to the
present concerning a presidential order or directive authorizing the National Security Agency
(`NSA'), or any other component of the intelligence community, to conduct domestic
surveillance without the prior authorization of the Foreign Intelligence Surveillance Court." Pl.'s
Mot. for Prelim. Inj., Exs. 7, 8, 9 & 10. EPIC specifically sought the following items:
(1) an audit of NSA domestic surveillance activities;
(2) guidance or a "checklist" to help decide whether probable cause exists to monitor
an individual's communications;
(3) communications concerning the use of information obtained through NSA
domestic surveillance as the basis for DOJ surveillance applications to the [FISA
Court]; and
(4) legal memoranda, opinions or statements concerning increased domestic
surveillance, including one authored by John C. Yoo shortly after September 11,
2001 discussing the potential for warrantless use of enhanced electronic
surveillance techniques.
Id.
ACLU and NSAF submitted similar requests. ACLU requested any presidential orders
authorizing the NSA to engage in warrantless electronic surveillance. Bradbury Decl. Ex. B. It
also requested records relating to the policies, practices and procedures of the NSA (1) for
selecting individuals to subject to warrantless domestic surveillance; (2) for gathering,
maintaining, storing, and sharing information generated through such surveillance; (3) for using
gathered information as the basis for FISA requests; and (4) for consulting with, or obtaining
approval from, DOJ, before engaging in warrantless electronic surveillance. Ibid. ACLU also
requested any DOJ "legal reviews of the program and its legal rationale," any DOJ audit of the
program, and any other records on the constitutionality, legality, and/or propriety of the NSA's
3
warrantless domestic spying. Ibid. NSAF sought copies of "[a]ll memoranda, legal opinions,
directives or instructions from [DOJ departments] issued between September 11, 2001, and
December 21, 2005, regarding the government's legal authority for surveillance activity,
wiretapping, eavesdropping, and other signals intelligence operations directed at communications
to or from U.S. citizens." Bradbury Decl. Ex. C. NSAF also sought the inclusion of "all
documents discussing the President's surveillance authority under the September 2001
congressional use of force resolution as well as the President's independent ability to authorize
signals intelligence activities." Ibid.
After the court granted EPIC's motion for expedited processing and consolidated these
actions, DOJ substantially completed its response to plaintiffs' requests. ^4 DOJ released a small
number of documents and claimed exemptions under FOIA from the obligation to release
documents as to the majority of the requested records. The present motions followed. In support
of its motion, DOJ has submitted a series of ex parte classified declarations (from various DOJ
departments and NSA) for the court's review, redacted versions of which have been filed on the
public record. ^5
---
4
In processing these requests, the responding DOJ departments referred certain
documents in their possession to each other and to other departments, based on their
determinations as to which department had appropriate primary custodial responsibility for each
document or category of documents. The primary department then made the determination as to
whether the referred document or category of documents should be released. Documents
requested from OAG (which appears to be represented in this matter for all purposes by the
Office of the Deputy Attorney General ("ODAG")) and OLP were referred to and processed by
DOJ's Office of Information and Privacy ("OIP").
5
NSA has designated these declarations as being subject to an exceedingly high level of
secrecy under the Executive's classification policies. See Def.'s Ex. G ¶¶ 1112 (Decl. of
Rowan). Without expressing approval or disapproval of DOJ's use of these ex parte declarations
-- and without opining regarding whether the declaration redactions are legitimately classified
4
B. Scope Of The Dispute
EPIC has disclaimed or withdrawn objections regarding (1) the adequacy of DOJ's
searches for responsive records; (2) drafts of documents and discussions about drafts and the
drafting process; (3) documents withheld by DOJ's Criminal Division; (4) records deemed to be
nonagency records; (5) duplicates of other documents deemed responsive and either released or
withheld by other departments; and (6) redactions of names and identifying information pursuant
to Exemptions 2, 6, and 7(C) (EPIC does not challenge the redactions themselves but does
challenge the withholding of entire documents which contain information protected by these
exemptions). Thus, the present controversy encompasses final (i.e., nondraft) nonduplicate
records withheld by each department other than the Criminal Division.
II. STATUTORY BACKGROUND
A. FOIA
The purpose of FOIA is "to pierce the veil of administrative secrecy and open agency
action to the light of public scrutiny." Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)
(citation omitted). FOIA embodies "a general philosophy of full agency disclosure unless
information is exempted under clearly delineated statutory language." Id. at 36061 (quoting
S. Rep. No. 89-813, at 3 (1965)). The language protecting information from disclosure is set
---
(beyond a measure of skepticism as to some portions thereof) -- the court does express
substantial frustration with one aspect of the Executive's approach to this information: In part
for purposes of this case, this judicial officer had his law clerk cleared through an extensive,
high-level background investigation so that the clerk would have access to classified information,
and specifically to the documents lodged in this case. Notwithstanding the clearance obtained, it
has become apparent that the Executive will not grant the clerk access to the classified
declarations filed here, at least not in the absence of vociferous resistance from this judicial
officer. This stance is baffling and has been significantly disruptive to the court's review of this
matter.
5
forth within FOIA itself in a series of exemptions that are customarily referred to by numbers
corresponding to the subsections in which the exemptions are enumerated. See 5 U.S.C.
§ 552(b). The Act mandates a "strong presumption in favor of disclosure," U.S. Dep't of State v.
Ray, 502 U.S. 164, 173 (1991), and the statutory exemptions to disclosure are to be "narrowly
construed," Rose, 425 U.S. at 361. At the same time, the exemptions are to be given
"meaningful reach and application." John Doe Agency v. John Doe Corp., 493 U.S. 146, 152
(1989).
B. Segregability
A government agency is required to assess the application of FOIA's exemptions with an
eye towards disclosure. As such, once an agency identifies information that it believes is exempt,
it must undertake a segregability analysis. The purpose of this assessment is to separate exempt
material from any nonexempt material, and to produce the nonexempt material. See Vaughn v.
Rosen, 484 F.2d 820, 825 (D.C. Cir. 1973) (stating that "an entire document is not exempt
merely because an isolated portion need not be disclosed" and than an "agency may not sweep a
document under a general allegation of exemption, even if that general allegation is correct with
regard to part of the information"). This exercise is mandated by FOIA itself, which provides
that any "reasonably segregable" information in exempt documents must be disclosed after
redaction of exempt information. 5 U.S.C. § 552(b). Thus disclosure of nonexempt portions of a
document is still required unless those portions are "inextricably intertwined with exempt
portions." Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977).
"The `segregability' requirement applies to all [§ 552] documents and all exemptions" in the Act.
6
Schiller v. NLRB, 964 F.2d 1205, 1209 (D.C. Cir. 1992) (quoting Ctr. for Auto Safety v. EPA,
731 F.2d 16, 21 (D.C. Cir. 1984)).
The court is required to make a specific finding as to segregability, ibid.; see also
Trans-Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999),
and "the burden is on the agency to sustain its action," 5 U.S.C. § 552(a)(4)(B). To satisfy this
burden, "the withholding agency must supply `a relatively detailed justification, specifically
identifying the reasons why a particular exemption is relevant and correlating those claims with
the particular part of a withheld document to which they apply.'" Schiller, 964 F.2d at 1210
(quoting King v. U.S. Dep't of Justice, 830 F.2d 210, 224 (D.C. Cir. 1987) (emphasis omitted));
see also Vaughn, 484 F.2d at 827 (an agency must "specify in detail which portions of the
document are disclosable and which are allegedly exempt"); Peter S. Herrick's Customs and Int'l
Trade Newsletter v. U.S. Customs and Border Prot., 2005 WL 3274073, at *3 (D.D.C. Sept. 22,
2005) (finding that Customs did not meet the segregability requirement where its Vaughn index
failed to identify each exemption with related material, explain why certain pages were withheld
in full and others in part, or describe redacted information with useful detail). The agency's
justifications must focus on the withheld information, and thus "an agency cannot justify
withholding an entire document simply by showing that it contains some exempt material."
Schiller, 964 F.2d at 1209 (quoting Mead Data Cent., 566 F.2d at 260).
In this case, which touches upon sensitive matters of a classified nature related to national
security and counterterrorism operations, in particular by NSA (whose operations are protected
from disclosure by statute, see 50 U.S.C. § 402 note; II.D, infra), the most relevant exemptions
are Exemptions 1 and 3. Exemption 1 protects classified information from disclosure and
7
Exemption 3 protects matters exempted by statutes other than FOIA. 5 U.S.C. § 552(b)(1), (3).
Additionally, because plaintiffs' requests seek information regarding DOJ's deliberations and
legal analyses regarding the potential propriety or impropriety of proposed surveillance actions,
Exemption 5 (which protects information that is privileged, i.e., "would not be available by law
to a party other than an agency in litigation with the agency," id. § 552(b)(5)) is also of central
importance. These exemptions warrant a brief initial discussion.
C. Exemption 1
Exemption 1 protects information "(A) specifically authorized under criteria established
by an Executive order to be kept secret in the interest of national defense or foreign policy [which
is (B)] in fact properly classified pursuant to such Executive order." Id. § 552(b)(1). As recently
summarized by this court, judicial review under this exemption is limited, but not insignificant:
While an agency's declarations setting forth the reasons that information falls within this
exemption are entitled to substantial weight, they must nevertheless afford the requester
an ample opportunity to contest, and the court to review, the soundness of the
withholding. Campbell v. Dep't of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998) (observing
that "deference is not equivalent to acquiescence"); Goldberg v. Dep't of State, 818 F.2d
71, 7677 (D.C. Cir. 1987) (noting that Exemption 1 does not relieve the courts of their
"independent responsibility" to review the agency's decision).
Therefore, to justify summary judgment, an agency affidavit invoking Exemption
1 must provide "detailed and specific" information demonstrating both why the material
has been kept secret and why such secrecy is allowed by the terms of an existing
executive order. Campbell, 164 F.3d at 30; King, 830 F.2d at 217. If the declarations
provide the requisite specificity, however, and are neither contradicted by other record
evidence nor contaminated by indications of bad faith, the reviewing court should not
ordinarily second-guess the agency's judgment. Miller v. Casey, 730 F.2d 773, 776 (D.C.
Cir. 1984) ([stating that courts] must "accord substantial weight to an agency's affidavit
concerning the details of the classified status of the disputed record[]"). Instead, the court
must recognize that the executive branch departments responsible for national security
and national defense have unique insights and special expertise concerning the kind of
disclosures that may be harmful. See Krikorian v. Dep't of State, 984 F.2d 461, 464
(D.C. Cir. 1993); Salisbury v. United States, 690 F.2d 966, 970 (D.C. Cir. 1982); Military
8
Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). In other words, while a court
is ultimately to make its own decision, that decision must take seriously the government's
predictions about the security implications of releasing particular information to the
public, at least where those predictions are sufficiently detailed and do not bear any
indicia of unreliability.
American Civil Liberties Union v. FBI, 429 F. Supp. 2d 179, 18788 (D.D.C. 2006).
D. Exemption 3
Exemption 3 of FOIA covers records that are "specifically exempted from disclosure by
statute . . . , provided that such statute" either "(A) [requires withholding] in such a manner as to
leave no discretion on the issue," or "(B) establishes particular criteria for withholding or refers
to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3); see also Senate of Puerto
Rico v. U.S. Dep't of Justice, 823 F.2d 574, 582 (D.C. Cir. 1987). To justify withholding
information pursuant to this exemption, the withholding agency "must point to an appropriate
nondisclosure statute" and must also "demonstrate that the withheld materials are covered by that
particular statute." People for the Am. Way Found. v. NSA, 462 F. Supp. 2d 21, 28 (D.D.C.
2006) (citing CIA v. Sims, 471 U.S. 159, 167 (1985)); see also Ass'n of Retired R.R. Workers v.
U.S. R.R. Ret. Bd., 830 F.2d 331, 33438 (D.C. Cir. 1987) (discussing test to be applied pursuant
to Exemption 3 and requiring reviewing courts to determine whether "the information sought
after falls within the boundaries of the non-disclosure statute"). This exemption "differs from
other FOIA exemptions in that its applicability depends less on the detailed factual contents of
specific documents; the sole issue for decision is the existence of a relevant statute and the
inclusion of withheld material within the statute's coverage." Fitzgibbon v. CIA, 911 F.2d 755,
76162 (D.C. Cir. 1990) (quoting Ass'n of Retired R.R. Workers, 830 F.2d at 336); Krikorian,
984 F.2d at 46566 (courts "do not closely scrutinize" Exemption 3 claims but should
9
nonetheless assess "whether the document falls within [the] statute" relied upon by the agency).
Thus an agency may justify its withholdings under this exemption in general terms, without
necessarily proceeding on a document-by-document basis, so long as the justification sufficiently
demonstrates that the material withheld is exempt. The court must give a measure of deference
to agency affidavits in this regard. Fitzgibbon, 911 F.2d at 762. These differences
notwithstanding, a reviewing court must still assure itself that the material withheld is actually
exempted by the claimed statute, Am. Way Found., 462 F. Supp. 2d at 28; Krikorian, 984 F.2d at
46566, and that the exempt material cannot be segregated from non-exempt material appearing
in the same records, Assassination Archives and Research Ctr. v. CIA, 334 F.3d 55, 5758 & n.3
(D.C. Cir. 2003) (noting applicability of segregability analysis in Exemption 3 context); Schiller,
964 F.2d at 1209 (stating that "[t]he `segregability' requirement applies to all [§ 552] documents
and all exemptions" in the Act).
Here, DOJ contends that the withheld documents are protected from disclosure by various
statutes, two in particular: First, § 1011 of the Intelligence Reform and Terrorism Prevention Act
of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (Dec. 17, 2004), codified at 50 U.S.C.
§ 403-1(i)(1), requires the Director of National Intelligence to "protect intelligence sources and
methods from unauthorized disclosure." This statute, DOJ argues, falls within the exemption.
See Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982) (discussing predecessor statute
applicable to the CIA, which provided that "the Director of Central Intelligence shall be
responsible for protecting intelligence sources and methods from unauthorized disclosure");
Fitzgibbon, 911 F.2d at 761 ("There is thus no doubt that [the predecessor CIA statute] is a
proper exemption statute under exemption 3.").
10
Second, § 6 of the National Security Agency Act of 1959, Pub. L. No. 86-36, § 6, 73 Stat.
63, 64, codified at 50 U.S.C. § 402 note, provides:
[N]othing in this Act or any other law . . . shall be construed to require the disclosure of
the organization or any function of the National Security Agency, of any information with
respect to the activities thereof, or of the names, titles, salaries, or number of persons
employed by such agency.
Ibid. This statute qualifies for FOIA protection pursuant to Exemption 3. See Founding Church
of Scientology, Inc. v. NSA, 610 F.2d 824, 828 (D.C. Cir. 1979); Hayden v. NSA, 608 F.2d 1381,
1389 (D.C. Cir. 1979).
E. Exemption 5
As previously noted, Exemption 5 protects "inter-agency or intra-agency memorandums
or letters which would not be available by law to a party other than an agency in litigation with
the agency." 5 U.S.C. § 552(b)(5). The protections of this exemption encompass various
privileges, such as the so-called "deliberative process" privilege and the attorney-client privilege.
Again, this court provided a concise summary of this exemption in ACLU v. FBI:
This provision has long been interpreted to include a deliberative process privilege . . . .
[The privilege] shields from disclosure records the government demonstrates to be both
"`predecisional'" -- that is, "generated before the adoption of an agency policy" -- and
"`deliberative,'" -- that is, "reflect[ive][of] the give-and-take of the consultative
process." [Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir.
1980).] "The exemption thus covers recommendations, draft documents, proposals,
suggestions, and other subjective documents which reflect the personal opinions of the
writer rather than the policy of the agency." [Ibid.] "Factual material is not protected
under the deliberative process privilege unless it is `inextricably intertwined' with the
deliberative material." Judicial Watch, Inc. v. Dep't of Justice, 432 F.3d 366, 372 (D.C.
Cir. 2005) (quoting In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) (per curiam)).
"To establish that a document is predecisional, the agency need not point to an agency
final decision, but merely establish what deliberative process is involved, and the role that
the documents at issue played in that process." Judicial Watch v. Export-Import Bank,
108 F. Supp. 2d 19, 35 (D.D.C. 2000). The exemption also covers material that would
fall within the attorney-client privilege. See Nat'l Labor Relations Bd. v. Sears, Roebuck
11
& Co., 421 U.S. 132, 149, 95 S. Ct. 1504, 44 L. Ed. 2d 29 (1975); see also Renegotiation
Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 184, 95 S. Ct. 1491, 44 L. Ed. 2d
57 (1975).
ACLU v. FBI, 429 F. Supp. 2d at 190. The agency invoking Exemption 5 must "`establish[ ] its
right to withhold evidence from the public . . . . [C]onclusory assertions of privilege will not
suffice to carry" the agency's burden. Senate of Puerto Rico, 823 F.2d at 585 (quoting Coastal
States, 617 F.2d at 861).
Even where material is predecisional or protected by the attorney-client privilege when it
is created, it may lose the protection of the privilege if that material "is adopted, formally or
informally, as the agency position on an issue or is used by the agency in its dealings with the
public." Coastal States, 617 F.2d at 866; see also Nat'l Council of La Raza v. Dep't of Justice,
411 F.3d 350, 360 (2d Cir. 2005); Falcone v. IRS, 479 F. Supp. 985, 990 (E.D. Mich. 1979)
(stating that adopted documents are not protected by the attorney-client privilege, and noting that
"broad attorney-client privilege would permit legal opinions, recognized as authoritative
interpretations within the agency, to be hidden from the public. Further, it is clear that the
purpose of the privilege is not to protect communications which are statements of policy and
interpretations adopted by the agency."). Thus, "an agency will not be permitted to develop a
body of `secret law,' used by it in the discharge of its regulatory duties and in its dealings with
the public, but hidden behind a veil of privilege, because it is not designated as `formal,'
`binding,' or `final.'" Coastal States, 617 F.2d at 867; see also Taxation With Representation
12
Fund v. IRS, 646 F.2d 666, 677 (D.C. Cir. 1981) (Exemption 5 does not "protect
communications that implement an established policy of an agency"). ^6
III. ANALYSIS
DOJ seeks summary judgment, contending that its withholdings (and the explanations
offered for those withholdings) are proper and that most of the information requested is
classified. EPIC contends that DOJ's justifications for withholding are either improper or
insufficiently justified and requests that the court order in camera review of the withheld
documents to verify that DOJ has appropriately withheld the information in question. The court
will address the withholdings on a department-by-department basis. In assessing a given
department's withholdings, the court's analysis will roughly track the declaration(s) filed by the
department's representative(s). ^7
A. OLC
OLC has divided its withheld documents into six categories: (1) records related to the
TSP reauthorization process; (2) Category "B," which is described only in the classified
submissions; (3) records related to targets of TSP; (4) Category "D," another classified category;
---
6
The privilege is not waived, however, where an agency has adopted only the conclusions
of a particular document. "Mere reliance on a document's conclusions does not necessarily
involve reliance on a document's analysis; both will ordinarily be needed before a court may
properly find adoption or incorporation by reference." La Raza, 411 F.3d at 358; see also Afshar
v. Dep't of State, 702 F.2d 1125, 1143 n.22 (D.C. Cir. 1983) (noting that "[i]f the agency merely
carried out the recommended decision without explaining its decision in writing, we could not be
sure that the memoranda accurately reflected the decisionmaker's thinking").
7
Throughout this opinion, the court uses the term "department" generically to refer both
to divisions of DOJ and to executive agencies (i.e., NSA).
13
(5) records relating to OLC legal opinions; and (6) briefing materials and talking points. See
generally Bradbury Decl.
1. Records Related To The TSP Reauthorization Process
Prior to and as of September 2006, TSP expired approximately every forty-five days
unless it was then reauthorized by the President. This reauthorization process involved
consultation with the Attorney General and officials at OLC, and OLC has withheld documents
relating to its involvement in that process. Within this category of records, OLC has identified
two subcategories: (1) drafts and notes of OLC staff, and (2) documents directly related to the
reauthorization. As to the former, EPIC does not challenge the withholding of drafts, and the
"notes" identified in the Bradbury declaration and DOJ's/OLC's Vaughn index have been
withheld appropriately pursuant to Exemption 5. The court is satisfied that these "notes" and
drafts are protected by the attorney-client and the deliberative process privileges. Summary
judgment is warranted, therefore, regarding the following records: OLC 34, 67, 74, 7, 93 and
101; ODAG 10, 17, 18, 19, 48, and 65; and OIPR 141.
The court declines to grant summary judgment, however, regarding the document
identified as FBI 7. The Bradbury Declaration explains that this document "contain[s] classified
information regarding the terms of the President's authorization of the TSP, which, if disclosed
would compromise the effectiveness of the Program to the detriment of national security."
Bradbury Decl. ¶ 32. While the court does not doubt that this statement is accurate, it does not
substantiate the determination to withhold the document in full. Specifically, OLC's explanation
fails to justify the department's determination that the information therein cannot be segregated
from nonexempt information. See Schiller, 964 F.2d at 1209; ACLU, 429 F. Supp. 2d at 18788.
14
OLC justifies its withholding of "documents directly related" to TSP reauthorization in its
classified submissions. As with FBI 7, while the records in this category undoubtedly contain
classified information, the court cannot assess whether the documents have, in their entirety,
been correctly deemed classified. ^8 Nor is the court satisfied with OLC's segregability
determination, which is too vague and general to be useful for the court's purposes. The court
therefore will require further submissions regarding these documents.
2. Categories B And D
The records belonging to categories B and D have been withheld justifiably for the
reasons articulated in the classified portions of the Bradbury declaration. The court grants
summary judgment regarding these records. In addition, OLC need not reveal the number of
pages of documents belonging to these categories. ^9
3. Records Related To Targets Of TSP
A fourth category of records -- those related to targets of TSP -- may have been
withheld properly. These records involve two types of documents: (1) documents related to the
criteria used for targeting and the appropriateness of targeting certain groups of individuals under
TSP; and (2) documents containing reporting with respect to the intelligence successes achieved
through the use of the TSP. The information specified above is exempt under Exemption 1
---
8
Here, as elsewhere in this memorandum, sensitivity to maintaining the secrecy of
classified matters and information requires the court to limit the breadth and depth of its
discussion.
9
This grant of summary judgment comes with one caveat. In the further submissions
which DOJ shall provide in this matter, DOJ also is ordered to provide a satisfactory explanation
why the headings setting forth the general descriptions (i.e., the titles) of categories B and D have
been redacted in the unclassified version of the Bradbury Declaration.
15
and/or 3, as is the number of pages of documents falling within this category. In addition, many,
if not all, documents in this category may be protected by the deliberative process privilege. See
Bradbury Decl. ¶ 53. The court is not satisfied, however, with OLC's explanation why any of
these records do not contain information that is reasonably segregable from the exempt
information therein. Indeed, because the language used by OLC is both vague and expansive, the
court is not in a position to determine segregability at all, for the simple reason that the court has
no way of knowing what any of the records in this category actually are. Nor, therefore, is the
court empowered to determine whether the records are protected by the deliberative process
privilege. All the court can surmise is the nature of a portion of what these records contain, and
that is simply not sufficient for purposes of summary judgment. See Schiller, 964 F.2d at 1209
(stating that "an agency cannot justify withholding an entire document simply by showing that it
contains some exempt material"). OLC is required to further identify the individual records in
question and to justify, in a far more document-specific fashion, its withholding of these records.
4. Records Related To OLC Legal Opinions
For similar reasons, OLC's justifications for withholding various records related to OLC
legal opinions are insufficient. OLC has divided this category into three subcategories: (1) final
OLC memoranda, (2) drafts, notes, and comments by OLC staff, and (3) e-mail and fax
correspondence to and from OLC. DOJ relies predominantly on Exemption 5 to justify its
withholding of these records. Upon review of these justifications, the court concludes that the
latter two categories are either uncontested or exempt. OLC has sufficiently identified the
predecisional and deliberative aspects of these records.
16
As to the "final" memoranda, however, OLC's withholding justifications are inadequate.
First, as with other records at issue in this case, OLC's submissions do not even sufficiently
identify the universe of documents within this category, apart from noting that they are "final"
memoranda related to TSP. And while it is appears likely that many of these documents are
protected under exemption 5 (because they are privileged as deliberative or as attorney-client
communications), the court is powerless to reach that conclusion. Though in his declaration,
Bradbury says in passing that all these memoranda are "predecisional," the court has no way to
assess that claim apart from its naked assertion. Coastal States, 617 F.2d at 861 ("conclusory
assertions of privilege will not suffice to carry" the agency's burden). Nor is the court able to
assess whether these documents may have been adopted after-the-fact as expressing the
government's position on the issues they address. See id. at 867. Moreover, the conclusory
nature of OLC's segregability determination prevents the court from conducting a meaningful
review of the withholdings in that regard. See Schiller, 964 F.2d at 1209; ACLU, 429 F. Supp. 2d
at 18788. While the court is certainly sensitive to the government's need to protect classified
information and its deliberative processes, essentially declaring "because we say so" is an
inadequate method for invoking Exemption 5. ^10
The court also notes that it sees no reason whatsoever to sanction OLC's withholding of
the numbers of documents and pages falling within this category. The notion that the threat that
lawyers at OLC will be inhibited in the free exchange of recommendations, advice and analysis if
---
10
OLC's invocation of Exemptions 1 and 3 fares no better. Again, the court lacks the
information necessary to conduct even the most deferential review of the documents in question
and their connection to classified information. See Schiller, 964 F.2d at 1209; ACLU, 429 F.
Supp. 2d at 18788.
17
they knew that the number of pages they use to express themselves could be disclosed to the
public is implausible, and DOJ's assertion that revealing the volume of final memoranda in
OLC's possession related to TSP and similar activities will somehow reveal the actual scope
and/or the workings of the government's classified surveillance activities has no foundation in
the record. The court is open to being persuaded in this regard, but the current submissions are
insufficient.
5. Briefing Materials And Talking Points
OLC has also withheld, pursuant to Exemption 5, records it identifies as "briefing
materials" and "talking points" relevant to plaintiffs' requests. Here, while the court is in a
slightly better position to assess OLC's claims that these documents are predecisional, it still
lacks the information necessary to determine whether these materials have been relied upon or
adopted as official positions after their preparation. Indeed, the likelihood of such adoption is
particularly high in the case of "talking points," and the distinction between such records and
"briefing materials" is, at best, slim. ^11
6. OLC 95, 15399
Finally, OLC has withheld documents designated in its Vaughn index as OLC 95 and
OLC 15399. The court cannot find reference to these documents anywhere in DOJ's
---
11
The court grants summary judgment regarding the withholding of OLC 117/FBI 18, a
letter written by Senator J.D. Rockefeller seeking information regarding operational details of
TSP. Plaintiffs do not appear to object to the withholding of this document, and it is exempt, in
any event.
18
submissions outside of the index itself and will therefore require further detailed explanation
regarding them. ^12
B. ODAG
Apparently acting on behalf of OAG, ODAG has withheld five categories of documents:
(1) ODAG 36, (2) ODAG 59, and (3) ODAG 64, which constitute classified filings, drafts of
filings, and internal deliberative exchanges and attorney notes considering such filings made in
federal courts when criminal defendants have sought information regarding whether they are or
were targets of NSA surveillance; (4) ODAG 39, which is a draft document for which summary
judgment is appropriate; and (5) ODAG 37, a memorandum described in classified portions of
the Declaration of J. Patrick Rowan. Def.'s Ex. G ¶¶ 2426.
As to ODAG 36, 59, and 64, the court again finds itself in the position of being certain
that some documents and portions of documents within a category of documents are exempt from
disclosure but also lacking sufficient information to determine what the universe of documents
within that category actually is, much less which portions of the documents are exempt and
which are not. ODAG informs the court that some documents within these three categories are
classified filings in cases wherein criminal defendants have requested information regarding
NSA surveillance of their activities. Because these documents are justifiably classified, Rowan
Decl. ¶ 17, they are exempt. But these filings are not identified separately from the other
documents in the categories labeled ODAG 36, 59, and 64. Nor is the court empowered to
---
12
It is possible that the error in this regard is the court's. If that is the case, DOJ may
simply refer the court to the relevant sections of its initial submissions.
19
determine which documents within these categories are notes, drafts, and the like protected by
Exemption 5.
In his declaration, Rowan states that "[e]ach of the documents in these categories of
records was created in response to a request from a particular defendant seeking information as
to whether he was the subject of surveillance under the TSP." Ibid. (emphasis added). This
statement does not inform the court what each document in the category is, but only that each
document is related to a request from a criminal defendant. It stands to reason that the vast
majority, if not all, of the relevant documents are either (a) exempt classified filings or (b)
deliberative drafts and exchanges regarding these filings, which are both classified and protected
by Exemption 5. But the court cannot conclude that this is the case without further clarification
from ODAG. See id. ¶ 21 (stating that "to the extent these documents are drafts or inter- or intra-
agency deliberative exchanges . . . they cannot be disclosed" (emphasis added)), ¶ 22 (stating that
"many of the responsive documents contain information that must be withheld to prevent an
unwarranted invasion of personal privacy" (emphasis added)), ¶ 23 (stating that "[t]o the extent
the documents identify particular law enforcement agents or others . . . investigating . . .
terrorism," and "to the extent that information of this type appears in the responsive documents it
is also withheld under FOIA Exemption Seven" (emphasis added)). The court will deny DOJ's
motion for summary judgment in this regard and require the submission of a complete,
document-by-document Vaughn index from ODAG. See Schiller, 964 F.2d at 1209; ACLU v.
FBI, 429 F. Supp. 2d at 18788. The court also will require further clarification regarding
ODAG 37, for which the court likewise lacks a basis for upholding ODAG's exemption claims.
20
C. OIPR
OIPR has withheld a variety of records, many of which are only described in classified
sections of a declaration from James A. Baker, Counsel for OIPR. See Def.'s Ex. C. For the
reasons set forth therein, the court grants summary judgment regarding the documents identified
in paragraphs 2432 and as to OIPR 7. The court also grants summary judgment as to the
documents identified in paragraphs 22 and 34, all of which are drafts and are not contested by
EPIC. ^13
The court denies summary judgment as to OIPR 3, 26, 39, 84, and 96. The court (again
without denying the possibility that the court is in error) cannot find reference to these documents
anywhere in DOJ's submissions outside of the index itself and will therefore require further
detailed explanation regarding them. Similarly, the court will require OIPR to advise the court
regarding the status of its ongoing consultations regarding OIPR 4 and 64. See id. ¶ 17 n.2.
D. FBI
FBI has withheld an unspecified number of documents which fall within a series of
categories identified in the classified declaration of David M. Hardy, Section Chief of the
Record/Information Dissemination Section of FBI's Records Management Division. The
justifications for withholding these documents are wholly inadequate. First, FBI has failed to
produce a Vaughn index. Second, though FBI has informed the court that certain categories of
documents have been withheld, FBI has failed to materially inform the court as to what the
---
13
One document, OIPR 73, is described as a draft in the Baker declaration but is not
listed as a draft in the Vaughn index (there, it is described as "talking points"). Clarification
from defendants is warranted and the court denies summary judgment as to this document (the
classified discussion in the Baker Declaration notwithstanding).
21
documents in these categories are, how many documents are at issue, and which portions of
documents within these categories are exempt and which are not. Instead, FBI relies on vague,
broad, wholesale claims of exempt status that fail to assist the court in assessing FBI's
withholding determinations. See Schiller, 964 F.2d at 1209; ACLU, 429 F. Supp. 2d at 18788.
The court is willing to defer, for example, to reasonably justified claims that information in the
documents at issue is classified and/or protected from disclosure by Exemption 3, but FBI has
not informed the court what, precisely, the nature of the withheld information is and what the
documents are in which that information appears. Lacking such information, the court cannot
conduct even the most deferential review. See ACLU, 429 F. Supp. 2d at 18788; Am. Way
Found., 462 F. Supp. 2d at 28; Krikorian, 984 F.2d at 46566. Similar information gaps frustrate
the court's review of FBI's determinations that other documents are exempt pursuant to
Exemption 5. And the failure to provide meaningful representations regarding segregability as to
documents withheld pursuant to Exemptions 2, 6, 7(A), 7(C), 7(d) and 7(E) -- for which
redaction, rather than withholding, is typically the appropriate approach -- is particularly glaring.
The court will require DOJ to submit a detailed Vaughn index on FBI's behalf and further justify
FBI's withholding and segregability determinations as to the vast majority of responsive
documents in its custody. ^14
E. NSA
Unsurprisingly, the declarations submitted by officials from NSA fail to identify at any
level the documents withheld. Instead, the declarations articulate NSA's view that in every
---
14
Summary judgment is warranted, however, as to the documents specifically identified
in paragraphs 5557, 111, and 148 of the Hardy Declaration.
22
instance where the information requested by plaintiffs (and records containing that information)
involves NSA equities, that information is exempt from disclosure. The court concurs with these
determinations as to (1) information concerning operational details of TSP and (2) NSA TSP-
related policies, procedures, checklists, and audits, but will deny summary judgment regarding
the legal memoranda, opinions and reviews pertaining to TSP discussed in paragraph 29 of the
declaration filed by Joseph B., Deputy Chief of Staff for Operations and Support for the Signals
Intelligence Directorate of NSA. As with similar documents withheld by OLC, the NSA
declarations leave the court with no way to assess the appropriateness of the withholding
decision as to records within this category. In particular, the court cannot adequately assess
whether the documents are protected by the claimed statutes -- that is, "that the withheld
material satisfies the criteria for exemption," Aftergood v. CIA, 355 F. Supp. 2d 557, 561 (D.D.C.
2005); Krikorian, 984 F.2d at 46566 -- or whether the NSA's segregability determination is
supported, see Schiller, 964 F.2d at 1209; ACLU v. FBI, 429 F. Supp. 2d at 18788;
Assassination Archives, 334 F.3d at 5758 & n.3 (addressing segregability in Exemption 3
context). Accordingly, the court will require further submissions from NSA regarding these
documents.
III. CONCLUSION
For the foregoing reasons, summary judgment is warranted regarding some of the
documents withheld by the government. ^15 As to the remainder, the government must submit to
---
15
As DOJ's submissions make apparent, there is significant overlap among the various
documents at issue in this litigation. It may be the case that the court has granted summary
judgment as to a particular document and, inadvertently, has also denied summary judgment as to
the same document elsewhere in this memorandum. If that is the case, DOJ shall inform the
court of that fact in its further declarations.
23
the court a detailed, document-by-document Vaughn index regarding these documents, along
with further, significantly more-detailed declarations justifying the various departments'
withholding decisions. Accordingly, and as set forth herein, it is this 5th day of September, 2007,
hereby
ORDERED that DOJ's motion for summary judgment [#29] is GRANTED in part,
DENIED in part, and HELD IN ABEYANCE in part; and it is further
ORDERED that EPIC's motion for in camera review of the disputed records [#34] is
DENIED without prejudice; and it is further
ORDERED that on or before October 12, 2007, DOJ shall file a second motion for
summary judgment, with a document index and declarations, as specified in Vaughn v. Rosen,
484 F.2d 820, further stating its justification for the withholding of all remaining records
responsive to plaintiffs' FOIA requests.16 Thereafter, briefing shall proceed as follows:
Plaintiffs' opposition/second motion for in camera review October 26, 2007
Defendant's opposition/reply November 9, 2007
Plaintiffs' reply November 16, 2007
SO ORDERED.
Henry H. Kennedy, Jr.
United States District Judge
---
16
If these submissions are unsatisfactory, the court will order in camera review.
24
Saturday, September 01, 2007
Government Response to ACLU Motion before FISA Court
OCR Job.
No doubt, some typos remain.
Link to my previous comments, prediction of grounds for rejection, etc.
Source: http://www.aclu.org/pdfs/safefree/dojresponse_fisc_request.pdf
Accompanying ACLU Press Release
UNITED STATES
FOREIGN INTELLIGENCE SURVEILLANCE COURT
WASHINGTON, D.C.
Docket Number: MISC. 07-01 IN RE MOTION FOR RELEASE OF COURT RECORDS
OPPOSITION TO THE AMERICAN CIVIL LIBERTIES UNION'S MOTION FOR RELEASE OF COURT RECORDS
MATTHEW G. OLSEN Deputy Assistant Attorney General JOHN C. DEMERS Acting Deputy Assistant Attorney General NICHOLAS J. PATTERSON Counsel for National Security Law and Policy MATTHEW A. ANZALDI Attorney Advisor U.S. Department of Justice National Security Division 9S0 Pennsylvania Ave., N.W. Washington, D.C. 20530 Phone: (202) 514-5600 Attorneys for the United States of America
The American Civil Liberties Union's ("ACLU") unprecedented motion for release of
classified court records challenges the secrecy of orders this Court issued, or may have issued,
and of the Government's legal briefs submitted to this Court. See ACLU Motion ("Mot.") at 2-3.
More specifically, the ACLU requests that this Court review the propriety of the Government's
classification of information in this Court's January 10, 2007, orders; in any subsequent orders, if
such exist, that extended, modified, or vacated these orders; and in any legal briefs submitted by
the Government in connection with the initial orders or in connection with any subsequent
orders. Further, the ACLU requests that after such review this Court unseal and make public all
such documents with only those redactions "essential to protect information that the Court
determines" to be properly classified. Id. at 2-3.
There is, as the ACLU notes, significant and legitimate public interest in the ongoing
debate over Government surveillance of foreign terrorist and intelligence targets. Part of this
debate has focused on this Court's January 10, 2007, orders, which authorized the Government
to target for collection international communications where there is probable cause to believe
that one of the communicants is a member or agent of al Qaeda or an associated terrorist
organization. It is in the interest of informing the public debate that the Attorney General
confirmed the existence of the orders on January 17, 2007. In addition, the Government has
shared these orders, as well as its legal briefs, with the relevant congressional committees and
provided numerous briefings regarding the details of these orders for members of Congress. 1
Nevertheless, the Court must deny the ACLU's request. First, there is simply no legal
basis under the Foreign Intelligence Surveillance Act for the relief the ACLU seeks. Congress,
in its limited grant of authority to the Court, has not empowered the Court to consider free-
--
1 The Government has considered the balance anew but for reasons expressed infra has
concluded that the substantial risk of harm that disclosure would pose to the Nation's security
currently outweighs any public benefit.
standing motions filed by non-parties, such as the ACLU. Second, as explained below, the
materials the ACLU seeks are properly classified in their entirety. The public disclosure of the
documents the ACLU requests would seriously compromise sensitive sources and methods
relating to the collection of intelligence necessary for the Government to conduct
counterterrorism activities. Finally, the First Amendment does not compel release of this
properly classified information.
I. There is No Legal Basis for the ACLU's Motion.
The ACLU, which does not purport to have any connection to any case or controversy
before this Court, has no legal basis for the relief it seeks. First, Congress did not provide for
such relief from this Court in the Foreign Intelligence Surveillance Act ("FISA"), 50 U.S.C.
§§ 1801-11, 1821-29, 1841-46, & 1861-62. "It is a 'well-established principle that federal courts
. . . are courts of limited jurisdiction marked out by Congress.'" Int'l Custom Prods., Inc. v.
United States, 467 F.3d 1324, 1326 (Fed. Cir. .2006) (quoting Aldinger v. Howard, 427 U.S. 1, 15
(1976)). Because Congress has not authorized this Court to consider free-standing motions filed
by non-parties like the request at issue here, the ACLU's motion should be dismissed. Second,
the ACLU, by filing this motion, is attempting an end run around the carefully designed
mechanism Congress created for seeking the release of this classified information-the Freedom
of Information Act ("FOIA"), 5 U.S.C. § 552.
A. The FISA Does Not Provide This Court with Jurisdiction to Provide the Relief
the ACLU Seeks.
Congress has specified that this Court "shall have jurisdiction to hear applications for and
grant orders approving [both] electronic surveillance" (50 U.S.C. § 1803(a)) and certain physical
searches (§ 1822(c)), as well as jurisdiction to hear applications for and issue of orders concerning
the installation of pen registers or trap and trace devices (§ 1842(b)(1)) and the production of
2
tangible items by private entities (§ 1861(b)(1)(A)). In light of this limited authority, Congress created a procedure under which the Government invokes this Court's jurisdiction by submitting an ex parte application (§§ 1804, 1823, 1842(a)-(c), 1861(a)-(b)), and, if relevant requirements are met, the Court "shall enter an ex parte order" approving the activity at issue in the application. See 50 U.S.C. §§ 1805(a), 1824(a), l 842(d)(1), 1861(c)(1) (emphasis added). It is thus well-established that the "government is the only party to FISA proceedings" before this Court. In re Sealed Case, 310 F.3d 717, 719 (FISA Ct. Rev. 2002) (emphasis added). Non- parties asserting only a generalized public interest, such as the ACLU, simply are not entitled to participate on their own accord in proceedings before this Court. Non-governmental entities may appear before and seek relief from this Court in only two circumstances, both of which involve collateral proceedings concerning the enforcement of orders that have already issued as part of the Court's ex parte proceedings with the Government. First, the Court presumably has inherent authority to enforce its orders with contempt as an incident to its jurisdiction to issue such orders. See Int'l Union, United Mine Workers v. Bagwell, 5l2 U.S. 821, 831 (1994). For this reason, a person who fails to comply with an order of this Court directing that person to take specific action may appear under this Court's rules to defend against the Government's request for contempt sanctions. See FISC R. Pro. 15. Second, a private person who has been ordered to produce tangible things (following an ex parte proceeding under 50 U.S.C. § 1861) may challenge the legality of that order or an associated non-disclosure order by filing a petition with a pool of judges of this Court. See 50 U.S.C.3
§§ 1803(e)(1), 1861(f). 2 The ACLU's motion does not fall within either of these limited circumstances. Further, FISA's provisions regarding the discovery of orders and applications do not implicate the jurisdiction of this Court or provide the ACLU with any basis to seek such documents in any forum. The statute envisions that the federal district courts, and not this Court, have the authority to entertain motions to "discover" or "obtain" FISA "applications or orders or other materials relating to electronic surveillance " physical searches, or the use of pen register or trap and trace devices. See 50 U.S.C. §§ 1806(f), 1825(g), 1845(f)(1). But even such motions may be brought, if at all, only by "aggrieved persons," 3 which the ACLU does not claim to be. 4 --
2 The ACLU relies on two provisions of this Court's rules to attempt to establish a legal basis for its motion: Rule 7(b)(ii) (providing for records to be unsealed on motion) and Rule 6 (allowing the appearance of non-government attorneys). Mot. at 2 n.2. The ACLU's reliance is misplaced. First, no rule could change the limited purpose Congress gave this Court nor undermine the delicate balance Congress struck in FOIA between the need of the public to mow and the need of the Government to keep classified and sensitive information in confidence. Second, the cited FISC rules have purposes other than the sub silentio authorization of non-party motions. FISC Rule 7(b)(ii) provides for motions by the Government (or perhaps proper litigants under the two circumstances noted above), not the general public, for the release of records. See FISC R. Pro. 7(b)(ii). And Rule 6 allows the appearance of non-government attorneys in the context of the two limited collateral proceedings involving enforcement of orders described in the text and does not authorize motions such as the ACLU's. See FISC R. Pro. 6. 3 An "aggrieved person" means "a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance." See 50 U.S.C. § 1801(k). 4 Unless the Government intends to use information obtained or derived from electronic surveillance against an aggrieved person in a trial, hearing, or other proceeding in or before a court or other federal or state authority, even the aggrieved person is not notified of the electronic surveillance. See 50 U.S.C. § 1806(c). And no court has ever granted an aggrieved person access to any part of orders authorizing surveillance. It would be strange indeed if the ACLU, asserting a generalized desire to mow, could obtain the relief it seeks while an aggrieved person could not.4
The ACLU thus incorrectly asks this Court to expand its jurisdiction by entertaining this
request. 5
B. The FOIA is the Only Appropriate Avenue for the ACLU's Request.
Congress, in enacting the FISA, did not allow for the relief the ACLU seeks from this
Court. Instead, Congress chose to allow individuals to request the release of information from
the Executive Branch under FOIA, and specifically exempted classified information from the
disclosure obligations imposed by FOIA. See 5 U.S.C. § 552(b)(1). Under FOIA, the ACLU
cannot ask this Court for its orders because FOIA applies only to Executive Branch agency
records. See 5 U.S.C. §§ 552(a), (f)(1). The ACLU can use FOIA, however, to seek access to
FISC orders and Government briefs in the Executive Branch's possession. The FOIA process,
which combines an initial review and decision by the Executive Branch on the release and
withholding of information with Judicial Branch review in an adversary and public proceeding,
is the proper means for the ACLU to seek records of this Court's proceedings from the Executive
Branch. Moreover, FOIA's judicial remedies must be sought only in district court, not in this
Court. Instead of following the FOIA process that Congress carefully laid out, the ACLU has
improperly attempted an end run around FOIA by filing this motion.
Not only does the existence of FOIA's procedural mechanism support the conclusion that
the ACLU's motion should be denied, its substantive provisions support the Government's
position that the highly classified materials that the ACLU seeks cannot be publicly released.
--
5 Further, the ACLU has unsuccessfully sought much of the same information in
litigation in which it was a party in the United States Court of Appeals for the Sixth Circuit. The
Sixth Circuit summarily refused the ACLU's motions to unseal classified documents submitted
by the National Security Agency. See Am. Civil Liberties Union, et al. v. Nat'l Sec. Agency, et
al., Order, Nos. 06-2095, 06-2140 (6th Cir. July 6, 2007). Since the ACLU's requests have been
denied in the context of litigation challenging the NSA's activities to which the ACLU was a
party, it is even more clear that the ACLU's free-standing non-party motion should be denied
here.
5
While Congress enacted FOIA with the view that the public interest is normally served by disclosure of government records, it also recognized that the disclosure of certain categories of information would harm the greater public good. It thus exempted several types of records from mandatory disclosure (see 5 U.S.C. § 552(b)) in order "to balance the public's need for access to official information with the Government's need for confidentiality." Weinberger v. Catholic Action, 454 U.S. 139, 144 (1981). Most relevant here, FOIA Exemption 1 applies to matters that are properly classified under an Executive order authorizing such matters to be kept secret in the interest of national security. See 5 U.S.C. § 552(b)(1). As explained below, the materials sought are properly classified in their entirety. The Electronic Frontier Foundation recently requested many of the same materials from the Executive Branch as the ACLU currently seeks, and the United States District Court for the District of Columbia determined that such materials were properly withheld from public release pursuant to, inter alia, the Executive's authority to withhold classified materials for reasons of national security. See Elec. Frontier Found. v. Dep't of Justice, Civ. No. 07-403, slip op. (D.D.C. Aug. 14, 2007) (dkt. no. 17) (granting Government's motion for summary judgment). 6 While the Government would oppose release of the information the ACLU now seeks if it were to submit a FOIA request to the Executive Branch, that is not a reason to allow the ACLU to circumvent the FOIA process Congress has created. Further, the ACLU's motion, if granted, would result in this Court's having to create a parallel type of proceeding, not authorized by any statute, in which any member of the public could file a motion with this Court seeking FISA orders.and records, and in which the Government would be forced to develop and justify its position regarding the disclosure of such --
6 On August 3, 2007, EFF filed a motion for reconsideration of the district court's decision. See Elec. Frontier Found., Civ. No. 07-403 (dkt. no. 16).6
materials without the benefit of the orderly, sequential decision-making process Congress established in the FOIA. The resulting adversarial proceeding would be wholly inconsistent with the limited jurisdiction Congress has given this Court and the ex parte nature of the proceedings before it. In addition, any decision reached by this Court in such a proceeding might well be unreviewable, unlike in the FOIA context. See 50 U.S.C. § 1803(b) (the Foreign Intelligence Surveillance Review Court has appellate jurisdiction over appeals from denials of FISA applications). For these reasons, the ACLU's motion has no legal basis. FISA> the statute authorizing this Court, provides for no such motion. And Congress has established the FOIA process for addressing just such a request. The ACLU's request should be denied. II. The Executive Branch Properly Classified the Requested Materials. Not only is there no legal basis for the ACLU's motion, but its assertion that the Executive Branch's classification decisions are improper fails on its merits. The ACLU recognizes that "this Court's docket consists mainly of material that is properly classified" and concedes that "the administration has taken the position that the sealed materials are classified." Mot. at 14, 19. It nonetheless requests that this Court second-guess the Executive Branch's classification decision. It is well-established that the Judiciary gives the utmost deference to the Executive Branch's classification decisions, including the Executive's assessment of the national security risk of disclosing classified information. And the ACLU offers no persuasive reason to question the current classification of the FISC orders and government briefs. Further, as noted above, the U.S. District Court for the District of Columbia recently held that the Government, pursuant to the Executive's authority to withhold classified materials for national security7
reasons, had properly withheld many of the same materials the ACLU now seeks. See Elec.
Frontier Found., Civ. No. 07-0403, slip op. at 24.
A. The Executive Branch Has Sole Authority to Classify Information and Court?
Give the Utmost Deference to These Decisions.
The Executive Branch has sole authority to classify and control access to "information
bearing on national security . . . flows primarily from th[e] constitutional investment of power in
the President" as the Commander in Chief. Dep't of Navy v. Egan, 484 U.S. 518, 527 (1988).
The Supreme Court, accordingly, has made clear that the "protection of classified information
must be committed to the broad discretion of the agency responsible, and this must include broad
discretion to determine who may have access to it." Id. at 529; see also id. at 529-30 ("'courts
have traditionally shown the utmost deference to Presidential responsibilities"' in "'these areas
of Art. II duties"'); see also, e.g., Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156,
164 D.C. Cir. 2003) ("emphasiz[ing] the primacy of the Executive" in this context); Guillot v.
Garrett, 970 F.2d 1320, 1324 (4th Cir. 1992) (President possesses "exclusive constitutional
authority over access to national security information").
Moreover, courts give the utmost deference to the Executive Branch's "predictive
judgment" in evaluating both the risk that disclosure might pose to national security and the
"acceptable margin of error in assessing" that risk because of the Executive's superior position to
make such determinations. Egan, 484 U.S. at 529; see also CIA v. Sims, 471 U.S. 159, 176-77,
180 (1985) (deferring to Executive Branch decision to protect intelligence sources and methods
from disclosure, and concluding that assessments of harm "often require complex political,
historical, and psychological judgments" and judges have "little or no background in the delicate
business of intelligence gathering"); Detroit Free Press v. Ashcroft, 303 F.3d 681, 707 (6th Cir.
2003) (citing Sims and deferring to judgment of Executive Branch officials concerning risk of
8
disclosing national security information); People's Mojahedin Org. of Iran v. Department of State, 327 F.3d 1238, 1242 D.C. Cir. 2003) (noting that courts are often ill-suited to determine the sensitivity of classified information). This Court's rules reflect this established deference to the Executive Branch's classification decisions. The Court's rules state that "[i]n all matters," the Court "shall comply with [both statutory] security measures . . . as well as Executive Order 12958," as amended. FISC R. Pro. 3. Executive Order 12,958, in turn, makes clear that only certain Executive Branch officials may make original classification determinations. See Exec. Order No. 12,958 § 1.3, available as amended at 68 Fed. Reg. 15,315 (2003); cf. id. § 2.1 (governing derivative classification). As a result, when this Court directs that one of its opinions be published, the rules of the Court specify that "the Opinion must be reviewed by the Executive Branch and redacted, as necessary, to ensure that properly classified information is appropriately protected." FISC R. Pro. 5(c). These rules similarly recognize that while court materials are always "provided to the government when issued," "no Court records or other materials may be released without prior motion to and Order by the Court;" and, even where the Court orders records to be released, those "records shall be released in conformance with the security measures" mandated by Rule 3. FISC R. Pro. 7(b)(ii). Accordingly, materials classified by the Executive Branch under Executive Order 12,958 may not be publicly released by this Court. Additionally, in a letter to Senators Patrick Leahy and Arlen Specter concerning the January 10, 2007, FISC orders the ACLU is currently requesting, the Presiding Judge of this Court confirmed that the Court follows this deferential approach to the Executive Branch regarding classified information. See January 17, 2007, Letter from Presiding Judge Kollar- Kotelly to Senators Leahy and Specter. The Presiding Judge stated that while she had "no9
objection to this material being made available to the Committee," "the Court's practice is to
refer any requests for classified information to the Department of Justice." Id. The Presiding
Judge further stated that if "the Executive and Legislative Branches reach agreement for access
to this material, the Court will, of course, cooperate with the agreement." Id.
B. The Documents the ACLU Seeks Are Properly Classified.
Under these principles, the ACLU's request that the Court review the Government's
classification of the materials and order the release of any improperly classified portions is
baseless. The materials withheld here include orders signed by the FISC authorizing the
collection of foreign intelligence, and any Government briefs concerning these orders. Such
orders authorize the United States to conduct foreign surveillance, and specifically, to target for
collection international communications where there is probable cause to believe that one of the
communicants is a member or agent of al Qaeda or an associated terrorist organization. 7 These
documents, accordingly, directly implicate the collection of foreign intelligence critical to the
ongoing Global War Against Terror.
The documents are currently and properly classified because they fall squarely into one
of the categories of information identified by Executive Order as subject to classification in the
interests of national security. See Exec. Order No. 12,958, as amended. Specifically, Section
l .4(c) of Executive Order 12,958, as amended, identifies "intelligence activities (including
special activities), intelligence sources or methods, or cryptology," as among the subjects
properly subject to classification. The authority to protect intelligence sources and methods from
disclosure is rooted in the "practical necessities of modern intelligence gathering," Fitzgibbon v.
--
7 An unclassified summary such as the ACLU seeks would say nothing more than this
sentence and any other information provided in the Attorney General's discussion of this Court's
orders in his January 17, 2007, letter. See Letter from Attorney General Alberto R. Gonzales to
Hon. Patrick Leahy and Hon. Arlen Specter, January 17, 2007.
10
CIA, 911 F.2d 755, 761 (D.C. Cir. 1990), and has been described by the Supreme Court as both
"sweeping," Sims, 471 U.S. at 169, and "wide-ranging." Snepp v. United States, 444 U.S. 5O7,
5O9 (1980). Sources and methods constitute "the heart of all intelligence operations," Sims, 471
U.S. at 167, and "[i]t is the responsibility of the [intelligence community], not that of the
judiciary to weigh the variety of complex and subtle factors in determining whether disclosure of
information may lead to an unacceptable risk of compromising the . . . intelligence-gathering
process." Id. at 180.
The unauthorized disclosure of information relating to intelligence collection activities
would cause serious damage to the national security of the United States: to disclose the
methods, means, sources, or targets of intelligence collection, or the procedures relating to the
acquisition, retention, or dissemination of intelligence information, is to provide terrorists with a
roadmap for how to avoid surveillance or to manipulate it. The resulting loss of accurate
intelligence would have devastating consequences for the national security of the United States.
This is because hostile intelligence services and international terrorist groups taking aim at the
United States are sensitive to information that points to certain categories of targets or certain
types of methods or means of surveillance, and use any such information to conduct their
counterintelligence or international terrorist activities against us more securely.
To disclose that certain targets have been identified for surveillance or not, or that certain
surveillance methods or procedures are authorized for use or not, would allow terrorists and
other adversaries intent on causing harm to the United States to identify where U.S. intelligence
efforts were focused and to identify "safe harbors" where communications about their terrorist
plans could be conducted in relative safety. See Am. Civil Liberties Union v. Dep't of Justice,
265 F. Supp. 2d 20, 31 p.D.c. 2003) ("records that indicate how [an agency] has apportioned its
11
counterespionage resources, that reveal the relative frequency with which particular surveillance
tools have been deployed, and that show how often U.S. persons have been targeted may
undoubtedly prove useful to those who are the actual or potential target of such surveillance, and
may thereby undermine the efficiency and effectiveness of such surveillance").
Indeed, even apart from the danger of disclosure of the information on its own merits,
courts have long recognized that sensitive information of this nature, if disclosed, when coupled
with other available or unconfirmed information, could provide even more dangerous ínsight into
the United States' intelligence strategies. See Sims, 471 U.S. at 178 ("[w]hat may seem trivial to
the uninformed, may appear of great moment to one who has a broad view of the scene and may
put the questioned item of information in its proper context"); (Ctr. for Nat 'l Security Studies v.
Dep't of Justice, 331 F.3d 918, 928 (D.C. Cir. 2003) ("things that did not make sense to the
District Judge would make all too much sense to a foreign counter-intelligence specialist who
could leave much about this nation's intelligence gathering capabilities from what these
documents revealed about sources and methods") (quoting United States v. Yunis, 867 F.2d 617,
625 (D.C. Cir. 1989)); Fitzgibbon, 911 F.2d at 763 ("each individual piece of intelligence
information, much like a piece of jigsaw puzzle, may aid in piecing together other bits of
information even when the individual piece is not of obvious importance itself") (quoting
Gurdels v. CIA, 689 F.2d 1100, 1106 D.C. Cir. 1982)).
Congress, which recognized the necessity for strict secrecy in matters handled by the
FISC, specifically provided that the FISC operates under special security measures, and that
FISA orders and applications are not to be disclosed absent specific judicial findings. See 50
U.S.C. § 1803(c) ("application made and orders granted[] shall be maintained under security
measures"); id. § 1806(f) (FISA orders, applications and related materials may be disclosed by a
12
reviewing court in a criminal case "only where such disclosure is necessary to make an accurate determination of the legality of the surveillance"); FISC R. Pro. 3 (FISC must comply with é l 803(c), é l 822(e), and Executive Order 12,958 governing classification of national security information). As a result, FISC orders are routinely classified and it is the ordinary practice of the Government to refuse to confirm or deny the existence of records pertaining to FISA activities because it is impossible to do either without revealing classified information. Similarly, courts also have long recognized the "exceptional nature" of FISA material and have uniformly endorsed the conclusion that disclosure of FISA material "might compromise the ability of the United States to gather foreign intelligence effectively." United States v. Rosen, 447 F. Supp. 2d 538, 546 (E.D. Va. 2006). As a result, courts routinely decline to order the disclosure of classified FISA orders and applications, even where such disclosure is sought by criminal defendants in federal criminal proceedings. 8 Additionally, the specific FISC orders and Government briefs sought by the ACLU contain no information that can be released without harming national security, compromising intelligence sources and methods, and interfering with current and prospective law enforcement --
8 See, e.g., United States v. Dumeisi, 424 F.3d 566, 578-79 (7th Cir. 2005), cert. denied, 547 U.S. 1023 (2006) (declining to compel disclosure of FISA orders and/or applications to criminal defendants or their counsel on the ground that such disclosures would harm the national security of the United States); United States v. Damrah, 412 F.3d 618, 624-25 (6th Cir. 2005) (same); United States v. Squillacote, 221 F.3d 542, 544 (4th Cir. 2000) (same); United States v. Isa, 923 F.2d 1300, 1306 (8th Cir. 1991) (same); United States v. Hamide, 914 F.2d 1147, 1150 (9th Cir. 1990) (same); United States v. Badia, 827 F.2d 1458, 1464 (11th Cir. 1987) (same); United States v. Ott, 827 F.2d 473, 476-77 (9th Cir. 1987) (same); United States v. Duggan, 743 F.2d 59, 79 (2d Cir. 1984) (same); United States v. Belfield, 692 F.2d 141, 147 (D.C. Cir. 1982) (same).13
investigations. Any legal discussion that may be contained in these materials would be inextricably intertwined with the operational details of the authorized surveillance. 9 The need for secrecy of these materials was most recently demonstrated in the decision of the U.S. District Court for the District of Columbia noted above. See Elec. Frontier Found., Civ. No. 07-403, slip op. (granting Government's motion for summary judgment). The plaintiff in that case filed a FOIA request for this Court's January 10, 2007, orders and any FISC rules and guidelines associated with such orders. The plaintiff argued, similarly to the ACLU, that "the withheld material strongly suggest that segregable portions of the disputed FISC material.can, in fact, be disclosed without harm to national security or other cognizable interests." Id. at 1 (quotation marks omitted). The district court rejected this argument and denied the plaintiffs cross-motion for in camera review. The court found that, based on the Justice Department's two declarations in support of its motion for summary judgment the Department had "created as full a public record as possible concerning the nature of the responsive documents and the justification for their withholding without exposing classified national security information." Id. at 24. The court agreed with the Justice Department that "there appears to be no reasonably segregable portions of the documents that may be released to the public." Id. The ACLU's challenge to the classification of the materials it seeks is based only on public statements made by Government officials concerning the January 10, 2007, FISA Court --
9 The highly classified nature of the material sought by the ACLU prevents further explanation in an unclassified setting of their content or volume, or of the serious or exceptionally grave risk of damage to national security if the responsive documents are ordered to be disclosed. In light of the ACLU's having no legal basis for its motion and the Government's having properly classified the requested materials, the Government has specifically chosen not to provide a classified annex or declaration with the instant brief. If the Court deems it necessary, however, to further address the issue of the classification of the requested documents, the Government requests the opportunity to address this issue more fully at that point.14
orders, but those statements provide no basis for questioning the current classification of those materials. The Attorney General was authorized to disclose the existence of the January 10, 2007, orders based on a balancing of the public interest in making that limited public disclosure and the need to maintain the secrecy of the orders' highly classified details in order to protect national security. Cf. Exec. Order No. 12,958 § 3.1(b) (concerning declassification by Presidential subordinates who head executive agencies). While some might speculate based on publicly available statements or media reports (much of which offer varying or inconsistent accounts of the January 10, 2007, orders) as to the specific contents of the January 10, 2007, orders and Government briefs related to such orders and whether subsequent related orders and Government briefs exist, that would be just that - speculation. Moreover, such limited disclosures do not change the fact that the orders themselves, and their incorporated procedures, remain highly classified, as clearly contemplated by Congress when it enacted FISA, and as required by Executive Order 12,958, as amended. While "[t]he national interest sometimes makes it advisable, or even imperative, to disclose information . . . it is the responsibility of the [Executive Branch], not that of the judiciary, to weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the . . . intelligence-gathering process." Sims, 471 U.S. at 180. The Government's willingness to discuss the limited information that can be revealed on the public record regarding a highly classified activity cannot be used to undermine the Government's determination, grounded in its "unique insights into what adverse affects [sic] might occur as a result of public disclosures," Krikorian v. Dep't of State, 984 F.2d 461, 464 (D.C. Cir. 1993), that certain other information concerning the activity must remain classified in15
the interests of national security. See Afshor v. Dep't of State, 702 F.2d 1125, 1130-31 (D.C. Cir. 1983) (rejecting plaintiffs' claims that prior disclosures required rejection of the Government's withholding determinations in part because courts should "avoid discouraging the agency from disclosing such information about its intelligence function as it feels it can without endangering its performance of that function") (quoting Salisbuy v. United States, 690 F.2d 966, 971 (D.C. Cir. 1982)); accord Public Citizen v. Dep't of State, 11 F.3d 198, 203 (D.C. Cir. 1993) (holding that the court of appeals is "unwilling to fashion a rule that would require an agency to release all related materials any time it elected to give the public information about a classified matter. To do so would give the Government a strong disincentive ever to provide its citizenry with briefings of any kind on sensitive topics"). In sum, the FISC orders and the Government's briefs requested by the ACLU are highly classified and no part of any of the documents can be released without harming national security. Public disclosure of the documents the ACLU requests would seriously compromise the collection of intelligence necessary to the conduct of the Nation's counter-terrorist activities, a conclusion repeatedly endorsed with respect to similar materials by all three branches of the federal government. 10 Accordingly, as this Court knows from its own familiarity with the documents, the classified materials that the ACLU seeks cannot be publicly disclosed. --
10 Additionally, the ACLU argues that since the Court has publicly released a redacted version of one decision, out of the many thousands of orders the Court has issued, and the Foreign Intelligence Surveillance Review Court has released an opinion, it would be consistent with the Court's past practice for the Court to second-guess the Executive's classification and release the instant documents. The district court in Electronic Frontier Foundation rejected a similar argument. The court was "not persuaded that release of a Foreign Intelligence Surveillance Review Court opinion confirms there likely are segregable materials at issue here." Elec. Frontier Found., Civ. No. 07-0403, slip. op. at 19. The release to the public of a single Foreign Intelligence Surveillance Review Court opinion "is no different than the sporadic issuance of public opinions relating to sealed grand jury matters. The mere fact that such a decision is issued for public viewing, whether redacted or not, does not by default mean that all16
III. The First Amendment Does Not Compel Release of This Classified Information.
The First Amendment does not compel release of the classified orders of this Court and
the legal briefs submitted to it. The First Amendment generally does not "mandate[] a right of
access to government information or sources of information within the government's control."
Houchins v. KQED, Inc., 438 U.S. 1, 15 (1978); id. at 16 (the First Amendment "do[es] not
guarantee the public a right of access to information generated or controlled by government")
(Stewart, J., concurring). The Supreme Court has recognized a limited public right of access to
criminal judicial proceedings, see, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555
(1980); Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986), but that right has no
application in the context of the foreign intelligence surveillance proceedings before this Court.
See Ctr. for Nat 'l Security Studies, 331 F.3d at 934.
A. The First Amendment Public Right of Access is Limited to Criminal
Proceedings.
In Center for National Security Studies, the D.C. Circuit rejected plaintiffs' request for
information concerning individuals detained in the wake of the September 11, 2001, terrorist
attacks. Plaintiffs argued that the Richmond Newspapers decision and its progeny recognized
plaintiffs' First Amendment right to detainee information. The D.C. Circuit disagreed:
We will not convert the First Amendment right of access to criminal judicial proceedings
into a requirement that the government disclose information compiled during the exercise
of a quintessential executive power - the investigation and prevention of terrorism. The
dangers [to national security] which we have cataloged above of making such a release
in this case provide ample evidence of the need to follow this course. . . . We will not
expand the First Amendment right of public access to require disclosure of information
compiled during the government's investigation of terrorist acts.
--
other such decisions must also contain information subject to public disclosure." Id. Like the
requesting party in Electronic Frontier Foundation, the ACLU in the instant case cites no legal
authority to support such a contention.
17
331 F.3d at 935-36. Neither the D.C. Circuit nor the Supreme Court has ever applied Richmond
Newspapers outside the context of criminal proceedings. Flynt v. Rumsfeld, 355 F.3d 697, 704
(D.C. Cir. 2004).
This Court should follow the well-reasoned decisions of the D.C. Circuit limiting the
reach of the Richmond Newspapers holding and not extend a First Amendment public right of
access to records of the foreign intelligence surveillance proceedings of this Court. Those
proceedings are ex parte and "shall be maintained under [mandatory] security measures." See,
e.g., 50 U.S.C. §§ 1803(c), 1805(a). The orders and legal briefs sought by the ACLU in this
matter were prepared in connection with the Government's efforts to combat international
terrorism. See Letter from Attorney General Gonzales to Senators Leahy and Specter, January
17, 2007. This Court, therefore, should not expand the limited First Amendment public right of
access to include access to the records of foreign intelligence proceedings. See Ch. for Nat'l
Security Studies, 331 F.3d at 935-36.
B. Both Experience and Logic Show That the First Amendment Does Not Compel
Access to This Information.
The ACLU's request for the orders and legal briefs fails under the very authority upon
which it bases its First Amendment claim. Even assuming that Richmond Newspapers and its
progeny applied, these cases require a plaintiff to demonstrate both "a tradition of accessibility"
and that "public access plays a significant positive role in the functioning of the particular
process in question." Press-Enterprise Co., 478 U.S. at 8. This test is mow as the two-part
"experience and logic" test. If a plaintiff makes this threshold showing, government restrictions
must be narrowly tailored to meet a compelling governmental interest. Detroit Free Press, 303
F.3d at 705. Both experience and logic demonstrate that the ACLU cannot make this threshold
showing.
18
A "'historical tradition of at least some duration is obviously necessary"' before a court may recognize a right "of public entree to particular proceedings or information," Detroit Free Press, 303 F.3d at 701 , yet the ACLU can identify no historical tradition of granting public access to the orders of this Court or the briefs submitted to it. As the Court's scheduling order noted, the ACLU's motion is unprecedented. No one before has ever thought that requesting disclosure of classified information through the FISC was a proper way to circumvent FOIA or that a non-party asserting nothing more than a generalized public interest could properly file a motion in the FISC. The ACLU cites one case--United States v. Ressam, 221 F. Supp.2d 1252 (W.D. Wash. 2002)--in support of its general claim that courts "routinely" allow public access to court orders in the national security context. Mot. at 17-18. This one case in no way establishes a historical tradition of public access to the FISC's orders and briefs. Ressam concerned proceedings in a federal district court, rather than the FISC. Moreover, Ressam was a criminal proceeding, unlike the foreign intelligence surveillance matters that come before the FISC, and, therefore, implicated the First Amendment issues addressed in the Richmond Newspapers cases. 11 Thus, this case is simply inapposite. Logic also compels the conclusion that the First Amendment does not confer a public right of access to this classified information. If such a right existed, classified national security information filed in court proceedings could routinely be disclosed to the world. Not only is that not the case, but classified information normally is not disclosed even under seal to private --
11 Moreover, the Ressam court's actions undermine the ACLU's argument since the court acted to protect classified information from public dissemination. The court refused to disclose most of the documents and only allowed the production of sealed protective orders that contained little more than a handful of segregable, redacted classified words. 221 F. Supp. 2d at 1262, 1264-65. In the instant case, the Government has determined that it is not possible to segregate classified from unclassified information in the requested materials.19
litigants engaged in civil litigation with the Government. See, e.g., Nat'l Council of Resistance
of Iran v. Dep't of State, 373 F.3d 152, 159 (D.C. Cir. 2004) (Roberts, J.); Jifry v. FAA, 370 F.3d
1174, 1184 (D.C. Cir. 2004); Molerio v. FBI, 749 F.2d 815 (D.C. Cir. 1984). Public access
would play no "significant positive role in the functioning of the particular process in
question"-the applications to and decisions by this Court. Press-Enterprise Co., 478 U.S. at 8.
To the contrary, public access would undermine the important foreign intelligence surveillance
authorized by this Court. 12
C. The Government Has a Compelling Interest in Protecting This Classified
Information.
Even if the First Amendment applied in the way the ACLU suggests in this specific
context, which it does not, the Government has a compelling need to protect classified
information and to bar public access to such information. It is both "'obvious and unarguable'
that no governmental interest is more compelling than the security of the Nation," and that
"[m]easures to protect the secrecy of our Government's foreign intelligence operations plainly
sense th[is] interest[]." Haig v. Agee, 453 U.S. 280, 307 (1981). See also Sims, 471 U.S. at 175
("'The government.has a compelling interest in protecting both the secrecy of information
important to our national security and the appearance of confidentiality so essential to the
--
12 The ACLU's "logic" argument fails because it focuses on whether public disclosure
would have a positive effect, Mot. at 16-19, but neglects to consider the extent to which such
disclosure impairs the public good. North Jersey Media Group, INC. v. Ashcroft, 308 F.3d 198,
217 (3d Cir. 2002) (holding that closure of special interest deportation hearings involving INS
detainees with connections to terrorism does not violate First Amendment). Were the logic
prong only to determine whether openness serves some good, "it is difficult to conceive of a
government proceeding to which the public would not have a First Amendment right of access."
Id. For example, a plaintiff could argue that public access to any government affair, "even
internal CIA deliberations, would 'promote informed discussion' among the citizenry." Id. As
the North Jersey Media Group court found, it is doubtful that the Supreme Court in Richmond
Newspapers intended such a result. 308 F.3d at 217. In the instant case, the ACLU's argument
favoring public disclosure of the orders and briefs is outweighed by the substantial risk that
disclosure would pose to the Nation's security.
20
effective operation of our foreign intelligence service."') (quoting Snepp, 444 U.S. at 509 n.3). One of the key methods for protecting that secrecy is, as explained at greater length supra, the Executive Branch's classification of information whose disclosure reasonably could be expected to result in damage to the national security, see Exec. Order No. 12,958 §§ 1.1(a)(4), 1.2, 1.4, and the Government's strict control over access to such information. See id. §§ 4.1, 4.3; see also 5 U.S.C. § 552(b)(1) (FOIA exception for classified materials). As is apparent to the Court from the documents themselves, and as discussed supra, the documents requested remain properly classified in their entirety because disclosure of any material part of them would reveal the methods by which the Government conducts surveillance of those whose avowed intent is to attack the United States. Protecting the secrecy of the requested orders and briefs serves the compelling interest of protecting the lives and liberties of Americans. This Court, accordingly, should deny the ACLU's request for access to these classified materials. 13 --
13 The common law provides no authority for the ACLU's motion. FISA grants this Court jurisdiction to hear Government applications and grant orders for electronic surveillance, physical search, pen register and trap and trace surveillance, and the production of certain business records. 50 U.S.C. §§ 1803(a), 1822(c), 1842(b)(1), and 1861(b)(1)(A). It does not grant jurisdiction for this Court to hear common law claims for records or other relief. In addition, Congress has preempted any common law right of access by adopting FOIA, which provides an administrative avenue for requesting the documents at issue. Ctr. for Nat'l Security Studies, 331 F.3d at 936-37; United States v. El-Sayegh, 131 F.3d 158, 163 (D.C. Cir. 1997) (holding that there is no common law right of access to withdrawn plea agreement because "the appropriate device" for access to the records "is a Freedom of Information Act request addressed to the relevant agency.") (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 605-06 (1978)).21
CONCLUSION
For the foregoing reasons, the ACLU's motion to release classified materials relating to highly sensitive and valuable national security operations should be denied. August 31, 2007 Respectfully submitted, MATTHEW G. OLSEN Deputy Assistant Attorney General JOHN C. DEMERS Acting Deputy Assistant Attorney General NICHOLAS J. PATTERSON Counsel for National Security Law and Policy MATTHEW A. ANZALDI Attorney Advisor United States Department of Justice National Security Division 950 Pennsylvania Ave., N.W. Washington, D.C. 20530 Phone: (202) 514-5600 Attorneys for the United States of America
22
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