The refusal of the National Security Agency to disclose whether conversations between lawyers and their clients at the Guantanamo Bay detention facility were intercepted has been upheld by a federal appeals court in Manhattan.
Addressing questions of first impression, the 2nd U.S. Circuit Court of Appeals on Wednesday adopted a doctrine holding that intelligence agencies can refuse to confirm or deny the existence of records sought under the Freedom of Information Act where intelligence officials state that disclosure would compromise national security.
Joining other circuits in adopting the so-called Glomar Doctrine, the 2nd Circuit affirmed a 2008 decision by Southern District of New York Judge Denise Cote, who had granted summary judgment for the National Security Agency and the U.S. Department of Justice in a Freedom of Information Act case brought by law firms, law professors and attorneys who represent suspected terrorists held at Guantanamo.
The records at issue in Wilner v. National Security Agency, 08-4726-cv, would have been accumulated under the controversial Terrorist Surveillance Program (TSP), begun by President George W. Bush following the Sept. 11, 2001, terror attacks.
Under the program, the National Security Agency was empowered to intercept, without warrants or oversight by the Foreign Intelligence Surveillance Court, communications where one of the parties is located outside of the United States and one of the parties is a member of al-Qaida, affiliated with al-Qaida or a member of an affiliated organization.
The program was not acknowledged or confirmed by the president until several years later. In January 2007, the Justice Department announced that the surveillance program would be subject to review by the surveillance court.
Name plaintiff Thomas Wilner of Shearman & Sterling and others filed suit in 2006 after the government refused to confirm or deny the existence of the records of attorney conversations with their clients.
Judge Cote ruled against the plaintiffs on the grounds that the government had given a "Glomar Response." Glomar refers to Hughes Glomar Explorer, which purportedly was a deep-sea drilling platform constructed in secret by the CIA to recover a sunken Soviet submarine lost in 1968.
The Glomar doctrine was established in Phillippi v. CIA, 546 F.2d 1009 (D.C. Circuit 1976), where the CIA responded to a records disclosure request simply by stating that the "existence or nonexistence of the requested records was itself a classified fact exempt from disclosure" under FOIA.
Judge Cote adopted that doctrine in Wilner. Relying on affidavits from senior intelligence officials, Cote said, "Specifically, defendants have demonstrated that acknowledging the existence of the information" in one of the FOIA requests "would reveal the NSA's organization, functions and activities."
NO PUBLIC DISCLOSURE
A 2nd Circuit panel of Judges Jose A. Cabranes and Debra Ann Livingston and, sitting by designation, Eastern District Judge Edward R. Korman, affirmed that ruling Wednesday, with Cabranes writing for the court.
The appeal covered only one of seven records requests made at the district court level by Wilner and his fellow plaintiffs. The specific request was for "records obtained or relating to ongoing or completed warrantless electronic surveillance or physical searches regarding, referencing or concerning any of the plaintiffs."
The 2nd Circuit decided two issues of first impression, holding first that, "Agencies may invoke the Glomar doctrine when responding to FOIA requests, and thus may refuse to confirm or deny the existence of the requested records to prevent cognizable harm under a FOIA exemption."
On the other issue of first impression, the panel said, "Glomar responses are available, when appropriate, to agencies when responding to FOIA requests for information obtained under a 'publicly acknowledged' intelligence program, such as the TSP, at least when the existence of such information has not already been publicly disclosed."
Judge Cabranes said that, while the "general existence" of the program had been acknowledged, "the specific methods used, targets of surveillance and information obtained through the program have not been disclosed."
Just because there is public awareness of a program, he said, does not mean the public is "entitled to have information regarding operation of the program, its targets, the information it has yielded, or other highly sensitive national security information that the government has continued to classify."
Therefore, the court held that an agency loses its right to invoke the Glomar doctrine only where "the existence or nonexistence of the particular records covered by the Glomar response has been officially and publicly disclosed."
The court went on to find the National Security Agency properly issued a Glomar response under FOIA Exemption 3, for documents specifically exempted by statute -- in this case under §6 of the National Security Agency Act of 1959. It also said the affidavits were sufficient enough for the 2nd Circuit or Judge Cote to avoid in camera review of additional classified affidavits.
Finally, Judge Cabranes said, "we find no evidence in this record that the NSA invoked Glomar for the purpose of concealing illegal or unconstitutional activities."
Kathryn Sabbeth of the Georgetown University Law Center Institute for Public Representation argued for the plaintiffs.
Shayana Kadidal, an attorney with the Center for Constitutional Rights who also worked on the case, said that although the government did not defend the legality of the surveillance program, the circuit said attorney plaintiffs are not entitled to find out if the Bush administration was listening to their phone calls.
The larger question, Kadidal said, was why the new administration "made no effort to come clean about the last administration's widespread illegal surveillance, some of which may have violated attorney-client privilege in cases challenging torture and other abuses of government power."
Thomas M. Bondy of the appellate staff of the Department of Justice's Civil Division argued for the government.
