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Wilner v. National Security Agency

June 25, 2008


The opinion of the court was delivered by: Denise Cote, District Judge


This Opinion addresses the partial motion for summary judgment filed by the defendant United States government agencies in this Freedom of Information Act ("FOIA") case. Plaintiffs are attorneys representing individuals detained by the United States government (the "Government") at Guantanamo Bay, Cuba. Defendants rejected their FOIA requests for records showing whether the Government has intercepted communications relating to their representation of their clients. On their motion for summary judgment, defendants claim that they rightly refused to confirm or deny the existence of the requested records. For the following reasons, defendants' motion is granted.


The following facts are undisputed. Plaintiffs are partners and associates at prominent law firms, law professors, and attorneys for established non-profit organizations. They represent individuals detained by the Government at Guantanamo Bay, Cuba, on suspicion of terrorist activity. Defendant National Security Agency ("NSA") is an agency within the Department of Homeland Security and is charged with, among other tasks, collecting, processing, and disseminating signals intelligence information for national foreign intelligence purposes. NSA's signals intelligence ("SIGINT") work includes intercepting communications necessary to the national defense, national security, or the conduct of foreign affairs of the United States. Defendant Department of Justice is the cabinet department charged with law enforcement.

In the aftermath of the September 11, 2001 attacks by al Qaeda on the United States, President George W. Bush secretly authorized the Terrorist Surveillance Program ("TSP"), under the auspices of which the NSA was empowered "to intercept the international communications of people with known links to al Qaeda and related terrorist organizations." George W. Bush, President's Radio Address (Dec. 17, 2005), http://www. (last visited June 2, 2008). President Bush described the TSP as "a highly classified program that is crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies." Id. Surveillance under the TSP was conducted without warrants, and without oversight by the Foreign Intelligence Surveillance Court ("FISC"). The TSP was conducted in secret until President Bush publicly acknowledged its existence on December 17, 2005. On January 17, 2007, Attorney General Alberto Gonzales announced that electronic surveillance conducted under the TSP would be subject to the approval of the FISC.

By separate letters to the NSA and Department of Justice dated January 18, 2006, plaintiffs submitted FOIA requests seeking seven categories of records. Only the first of these ("FOIA Request No. 1") is at issue on this motion. FOIA Request No. 1 sought "records obtained or relating to ongoing or completed warrantless electronic surveillance or physical searches regarding, referencing or concerning any of the plaintiffs." Defendants refused to confirm or deny whether they possessed records responsive to the request.

This lawsuit followed. Plaintiffs filed their complaint on May 17, 2007 and amended it twice thereafter. The Second Amended Complaint, which is the operative pleading, was filed on November 2. Claiming that they "have a statutory right to the records that they seek, and there is no legal basis for the defendants' refusal to disclose them," plaintiffs sought principally a declaration that defendants' refusal to disclose the requested records was unlawful, and an order compelling defendants to produce the records without further delay. As discussed above, the motion presently under consideration concerns plaintiffs' FOIA Request No. 1 and defendants' refusal to confirm or deny the existence of records concerning specific alleged targets of the TSP.*fn1


I. FOIA Framework

FOIA was enacted in 1966 "to improve public access to information held by government agencies." Pierce & Stevens Chem. Corp. v. U.S. Consumer Prod. Safety Comm'n, 585 F.2d 1382, 1384 (2d Cir. 1972). It "expresses a public policy in favor of disclosure so that the public might see what activities federal agencies are engaged in." A. Michael's Piano, Inc. v. F.T.C., 18 F.3d 138, 143 (2d Cir. 1994). FOIA requires a federal agency to disclose records in its possession unless they fall under one of nine enumerated and exclusive exemptions. 5 U.S.C. § 552(a)(3)-(b); see also Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976). The statutory exemptions "do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Dep't of the Interior and Bur. of Indian Affairs v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001) (citation omitted). The exemptions are thus to be "given a narrow compass." Id. (citation omitted); see also Nat'l Council of La Raza v. Dep't of Justice, 411 F.3d 350, 356 (2d Cir. 2005).

A federal court must "conduct de novo review when a member of the public challenges an agency's assertion that a record being sought is exempt from disclosure." A Michael's Piano, 18 F.3d at 143. "The burden of proof, upon such review, rests with the agency asserting the exemption, with doubts resolved in favor of disclosure." Id.

On a motion for summary judgment, "the defending agency has the burden of showing . . . that any withheld documents fall within an exemption to the FOIA." Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994). "Affidavits or declarations . . . giving reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain the agency's burden." Id. Absent any showing to the contrary, "[a]ffidavits submitted by an agency are accorded a presumption of good faith." Id. (citation omitted).

II. The Glomar Response

In rejecting FOIA Request No. 1, defendants gave what is commonly known as the "Glomar Response," which derives from a FOIA case concerning records pertaining to the Glomar Explorer, an oceanic research vessel. See Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976). In Phillippi, the CIA asserted that the "existence or nonexistence of the requested records was itself a classified fact exempt from disclosure under . . . FOIA," id. at 1012, and therefore responded to plaintiff's FOIA request by stating that, "in the interest of national security, involvement by the U.S. Government in the activities which are the subject matter of [Phillippi's] request can neither be confirmed nor denied." Id. Following Phillippi, courts have found in favor of the Government where it refused to offer a substantive response to a FOIA request, if doing so "would remove any lingering doubts that a foreign ...

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