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American Civil Liberties Union v. United States Dept. of Justice

United States District Court, S.D. New York

March 3, 2015

AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant

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For American Civil Liberties Union, American Civil Liberties Union Foundation, Plaintiffs: Alexander Abraham Abdo, American Civil Liberties Union, Women's Rights Proj, New York, NY; Brett Max Kaufman, American Civil Liberties Union, New York, NY; Jameel Jaffer, Patrick Christopher Toomey, American Civil Liberties Union Foundation (NYC), New York, NY.

For United States Department of Justice, Defendant: Benjamin Henry Torrance, LEAD ATTORNEY, U.S. Attorney's Office, SDNY (Chambers Street), New York, NY.

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MEMORANDUM OPINION AND ORDER

GREGORY H. WOODS, United States District Judge.

I. INTRODUCTION

On March 29, 2013, the American Civil Liberties Union (" ACLU" ) requested records from the United States Department of Justice (" DOJ" ) under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552. The ACLU's request sought records regarding DOJ's policy on giving notice to criminal defendants and others against whom it intends to use evidence derived from warrantless surveillance. See Complaint, Dkt. No. 1, at ¶ 18. Faced with DOJ's failure to respond timely, the ACLU filed this lawsuit on October 17, 2013, seeking an injunction requiring DOJ to process their request.

After the commencement of this case, various DOJ components began processing the ACLU's request. The National Security Division (" NSD" ) identified five responsive documents, all of which it withheld under FOIA's Exemption 5, which exempts from disclosure " 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 ACLU challenged both the adequacy of the search and the applicability of Exemption 5 to the withheld documents, and the parties filed cross-motions for summary judgment on these two issues. See Dkt. Nos. 17, 23, 26, 29.

With regard to the adequacy of the search, for the reasons explained below, the Court grants the ACLU's motion in part. The Court finds that DOJ improperly limited its search under Part 3 of the ACLU's request by reading the word " governing" into the request where it had not been written. DOJ is ordered to conduct a new search without the improperly-added limiting term and to release any responsive records that do not fall under a FOIA exemption. The ACLU's motion is denied in part to the extent that it seeks summary judgment on the inadequacy of the remaining aspects of the scope and conduct of DOJ's search.

On the issue of whether Exemption 5 applies to the withheld documents, for the reasons explained below, the Court grants the government's motion for summary judgment. Because the Court could not make a de novo determination of Exemption 5's applicability to the withheld documents based on the government's Vaughn submissions, the Court ordered DOJ to produce the documents for in camera review.[1] After reviewing the documents in camera, the Court agrees with DOJ that all five may be withheld under Exemption 5.

II. BACKGROUND

a. The FISA and the FAA

Congress enacted the Foreign Intelligence Surveillance Act (" FISA" ) in 1978, which " authorize[s] and " regulate[s] certain governmental electronic surveillance of communications for foreign intelligence purposes." Clapper v. Amnesty Int'l USA, 133 S.Ct. 1138, 1143, 185 L.Ed.2d 264 (2013) (citing 50 U.S.C. § 1801 et seq.). FISA's " framework for foreign intelligence surveillance" includes a specialized court, the Foreign Intelligence Surveillance Court (" FISC" ), which reviews

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the government's applications to conduct electronic surveillance. See id. A FISC judge may issue an order allowing electronic surveillance, upon application by the government, if she finds that there is probable cause to believe: (a) " the target of the electronic surveillance is a foreign power or an agent of a foreign power" ; and (b) " each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power." 50 U.S.C. § 1805(a)(2).

Information the government collects under FISA may be used in criminal proceedings, subject to compliance with minimization procedures and authorization by the Attorney General. See 50 U.S.C. § 1806(a), (b). When information collected under FISA is used in such a proceeding, the government must notify the person against whom it will be used. The statutory notice requirement for information collected under FISA provides:

Whenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this subchapter, the Government shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the Government intends to so disclose or so use such information.

50 U.S.C. § 1806(c).

In 2008, Congress enacted the FISA Amendments Act (" FAA" ), which " left much of FISA intact but . . . established a new and independent source of intelligence collection authority, beyond that granted in traditional FISA." Clapper, 133 S.Ct. at 1144. At issue in this case is part of the FAA known as Title VII--Section 702 of FISA, codified at 50 U.S.C. § 1881a--which " supplement[ed] pre-existing FISA authority by creating a new framework under which the Government may seek the FISC's authorization of certain foreign intelligence surveillance targeting the communications of non-U.S. persons located abroad." Clapper, 133 S.Ct. at 1144. Unlike applications for surveillance under " traditional" FISA, Title VII " does not require the Government to demonstrate probable cause that the target of the electronic surveillance is a foreign power or agent of a foreign power," nor does it " require the Government to specify the nature and location of each of the particular facilities or places at which the electronic surveillance will occur." Id.

Rather than include a separate statutory provision governing the use of--including provisions of notice to criminal defendants and others--information collected under Title VII, Congress made reference to 50 U.S.C. § 1806, which governs the use of information collected under traditional FISA:

Information acquired from an acquisition conducted under section 1881a of this title [ i.e., Title VII] shall be deemed to be information acquired from an electronic surveillance pursuant to subchapter I of this chapter for purposes of section 1806 of this title . . . .

50 U.S.C. § 1881e(a). Thus, information collected under Title VII is subject to the same notice requirements, quoted above, as information collected under traditional FISA. See 50 U.S.C. § 1806(c), supra.

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b. DOJ's Provision of Title VII Notice

In late 2012 and early 2013, the Solicitor General submitted briefs for and argued Clapper v. Amnesty Int'l USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) before the United States Supreme Court. In his written and oral submissions, the Solicitor General argued that although the plaintiffs in that case did not have standing to challenge Title VII surveillance procedures, criminal defendants would be able to mount such a challenge, since they would be given notice of Title VII material if and when it were used against them. See ACLU's Memorandum of Law (" ACLU's Memo" ), Dkt. No. 24, at 2-3. The ACLU claims that the Solicitor General later learned that NSD had in fact not been providing defendants with notice of evidence collected under Title VII. See id. at 3.

In October 2013, the government provided Title VII notice to a criminal defendant for the first time since the FAA was enacted in 2008. See Charlie Savage, " Federal Prosecutors, in a Policy Shift, Cite Warrantless Wiretaps as Evidence," Toomey Decl., Dkt. No. 25, Exhibit E, at 1. The ACLU argues that this amounted to a formal change in DOJ's policy regarding Title VII notice, and thus that DOJ must disclose written records describing both the prior and current policy. In support of this contention, the ACLU submitted to the Court a number of news articles chronicling the internal deliberation process at DOJ in the summer of ...


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