Electronic Privacy Information Center v. Department of Justice

• Court: District Court, District of Columbia
• Decided: April 1, 2014
• Docket: Civil Action No. 2006-0096
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) ELECTRONIC PRIVACY ) INFORMATION CENTER, ) ) Plaintiff, ) ) v. ) NO. 1:06-CV-96 (RCL) ) UNITED STATES DEPARTMENT OF ) JUSTICE, ) ) Defendant. ) )

) AMERICAN CIVIL LIBERTIES UNION et ) al., ) ) Plaintiffs, ) ) v. ) NO. 1:06-CV-214 (RCL) ) UNITED STATES DEPARTMENT OF ) JUSTICE, ) ) Defendant. ) )

MEMORANDUM

These consolidated Freedom of Information Act cases come before the Court for ex parte

in camera review of the memoranda of the Department of Justice Office of Legal Counsel

relating to the National Security Agency’s (“NSA’s”) post-9/11 warrantless wire-tapping

program.

These cases were originally assigned to Judge Henry Kennedy, but were reassigned to the

undersigned judge when Judge Kennedy retired. These cases were fully briefed, but a final decision was delayed until the ten actual remaining withheld documents were subjected to in

camera review.

The Terrorist Surveillance Program (“TSP” or the “Program”) was a centralized access

signals intelligence program authorized by President George W. Bush in response to the attacks

of September 11, 2001. Although President Bush publicly acknowledged, on December 17,

2005, the existence of the Program when its existence was leaked to the press, details about the

Program and related activities have remained highly classified and strictly compartmentalized.

President Bush acknowledged that the NSA was authorized to intercept the contents of

international communications for which there were reasonable grounds to believe that one party

was located outside the United States and that at least one party to the communication was a

member or agent of al Queda or an affiliated terrorist organization. On January 17, 2007,

President Bush announced that any electronic surveillance occurring under the Program would

subsequently be conducted subject to the approval of the Foreign Intelligence Surveillance

Court, effectively ending the Program. Information about the nature, scope, operation, and

effectiveness of the Program remains classified, and the Executive has determined that it cannot

be disclosed without causing exceptionally grave harm to the national security of the United

States.

The Court has now conducted its ex parte in camera review of ten records withheld by

the Department of Justice, along with the In Camera Ex Parte Declarations of Principal Deputy

Assistant Attorney General Steven G. Bradbury, dated September 15, 2006, June 5, 2007, and

November 17, 2008. The Court is now satisfied with the Department’s decisions to withhold

these ten records under Exemptions One and Three, since they are in fact properly classified, as

well as Exemption Five as each record contains confidential, pre-decisional legal advice

2 protected by the deliberative-process and attorney-client communications privileges. The Court

is also satisfied that Mr. Bradbury’s line-by-line review of these ten records is correct and that

there is no meaningful non-exempt information that can be reasonably segregated from the

exempt information.

The United States Court of Appeals for the District of Columbia Circuit decided on

January 3, 2014, in the case of Electronic Frontier Foundation v. United States Department of

Justice, No. 12-5363, that a memorandum prepared by the Office of Legal Counsel for the

Federal Bureau of Investigation dealing with telephone and financial records connected to

authorized national security investigations could be withheld in its entirety from FOIA disclosure

because it was covered by the “deliberative process privilege” in FOIA Exemption 5. Exemption

5 covers “documents reflecting advisory opinions, recommendations, and deliberations

comprising part of a process by which governmental decisions and policies are formulated.” The

District Court, per Judge Richard Leon, had also found in that case that the withheld records

were also properly classified under FOIA Exemption 1, but the Court of Appeals found it did not

need to address that question since it found the entire OLC opinion was exempt from disclosure

under the deliberative process privilege.

This Court sees no principled way to distinguish the OLC opinion in the Electronic

Frontier Foundation case from the ten OLC memoranda in this case.

The Court of Appeals has now denied a petition for rehearing en banc with all 11

members of the current court sitting, and the mandate affirming Judge Leon’s decision was filed

in this Court on March 25, 2014.

3 Further delay to further explain this Court’s conclusion is unwarranted since appellate

review is de novo and the record is adequate to demonstrate that there are no disputed facts and

the defendant’s motion for summary judgment must be granted.

A separate Order shall issue this date.

Signed by Royce C. Lamberth, U.S. District Judge, on March 31, 2014.