Terrorist surveillance

• Author: International Law Group, PLLC
• Pages: 175-176

Page 175

Several attorneys for Guantanamo Bay detainees filed Freedom of Information Act (FOIA) requests, directed at the National Security Agency (NSA) and the U.S. Department of Justice (DOJ). The attorneys were trying to ascertain whether the government agencies had intercepted their client's communications. The request at issue in this case is for "records obtained or relating to ongoing or completed warrantless electronic surveillance or physical searches regarding, referencing or concerning any of the plaintiffs."

Both Agencies responded with so-called Glomar responses, which neither deny nor confirm the existence of such records. The attorneys' communications with their clients may have been intercepted according to the secret Terrorist Surveillance Program (TSP). Dissatisfied with the responses, the attorneys filed a lawsuit against the NSA and DOJ, alleging that they have "a statutory right to the records that they seek, and that there is no legal basis for the defendants' refusal to disclose them ..." The Defendants sought partial summary judgment on the Glomar issue.

The district court granted the Government Agencies' motion for summary judgment, and this appeal resulted. The U.S. Court of Appeals for the Second Circuit affirms. The issue of whether a Government Agency may invoke the Glomar doctrine in response to a FOIA request for records obtained under the TSP is a matter of first impression in this Court."

The Court holds, in particular, that a Government Agency may validly provide a Glomar response to a FOIA request, particularly where the information had been obtained pursuant to a "publicly acknowledged" intelligence program such as the TSP.

The Court first explains that the NSA has been authorized in the September 11, 2001 aftermath to intercept international communications of people with known links to Al Qaeda and related terrorist organizations. To intercept such communications, (1) one party to the communication must be located outside the U.S., and (2) there must be a reasonable basis for concluding that one party was a member of Al Qaeda, affiliated with Al Qaeda, or

Page 176

a member of an affiliated organization. This secret TSP ended in 2007, and such surveillance is now subject to the Foreign Intelligence Surveillance Act of 1978 (FISA).

As for the Glomar doctrine, it "originated in a FOIA case concerning records pertaining to the Hughes Glomar Explorer, an oceanic research vessel. See Phillippi v. CIA, 546...