Court says US can stay mum about Guantánamo surveillance

Lawyers for Guantánamo detainees want surveillance records. An appeals court ruled Wednesday that agencies could refuse to confirm or deny the existence of such records for national security.

Brennan Linsley/AP/file
In this image reviewed by US military officials, a Guantánamo detainee walks past a cell block at Camp 4 detention facility, at the US Naval Base, in Guantánamo Bay, Cuba.

A federal appeals court in New York ruled on Wednesday that US government agencies may refuse to confirm or deny the existence of records when faced with a Freedom of Information Act request that might disclose sensitive intelligence activities, sources, or methods.

The ruling by a three-judge panel of the Second US Circuit Court of Appeals was in connection with a lawsuit seeking information about whether the US conducted secret surveillance of lawyer communications with detainees at the Guantánamo Bay, Cuba, prison camp.

The FOIA request was submitted in 2006 by 23 lawyers who represent individuals being held as terror suspects at Guantánamo. The request sought records from the National Security Agency (NSA) and Justice Department “obtained or relating to ongoing or completed warrantless electronic surveillance or physical searches regarding, referencing, or concerning…” any of the 23 lawyers.

Bush authorized Terrorist Surveillance Program

Government officials have acknowledged that the NSA conducted warrantless surveillance under the Terrorist Surveillance Program (TSP) authorized by President Bush. It was conceived as an early warning system to prevent imminent terror attacks, but was conducted for a time without judicial oversight.

NSA officials refused to confirm or deny whether the agency had any records responsive to the FOIA request.

The Guantánamo lawyers sued. They argued that since the TSP was no longer secret, the government should not be excused from acknowledging the presence of responsive documents.

In 2008, a federal judge dismissed the lawsuit, ruling that the government could refuse to directly acknowledge the FOIA request to maintain secrecy and protect national security. The judge also issued an opinion that the NSA’s response was not designed to conceal illegal intelligence operations.

In upholding the judge’s ruling, the Second Circuit panel joined four other courts of appeal in allowing the government to use the device of neither confirming nor denying records in a FOIA request. The other appeals courts are the DC Circuit in Washington, the First Circuit in Boston, the Seventh Circuit in Chicago, and the Ninth Circuit in San Francisco.

Appeals court panel sides with government

“Although the public is aware that the TSP exists, the government has found it necessary to keep undisclosed the details of the program’s operations and scope,” Judge Jose Cabranes wrote for the appeals court panel. “The fact that the public is aware of the program’s existence does not mean that the public is entitled to have information regarding the 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.”

Judge Cabranes added: “The NSA asserts that it cannot provide any more information without doing cognizable harm, and we agree. The [government] affidavits sufficiently establish that nondisclosure is appropriate – perhaps essential – for reasons of national security and confidentiality.”

The appeals court also agreed with the district judge that there was no evidence that the government was using an evasive response to the FOIA request to coverup wrongdoing. “We do not find any evidence that even arguably suggests bad faith on the part of the NSA, or that the NSA provided an [intentionally evasive] response to plaintiffs’ requests for the purpose of concealing illegal or unconstitutional actions,” Cabranes wrote.


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