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

Filing 59

MEMORANDUM re: Order on 35 Motion for Summary Judgment. Signed by Judge Royce C. Lamberth on March 31, 2014. (lcrcl5)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY
INFORMATION CENTER,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF
JUSTICE,
Defendant.

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AMERICAN CIVIL LIBERTIES UNION et )
al.,
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Plaintiffs,
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v.
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UNITED STATES DEPARTMENT OF
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JUSTICE,
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Defendant.
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NO. 1:06-CV-96 (RCL)

NO. 1:06-CV-214 (RCL)

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

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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.

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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.

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