ACLU Demands Disclosure of Legal Memos Justifying Illegal Spying

December 18, 2007 12:00 am

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Documents Would Increase Public Understanding of Warrantless Wiretapping Program


WASHINGTON – The American Civil Liberties Union, the National Security Archive and the Electronic Privacy Information Center (EPIC) today filed papers urging a federal judge to compel the Justice Department and the Federal Bureau of Investigation to disclose legal and policy memos relating to the National Security Agency’s (NSA) warrantless wiretapping program. Two years after the media’s disclosure that the NSA was secretly intercepting the phone calls and emails of people in the United States without a warrant in direct violation of the Foreign Intelligence Surveillance Act (FISA), the government continues to withhold documents that could shed light on its legal justification for the program.

“The government’s refusal to disclose even its legal justifications for the NSA’s illegal surveillance program is particularly disturbing,” said Nasrina Bargzie, an attorney with the ACLU’s National Security Project. “These documents would shed desperately needed light on the government’s decision purposely to violate the law, and then to keep that decision – and the justification for it – completely secret.”

The papers filed today are part of a combined Freedom of Information Act (FOIA) lawsuit brought by the ACLU, the National Security Archive, and EPIC. The ACLU and the Archive submitted FOIA requests for documents about the warrantless wiretapping program in December 2005. The government largely denied the requests and the ACLU and the Archive filed a lawsuit in February 2006 to enforce their rights under FOIA. That lawsuit was combined with a similar lawsuit brought by EPIC. The Justice Department has responded by releasing only documents that were already available to the public and asking the court to permit it to keep the rest of the NSA records secret.

In September 2007, U.S. District Court Judge Henry Kennedy found the government’s broad claims of secrecy an “insufficient” justification for its refusal to turn over certain records and ordered the Justice Department to provide more substantial reasons for withholding the documents. The government filed more papers in October and November 2007 reasserting its broad, unsupported claims of secrecy.

“When it comes to national security policies – whether the NSA’s illegal spying program, or the unlawful kidnapping, torture, and detention of prisoners – this administration has fought public disclosure and oversight at every turn,” said Melissa Goodman, staff attorney with the ACLU’s National Security Project. “The government’s blanket secrecy claims are dangerous, and are totally inconsistent with our democratic ideals. National security policies should not be made entirely behind closed doors, without public debate.”

The ACLU, the Archive and EPIC today urged Judge Kennedy to review the documents the government refuses to release and to determine whether the government should be able to withhold records that would undoubtedly inform the ongoing congressional and public debate as to whether FISA should be permanently amended to essentially sanction the NSA’s warrantless wiretapping program and radically expand the executive branch’s power to conduct surveillance without meaningful judicial oversight.

The brief is available online at:

Other documents relating to the FOIA lawsuit are available online at:

Attorneys in the consolidated FOIA cases are Bargzie, Goodman and Jameel Jaffer of the ACLU; Meredith Fuchs of the National Security Archive; Marc Rotenberg of EPIC; and Art Spitzer of the ACLU of the National Capital Area.

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