Posted by Orin Kerr:
Judge Orders DOJ to Expedite Release of NSA Documents:
http://volokh.com/archives/archive_2006_02_12-2006_02_18.shtml#1140114302
The [1]first judicial opinion touching on the NSA domestic
surveillance program was issued today, and it didn't go well for the
Bush Administration.
The case involved a skirmish over a FOIA request made by [2]the
Electronic Privacy Information Center (EPIC) in December for
discoverable documents relating to the program, and in particular
EPIC's request for expedited processing of its request. EPIC sought
the following items from DOJ "from September 11, 2001 to the present
concerning a presidential order or directive authorizing the National
Security Agency (�NSA�), or any other component of the intelligence
community, to conduct domestic surveillance without the prior
authorization of the Foreign Intelligence Surveillance Court":
(1) an audit of NSA domestic surveillance activities;
(2) guidance or a "checklist" to help decide whether probable cause
exists to monitor an individual�s communications;
(3) communications concerning the use of information obtained
through NSA domestic surveillance as the basis for DOJ surveillance
applications to the FISC; and
(4) legal memoranda, opinions or statements concerning increased
domestic surveillance, including one authored by John C. Yoo
shortly after September 11, 2001 discussing the potential for
warrantless use of enhanced electronic surveillance techniques.
[3]The decision issued today considered EPIC's motion for a
prelimary injunction ordering DOJ to comply with its request within 20
days. DOJ's position was that the request should be expedited, but
that it should not be required to set a date by which the request
would be answered.
Judge Kennedy rejected DOJ's position, and ordered DOJ to review the
documents, determine what is discoverable, and comply with the request
in 20 days. Some of the language was particularly notable:
Under DOJ�s view of the expedited processing provisions of FOIA,
the government would have carte blanche to determine the time line
for processing expedited requests, with the courts playing no role
whatsoever in the process. When pressed at the preliminary
injunction hearing as to what delay would be excessive enough such
that a court could properly invoke its authority to compel
production, counsel for DOJ was unable or unwilling to give an
answer. Rather, DOJ�s counsel suggested that the court and the
requestor simply must take at face value an agency�s determination
that more time is necessary, regardless of the time that has
elapsed since the request was filed. DOJ�s position is easily
rejected.
As EPIC suggests, DOJ�s reading of the statute would give the
agency unchecked power to drag its feet and "pay lip service" to a
requester�s "statutory and regulatory entitlement to expedition." .
. . . Adopting the government�s position�that an agency has
unfettered discretion to determine how long is practicable for
processing expedited requests�would require the court to abdicate
its "duty" to prevent "unreasonable delays in disclosing non-exempt
documents."
. . .
Beyond losing its right to expedited processing, EPIC will also
be precluded, absent a preliminary injunction, from obtaining in a
timely fashion information vital to the current and ongoing debate
surrounding the legality of the Administration�s warrantless
surveillance program. President Bush has invited meaningful debate
about the warrantless surveillance program. David E. Sanger, In
Shift, Bush Says He Welcomes Inquiry on Secret Wiretaps, N.Y.
TIMES, Jan. 12, 2006. That can only occur if DOJ processes its FOIA
requests in a timely fashion and releases the information
sought.fn9
[fn9: DOJ argues that "[b]ased upon the information that the
government has already made public . . . plaintiff is fully able to
participate in the current public debate." Def.�s Opp�n at 18. This
argument is quickly rejected, for as EPIC correctly argues, "a
meaningful and truly democratic debate on the legality and
propriety of the warrantless surveillance program cannot be based
solely upon information that the Administration voluntarily chooses
to disseminate." Pl.�s Reply at 8 (quotation omitted).]
. . .
. . . Finally, given the great public and media attention that
the government�s warrantless surveillance program has garnered and
the recent hearings before the Senate Judiciary committee, the
public interest is particularly well-served by the timely release
of the requested documents. DOJ counters that a preliminary
injunction will actually harm the public interest.
Specifically, DOJ suggests that requiring the agency to finish
its processing within twenty days will increase the chances that
the agency will inadvertently disclose exempted documents. . . . To
be sure, the court does not wish for DOJ to inadvertently release
exempted materials.. . . However, "[m]erely raising national
security concerns cannot justify unlimited delay." Id. Congress has
already weighed the value of prompt disclosure against the risk of
mistake by an agency and determined that twenty days is a
reasonable time period, absent exceptional circumstances, for an
agency to properly process standard FOIA requests. Here, DOJ has
not yet made any specific showing that it will not be able to
process the documents within the time period sought by EPIC. Vague
suggestions that inadvertent release of exempted documents might
occur are insufficient to outweigh the very tangible benefits that
FOIA seeks to further�government openness and accountability.
It's only a district court decision, of course. And as critics of
the opinion will surely point out, it's a district court decision
issued by a [4]Clinton-appointed judge. But my guess is that we'll be
seeing more decisions along these lines in the future.
Thanks to [5]Howard for the link.
References
1.
http://www.dcd.uscourts.gov/opinions/2006/Kennedy/2006-CV-96~9:45:49~2-16-2006-a.pdf
2. http://epic.org/
3.
http://www.dcd.uscourts.gov/opinions/2006/Kennedy/2006-CV-96~9:45:49~2-16-2006-a.pdf
4. http://www.fjc.gov/servlet/tGetInfo?jid=2736
5. http://legalaffairs.org/howappealing/021606.html#011307
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