Introduction

In the landmark case of Wilner et al. v. National Security Agency and Department of Justice, the United States Court of Appeals for the Second Circuit delivered a pivotal judgment on December 30, 2009. This case addressed the application of the Glomar response under the Freedom of Information Act (FOIA) by the National Security Agency (NSA) in the context of the Terrorist Surveillance Program (TSP). The plaintiffs, a group of attorneys representing detainees at Guantánamo Bay, sought records to determine if their communications had been intercepted by the NSA. The NSA invoked the Glomar doctrine, refusing to confirm or deny the existence of such records. This commentary delves into the court's decision, its legal reasoning, and the broader implications for FOIA requests involving national security matters.

Summary of the Judgment

The Second Circuit Court of Appeals upheld the District Court's decision to grant the NSA's motion for summary judgment, thereby affirming the agency's use of the Glomar response to the plaintiffs' FOIA request. The court concluded that:

• Agencies may invoke the Glomar doctrine when responding to FOIA requests to prevent harm under FOIA exemptions.
• The NSA was justified in using the Glomar response concerning records obtained under the publicly acknowledged TSP.
• The NSA's invocation of the Glomar doctrine was properly supported under FOIA Exemption 3, specifically Section 6 of the National Security Agency Act of 1959.
• The government's affidavits sufficiently supported its Glomar response, negating the need for ex parte or in camera reviews.
• No evidence suggested that the NSA used the Glomar response to conceal illegal or unconstitutional activities.

Consequently, the court affirmed the District Court's judgment, effectively allowing the NSA to withhold confirmation or denial of the requested records.

Analysis

Precedents Cited

The judgment extensively referenced prior cases to support the application of the Glomar doctrine. Notably:

• Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976): Originated the Glomar doctrine, establishing that agencies may refuse to confirm or deny the existence of records under FOIA exemptions.
• Hunt v. CIA, 981 F.2d 1116 (9th Cir. 1992): Reinforced the government's ability to use the Glomar response in FOIA cases.
• LARSON v. DEPARTMENT OF STATE, 565 F.3d 857 (D.C. Cir. 2009): Upheld the NSA’s use of the Glomar response, affirming its validity under FOIA Exemptions 1 and 3.
• Minier v. CIA, 88 F.3d 796 (9th Cir. 1996): Permitted the CIA to invoke the Glomar doctrine for employment records of alleged operatives.
• Carney v. U.S. Department of Justice, 19 F.3d 807 (2d Cir. 1994): Established that agency affidavits are accorded a presumption of good faith in asserting FOIA exemptions.

These precedents collectively solidify the legal framework within which the Glomar doctrine operates, particularly emphasizing the deference courts must afford to executive agencies on matters of national security.

Legal Reasoning

The court's legal reasoning centered on the following key points:

• Applicability of the Glomar Doctrine: The court affirmed that the Glomar response is a valid FOIA strategy when responding to requests that, if answered affirmatively or negatively, would cause harm protected under FOIA exemptions.
• Public Acknowledgment vs. Specific Disclosures: Even though the existence of the TSP was publicly acknowledged, the NSA could still invoke the Glomar doctrine regarding undisclosed aspects of the program, such as specific surveillance methods or targeted individuals.
• FOIA Exemptions 1 and 3: The court confirmed that FOIA Exemption 3, particularly Section 6 of the National Security Agency Act of 1959, provided a legitimate basis for the NSA to refrain from disclosing the existence or nonexistence of the requested records.
• AFFIDAVIT SUFFICIENCY: The NSA's affidavits were deemed sufficiently detailed and logical to support the invocation of the Glomar response, meeting the burden of proof without necessitating further in camera or ex parte reviews.
• No Evidence of Bad Faith: The plaintiffs failed to provide evidence that the NSA's usage of the Glomar doctrine was intended to conceal illegal or unconstitutional activities.

Impact

This judgment has significant implications for future FOIA requests involving national security and intelligence operations:

• Affirmation of Executive Privilege in FOIA: The decision reinforces the authority of intelligence agencies to protect sensitive information, even when such programs are publicly acknowledged.
• Clarity on Glomar Responses: By affirming the applicability of the Glomar doctrine to publicly acknowledged programs, the court provides clearer guidance for agencies on when and how to employ this strategy.
• Deference to Executive Agencies: The court's decision underscores the judiciary's deference to executive agencies in matters of national security, particularly regarding the protection of undisclosed operational details.
• Limitation on Judicial Review: The affirmation discourages courts from overstepping into intelligence agency domains, especially by limiting the scope of judicial review to the sufficiency of agency-provided justifications.

Overall, the judgment strengthens the position of intelligence agencies in withholding certain information from public disclosure while maintaining the sanctity of FOIA’s overarching transparency objectives.

Complex Concepts Simplified

Glomar Doctrine: A legal principle that allows government agencies to neither confirm nor deny the existence of certain records when releasing such information could harm national security or other protected interests.

FOIA Exemption 3: A specific exemption under the Freedom of Information Act that permits the withholding of information if its release is prohibited by another statute, and that statute leaves no discretion for disclosure.

Ex Parte Review: A judicial process where only one party (typically the government) presents evidence to the court without the presence or participation of the other party.

In Camera Review: A private review by the judge of specific documents or evidence that remains confidential from the public and the opposing party.

In essence, the court determined that the NSA was within its rights to use a silent response (Glomar) to a FOIA request about its surveillance program, given that revealing the existence or nonexistence of such records could compromise national security.

Conclusion

The Second Circuit's affirmation in Wilner et al. v. NSA and DOJ serves as a cornerstone in the interplay between transparency and national security within the framework of the Freedom of Information Act. By upholding the NSA's use of the Glomar doctrine, the court has delineated clear boundaries that intelligence agencies can invoke to protect sensitive information, even in the face of public acknowledgment of their existence. This decision not only reinforces the legal standards governing FOIA responses but also emphasizes the judiciary's role in balancing public access to information with the imperatives of national security. Moving forward, this judgment is likely to guide both government agencies and litigants in navigating the complexities of FOIA requests involving classified or sensitive intelligence operations.