United States Second Circuit

In a Freedom of Information Act (FOIA) action filed by attorneys for Guantanamo Bay detainees seeking information regarding whether the government intercepted plaintiffs' communications relating to the representation of their detainee clients, an order upholding the National Security Agency's (NSA) and Department of Justice's responses neither confirming nor denying the existence of such records is affirmed where: 1) a Glomar response was available to agencies as a valid response to FOIA requests; 2) an agency may issue a Glomar response to FOIA requests seeking information obtained pursuant to a publicly acknowledged intelligence program, at least when the existence of such information has not already been publicly disclosed; 3) the NSA properly invoked the Glomar doctrine in response to plaintiffs' request for information pursuant to FOIA Exemption 3; 4) the government's affidavits sufficiently alleged the necessity of a Glomar response in this case, making it unnecessary for the court to review or to require the district court to review ex parte and in camera any classified affidavits that the NSA might proffer in support of its Glomar response; and 5) there was no evidence in the record that the NSA invoked Glomar for the purpose of concealing activities that violated the Constitution or were otherwise illegal.

Appellate Information

• Argued 10/09/2009
• Decided 12/30/2009
• Published 12/30/2009

Judges

• JOSÉ A. CABRANES, Circuit Judge:, Before: CABRANES and LIVINGSTON, Circuit Judges, and KORMAN, District Judge.

Court

• United States Second Circuit

Counsel

• For Appellant:
  
• Kathryn A. Sabbeth, Georgetown University Law Center Institute for Public Representation (David C. Vladeck, Georgetown University Law Center, on the brief, James R. Rubin, Karen Borg, Mark A. Schwartz, Butler Rubin Saltarelli & Boyd LLP; Shayana Kadidal, Emilou MacLean, Center for Constitutional Rights, of counsel), for Plaintiffs-Appellants Thomas Wilner et al., Mark H. Lynch, Jennifer L. Saulino, Covington & Burling LLP, Washington, D.C., Meredith Fuchs, National Security Archive, Washington D.C., for Amicus Curiae National Security Archive.


• For Appellees:
  
• Thomas M. Bondy, Department of Justice, Civil Division, Appellate Staff (Michael F. Hertz, Acting Assistant Attorney General, Lev L. Dassin, United States Attorney, of counsel, Douglas N. Letter, Department of Justice, Civil Division, Appellate Staff, on the brief), for Defendants-Appellees National Security Agency and Department of Justice.