I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Thursday, February 16, 2006

Federal court orders Justice Dept. to release NSA documents

This development seems quite significant; at the very least, it will ensure that the scandal continues regardless of the degree of success the White House finds in attempting to suppress a meaningful Congressional investigation. And, this will be yet another front where the White House is engaged in a full-scale effort to prevent an investigation into their illegal eavesdropping program. Here is what happened:

On the very day the New York Times first disclosed the existence of the warrantless eavesdropping program, The Electronic Privacy Information Center ("EPIC") filed a Freedom of Information Act ("FOIA") request with the Justice Department seeking the disclosure of four categories of documents relating to the NSA program, including documents reflecting the method used to determine which American citizens were eavesdropped on, as well as documents pertaining to the legal "justifications" for the Administration's eavesdropping program.

Despite purporting to approve EPIC's request for expedited processing of the FOIA application, the Justice Department dragged its feet, never produced anything (or responded in any way to the request), and continued to conceal those documents. As a result, EPIC commenced a FOIA action against the DoJ in federal court in the District of Columbia, seeking a preliminary injunction compelling the DoJ to comply with the FOIA request and produce the demanded documents. The ACLU filed a similar suit which was consolidated with the suit filed by EPIC.

Today, Federal Judge Henry H. Kennedy, Jr. granted EPIC's Motion for a Preliminary Injunction (h/t Hypatia) and ordered the Justice Department, no later than March 8, to respond to the FOIA request and produce the demanded documents or, alternatively, specifically identify the documents and specify the ostensible reasons for withholding them. The Court's order (in .pdf) is here.

Many of these documents are among those sought by Senate Judiciary Committee Chairman Arlen Specter, which the DoJ is refusing to produce. But the FOIA requests here go beyond those which Specter is trying to obtain, since Specter is seeking only documents pertaining to the legal justification for the program but these FOIA requests also include operational aspects of the illegal eavesdropping.

I do not know all of the implications of the Court's order, which will undoubtedly be appealed and perhaps stayed during the appeal. The DoJ is not yet being required to produce all of the requested documents but instead merely to "respond" to the FOIA requests, which leaves open the option of objecting to producing some or all of them on the grounds of various privileges and national security claims. But the Order does require the DoJ to "produce or identify all responsive records" by March 8, which means that they will have to identify the documents they want to withhold and provide reasons why they are withholding them (which the court will then review for validity).

As significant as the ruling itself is the rationale for it. The court explained:

President Bush has invited meaningful debate about the warrantless surveillance program. . . . That can only occur if DOJ processes [EPIC's] FOIA requests in a timely fashion and releases the information sought . . . .

[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.

As I have been indicating, this scandal has many tentacles. And each of them is growing inexorably. The White House is running around with a broom desperately trying to sweep each branch under the rug (odd behavior for a White House which claims to welcome this scandal because it politically benefits from it), but once the mechanisms of the Washington scandal machine are activated with full-force, it is very difficult to simply shut them off or the prevent the disclosure of information which someone is trying to conceal. Clearly, this scandal isn't going to fade away with a little arm-twisting of some weak-willed Senators on the Senate Intelligence Committee.

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