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Court allows withholding of wiretapping documents

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  1. Freedom of Information

NEWS MEDIA UPDATE   ·   SECOND CIRCUIT   ·   Freedom of Information   ·   July 6, 2007

Court allows withholding of wiretapping documents

  • The New York Times has failed in its attempt to force the government to release various classified documents related to the domestic wiretapping conducted by the National Security Agency.

July 6, 2007  ·   A federal judge in New York ruled June 28 that the government presented enough evidence to justify withholding classified documents related to domestic wiretapping in a defeat for The New York Times in its lawsuit under the Freedom of Information Act.

In determining the documents requested by the paper were properly classified, Judge Richard M. Berman relied on affidavits submitted by officials from the Departments of Defense and Justice that described the rationale for the classification and said the release would be harmful to national security. Under FOIA, classified documents are not subject to release, so long as they have been properly designated.

The records sought by the Times dealt with the domestic surveillance programs conducted by the National Security Agency. The program was initiated by the government after the Sept. 11 attacks and kept secret until December 2005, when it was first reported in the Times.

Despite this finding, the request could still yield documents for the Times. In addition to the classified documents, the Times requested nonclassified material, some of which may be releasable, the judge also ruled.

Among the unclassified documents are talking points and responses to possible questions, drafts of newspaper editorials defending the legality of the program (dubbed the Terrorist Surveillance Program), and e-mail discussions of all of these materials.

Berman said a lack of evidence prevented him from properly ruling on whether these documents were properly withheld under the so-called deliberative process privilege, which protects agency communications conducted prior to an official decision being made.

“In considering the Unclassified Documents, it is relevant to note that the existence of the TSP became public on December 16, 2005, and that each of the Unclassified Documents withheld is dated December 17, 2005,” Berman stated.

Berman ordered the documents in question turned over to him, which he will review without revealing them to the Times to determine if they have been properly withheld.

Of all the unclassified materials, a draft of a legal memorandum justifying the surveillance program was properly withheld because it was part of the Justice Department’s decision-making process.

Also, the Department of Defense may yet be ordered to conduct a more thorough search of its records for information relating to the Times‘ request. Berman ruled that the Defense Department had not supported its claim that it conducted a thorough search of its records. Berman ordered the agency officials to turn over more information “which indicate the rigors of their search,” which he will use in determining of the agency must look again for more documents.

(The New York Times v. Dep’t of Defense, Media Counsel: David McCraw, The New York Times Co., New York)NW

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