Federal judge denies request to make government report on PATRIOT Act public

A federal judge ruled Thursday that the U.S. Department of Justice and the FBI may keep classified a report to Congress about foreign intelligence gathering under the PATRIOT Act.

The New York Times and the American Civil Liberties Union filed suit in the U.S. District Court for the Southern District of New York after failing to obtain the report through requests made under the federal Freedom of Information Act. According to court documents, Congressional Intelligence committees received the report from the U.S. Attorney General and the Director of National Intelligence in February 2011.

Judge William Pauley III wrote in the opinion that public disclosure of the report “could enable America's adversaries to develop means to degrade and evade the nation's foreign intelligence capabilities.”

The Times believes that the report discusses the government's interpretation of its authority under Section 215 of the PATRIOT Act, according to the newspaper's attorney, David McCraw.

Section 215 of the PATRIOT Act allows the government to apply for a court order to obtain "any tangible things" necessary for certain investigations involving the collection of foreign intelligence information. According to the Act, this includes "books, records, papers, documents, and other items."

"There is very little transparency," McCraw said. “It's important to know how that section is being interpreted."

The Times first filed the FOIA request for the report in May 2011 after two members of the Senate Intelligence Committee expressed concerns that the government is relying on secret interpretations of its authority under Section 215 and is misleading the public.

Senators Ron Wyden of Oregon and Mark Udall of Colorado referenced the report in a proposed amendment they introduced to legislation that would extend the expiring provisions of the Patriot Act, according to court documents.The amendment called for the U.S. Department of Justice to inform the public of the government’s interpretation.

“I wish to deliver a warning this afternoon,” Wyden said during a floor debate last May over the legislation, as quoted in court documents. “When the American people find out how their government has secretly interpreted the PATRIOT Act, they are going to be stunned and they are going to be angry.”

In September, the two senators submitted a letter to Atty. Gen. Eric Holder Jr. expressing their concern and urging him to "correct the public record." In the letter, which was obtained by The Times, Wyden and Udall state that the justice department has made misleading claims that the government's authority under Section 215 can be equated to a grand jury subpoena.

"Discussion of this document and the senators’ comments suggested that Congress was taking an aggressive view when interpreting the law," McCraw said.

He said The Times believed there was evidence suggesting that the government’s decision to withhold the report reflected bad faith.

The judge reviewed the report in camera, meaning he privately assessed the classified document, and determined that the report contains properly classified national security information.

The government argued that the report is exempt from disclosure under FOIA Exemption 1, which permits the government to withhold properly classified documents whose release could cause damage to national security. The judge agreed that the report "contains specific descriptions of the manner and means by which" the government obtained "tangible things" under Section 215, and its release could assist adversaries in evading and degrading foreign intelligence collection.

The government also claimed that the report is exempt from disclosure under FOIA Exemption 3, which provides that materials "specifically exempted from disclosure" by certain statutes cannot be disclosed, the opinion stated. It contended that release was barred by the National Security Act of 1947, which protects "intelligence sources and methods."

Pauley agreed that this law also exempted the report from disclosure, as release could "reveal and potentially compromise intelligence sources and methods."

McCraw said he was disappointed that The Times was unable to obtain some part of the report, but the publication is pleased that the judge took serious interest in the case.

"We felt we had a fair hearing," he said. "By bringing cases like this we put the government on notice that we take seriously the Freedom of Information Act."

McCraw said the fact that the judge reviewed the report in camera was an important step in national security cases, as it marks progress in the struggle to maintain a "proper balance between secrecy and transparency in the government."

The U.S. Attorney's Office declined to comment on the ruling.

Related Reporters Committee resources:

· Federal Open Government Guide: 1. National security

· Federal Open Government Guide: 3. Statutory exemption