The first judicial opinion touching on the NSA domestic surveillance program was issued today, and it didn’t go well for the Bush Administration.
The case involved a skirmish over a FOIA request made by the Electronic Privacy Information Center (EPIC) in December for discoverable documents relating to the program, and in particular EPIC’s request for expedited processing of its request. EPIC sought the following items from DOJ “from September 11, 2001 to the present concerning a presidential order or directive authorizing the National Security Agency (‘NSA’), or any other component of the intelligence community, to conduct domestic surveillance without the prior authorization of the Foreign Intelligence Surveillance Court”:
(1) an audit of NSA domestic surveillance activities;
(2) guidance or a “checklist” to help decide whether probable cause exists to monitor an individual’s communications;
(3) communications concerning the use of information obtained through NSA domestic surveillance as the basis for DOJ surveillance applications to the FISC; and
(4) legal memoranda, opinions or statements concerning increased domestic surveillance, including one authored by John C. Yoo shortly after September 11, 2001 discussing the potential for warrantless use of enhanced electronic surveillance techniques.
The decision issued today considered EPIC’s motion for a prelimary injunction ordering DOJ to comply with its request within 20 days. DOJ’s position was that the request should be expedited, but that it should not be required to set a date by which the request would be answered.
Judge Kennedy rejected DOJ’s position, and ordered DOJ to review the documents, determine what is discoverable, and comply with the request in 20 days. Some of the language was particularly notable:
Under DOJ’s view of the expedited processing provisions of FOIA, the government would have carte blanche to determine the time line for processing expedited requests, with the courts playing no role whatsoever in the process. When pressed at the preliminary injunction hearing as to what delay would be excessive enough such that a court could properly invoke its authority to compel production, counsel for DOJ was unable or unwilling to give an answer. Rather, DOJ’s counsel suggested that the court and the requestor simply must take at face value an agency’s determination that more time is necessary, regardless of the time that has elapsed since the request was filed. DOJ’s position is easily rejected.
As EPIC suggests, DOJ’s reading of the statute would give the agency unchecked power to drag its feet and “pay lip service” to a requester’s “statutory and regulatory entitlement to expedition.” . . . . Adopting the government’s position—that an agency has unfettered discretion to determine how long is practicable for processing expedited requests—would require the court to abdicate its “duty” to prevent “unreasonable delays in disclosing non-exempt documents.”
. . .
Beyond losing its right to expedited processing, EPIC will also be precluded, absent a preliminary injunction, from obtaining in a timely fashion information vital to the current and ongoing debate surrounding the legality of the Administration’s warrantless surveillance program. President Bush has invited meaningful debate about the warrantless surveillance program. David E. Sanger, In Shift, Bush Says He Welcomes Inquiry on Secret Wiretaps, N.Y. TIMES, Jan. 12, 2006. That can only occur if DOJ processes its FOIA requests in a timely fashion and releases the information sought.fn9
[fn9: DOJ argues that “[b]ased upon the information that the government has already made public . . . plaintiff is fully able to participate in the current public debate.” Def.’s Opp’n at 18. This argument is quickly rejected, for as EPIC correctly argues, “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.” Pl.’s Reply at 8 (quotation omitted).]
. . .
. . . Finally, given the great public and media attention that the government’s warrantless surveillance program has garnered and the recent hearings before the Senate Judiciary committee, the public interest is particularly well-served by the timely release of the requested documents.
DOJ counters that a preliminary injunction will actually harm the public interest. Specifically, DOJ suggests that requiring the agency to finish its processing within twenty days will increase the chances that the agency will inadvertently disclose exempted documents. . . . To be sure, the court does not wish for DOJ to inadvertently release exempted materials.. . . However, “[m]erely raising national security concerns cannot justify unlimited delay.” Id. Congress has already weighed the value of prompt disclosure against the risk of mistake by an agency and determined that twenty days is a reasonable time period, absent exceptional circumstances, for an agency to properly process standard FOIA requests. Here, DOJ has not yet made any specific showing that it will not be able to process the documents within the time period sought by EPIC. Vague suggestions that inadvertent release of exempted documents might occur are insufficient to outweigh the very tangible benefits that FOIA seeks to further—government openness and accountability.
It’s only a district court decision, of course. And as critics of the opinion will surely point out, it’s a district court decision issued by a Clinton-appointed judge. But my guess is that we’ll be seeing more decisions along these lines in the future.
Thanks to Howard for the link.