Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
The 2nd Circuit Court of Appeals has affirmed a lower court ruling that puts another nail in the coffin of the 4th amendment, due process and attorney/client privilege. The case involves a group of attorneys who have represented detainees at Guantanamo Bay, who filed FOIA requests to find out whether they had been the targets of wiretaps and other types of surveillance on their communications with their clients.
As the government has with anyone else who has sought to find out if they were illegally wiretapped, the NSA refused to confirm whether the plaintiffs were the target of such interceptions. In FOIA cases, this is known as a Glomar response, where the agency simply refuses to say whether it has the requested documents. The appeals court agreed that the government could continue to do so. See the full ruling here (PDF).
We affirm the judgment of the District Court upholding the NSA's Glomar response and hold that: (1) a Glomar response is 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 such as the TSP, 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 allege the necessity of a Glomar response in this case, making it unnecessary for us 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) we find no evidence in the record that the NSA invoked Glomar for the purpose of concealing activities that violate the Constitution or are otherwise illegal.
Now look at those two statements I put in italics. No judge has ever even looked at any documents from the NSA on the possible surveillance. They have no idea whether the government did or did not engage in such illegal surveillance, so they could thus have no idea why the government is seeking to withhold such information.
So naturally, they've seen no evidence of any wrongdoing -- they have refused to look at any evidence, or to allow anyone else to do so either. That's a nice little mobius strip of deceit, don't you think?
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Comments
I damn near choked when I got to "the government's affidavits sufficiently allege".
Posted by: DaveL | January 4, 2010 9:32 AM
Slightly off-topic (again, sorry Ed), but a NOVA special several weeks ago on the NSA actually reported that the NSA refused to provide raw data to other U.S. intelligence agencies, including both the CIA and the FBI. Data which could have prevented the deaths of people attacked by terrorists if properly considered. The show also claimed that the needed reform after this was revealed has not been initiated even after this discovery.
The complete failure in simple logic that Ed points out in what he emphasizes with italics is hopefully sufficient impetus to appeal to the SCOTUS and get the case considered.
Posted by: Michael Heath | January 4, 2010 9:49 AM
Michael Heath "...reported that the NSA refused to provide raw data to other U.S. intelligence agencies..."
This is Information Retrieval not Information Dispersal.
Posted by: Jack Lint | January 4, 2010 11:00 AM
And the Rethugs will stand and applaud this ruling.
Posted by: ursa major | January 4, 2010 12:19 PM
Care to bet?
They can't oppose it, because it's upholding their sacred principles. They can't cheer it, because it's supporting the current Administration.
My bet is echoing silence.
Posted by: D. C. Sessions | January 4, 2010 12:58 PM
...by Roberts, Scalia, Kennedy, Thomas and Alito?
Posted by: bullfighter | January 4, 2010 1:03 PM
Don't forget Sotomayor -- her record for giving the State whatever it asks for is pretty good.
Posted by: D. C. Sessions | January 4, 2010 2:04 PM
I stated @ 2:
bullfighter responds @ 6:by Roberts, Scalia, Kennedy, Thomas and Alito?
and D.C. Sessions @ 7:
Perhaps I wasn't clear enough. I was not predicting a judicious outcome at the SCOTUS, but instead pointing out the need for reconsideration given the unworkable illogic of the 2nd Court's ruling, making it nigh impossible for use as precedent by other judges. I concur that the American people have few friends at the SCOTUS when it comes to executive power and the 4th Amendment though I can't imagine how anyone could predict how J. Sotomayor would go on this sort of case given she has no record on the SCOTUS for such cases.
While I realize her circuit court jurisprudence provides some reason for skepticism, there was enough contra rulings to garner some hope she'll be an independent thinker unlike J. Alito who appears to always vote for power rather than defending rights.
Posted by: Michael Heath | January 4, 2010 4:43 PM
DaveL #1:
That's what I was thinking. I am no lawyer, but I thought the way it worked was that allegations are made, which brings a case to court, then it's the court's job to examine the evidence and decide whether the allegations are true, or, when there's allegations being made on both sides, which side is telling the truth. Here, it seems to me that the court is simply holding up the allegations of one side as being true, without examining any evidence regarding those allegations whatsoever, and is even blatently admitting it is doing so.
Posted by: Zmidponk | January 5, 2010 6:32 AM