Judge Orders DOJ to Release Spying Records

A federal judge ordered the Department of Justice to release records related to the National Security Agencys warrantless domestic spying program by March 8, or else explain the legal basis under which the records cannot be released.

The order was handed down Feb. 16 in a case brought against the Justice Department by the Electronic Privacy Information Center.

EPIC requested the documents in December under the Freedom of Information Act, after the New York Times reported that President Bush authorized the NSA to conduct electronic surveillance of people in the United States without a court order.

EPIC asked four offices at the Justice Department to hasten the processing and release of the spy program records, and the offices agreed that the requests merited expedited handling.

However, it remained unclear when EPIC would receive the information it sought, and so it filed a lawsuit Jan. 19 to stop what it called the agencys “unlawful attempts” to prevent the center from obtaining the documents.

In ordering the Justice Department to expedite the FOIA request processing, Judge Henry Kennedy Jr., of the U.S. District Court for the District of Columbia, said that the departments opinion that it could determine how much time is needed was “easily rejected.”

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“Under DOJs view of the expedited processing provisions of FOIA, the government would have carte blanche to determine the time line for processing expedited requests,” Kennedy wrote in his opinion.

EPIC asked the Justice Department for four types of records, including an audit of NSA domestic surveillance activities, a checklist showing probable cause to eavesdrop, communications about the use of information NSA obtained, and other documents concerning increased domestic surveillance.

The Justice Department argued that working too fast to respond to the FOIA request would increase the odds that exempted information (such as classified documents) would be released accidentally, but the judge dismissed that concern.

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“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,” he wrote.

Noting that public awareness of the governments actions is necessary in democracy, Kennedy said that timely awareness is also a necessity.

“President Bush has invited meaningful debate about the warrantless surveillance program,” Kennedy wrote.

“That can only occur if DOJ processes its FOIA requests in a timely fashion and releases the information sought.”

David Sobel, general counsel for EPIC, said that the order vindicates the publics right to know about the spying program.

“The administration has attempted to spin this story by controlling the flow of information, but the court has now rejected that strategy,” Sobel said.

“The government must now produce all relevant information, or provide a compelling justification to withhold it.”

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