Freedom of Information Act Work on the
National Security Agency's Warrantless Surveillance Program

Top News

• EPIC Urges Court to Assess Government Secrecy Claims in Domestic Surveillance Case
  EPIC, in a joint brief (pdf) with the American Civil Liberties Union and the National Security Archive, asked a federal court to order the Department of Justice to produce legal opinions that were prepared to justify the President’s domestic surveillance program. The brief renews EPIC’s request that a federal judge review the documents held by the agency and determine whether they should be kept from the public. In December 2005, immediately after press reports uncovered the President’s surveillance program, EPIC requested the legal opinions that were prepared to justify the program. The government refused to produce many key documents, and EPIC sued under the Freedom of Information Act. (February 6, 2008)
  
  
• EPIC v. DOJ: Court Rejects Secrecy Claims in FOIA Case. A federal district court today ordered (pdf) the Department of Justice to be more forthcoming about the basis for withholding documents concerning the President's domestic surveillance program. In December 2005, immediately following the press report of the program, EPIC requested legal opinions and related documents that were prepared to justify and monitor the warrantless surveillance program. The American Civil Liberties Union and the National Security Archive also submitted FOIA requests. A federal court has now ruled in EPIC v. DOJ (pdf) that the Department of Justice's basis for withholding the documents were "too vague and general," and that the FBI's justifications, in particular, are "wholly inadequate." By October 12, the Department must provide far more detailed information to EPIC and the other plaintiffs. (Sept. 5, 2007)
  
  
• In Court Filing, EPIC Urges Release of Documents Concerning the NSA Surveillance Program In papers (pdf) filed in Washington, DC, today, EPIC, the American Civil Liberties Union, and the National Security Archive urged a federal district court to require the Justice Department to disclose documents about the NSA Domestic Surveillance program. The motion follows the testimony (pdf) of former Deputy Attorney General James Comey before the Senate Judiciary Committee that indicated that top officials at the Department of Justice believed that the program was illegal. EPIC first sought documents regarding the legal basis for the program just hours after the warrantless surveillance program was first reported in the New York Times in December 2005. (March 23, 2007)

Background

In December 2005, the New York Times reported that President Bush secretly issued an executive order in 2002 authorizing the National Security Agency to conduct warrantless surveillance of international telephone and Internet communications on American soil. President Bush acknowledged the existence of the NSA surveillance program and vowed that its activities would continue.

EPIC submitted FOIA requests to the NSA and four Department of Justice components just hours after the existence of the warrantless surveillance program was first reported. Noting the extraordinary public interest in the program — and its potential illegality — EPIC asked the agencies to expedite the processing of the requests.

The DOJ agreed that the requests warranted priority treatment, but has now failed to comply with the FOIA's usual time limit of twenty working days. In January 2006, EPIC filed a lawsuit (pdf) against the DOJ to compel the immediate disclosure of information concerning the NSA surveillance program, and asked (pdf) the federal district court in Washington to issue a preliminary injunction requiring the release of relevant documents within 20 days. EPIC's case has been consolidated with a lawsuit (pdf) filed by the American Civil Liberties Union and National Security Archive concerning the same documents.

On February 16, 2006, U.S. District Judge Henry H. Kennedy ordered (pdf) the DOJ to process and release documents concerning the NSA program within 20 days, or by March 8, 2006. The day before it was required to disclose the documents, the Justice Department asked (pdf) Judge Kennedy for an additional four months to process some of the material responsive to EPIC's request, which Judge Kennedy has allowed (pdf).

Once the DOJ completes its processing of the material, any decision to withhold the requested documents will be subject to judicial review, and Judge Kennedy will have the ability to order "in camera" production of the material and make an independent determination concerning public disclosure.

The NSA has released two internal messages (pdf) in response to EPIC's request, but is withholding all other responsive material. EPIC filed suit (pdf) against the NSA in February 2006, asking a federal court to compel the release of the withheld documents. EPIC later dismissed the case.

Legal Documents

EPIC et al. v. Department of Justice, Civ. Action No. 06-0096 (D.D.C. HHK)

• EPIC's Reply in Support of Motion for in camera Review (pdf)
• Order Granting In Part, Denying In Part, and Holding In Abeyance In Part the Justice Department's Motion For Summary Judgment (pdf)
• EPIC's Complaint Against the Department of Justice (pdf)
• EPIC's Motion for Preliminary Injunction (pdf)
• Justice Department's Opposition (pdf)
• EPIC's Reply (pdf)
• ACLU and National Security Archive Complaint Against the Department of Justice (pdf)
• Motion to Consolidate by the ACLU and National Security (pdf)
• Order Granting Motion to Consolidate (pdf)
• Judge Kennedy's Order Granting EPIC's Motion for Preliminary Injunction (pdf)
• Justice Department's Answer (pdf)
• Justice Department's Motion for a Partial Stay of the Court's Order of February 16, 2006 (pdf)
• Justice Department's Expedited Motion for Relief From the Court's Order of February 16, 2006 (pdf)
• Plaintiffs' Opposition to Motion for Relief From the Court's Order of February 16, 2006 (pdf)
• Justice Department's Reply in Support of Motion for Relief From the Court's Order of February 16, 2006 (pdf)
• Order Granting in Part and Denying in Part Defendant's Motion for Relief From the Court's Order of February 16, 2006 (pdf)

EPIC v. Nation Security Agency, Civ. Action No. 06-0199 (D.D.C. RWR)

• EPIC's Complaint Against the National Security Agency (pdf)

Freedom of Information Act Documents

• NSA Director's Messages to Work Force (pdf), December 16 & 22, 2005
• Documents released by Justice Department Office of Legal Counsel, part 1 (pdf)
• Documents released by Justice Department Office of Legal Counsel, part 2 (pdf)
• Documents released by Justice Department Office of Information and Privacy, part 1 (pdf)
• Documents released by Justice Department Office of Information and Privacy, part 2 (pdf)

Previous Top News

• In EPIC Open Government Lawsuit, Former Official Concludes that Surveillance Program was Illegal. Documents obtained by EPIC in a Freedom of Information Act lawsuit against the Department of Justice reveal that a former top official in the Justice Department doubted that the domestic surveillace program was allowed under the Authorization for Use of Military Force Resolution. In an e-mail, David S. Kris wrote that the the Justice Department's defense of the program, "had a slightly after-the-fact quality or feeling to them." Other materials released by the Bush Administration (pdfs part 1, part 2, part 3, part 4) include various justifications for the program and transcripts of television appearances by the Attorney General. In a motion filed last night, the Justice Department has asked (pdf) the court for an additional four months to process classified material responsive to EPIC's request. (March 8, 2006)

• Court Orders Justice Department to Release NSA Surveillance Documents. In response to a Freedom of Information Act lawsuit (pdf) filed by the Electronic Privacy Information Center, a federal judge has ordered (pdf) the Department of Justice to process and release documents related to the Bush Administration's warrantless surveillance program by March 8. It is the first court opinion addressing the controversial domestic spying operation. "President Bush has invited meaningful debate about the warrantless surveillance program," U.S. District Judge Henry H. Kennedy wrote. "That can only occur if DOJ processes [EPIC's] FOIA requests in a timely fashion and releases the information sought." (Feb. 16, 2006)

• Federal Judge Hears Arguments on EPIC's Request for Documents. On February 10, 2006, U.S. District Judge Henry H. Kennedy heard arguments on EPIC's request (pdf) for an emergency order requiring the Department of Justice to process and release documents concerning the National Security Agency's warrantless surveillance program within 20 days. The documents at issue include Justice Department memoranda addressing the purported legality of the program — material that the Administration has thus far refused to provide to the Senate Judiciary Committee for purposes of congressional oversight. (Feb. 10, 2006)

• EPIC Files Second Lawsuit for NSA Surveillance Documents. In a Freedom of Information Act complaint (pdf) filed today in federal court, EPIC is seeking the release of National Security Agency documents detailing the Administration's warrantless domestic surveillance program. EPIC filed a similar lawsuit (pdf) last month against the Department of Justice, which has played a key role in authorizing, implementing and overseeing the NSA's warrantless surveillance activities. A hearing in that case is scheduled for February 10. (Feb. 6, 2006)

• EPIC Sues Justice Department for Domestic Surveillance Documents. Today EPIC filed a Freedom of Information Act lawsuit (pdf) against the Department of Justice, asking a federal court to order the disclosure of information about the Administration's warrantless domestic surveillance program within 20 days. The Justice Department has played a key role in authorizing, implementing and overseeing the National Security Agency's domestic surveillance activities. EPIC argues in its court papers (pdf) that the debate surrounding the program "cannot be based solely upon information that the Administration voluntarily chooses to disseminate." For more information, see EPIC's press release. (Jan. 19, 2006)

• First NSA Documents on Spy Scandal Released. EPIC has obtained the first Freedom of Information Act documents released by the National Security Agency on its controversial surveillance program. The documents, which are internal messages (pdf) from the agency's director to staff, defend the NSA's warrantless eavesdropping and discourage employees from discussing the issue with the news media. (Jan. 4, 2006)

Last Updated: February 6, 2008
Page URL: http://www.epic.org/privacy/nsa/foia/default.html