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Case TitlePEOPLE FOR THE AMERICAN WAY FOUNDATION v. NATIONAL SECURITY AGENCY/CENTRAL SECURITY SERVICE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2006cv00206
Date Filed2006-02-06
Date Closed2006-11-20
JudgeJudge Ellen S. Huvelle
PlaintiffPEOPLE FOR THE AMERICAN WAY FOUNDATION
Case DescriptionPeople for the American Way Foundation submitted a FOIA request to the National Security Agency for 16 categories of records concerning its secret surveillance program. PAWF also requested expedited processing and a fee waiver. The agency acknowledged receipt of its request, but after hearing nothing further from the agency, People for the American Way Foundation filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantNATIONAL SECURITY AGENCY/CENTRAL SECURITY SERVICE
Documents
Docket
Complaint
Opinion/Order [21]
Opinion/Order [22]
FOIA Project Annotation: Just when it appeared as though the courts had become friendlier towards press and public interest requesters trying to untangle the alleged abuses of the Bush administration during its war on terrorism, along comes a wake-up call reminding requesters that the intelligence community has some impenetrable defenses in the form of Exemption 3 statutes. The most common and widely-used of these is the National Security Act's provision protecting CIA sources and methods, but this time around People for the American Way has discovered that the National Security Agency has its own Exemption 3 statute whose protection is every bit as deep and broad as is that afforded the CIA. In a case trying to find out more about the NSA's "terrorist surveillance" program, Judge Ellen Segal Huvelle has ruled in favor of the agency, finding that Section 6 of the National Security Agency of 1959, 50 U.S.C. § 402 note, allows the agency to withhold virtually all the information about the program, regardless of the possibility that it may be illegal. People for the American Way submitted a multi-part request, but ultimately indicated that it was willing to "accept a full list of the domestic wiretaps or other electronic surveillance conducted by the NSA and the number of persons subject to that surveillance within the requested time frame under the authority granted by the [President's] Order, with the names of the targeted individuals and organizations redacted." The agency denied the request, saying that the information related "to the sensitive activities and functions of the NSA, and [that its] disclosure could reasonably be expected to cause grave damage to national security." The agency also indicated that it could not "in the interest of national security, confirm or deny the existence of records responsive to [the organization's request for records relating to itself] because confirmation or denial of the NSA's surveillance of any particular target 'would allow our adversaries to accumulate information and draw conclusions about NSA's technical capabilities and methods.'" Section 6 of the NSA Act of 1959 provides that "nothing in this Act or any other law. . .shall be construed to require the disclosure of the organization or any function of the National Security Agency, [or] of any information with respect to the activities thereof." The NSA had submitted the affidavit of Joseph B., who oversees the signal intelligence operations at the agency. He testified that the agency had responsive records, including some "briefing slides" that "detail information related to the number of individuals subject to surveillance, contain the identity of some individuals, and contain information related to the number of communications intercepted under the TSP." He indicated that disclosure of such statistics "would reveal information about NSA's success or lack or success in implementing TSP" as well as "information about the U.S. intelligence community's capabilities, priorities, and activities." Based on the affidavit, Huvelle said she was satisfied that "defendant's declarations have described the withheld documents and information in a reasonably specific fashion and have put forth a rational explanation for their withholding under Section 6 and Exemption 3. The NSA has averred that all the requested information concerns a specific NSA activity " intelligence gathering based on 'the collection of electronic communications' " and has logically explained that the disclosure of this material would reveal information related to that NSA activity." She noted that People for the American Way had failed to rebut the agency's explanation and instead had argued that there would be no harm in disclosing most of the information, arguing that "the NSA's own characterization of its activities does not explain how they are so 'fragile' as to preclude the disclosure of the total number of individuals and communications subject to the NSA's secret surveillance program." In response, Huvelle explained why Exemption 3 statutes are so highly favored by the intelligence community. She pointed out that "the law regarding Section 6 does not require the NSA to demonstrate what harm might result from the disclosure of its activities. 'A specific showing of potential harm to national security . . . is irrelevant to the language of [Section 6]. Congress has already, in enacting the statute, decided that the disclosure of NSA activities is potentially harmful.'" People for the American Way argued that the surveillance program had been found unconstitutional by a federal court in Detroit and that Section 6 could not be invoked to protect illegal activity. Huvelle, however, pointed out that "while the Court agrees that the scope of Section 6 is not without limits, it need not grapple with the problem of defining those limits here, for the well-established operation of Section 6, which forbids disclosure of information relating to the NSA's SIGINT activities, is not implicated by the ongoing debate regarding the legality of the TSP. Whether the TSP, one of the NSA's many SIGINT programs involving the collection of electronic communications, is ultimately determined to be unlawful, its potential illegality cannot be used in this case to evade the 'unequivocal' language of Section 6, which 'prohibits the disclosure of information relating to the NSA's functions and activities . . .'" The agency also claimed Exemption 1 (national security) to protect some information and People for the American Way fared no better under its standards and the existing case law. People for the American Way argued that "release of only 'bare statistics' and the information relating solely to whether it has been the target of surveillance could not reasonably be expected to result in the damage to the national security that defendant proclaims." People for the American Way also argued that a provision of Executive Order 12958 on classification provided for a public interest balancing in some circumstances. But Huvelle indicated that "plaintiff, however, misconstrues the statutes and well-established case law. Under Exemption 1 and the plain language of Executive Order 12958, that balancing does not rest with the Court but belongs exclusively to the agency. . . The Court's role with regard to Exemption 1 is only to review the sufficiency and reasonableness of the agency's explanation for its classification decision, giving the agency's determination the heightened deference it is due under the law." She also rejected the argument that records could not be classified to conceal violations of law. She pointed out that "even if the TSP were ultimately determined to be illegal, it does not follow that the NSA's decision regarding the classification of materials relating to the TSP was made 'in order to . . . conceal violations of law.' Because of the deference due to the NSA in matters of national security, and in the absence of any evidence to the contrary, the Court must accept defendant's reasonable explanation that the materials were classified in order to prevent damage to the national security."
Issues: Exemption 3 - Statutory prohibition of disclosure
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2006-02-061COMPLAINT against NATIONAL SECURITY AGENCY/CENTRAL SECURITY SERVICE (Filing fee $ 250) filed by PEOPLE FOR THE AMERICAN WAY FOUNDATION.(jf, ) (Entered: 02/07/2006)
2006-02-06SUMMONS (3) Issued as to NATIONAL SECURITY AGENCY/CENTRAL SECURITY SERVICE, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 02/07/2006)
2006-02-062LCvR 7.1 - CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by PEOPLE FOR THE AMERICAN WAY FOUNDATION (jf, ) (Entered: 02/07/2006)
2006-02-063MOTION for Preliminary Injunction by PEOPLE FOR THE AMERICAN WAY FOUNDATION. (Attachments: # 1 Memorandum in support)(jf, ) (Entered: 02/07/2006)
2006-02-094NOTICE of Appearance by Rupa Bhattacharyya on behalf of NATIONAL SECURITY AGENCY/CENTRAL SECURITY SERVICE (Bhattacharyya, Rupa) (Entered: 02/09/2006)
2006-02-27Minute ORDER: Based on a conference call this date, defendant is hereby ORDERED to file a Motion for Summary Judgment by May 1, 2006, with all appropriate documentation, including a Vaughn Index or an adequate explanation for not including such an index. Plaintiff has agreed to waive its right to an Answer from defendant and to withdraw its Motion for a Preliminary Injunction [#3]. (lcesh1, ) (Entered: 02/27/2006)
2006-02-27MINUTE ORDER withdrawing 3 Motion for Preliminary Injunction . Signed by Judge Ellen S. Huvelle on 2/27/06. (BL) (Entered: 02/27/2006)
2006-02-27Set/Reset Deadlines: Summary Judgment motions due by 5/1/2006. (gdf) (Entered: 03/01/2006)
2006-04-285Unopposed MOTION for Extension of Time to File for Summary Judgment by NATIONAL SECURITY AGENCY/CENTRAL SECURITY SERVICE. (Attachments: # 1 Text of Proposed Order)(Bhattacharyya, Rupa) (Entered: 04/28/2006)
2006-04-28MINUTE ORDER granting 5 defendant's unopposed Motion for Extension of Time to file its Motion for Summary Judgment. Defendant shall file its motion by May 9, 2006. Signed by Judge Ellen S. Huvelle on 4/28/2006. (lcesh2) (Entered: 04/28/2006)
2006-04-28Set/Reset Deadlines: Summary Judgment motions due by 5/9/2006. (gdf) (Entered: 05/08/2006)
2006-05-096MOTION for Summary Judgment by NATIONAL SECURITY AGENCY/CENTRAL SECURITY SERVICE. (Attachments: # 1 Exhibit A -- Giles Declaration# 2 Exhibit B -- E.O. 12333# 3 Exhibit C -- NSA Declaration# 4 Exhibit D -- E.O. 12958, as amended# 5 Statement of Facts)(Bhattacharyya, Rupa) (Entered: 05/09/2006)
2006-05-187Unopposed MOTION for Extension of Time to File Opposition to Motion for Summary Judgment by PEOPLE FOR THE AMERICAN WAY FOUNDATION. (Mincberg, Elliot) (Entered: 05/18/2006)
2006-05-188ERRATA (Proposed Order) by PEOPLE FOR THE AMERICAN WAY FOUNDATION 7 Unopposed MOTION for Extension of Time to File Opposition to Motion for Summary Judgment filed by PEOPLE FOR THE AMERICAN WAY FOUNDATION,. (Attachments: # 1 Text of Proposed Order)(Mincberg, Elliot) (Entered: 05/18/2006)
2006-05-18MINUTE ORDER granting 7 Unopposed Motion for Extension of Time to File. Plaintiff shall have until June 30, 2006 to file its opposition to Defendant's motion for summary judgment. Signed by Judge Ellen S. Huvelle on 5/18/2006. (lcesh2) (Entered: 05/18/2006)
2006-05-18Set/Reset Deadlines: Response to Motion for Summary Judgment due by 6/30/2006. (gdf) (Entered: 05/24/2006)
2006-06-299NOTICE of Appearance by Michael L. Martinez on behalf of PEOPLE FOR THE AMERICAN WAY FOUNDATION (Martinez, Michael) (Entered: 06/29/2006)
2006-06-2910Consent MOTION for Extension of Time to File Response/Reply as to 6 MOTION for Summary Judgment by PEOPLE FOR THE AMERICAN WAY FOUNDATION. (Martinez, Michael) (Entered: 06/29/2006)
2006-06-29MINUTE ORDER granting 10 Motion for Extension of Time to File Response/Reply. Plaintiff shall respond to Defendant's Motion for Summary Judgment on or before July 14, 2006.Signed by Judge Ellen S. Huvelle on 6/29/2006. (lcesh2) (Entered: 06/29/2006)
2006-06-29Set/Reset Deadlines: Response to Motion for Summary Judgment due by 7/14/2006. (gdf) (Entered: 06/30/2006)
2006-07-1411Consent MOTION for Extension of Time to File Response/Reply as to 6 MOTION for Summary Judgment by PEOPLE FOR THE AMERICAN WAY FOUNDATION. (Martinez, Michael) (Entered: 07/14/2006)
2006-07-17MINUTE ORDER granting 11 Consent Motion for Extension of Time to File Response/Reply to Defendant's Motion for Summary Judgment. Plaintiff shall respond to the motion on or before July 24, 2006. Signed by Judge Ellen S. Huvelle on 7/17/2006. (lcesh2) (Entered: 07/17/2006)
2006-07-18Set/Reset Deadlines: Response to Motion for Summary Judgment due by 7/24/2006. (gdf, ) (Entered: 07/18/2006)
2006-07-2412Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment by PEOPLE FOR THE AMERICAN WAY FOUNDATION. (Martinez, Michael) (Entered: 07/24/2006)
2006-07-2413Memorandum in opposition to re 6 MOTION for Summary Judgment filed by PEOPLE FOR THE AMERICAN WAY FOUNDATION. (Please see Document No. 12 for scanned image). (nmw, ) (Entered: 07/25/2006)
2006-07-3114Unopposed MOTION for Extension of Time to File Response/Reply as to 12 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment , 6 MOTION for Summary Judgment by NATIONAL SECURITY AGENCY/CENTRAL SECURITY SERVICE. (Attachments: # 1 Text of Proposed Order)(Bhattacharyya, Rupa) (Entered: 07/31/2006)
2006-08-01MINUTE ORDER granting 14 Motion for Extension of Time to File Response/Reply. Defendant shall have through and including August 25, 2006, in which to file a consolidated brief in support of its pending Motion and inopposition to plaintiff's pending cross-motion. Signed by Judge Ellen S. Huvelle on 8/1/2006. (lcesh2) (Entered: 08/01/2006)
2006-08-2315Unopposed MOTION for Extension of Time to File Response/Reply as to 12 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment , 6 MOTION for Summary Judgment by NATIONAL SECURITY AGENCY/CENTRAL SECURITY SERVICE. (Attachments: # 1 Text of Proposed Order)(Bhattacharyya, Rupa) (Entered: 08/23/2006)
2006-08-24MINTUTE ORDER granting 15 Motion for Extension of Time to File Response/Reply. Defendant shall have through and including September 1, 2006, in which to file a consolidated brief in support of its pending Motion and in opposition to plaintiff?s pending cross-motion. Signed by Judge Ellen S. Huvelle on 8/24/2006. (lcesh2) (Entered: 08/24/2006)
2006-08-24Set/Reset Deadlines: Response to Cross Motions due by 9/1/2006. (gdf) (Entered: 08/31/2006)
2006-09-0116REPLY to opposition to 6 MOTION for Summary Judgment filed by NATIONAL SECURITY AGENCY/CENTRAL SECURITY SERVICE. (Attachments: # 1 Exhibit A -- Supplemental Giles Declaration# 2 Statement of Facts in Response to Plaintiff's Statement)(Bhattacharyya, Rupa) Modified on 9/5/2006 (jf, ). (Entered: 09/01/2006)
2006-09-0117Memorandum in opposition to re 12 Cross MOTION for Summary Judgment filed by NATIONAL SECURITY AGENCY/CENTRAL SECURITY SERVICE. (to view document, click on link # 16 ) (jf, ) (Entered: 09/05/2006)
2006-09-1118Consent MOTION for Extension of Time to File Response/Reply as to 12 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment by PEOPLE FOR THE AMERICAN WAY FOUNDATION. (Martinez, Michael) (Entered: 09/11/2006)
2006-09-12MINUTE ORDER granting 18 Consent Motion for Extension of Time to File a Reply. Plaintiff shall file its reply on or before September 25, 2006. Signed by Judge Ellen S. Huvelle on 9/12/2006. (lcesh2) (Entered: 09/12/2006)
2006-09-12Set/Reset Deadlines: Replies due by 9/25/2006. (gdf) (Entered: 09/12/2006)
2006-09-2519Consent MOTION for Extension of Time to File Response/Reply as to 12 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment by PEOPLE FOR THE AMERICAN WAY FOUNDATION. (Martinez, Michael) (Entered: 09/25/2006)
2006-09-26MINUTE ORDER granting 19 plaintiff's Consent Motion for an Additional Enlargement of Time to File a Reply. Plaintiff shall file a reply on or before October 9, 2006. Signed by Judge Ellen S. Huvelle on 9/26/2006. (lcesh3) (Entered: 09/26/2006)
2006-09-26Set/Reset Deadlines: Reply due by 10/9/2006. (gdf) (Entered: 09/28/2006)
2006-10-0920REPLY to opposition to motion re 12 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment filed by PEOPLE FOR THE AMERICAN WAY FOUNDATION. (Martinez, Michael) (Entered: 10/09/2006)
2006-11-2021ORDER granting 6 Defendant's Motion for Summary Judgment and denying 12 Plaintiff's Motion for Partial Summary Judgment. Signed by Judge Ellen S. Huvelle on 11/20/06. (lcesh2) (Entered: 11/20/2006)
2006-11-2022MEMORANDUM OPINION re: 6 Defendant's Motion for Summary Judgment and 12 Plaintiff's Motion for Partial Summary Judgment. Signed by Judge Ellen S. Huvelle on 11/20/06. (lcesh2) (Entered: 11/20/2006)
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