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For Immediate Release:
September 5, 2007

Court Rejects Wiretapping Secrecy Claims, Orders New Index of Documents and More Detailed Reasons for Withholding

For more information contact:
Thomas Blanton or Meredith Fuchs: 202/994-7000

Washington, DC, September 5, 2007 --The United States District Court for the District of Columbia today largely rejected the government’s attempt to withhold without explanation all records concerning its warrantless wiretapping surveillance program.  In a Freedom of Information Act law suit brought by the National Security Archive, along with the Electronic Privacy Information Center and the American Civil Liberties Union, the Court rejected the summary explanations and declarations of the government. 

 Finding many of the government’s secrecy claims “too vague and general,” Judge Henry Kennedy denied in part the government’s motion for summary judgment.  In particular, the Court dismissed the government’s withholding of its final legal opinions as “insufficient” and stated that “declaring ‘because we say so’ is an inadequate method for invoking exemption 5” of the FOIA.  The motion was granted in part largely with respect to specific records or categories of records that the plaintiffs did not dispute. 

 In several parts of the opinion, Judge Kennedy exhibited skepticism about the government’s unsupported claims of secrecy.  In one footnote, the Court expressed “substantial frustration” with the Executive Branch’s use of classified declarations surrounded by “an exceedingly high level of secrecy” that prevented even the Court’s clerk, who had obtained a security clearance, from viewing some of the government’s submissions.

 “In a decision that evidences careful review of the government declarations and submissions, the Court makes clear that it is not enough for the government to simply say something is secret – it must justify its claim,” commented Archive General Counsel Meredith Fuchs.  “Unfortunately, as is often the case in a FOIA dispute, the government is given several opportunities to get it right.  We hope, on the next round, the Court decides to look at some of the records in dispute.” 

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