Friday, January 1, 2010

Court: Feds Can Hide Alleged Spying on Gitmo Lawyers

Court: Feds Can Hide Alleged Spying on Gitmo Lawyers

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A federal appeals court on Wednesday upheld the government’s refusal to admit or deny it has documents related to warrantless eavesdropping on Guantanamo Bay detainees and their lawyers.

In doing so, the 2nd U.S. Circuit Court of Appeals accepted a little-known defense called the Glomar doctrine. The doctrine, the court ruled, allows the National Security Agency to refuse to acknowledge to the lawyers suing under the Freedom of Information Act that there are any documents responsive to allegations their clients had been or are being targeted under the Terrorist Surveillance Program adopted following the 2001 terror attacks.

The Glomar doctrine is named after the Glomar Explorer, a vessel used by the CIA to salvage a Soviet nuclear sub off the Hawaiian coast in the 1970s. Photo: AP

“Confirming or denying the mere existence of specific records in a general surveillance program would logically be both confirming or denying that the NSA was targeting a specific individual and confirming or denying that the NSA is conducting a general surveillance program,” (.pdf) the New York-based appellate court wrote Wednesday.

Typically, under Freedom of Information Act requests unrelated to national security, the government announces that it has documentation related to a request, and releases or withholds some or all of it for a variety of reasons.

In the national-security Glomar context, the government usually prevails when invoking the doctrine — but not always.

In a case the American Civil Liberties Union brought against the Department of Defense, a federal judge in 2005 ordered the release of documents and photos of abuse at Abu Ghraib prison despite the Glomar doctrine.

The Guantanamo Bay lawyers said the purpose of their Freedom of Information Act request was to gain information to determine whether they are being monitored in their interactions with their clients. If so, they would seek to alter the way in which they represent and interact with them.

The Glomar doctrine draws its name from a 1970s case, when The Los Angeles Times sought information on whether the Central Intelligence Agency was attempting to salvage a sunken Soviet nuclear submarine about 360 miles northwest of Honolulu. It was eventually revealed that the project was code-named “Jennifer” and was undertaken on the Glomar Explorer, a salvage vessel formerly owned by Howard Hughes’ Summa Corp.

The circuit court’s decision Wednesday did not address the legality of the Terror Surveillance Program that President Bush secretly adopted following the 2001 terror attacks. The New York Times revealed the program’s existence in 2005, but the government has never acknowledged the complete nature of the warrantless, electronic eavesdropping program.

An unsuccessful lawsuit challenging that program is on appeal to the 9th U.S. Circuit Court of Appeals in San Francisco. Among other things, the case accuses the nation’s telecoms of secretly funneling electronic communications to the NSA without warrants.

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