Federal Agencies Need Not Confirm or Deny Electronic Surveillance under FOIA

The United States Court of Appeals for the Second Circuit affirmed that the National Security Agency and the Department of Justice do not need to confirm or deny the existence of electronic surveillance records under the Freedom of Information Act. The appellate court found that federal agencies are allowed to file “Glomar” responses, which were first judicially recognized in 1976 and grant an agency express refusal to even confirm or deny the existence of any records responsive to a FOIA request in the national security context.

The lawsuit was brought by advocates for former Guantanamo Bay detainees after the agencies invoked FOIA exceptions to information request regarding warrantless electronic surveillance conducted by the Terrorist Surveillance Program.

Get more particulars here.

Specter Bills Seek to Rein In Executive Power

Senator Arlen Specter (R-PA) last week reintroduced three bills that he said were needed to limit presidential power and to restore the proper constitutional balance among the three branches of government.

The first bill (S.875) would instruct courts not to rely on a presidential signing statement when interpreting the meaning of any statute. (Similar legislation was introduced in previous sessions of Congress, but was not passed.)

President Bush used signing statements “in a way that threatened to render the legislative process a virtual nullity, making it completely unpredictable how certain laws will be enforced,” said Sen. Specter on April 23. “As outrageous as these signing statements are,… it is even more outrageous that Congress has done nothing to protect its constitutional powers,” he said.

The second bill (S.876) would substitute the United States as the defendant in place of telecommunications companies in pending lawsuits alleging unlawful surveillance. (Sen. Specter also introduced such a bill in 2008.)

“It is not too late to provide for judicial review of controversial post-9/11 intelligence surveillance activities,” Sen. Specter said. “The cases before Judge Vaughn R. Walker [alleging unlawful surveillance] are still pending and, even if he were to dismiss them under the statutory defenses dubbed ‘retroactive immunity’, Congress can and should permit the cases to be re-filed against the Government, standing in the shoes of the carriers.”

“The legislation also establishes a limited waiver of sovereign immunity… to prevent the Government from asserting immunity in the event it is substituted for the current defendants,” Sen. Specter explained. (As for the likelihood that the Government would assert the “state secrets privilege” to abort such litigation, that is addressed in another pending bill.)

The third bill (S.877), which is new, would require the Supreme Court to review certain cases concerning the constitutionality of intelligence surveillance, statutory immunity for telecommunications providers, and other communications intelligence activities, and would eliminate the Court’s discretion as to whether or not to grant “certiorari.” The bill was necessitated, he said, by the Supreme Court’s refusal to review an appeals court decision that overturned a 2006 ruling by Judge Anna Diggs Taylor which found the Terrorist Surveillance Program to be unconstitutional.

Sen. Specter discussed his approach to these matters in “The Need to Roll Back Presidential Power Grabs,” New York Review of Books, May 14, 2009.

NSA Dominance of Cybersecurity Would Lead to ‘Grave Peril’, Ex-Cyber Chief Tells Congress

The government’s national cybersecurity efforts would be in “grave peril” if they were dominated by the intelligence community, said Amit Yoran, former head of the Department of Homeland Security‘s National Cyber Security Division.

Yoran told a House subcommittee on Tuesday that although the Department of Homeland Security, which currently oversees the government’s cybersecurity efforts, has demonstrated “inefficiency and leadership failure” in those efforts, moving the cyber mission to the National Security Agency “would be ill-advised” due to the agency’s lack of transparency.