Court: Feds Can Hide Alleged Spying on Gitmo Lawyers

By David Kravets
December 30, 2009

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.

“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. ...


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