Case 1:11-cv-06990-WHP Document 1 Filed 10/05/11 Page 1 of 9

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

THE NEW YORK TIMES COMPANY and CHARLIE SAVAGE,
Plaintiffs,

X

.
1

cw

6990

-against-
UNITED STATES DEPARTMENT OF JUSTICE,

COMPLAINT
10:.-.-,-[E=-~-----.~J_W~~~i

Defendant. _____________________________________X

L~.CT (!5 2011 J~J;

u.s.o.c. .s.u~·N·.v. 1

CASHIERS ·

Plaintiffs The New York Times Company and Charlie Savage (jointly, "

, y

.J

their undersigned attorney, allege for their Complaint:

1. This is an action under the Freedom of Information Act ("FOIA"),

5U.S.C. §552, et seq. , to order the production of an agency record improperly withheld by

Defendant in response to a request properly made by Plaintiffs.

2. On or about February 2, 2011 , two congressional intelligence

committees received from the Attorney General and the D irector of National Intelligence a

report (the "Report") pertaining to intelligence collection authorities that were subject to

expiration under Section 224 of the USA PATRIOT Act, Pub. L. No. 107-56, § 224, 11 5

Stat. 295 (200 1) ("PATRIOT Act").

3. On May 25, 201 1, two members of the Senate Intelligence Committee,

Senators Ron Wyden and Mark Udall, referenced the Report in a proposed amendment they

introduced to legislation that would extend the expiring provisions of the PATRIOT Act.

The amendment called for the Justice Depatiment to explain publicly the official government

5 1943 v. 2

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interpretation and analysis of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1801 et seq., a surveillance law that was modified by the PATRIOT Act.
4. On May 26, 2011, during floor debate over the legislation, Senator Wyden expressed concern over inconsistencies between the Act's interpretation by the government and public understanding of what the statute means. Senator Wyden stated, "1 wish to deliver a warning this ailernoon. When the American people find out how their government has secretly interpreted the PATRIOT Act, they are going to be stunned and they arc going to be angry." He also stated: "It is almost as if there are two PATRIOT Acts, and many Members of Congress have not read the one that matters. Our constituents, of course, are totally in the dark. Members of the public have no access to the secret legal interpretations, so they have no idea what their government believes the law actually means."
5. During that same day's debate, Senator Udall stated, "As a member of the Intelligence Committee, I can tell you that what most people- including many Members of Congress- believe the PATRIOT Act allows the government to do- what it allows the government to do -and what government oll'icials privately believe the PATRIOT Act allows them to do are two diiTerent things ... I cannot support the extension of the provisions we are considering today without amendments to ensure there is a check on executive branch authority. I do not believe the Coloradans who sent me here to represent them would accept this extension either. Americans would be alarmed if they knew how this law is being carried out."
6. In the wake of the Senate debate over the government's secret interpretation of the law, NYT duly filed FOIA requests seeking the Report. To date, DOJ has refused to release the Report or any part of it, claiming it is properly classified.

Case 1:11-cv-06990-WHP Document 1 Filed 10/05/11 Page 3 of 9
JURISDICTION AND VENUE 7. This Court has subject matter jurisdiction over this action pursuant to 5 U.S.C. §§552(a)(4)(B) and 28 U.S.C. §1331. 8. Venue is premised on the place of business of Plaintiffs and is proper in this district under 5 U.S.C. § 552(a)(4)(B). 9. Because DOJ has failed to determine an administrative appeal in the time set by FOIA, NYT is deemed to have exhausted all administrative remedies and is now entitled to appeal directly to the Court to enforce the dictates of FOIA pursuant to 5 U.S.C. § 552(a)( 4)(B).
PARTIES 10. Plaintiff the New York Times Company is the publisher of The New York Times ("the Times"). The weekday circulation of The New York Times is the highest in the nation among metropolitan dailies, at more than 900,000 daily, and it is 1.35 million on Sunday. The average number of monthly unique visitors to NYTimes.com has exceeded 20 million. The New York Times Company is headquartered iu this judicial district at 620 Eighth Avenue, New York, N.Y. 11. Plaintiff Charlie Savage is a reporter for The Times. 12. Defendant DOJ is an agency of the federal government that has possession and control of the Record. DOJ is the federal agency responsible for enforcing the law and defending the legal interests of the United States. The Office oflnformation Policy ("OIP"), a component entity ofDOJ, is responsible for ensuring the agency's compliance with FOIA requests. The National Security Division ("NSD"), a component

Case 1:11-cv-06990-WHP Document 1 Filed 10/05/11 Page 4 of 9

entity ofDOJ, consolidated most of the DOJ's national security functions after the PATRIOT

Act was enacted. 13.

DOJ is an agency within the meaning of5 U.S.C. § 552(f)(1).

FACTS

The Report Underlying the NYT"s FOJA Request 14. The USA PATRIOT Act, Pub. L. No. 107-56; 115 Stat. 272, has

generated widespread public debate since its passage. 15. One particularly contested provision, Section 215, allows the FBI to

obtain "any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence

activities." 16. Only a showing of "reasonable grounds" is required for the
government to obtain Foreign Intelligence Surveillance Act ("FISA") court orders- issued under seal -and to access a wide range of personal and business records held by third parties such as universities, credit card companies, hotels, car rental firms, hospitals, libraries, stores,

Internet service providers, and telecommunications firms. 17. Moreover, institutions or businesses served with court orders pursuant

to Section 215 -and thus compelled to release records to the FBI -cannot disclose this to the subjects of surveillance. As such, these individuals remain unaware that their records have

been accessed. 18. Even members of Congress who, because of their position on House
and Senate intelligence committees, are privy to the government's official interpretation of

Case 1:11-cv-06990-WHP Document 1 Filed 10/05/11 Page 5 of 9
the PATRIOT Act cannot detail their concerns about interpretations of the law to the public due to classification requirements.
19. A number of these senators and representatives have repeatedly urged the DOJ to make public its interpretation of Section 215 of the Act.
20. For example, in a 2009 debate over the PATRIOT Act, a member of the intelligence committee, then-Senator Russell Feingold, suggested that Section 215 was being interpreted by DOJ officials in a secret way that "Congress and the American people deserve to know" about.
21. Later that year, several Senate members pushed the DOJ to declassify information related to the government's implementation of Section 215. This request was unsuccessful.
22. In 2011, during the debate over extending the expiring provisions of the PATRIOT Act, Senators Wyden and Udall proposed an amendment that would have required the government to reveal its interpretation of its legal authority to collect information about Americans. They made clear that they had specific concerns over how the government was interpreting Section 215.
23. During his floor statement, immediately after discussing the proposal to require DOJ to disclose the official legal interpretations of the PATRIOT Act in connection with the Report, Senator Udall said: "I know Americans believe we ought to only use PATRIOT Act powers to investigate terrorists or espionage-related targets. Yet Section 215 of the PATRIOT Act, the so-called business records provision, currently allows records to be collected on law-abiding Americans without any connection to terrorism or espionage."

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24. During the May 2009 debate over extending the expiring PATRIOT Act provisions, Senators Wyden and Udall also offered an amendment that would have limited when the government could use Section 215 to collect records about people. This eff01t to amend was also unsuccessful.
25. Section 215 was renewed as part of the PATRIOT Act without amendment, and there has been no resolution to the concerns expressed over its interpretation. The Report FOIA Request
26. Beginning in May 2011, Mr. Savage filed a series ofFOIA requests seeking documents showing DOJ's interpretation of the PATRIOT Act. Of specific concern to this action, on June 22, 2011, Mr. Savage submitted a FOIA request via e-mail to DOJ NSD seeking a copy of"the report received on February 2, 2011 by the congressional intelligence committees from the Attorney General and the Director of National Intelligence, that pertains to intelligence collection authorities that were subject to expiration under section 224 of the USA PATRIOT Act."
27. By letter dated June 27,2011, DOJ NSD acknowledged receipt of the request, and granted expedited processing given the "particular urgency to inform the public about an actual or alleged federal government activity."
28. By letter dated August 2, 2011, DOJ NSD denied Mr. Savage's request.
29. The DOJ NSD stated it had found one responsive record but was withholding the record in full pursuant to FOIA Exemption 1, 5 U.S.C. § 552(b)(l) (relating

Case 1:11-cv-06990-WHP Document 1 Filed 10/05/11 Page 7 of 9

to national defense or foreign policy information properly classified pursuant to Executive

Order No. 13526). 30. On August 19,2011, NYT submitted to DOJ OIP its appeal of the
denial ofNYT's request. DOJ OIP adjudicates such appeals, including those made to DOJ

NSD.

31. DOJ OIP advised NYT that it had received the administrative appeal

on August 22, 20 II. 32. More than twenty days have passed since NYT submitted its August
19,2011 administrative appeal to DOJ OIP. NYT has received no further response to its

appeal.

33. As a result, NYT is deemed to have exhausted its administrative

remedies.

CAUSE OF ACTION

34. NYT repeats, realleges, and incorporates the allegations in the

foregoing paragraphs as though fully set forth herein. 35. DOJ is an agency subject to FOIA, 5 U.S.C. § 552(f), and must
therefore release in response to a FOIA request any disclosable records in its possession at the time of the request and provide a lawful reason for withholding any materials as to which it is claiming an exemption, under 5 U.S.C. § 552(a)(3).
36. Exemption I ofFOIA applies to information properly classified

pursuant to Executive Order No. 13526.

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37. Upon information and belief, the Report contains discussion oflegal

analysis outlining the government's official interpretation of the language of the USA

PATRIOT Act. 38.

Defendant's decision to withhold as classified the government's

interpretation is improper. 39. Even if parts of the Report are properly classified, DOJ has an
obligation to redact non-public portions of the Report and release those portions that are

public under FOIA. 40. Defendant's failure to provide the Report violates FOIA, generally and

specifically 5 U.S.C. § 552(a)(3) .

REQUEST FOR RELIEF

WHEREFORE, NYT respectfully requests that this Comi:

a.

Expedite consideration of this Complaint pursuant to 28 U.S.C. §1657;

b. Declare that the Report is public under 5 U.S.C. § 552 and must be disclosed, or in the alternative conduct an in camera review to determine whether any parts of the Report are properly public under FOIA;

c.

Order the DO.J to provide the Report, or such parts as the Comi

determines are public under FOIA, to NYT within twenty business

days of this Court's order;

Case 1:11-cv-06990-WHP Document 1 Filed 10/05/11 Page 9 of 9

d.

Award NYT its costs of this proceeding, including reasonable

attorneys' fees, as expressly permitted by FOIA; and

e.

Grant NYT such other and further relief as the Court deems just and

proper.

Dated: New York, New York October 5, 2011

··--
David E. McCraw Nabiha Syed (admission pending) Legal Department The New York Times Company 620 8th Avenue- 18'h Floor New York, NY 10018 phone: (212) 556-4031 fax: (212) 556-1009 mccraw@nytimes.com Counsel for Plaintifis

 
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1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x

3 THE NEW YORK TIMES COMPANY, CHARLIE SAVAGE,
4 Plaintiffs,
5 v.
6 UNITED STATES DEPARTMENT OF
7 JUSTICE,

11 CV 6990 (WHP)

8

Defendant.

9 ------------------------------x

10 AMERICAN CIVIL LIBERTIES UNION, ET AL.,
11 Plaintiffs,
12 v.
13 FEDERAL BUREAU OF
14 INVESTIGATION, ET AL.,

11 CV 7562 (WHP)

15

Defendants.

16 ------------------------------x

New York, N.Y.

17

May 4, 2012

10:35 a.m.

18

Before:

19

HON. WILLIAM H. PAULEY III,

20

District Judge

21

22

23

24

25

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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1

APPEARANCES

2 DAVID EDWARD MCCRAW

NABIHA SYED

3

Attorneys for The New York Times Company and Charlie

Savage

4

AMERICAN CIVIL LIBERTIES UNION, WOMEN'S RIGHTS PROJECT

5 ALEXANDER ABRAHAM ABDO

6 PROSKAUER ROSE LLP Attorneys for ACLU
7 RICHARD INAD HADDAD

8 PREET BHARARA

United States Attorney for the

9

Southern District of New York

EMILY EWELL DAUGHTRY

10 JOHN DALTON CLOPPER

Assistant United States Attorney

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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1

(In open court)

2

THE DEPUTY CLERK: This is the case of The New York

3 Times Company et al. against United States Department of

4 Justice and the American Civil Liberties Union et al. against

5 the Federal Bureau of Investigation et al.

6

Appearances for the plaintiffs?

7

MR. McCRAW: Good morning, your Honor. David McCraw,

8 assistant general counsel for the New York Times Company. I'm

9 here with my colleague Nabiha Syed.

10

THE COURT: Good morning, Mr. McCraw.

11

MR. HADDAD: Good morning, your Honor. Richard Haddad

12 of Proskauer Rose for Plaintiff ACLU.

13

THE COURT: Good morning, Mr. Haddad.

14

MR. ABDO: Good morning, your Honor. Alex Abdo of the

15 ACLU.

16

THE DEPUTY CLERK: Appearances for the defendant?

17

MS. DAUGHTRY: Good morning, your Honor. Assistant

18 United States Attorney Emily Daughtry for the government.

19

THE COURT: Good morning, Ms. Daughtry.

20

MR. CLOPPER: John Clopper from the government.

21

THE COURT: Good morning, Mr. Clopper.

22

There are motions and cross-motions. Who wishes to be

23 heard? Don't all jump up at once.

24

MR. McCRAW: My understanding, from our conversations,

25 is the government will begin, your Honor.

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1

THE COURT: Very well, Mr. McCraw.

2

MS. DAUGHTRY: Good morning, your Honor. My name is

3 Emily Daughtry. I'm an Assistant United States Attorney for

4 the Southern District of New York, here this morning on behalf

5 of the government.

6

Your Honor, there are two central issues before this

7 Court this morning. The first is whether the government

8 properly withheld the single document that's at issue in these

9 motions, a classified report describing intelligence collection

10 activities pursuant to FOIA exemption 1, which allows the

11 government to withhold classified information from disclosure.

12 And the second issue is whether the government properly

13 withheld this same single document, pursuant to exemption 3,

14 which allows the government to withhold documents pursuant to a

15 particular statute, in this case the National Security Act,

16 which allows protection of intelligence sources and methods.

17

As the government has explained in its public

18 declarations, the particular report at issue describes an

19 intelligence collection operation. The government has also

20 explained that the document is properly classified and the

21 government has explained that the release of this document

22 would harm national security because it would provide the

23 United States adversaries with the means to degrade or evade

24 the intelligence-collection activities that are described in

25 the document itself.

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1

THE COURT: Why did the Office of Information Policy

2 inform The New York Times that it would refer the report to the

3 DOJ review committee to determine whether the document should

4 remain classified?

5

MS. DAUGHTRY: Your Honor, that was in the context of

6 a letter regarding the New York Times administrative appeal of

7 the document, and that is standard procedure for the Office of

8 Information Policy in any administrative appeal of a classified

9 document. But once the case was in litigation, all

10 administrative appeals are dropped, and the government's

11 current position is that the document is currently properly

12 classified.

13

THE COURT: So the reference of the report is just

14 reflexive? The government does it every time they receive a

15 request?

16

MS. DAUGHTRY: My understanding is that as a matter of

17 policy, in and administrative appeal involving a document that

18 has been withheld as classified, they will automatically do

19 this, yes, as a matter of routine.

20

THE COURT: Is that standard policy memorialized

21 anywhere?

22

MS. DAUGHTRY: I don't know the answer to that, your

23 Honor.

24

THE COURT: All right. If it is, I would invite a

25 letter submission concerning it, because I don't see anything

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1 in the record about it, and it left me wondering.

2

MS. DAUGHTRY: I'd be happy to do that.

3

Your Honor, the plaintiffs have made a lot of

4 arguments as to why the government should not withhold this

5 document -- and of course I'm happy to answer any questions the

6 Court has with respect to their arguments -- but the bottom

7 line is that none of them undercut the fact that the

8 government's explanations in its public declarations alone, as

9 well as in its classified submission, are both logical and

10 plausible, which is the standard that has been articulated by

11 the Second Circuit in Wilner. And the government's

12 declarations are entitled to deference given the national

13 security issues at issue in this particular case, and also too

14 the presumption of good faith that all of the government's

15 declarations are generally accorded in a FOIA case.

16

THE COURT: Well, do the comments by Senators Wyden

17 and Udall create any specter of bad faith?

18

MS. DAUGHTRY: They don't, your Honor, they don't.

19 The issue that's relevant for bad faith is whether the

20 government's declarations in invoking the FOIA exemptions were

21 made in bad faith. And statements by the senators providing

22 views as to whether the government's interpretation of Section

23 215 is at odds with the public's understanding of this statute,

24 are simply not relevant to the issue of whether the government

25 acted in bad faith in asserting in its declarations that the

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1 report was classified.

2

And nothing in the record suggests, let alone provides

3 the tangible evidence that's required under the case law, that

4 the government's declarations regarding the invocation of

5 exemptions 1 and 3 were made in bad faith. And certainly

6 there's no suggestion that the government classified the

7 information in the report for the purpose of concealing any

8 type of illegal activity, which is the standard which is

9 required in Wilner.

10

Furthermore, I would just like to point out that even

11 if the senators had stated directly that it was their belief

12 that this report had been improperly withheld and was not

13 properly classified, even if the senators had submitted a

14 declaration in this action to your Honor, that would not be

15 sufficient to undermine the deference that is due to the

16 executive branch declarations on matters of national security.

17

THE COURT: How can the public effectively participate

18 in the political process if the government's interpretation of

19 federal law is kept secret?

20

MS. DAUGHTRY: Well, I guess as an initial matter,

21 your Honor, I would want to point out that the document that's

22 at issue in this particular case is a description of a

23 particular intelligence-collection operation. As we said in

24 the supplemental Bradley declaration that we submitted with our

25 opposition and reply brief, it does not contain any abstract

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1 legal analysis or interpretation of the law, as appears to be

2 envisioned by the plaintiffs, some sort of interpretation that

3 is devoid of factual content. So what we have here is a

4 particular document that describes a particular intelligence

5 collection operation.

6

To the extent that you're asking hypothetically how

7 can the public participate in a debate if an interpretation of

8 a law is kept secret, if you had a document that had an

9 interpretation of the law that was kept secret, here the public

10 participates by electing members of Congress who provide

11 oversight to the operations that are conducted here. This

12 particular statute authorizes operations that are authorized by

13 an Article III Court and are fully reported to Congress through

14 the congressional intelligence committees, to the people's

15 representatives.

16

THE COURT: Anything further, Ms. Daughtry?

17

MS. DAUGHTRY: I don't think so, your Honor. I'm

18 happy to clarify anything additional that comes up.

19

THE COURT: All right.

20

Let me hear from the plaintiffs.

21

MR. McCRAW: Thank you, your Honor. I think that your

22 Honor's question provides the appropriate backdrop here, that

23 Senator Wyden said it's awfully hard to have thoughtful debate

24 if in fact you cannot figure out how the executive branch is

25 interpreting the law. And that's why we are here: Members of

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1 Congress have said that there is a gap between what the statute

2 appears to say, how the Justice Department communicates what it

3 says, and how they actually act upon it.

4

We believe that this is one of those cases where

5 in camera review is required. I say that for three reasons:

6

First, the government has failed to clearly state

7 whether there is legal analysis here. That, to me, is a

8 serious omission, because we have made clear from the

9 beginning, that's what this case is about. We, in our

10 complaint, said that there was legal analysis. They responded,

11 they could neither confirm nor deny that.

12

In the briefing here, they have never said that there

13 is legal analysis. They have always said there is no legal

14 analysis that's segregable. That combines two things. Is

15 there legal analysis that's segregable? And so the first

16 reason I would say in camera review is important here is to

17 just get to that question, which should have been part of their

18 public declarations but isn't: Is there legal analysis,

19 interpretation of this statute, which shows the scope and the

20 limits the government believes that the statute grants to it?

21

Second, the government's public declarations have

22 failed to show that under the standard that the government

23 articulated, that it is logical and plausible that legal

24 analysis should be classified. They have said national

25 security operations, information about national security

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1 operations, should be classified. They have never made that

2 case on legal analysis. Where is the plausible connection that

3 legal analysis can be withheld under exemption 1 because it

4 would reveal something that's properly classified, or under

5 exemption 3, through the National Security Act?

6

It's not enough for them to simply say this involves a

7 classified intelligence-gathering operation and classified

8 operations are kept secret, exempt from FOIA, therefore, this

9 memo should be. They haven't said what else is in this memo.

10 We do not dispute their right, the government's right, to

11 withhold information about operations, but they have not made

12 that connection for legal analysis.

13

When I read Wilner and the Second Circuit talks about

14 logical and plausible, I think they're talking more about a

15 philosophy 101 example of classified information should be kept

16 secret, this has some classified information therefore it

17 should be kept secret. What they're looking for is public

18 declarations in Wilner, public declarations that say, without

19 disclosing secrets, here's what's in the document and here is

20 why it can't be released. They have not met that standard.

21

The third point I would make here goes to their

22 arguments about segregability. And, again, the standard is

23 logical and plausible. Again, they have provided public

24 declarations that never explain why. What is the structure of

25 this document? How is it organized? What about it makes it so

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1 that the legal analysis can't be segregated? That's the burden

2 they have here.

3

I would direct your Honor, in reviewing these

4 affidavits, to two things, or their declarations to two things.

5 At the end of the Halpern case from the Second Circuit, the

6 Court actually reproduces part of the declaration there. It's

7 an appendix at the end of Halpern. The Second Circuit says

8 that declaration is insufficient because it simply states

9 conclusory conclusions about why something should be secret.

10 It merely states what the standard is and says this declaration

11 meets the standard. The Second Circuit said that's not enough,

12 that the reason FOIA was structured to allow de novo review, to

13 allow in camera review, was that we don't simply have to trust

14 the government about these decisions. That's the first thing I

15 would point your Honor to.

16

The second thing I would point your Honor to is the

17 recent case that was decided by Judge Sullivan, which is an

18 ACLU case, where he found the declarant here, Mr. Bradley, to

19 have submitted a declaration that was insufficient. In fact,

20 he went so far as to say that the government seems to think

21 that review of the declarations is nothing more than a judicial

22 spellcheck, they have to do more than state what the policy is,

23 they have to do more than state what the standards are. We

24 pulled that declaration, we looked at it. It's actually more

25 detailed than the one here. It's nine pages, it has more

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1 detail, and even then was found insufficient.

2

I think under those standards -- and we cite others in

3 our brief -- the declarations here have failed to carry the

4 government's burden; and the appropriate remedy for that is

5 in camera review. It's five pages. It's not the kind of case

6 where we're asking the Court to look at hundreds of pages of

7 documents. We think that it's not a case where deference,

8 which the government has spoken to, is due; because if you look

9 at how that deference principle is applied in these cases, it's

10 really deference to the government's determination that

11 national security would be harmed. It's not deference to

12 something like what's legal analysis, it's not deference to can

13 it be segregated. We think the courts have equal or greater

14 competence in doing that. And it's especially necessary here

15 where the government says we're not even sure what legal

16 analysis is.

17

So we believe that in light of the public record here,

18 in light of the serious issues raised, that the government may

19 be misleading the public, that in camera review is the next

20 appropriate step.

21

THE COURT: If in camera review revealed that the

22 document was properly withheld, does it matter if the public

23 declaration from the government is conclusory?

24

MR. McCRAW: I think your Honor's in camera review

25 carries the day in the decision. We obviously have the right

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1 to appeal, but ultimately the in camera review carries the day.

2

THE COURT: Aside from the public statements by

3 Senators Wyden and Udall, do you have any other evidence of bad

4 faith on the part of the government?

5

MR. McCRAW: No, we don't, your Honor. And I would

6 speak to the bad-faith point for just a second, which is: We

7 look at their statements as suggesting that the government is

8 willfully telling the public one thing and doing something

9 else. But even if that were not so, even if there's no

10 evidence of bad faith, even if there's no evidence of any

11 misconduct, the underlying principle that the public should

12 know how the government is interpreting the law would remain in

13 place. Whatever the reason it's not being disclosed, the

14 public should know so there can be that kind of informed debate

15 Senator Wyden talks about.

16

THE COURT: All right.

17

MR. McCRAW: Thank you, your Honor.

18

THE COURT: Thank you, Mr. McCraw.

19

Mr. Haddad, do you wish to be heard?

20

MR. HADDAD: Yes, your Honor.

21

Your Honor, a motion for partial summary judgment

22 presents a simple but important question: Can the government

23 continue to conceal from the public its legal interpretation of

24 Section 215 of the PATRIOT Act, the public law that governs and

25 constrains the government's interaction with, and its ability

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1 to conduct surveillance on, American citizens.

2

As Mr. McCraw said, two United States senators have

3 repeatedly warned that Section 215, which is a public law that

4 affects the rights of American citizens, has been the subject

5 of secret legal interpretation.

6

We believe the five-page memorandum at issue here

7 would shed light upon the government's interpretation of the

8 scope of its surveillance authorities under Section 215.

9

The government significantly, as Mr. McCraw pointed

10 out, has not denied that the memorandum contains legal

11 analysis. In short, your Honor, we want to know what falls

12 within the phrase "any tangible things." We want to know how

13 the government defines the threshold of necessary relevance

14 within the meaning of Section 215.

15

The nature of this statute makes it unlikely the

16 targets of this type of surveillance will ever learn of, or

17 have the opportunity to challenge, the provision of their

18 information to the government. This magnifies the importance

19 of this issue in this case. In view of that unlikelihood, as

20 well as the senators' statements, the government's refusal to

21 deny that the document contains legal analysis, and the fact

22 this is only a five-page document, your Honor should at the

23 very least conduct a careful in camera review to ensure that

24 all information relating to the government's legal

25 interpretation of Section 215 is released.

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1

Now, I just want to emphasize that we aren't asking

2 for the disclosure of ongoing intelligence operations or

3 sources or methods or specific investigations. We merely seek

4 information relating solely to the government's legal

5 interpretation of the provision, including all portions of the

6 memorandum that describe or convey the government's

7 understanding of the scope of its surveillance authority and

8 the types of information that may be collected pursuant to that

9 authority.

10

We want to know, in short, how broad is the universe

11 of tangible things that the government believes it may collect

12 under this law and how does the government define the threshold

13 of relevance necessary to subject a target to this type of

14 surveillance? For example, the memorandum may very well

15 reflect that the government believes that it may use Section

16 215 to collect location information regarding the movements of

17 American citizens; it may reflect the fact that the government

18 believes it may collect DNA information from American citizens.

19 We have no idea at this point whether the government views this

20 type of information as tangible things within the meaning of

21 215.

22

And that information, your Honor, is not classifiable.

23 That's why the information that we request comprises the type

24 of secret law the withholding of which FOIA does not allow. It

25 is secret law because it guides and constrains the government's

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1 surveillance authority, and it does have a real, lasting effect

2 on the privacy rights of American citizens.

3

We do not dispute --

4

THE COURT: Let me ask you this, Mr. Haddad: On this

5 question of secret law, has any court ever mentioned secret law

6 in the context of exemptions 1 or 3?

7

MR. HADDAD: Your Honor, since we filed this brief, it

8 has come to our attention that a court in this district,

9 actually Judge Jones, recently addressed the secret-law

10 argument in a FOIA case where the government classified the

11 document at issue under exemption 1. While Judge Jones

12 ultimately upheld the government's invocation of exemption 1,

13 she did not find or imply that the secret-law doctrine is not

14 applicable in that context.

15

THE COURT: Well, is there any case that you're aware

16 of in which a court ordered the disclosure of sensitive

17 national security information because it constituted secret

18 law?

19

MR. HADDAD: There is not, your Honor. But as we said

20 in our brief, and as the government failed to say in its brief,

21 nor are we aware of any case where the court said that a

22 secret-law analysis is inapplicable in that type of case.

23

THE COURT: Secret law is not mentioned anywhere

24 within the FOIA exemptions, is it?

25

MR. HADDAD: No, it's not, your Honor.

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1

THE COURT: Is it your view that secret law would

2 trump a FOIA exemption?

3

MR. HADDAD: Under certain circumstances, your Honor,

4 that is our view, in view of the underlying purposes behind

5 FOIA, which courts have interpreted as having been passed to

6 eliminate secret law and to inform the public of how the

7 government is operating and why.

8

THE COURT: Could you describe for me a situation in

9 which, in your view, secret law would trump such an exemption?

10

MR. HADDAD: Well, I believe this case, your Honor,

11 presents such a situation. If this memorandum includes

12 portions or sentences that state, for instance, that the

13 government believes it may collect location information

14 regarding the movements of targets pursuant to 215, that would

15 constitute secret law because that is information that reflects

16 the ways in which the government uses its authority and

17 interprets its authority under a public law. And that type of

18 interpretation is not publicly known. It's not something that

19 anybody's aware of. And it goes far from the plain meaning of

20 the statute.

21

THE COURT: All right. Anything further, Mr. Haddad?

22

MR. HADDAD: No, your Honor. Thank you.

23

THE COURT: Thank you.

24

Ms. Daughtry, do you wish to be heard very briefly?

25

MS. DAUGHTRY: I do, your Honor.

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1

Thank you, your Honor. There are a number of points

2 that I would like to address that both Mr. McCraw and

3 Mr. Haddad raised.

4

As an initial matter, both of them have asked the

5 question "does the report contain any legal analysis?" and have

6 suggested that the government has not been clear on this point.

7 I think the government has been very clear. The report does

8 not contain the type of legal analysis that seems to be

9 envisioned by plaintiffs; that is, legal analysis that is

10 utterly divorced from any factual content.

11

The government has repeatedly said in its declarations

12 that this report describes an intelligence-collection

13 operation. As we set forth in the supplemental Bradley

14 declaration, the report does refer to the statute, Section 215,

15 that authorizes the intelligence-collection operations

16 described in the report. And obviously, because the operation

17 is being conducted pursuant to a particular statute, there is

18 an implicit analysis or interpretation of the statute that is

19 inherent in the description of the operation.

20

So, to the extent that you want to consider that legal

21 analysis as set forth in the supplemental Bradley declaration,

22 then that analysis is inextricably intertwined with, and not

23 segregable from, the description of the classified intelligence

24 operation.

25

But I think it's also important to point out that it

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1 is the government's position that the distinction between legal

2 analysis and fact is simply not relevant for the purposes of

3 exemption 1. The only thing that is relevant is whether the

4 information in the report, be it analysis or fact, is properly

5 classified pursuant to the standards set forth in the executive

6 order on classification, Executive Order 13526, and whether an

7 original classifying authority can articulate the harm to

8 national security that would result from the disclosure of that

9 information, and then whether the Court finds that the

10 government's explanation of harm, as set forth in the

11 declaration, is logical and plausible.

12

I would posit that it is certainly logical and

13 plausible that the disclosure of an intelligence-collection

14 operation would allow the United States adversaries to

15 undermine, degrade or evade the intelligence-collection

16 capabilities that are described in the report.

17

With respect to Mr. McCraw's point that the

18 explanations are not logical and plausible, and that the

19 declarations are conclusory, I would point specifically to

20 paragraph 9 of the first unclassified Bradley declaration. And

21 unlike the appendix in the Halpern case, which Mr. McCraw

22 pointed out, it does not simply restate the standards in the

23 executive order, but if you look at that paragraph, it

24 specifically says that the withheld material contains specific

25 descriptions of the manner and means by which the United States

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1 government acquires tangible things for certain authorized

2 investigations, pursuant to Section 215.

3

And in that same paragraph, Mr. Bradley goes on to

4 say: "Disclosure of these specific descriptions of the manner

5 and means by which the United States acquires these things

6 would provide our adversaries and foreign intelligence targets

7 with insights into the United States government's foreign

8 intelligence-collection capabilities, which, in turn, could be

9 used to develop the means to degrade and evade these collection

10 capabilities."

11

So certainly it is logical and plausible that

12 disclosure of intelligence-collection capabilities can lead to

13 evasion of those intelligence-collection capabilities. And, I

14 would posit, simply because the logic is simple does not make

15 it conclusory.

16

With respect to the issues raised by Mr. Haddad, I

17 just want to point out that in the Judge Jones opinion, Judge

18 Jones finds that the document that was at issue is in fact not

19 secret law, and she has no discussion one way or the other as

20 to whether secret law is applicable in this particular context.

21 So I think it sheds very little light on this issue.

22

It is, I think, important that Mr. Haddad explicitly

23 said that it is the position of plaintiffs that secret law

24 would trump a valid FOIA exemption. There is simply no basis

25 in law for that assertion. Congress has specifically set forth

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1 in the FOIA exemptions pursuant to which the government is

2 entitled to withhold information. And the Supreme Court has

3 specifically stated that all documents must be released under

4 FOIA unless they can be withheld pursuant to a particular FOIA

5 exemption. And there is nothing in any of the secret law -- in

6 any of the cases that discuss secret law or that use the phrase

7 "secret law," if you look at every single one of those cases,

8 if you look at every single case cited by the plaintiffs in

9 their brief, the analysis done by the court is, does a

10 particular exemption apply, does exemption 5 apply, does

11 exemption 2, which is no longer extant but does exemption High

12 2 apply in deciding whether to withhold a document.

13

And in their analysis of secret law, if a court finds

14 that, yes, something constitutes secret law, it is because it

15 doesn't fall within that exemption. So if it's within

16 exemption -- if it's under exemption 5, where it commonly comes

17 up -- for example, courts find that it's not withholdable as

18 secret law because it doesn't fit within the exemption because

19 it is no longer predecisional and is operating in fact as an

20 agency's working law.

21

THE COURT: All right, anything further?

22

MS. DAUGHTRY: That's it, your Honor.

23

THE COURT: Thank you, Ms. Daughtry.

24

MR. McCRAW: Your Honor, could I speak very briefly to

25 those points?

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1

THE COURT: Certainly, Counsel.

2

MR. McCRAW: I'd just like to make four points in

3 response.

4

One is, the government has mischaracterized what we

5 mean by legal analysis when they say we mean something that's

6 utterly devoid of facts. We have never said that. We define

7 legal analysis as scope and limit of the government's

8 authority, types of information, and meaning of relevance. To

9 some extent in any legal discussion, you're going to have

10 facts. The question is, does it disclose something that should

11 be classified and must be classified?

12

And that's the second point I would make.

13

The government seems to think that if a disclosure

14 might have some impact on national security, that's enough.

15 That's not enough. Senator Wyden made an important point. The

16 PATRIOT Act is public. There is no question that national

17 security would probably be enhanced if it were secret. That's

18 not how we work. There's a balance between transparency, where

19 people know what the law is, and things that need to be secret.

20 Secrecy doesn't trump everything, nor does national security.

21

Third, I simply again direct your Honor's attention to

22 the Halpern declaration. The very language that was read by

23 counsel, I think, is almost, if not, verbatim in exactly the

24 same spirit as the Halpern appendix.

25

Finally, I just want to address this question of

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1 whether secret law trumps exemptions or not. How we decide

2 that, I think, fairly exotic question of law is beside the

3 point. The question here is, are the exemptions met? And if

4 the government hasn't done that, whatever we think about secret

5 law is beside the point. Our view is they have not shown

6 either that the legal analysis contained in this document is

7 exemption 1 under the executive order or exemption 3 under the

8 National Security Act.

9

Thank you, your Honor.

10

THE COURT: All right. Counsel, I want to thank you

11 for your thoughtful arguments and your very well drafted briefs

12 in this matter. There are some exotic questions embedded in

13 this matter, so decision reserved.

14

Have a good weekend.

15

MR. McCRAW: Thank you, your Honor.

16

* * *

17

18

19

20

21

22

23

24

25

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 Case 1:11-cv-06990-WHP Document 26
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

Filed 05/17/12 Page 1 of 14
USDC SDNY DOCUMENT ELECTRONI CALLY FILED DOC # :~~~.__.~.~_._----,_ __ DATE FILED:

THE NEW YORK TIMES CO., et ano.,

11 Civ. 6990 (WHP)

Plaintiffs,

MEMORANDUM & ORDER

-against-

UNITED STATES DEPARTMENT OF mSTICE,

Defendant.
-------------------------------X
AMERICAN CNIL LIBERTIES UNION, et ano.,

11 Civ. 7562 (WHP)

Plaintiffs,

-against-

FEDERAL BUREAU OF INVESTIGATION, et ano.,

Defendants.

-------------------------------X

WILLIAM H. PAULEY III, District Judge:

Plaintiffs The New York Times Company and Charlie Savage (together, the "New

York Times") and the American Civil Liberties Union and the American Civil Liberties Union

Foundation (together, the "ACLU") bring these actions against the United States Department of

Justice (the "DOJ") and the Federal Bureau of Investigation (the "FBI," collectively, the

"Government") under the Freedom ofInforrnation Act ("FOIA"), 5 U.S.C. § 552. The New

York Times and the ACLU seek the public disclosure of a classified report to Congress from the

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Attorney General and the Director of National Intelligence (the "Report") regarding foreign intelligence collection authorized by section 215 of the USA PATRIOT Act (the "Patriot Act"). The parties move for summary judgment in 11 Civ. 6990 (the "New York Times action") and partial summary judgment in 11 Civ. 7562 (the "ACLU action"). For the following reasons, Plaintiffs' motions are denied, and the Government's motions are granted.
BACKGROUND 1. Patriot Act Section 215
Section 215 ofthe Patriot Act authorizes the Government to apply to the Foreign Intelligence Surveillance Court for an order directing the production of "any tangible things" for certain investigations. 50 U.S.c. § 1861(a)(1). The Government contends that its use of this authority is critical to countering national security threats. It represents that public disclosure of the Report would expose sensitive intelligence sources and methods to America's adversaries and therefore harm national security.
In response, the New York Times and the ACLU note that two United States Senators-Senator Ron Wyden of Oregon and Senator Mark Udall of Colorado-stated publicly that the Executive Branch misled Congress and the American public about its broad interpretation of section 215. See 157 Congo Rec. S3386 (daily ed. May 26,2011) (statement of Sen. Wyden) ("[M]any Members of Congress have no idea how the law is being secretly interpreted by the executive branch[.]"); see also 157 Congo Rec. S3389 (daily ed. May 26,2011) (statement of Sen. Udall) ("[W]hat most people-including many Members of Congress­ believe the PATRIOT Act allows the government to do ... and what government officials
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Case 1:11-cv-06990-WHP Document 26 Filed 05/17/12 Page 3 of 14
privately believe the PATRIOT Act allows them to do are two different things."). According to the New York Times and the ACLU, the Senators' comments suggest that the Government is withholding the Report in bad faith.
II. The New York Times Request On May 27,2011, New York Times reporter Charlie Savage ("Savage")
submitted a FOIA request to the DOJ's Office ofInformation Policy ("OIP") sr.eking the Report. (Declaration ofNabiha Syed, dated Mar. 19,2012 ("Syed Decl."), Ex. B.) On June 22, 2011, Savage forwarded the request to the DOl's National Security Division ("NSD"). (Syed Decl. ~ 4 and Ex. B.) On August 2,2011, NSD denied Savage's request. (Syed Decl. ~ 9 and Ex. D.) On August 19,2011, the New York Times appealed the denial to OIP. (Syed Decl. ~ 11 and Ex. E.) On October 5, 2011-after the deadline for an administrative determination on the appeal passed-the New York Times commenced this litigation. (Syed Decl. ~ 17.)
By letter dated September 30, 201 I-but received by the New York Times after the commencement of this litigation-OIP informed the New York Times that the Report was properly withheld, but the DOJ Department Review Committee would determine whether it should remain classified. (Syed Decl. ~ 19 and Ex. I.) According to the Government, such referrals to the Review Committee occur as a matter of course. (Letter from Emily Daughtry to the Court, dated May 8,2012) (11 Civ. 6990, ECF No. 25.)
III. THE ACLU REQUEST On May 31, 2011, the ACLU filed a FOIA request with the FBI and the DOl's
OIP, Office of Public Affairs, Office of Legal Counsel, and NSD seeking "all records concerning the government's interpretation or use of Section 215." (Unclassified Declaration of Mark A.
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Bradley, dated Feb. 27, 2012 ("Unclassified Bradley Decl."), , 7.) On August 22, 2011, NSD released three documents in response to the request and stated that it would withhold other documents, including the Report sought by the New York Times. (Complaint, dated Oct. 26, 2011 ("ACLU Compl."), ~ 6.) After filing and losing two administrative appeals, the ACLU filed this suit on October 26,2011. (ACLU Compl. ~~ 38-44.) The ACLU's other FOIA requests are not before the Court on these motions.
DISCUSSION 1. Legal Standard
Summary judgment should be rendered if the record shows that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The burden of demonstrating the absence of any genuine dispute as to a material fact rests with the moving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once the moving party has made an initial showing that there is no genuine dispute of material fact, the non-moving party cannot rely on the "mere existence of a scintilla of evidence" to defeat summary judgment but must set forth "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis in original); see also Niagara Mohawk Power Corp. v. Jones Chern., Inc., 315 F.3d 171, 175 (2d Cir.2003).
"A dispute about a 'genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v.
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Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008) (quoting Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial. '" Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita, 475 U.S. at 586-87). The Court resolves all factual ambiguities and draws all inferences in favor of the non-moving party. Liberty Lobby, 477 U.S. at 255; see also Jeffreys v. City of New York, 426 F.3d 549,553 (2d Cir. 2005). Where, as here, both parties move for summary judgment, each party's motion "must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration." Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir. 2001).
In a FOIA case, "[a]ffidavits and declarations ... giving reasonably detailed explanations why any withheld documents fall within an exemption [from the cbligation to disclose] are sufficient to sustain the agency's burden." Carney v. U.S. Dep't of Justice, 19 F.3d 807,812 (2d Cir. 1994) (footnote omitted). "[T]he general rule in this Circuit is that in FOIA actions, agency affidavits alone will support a grant of summary judgment," and Local Civil Rule 56.1 statements are not required. Ferguson v. FBI, No. 89 Civ. 5071 (RPP), 1995 WL ·329307, at *2 (S.D.N.Y. June 1, 1995), aff'd, 83 F.3d 41 (2d Cir. 1996).
II. FOIA FOIA represents Congress's balance "between the right of the public to know and
the need of the Government to keep information in confidence." John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (quoting H.R. Rep. 89-1497, 89th Cong., 2d Sess. 6 (1966» (internal quotation marks omitted). Thus, while FOIA requires public disclosure of many government documents, disclosure is not required if"the documents fall within [the statute's]
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enumerated exceptions." Dep't ofInterior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001) (internal citations omitted). FOIA's exemptions are "narrowly construed," and all doubts "are to be resolved in favor of disclosure." ACLU v. Dep't ofDer., 543 F.3d 59, 66 (2d Cir. 2008), vacated on other grounds and remanded, 130 S. Ct. 777 (2009).
Courts review exemption claims de novo, and it is the Government's burden "to justify the withholding of any requested documents." Associated Press v. U.S. Dep't ofDer., 554 F.3d 274, 283 (2d Cir. 2009) (quoting U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991» (internal quotation marks omitted); see also 5 U.S.C. § 552(a)(4)(B). To carry its burden, the Government must submit declarations with the "reasonable specificity" needed to facilitate meaningful review. Halpern v. FBI, 181 F.3d 279,293 (2d Cir. 1999). However, declarations in FOIA cases need not contain "factual descriptions that ifmade public would compromise the secret nature of the information[.]" Hayden v. Nat'l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1384-85 (D.C. Cir. 1979) (quoting Vaughn v. Rosen, 484 F.2d 820,826 (D.C. Cir. 1973» (internal quotation marks omitted).
"Ultimately, an agency's justification for invoking a FOIA exception is sufficient if it appears logical or plausible." Wilner v. Nat'! Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009) (quoting Larson v. Dep't of State, 565 F.3d 857,865 (D.C. Cir. 2009) (Sentelle, c.J.» (internal quotation marks omitted). And courts "have consistently deferred to executive affidavits predicting harm to national security[.]" Wilner, 592 F.3d at 76 (quoting Ctr. for Nat'} Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918,927 (D.C. Cir. 2003» (internal quotation marks omitted). Accordingly, "the government's burden is a light one," ACLU v. U.S. Dep't ofDer., 628 F.3d 612,624 (D.C. Cir. 2011) (Sentelle, C.J.); accord Amnesty Int'l USA v. CIA, 728 F.
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Case 1:11-cv-06990-WHP Document 26 Filed 05/17/12 Page 7 of 14
Supp. 2d 479,508 (S.D.N.Y. 2010) (deferring to executive declarations predicting harm to national security).
A. Sufficiency of the Government's Submissions In support of its motions for summary judgment and partial summary judgment,
the Government submitted classified and unclassified declarations of Mark A. Bradley, the Director ofthe FOIA and Declassification Unit ofNSD's Office of Law and Policy. (Unclassified Bradley Decl. '1[ 1.) The New York Times and the ACLU contend that the unclassified Bradley declaration lacks the required degree of specificity because it is conclusory and merely repeats the legal standard for withholding classified documents. But, as the New York Times acknowledged at oral argument, this Court need not decide whether the Government's public submissions are sufficient if this Court reviewed the Report in camera. (Hearing Transcript dated May 4,2012 ("Hr'g Tr."), at 12.) Any in camera inspection guides a court's evaluation of the Government's reliance on exemptions from FOIA's disclosure requirement.
B. In Camera Review
District courts may review withheld documents in camera to assist in analyzing FOIA exemption claims. See 5 U.S.C. § 552(a)(4)(B); see also Tigue v. U.S. Dep't of Justice, 312 F3d 70, 82 (2d Cir. 2002). "In camera review is considered the exception, not the rule, and the propriety of such review is a matter entrusted to the district court's discretion." ACLU v. Office of the Dir. ofNaCI Intelligence, No. 10 Civ. 4419 (RJS), 2011 WL 5563520, at *12 n.9 (S.D.N.Y. Nov. 15,2011) (quoting Local 3, InCI Bhd. ofElec. Workers v. NLRB, 845 F.2d 1177, 1180 (2d Cir. 1988» (internal quotation marks omitted). But in camera inspection is
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particularly appropriate where, as here, "the number of documents is relatively small[.]" Twist v. Ashcroft, 329 F. Supp. 2d 50, 54 (D.D.C. 2004), affd sub nom., Twist v. Gonzales, 171 F. App'x 855 (D.C. Cir. 2005).
Both the New York Times and the ACLU asked this to Court review the Report in camera, and the Government did not oppose that request. In view of the Report's brevity, this Court did so. This Court is mindful, however, that "the district court's inspection prerogative is not a substitute for the government's burden ofproofl.]" Halpern, 181 F.3d at 295 (quoting Church of Scientology v. U.S. Dep't of Army. 611 F.2d 738, 743 (9th Cir. 1980)) (internal quotation marks omitted). Accordingly, the Government must demonstrate that the Report is covered by at least one ofFOIA's enumerated exemptions. See Wilner, 592 F.3d at 73.
C. FOIA Exemption 1 The Government contends that the Report is exempt from disclosure under FOIA
Exemption 1. Exemption 1 provides that FOIA's disclosure mandate does not apply to materials that are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1).
Executive Order 13526, 75 Fed. Reg. 707 (Dec. 29,2009), provides the operative classification standard. Under this Executive Order, (1) an "original classification authority" must classify the information; (2) the information must be "owned by, produced by or for, or ... under the control of the United States Government"; (3) the information must fall within one or more of eight protected categories listed in section 1.4 of the Order; and (4) an original classification authority must "determine[] that the unauthorized disclosure of the information
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reasonably could be expected to result in damage to the national security" and be "able to identify and describe the damage." Exec. Order 13526 § L1(a)(1)-(a)(4). Section 1,4 of Executive Order 13526 protects, among other things, "intelligence activities (including covert action), intelligence sources or methods, or cryptology," and "vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security." However, Section 1.7 prohibits classification of information in order to "prevent or delay the release of information that does not require protection in the interest of national security." Exec. Order 13526 § L7(a)(4).
The New York Times and the ACLU do not dispute that the first two conditions for classification are met. Further, the Bradley declarations show that the Government "determine[d] that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security." Exec. Order 13526 § 1. 1(a)(4). F1nally, this Court's in camera review confirms that the Report falls within at least one of the eight categories listed in section 1,4. This Court agrees that the Report "contains specific descriptions of the manner and means by which the United States Government acquires tangible things for certain authorized investigations pursuant to Section 215." (Unclassified Bradley Decl. ~ 9.) And this Court credits the Government's assertion that disclosing this information could enable America's adversaries to develop means to degrade and evade the nation's foreign intelligence collection capabilities. (Unclassified Bradley DecL ~ 9.) Accordingly, FOIA Exemption 1 applies, and the Government need not disclose the Report.
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D. FOIA Exemption 3 The Government also contends that the Report is exempt from disclosure under
FOIA Exemption 3, which provides that materials "specifically exempted from disclosure" by certain statutes need not be disclosed. 5 U.S.c. § 552(b)(3). In evaluating whether Exemption 3 applies, a court should "not closely scrutinize the contents of the withheld document; instead, [it should] determine only whether there is a relevant statue and whether the document falls within that statute." Krikorian v. Dep't of State, 984 F.2d 461, 465 (D.C. Cir. 1993).
The Government argues that disclosure of the Report is barred by the National Security Act of 1947, as amended by the Intelligence Reform and Terrorism Prevention Act of 2004, which protects intelligence sources and methods. See 50 U.S.c. § 403-1(i). In enacting the National Security Act, Congress "simply and pointedly protected all sources of intelligence that provide, or are engaged to provide, information the [responsible agency] needs to perform its statutory duties[.]" CIA v. Sims, 471 U.S. 159, 169-70 (1985).
This Court's in camera review confirms that disclosing the Report would reveal and potentially compromise intelligence sources and methods. And it is principally the duty of the Executive Branch, "not that ofthe judiciary, to weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the [Government's] intelligence-gathering process." Sims, 471 U.S. at 180. Accordingly, the Report is also exempt from disclosure under the National Security Act of 1947, 50 U.S.C. § 403-1(i), and FOIA Exemption 3,5 U.S.C. § 552(b)(3).
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E. "Secret Law" In addition to arguing that Exemptions 1 and 3 do not apply, the ACLU contends
that the so-called secret law doctrine mandates the disclosure of the Report. The ACLU argues that even if the Report is covered by Exemptions 1 or 3, the Government may not withhold it to the extent that it "sets forth or clarifies an agency's substantive or procedurallaw[.]" Caplan v. Bureau of Alcohol, Tobacco & Firearms, 587 F.2d 544,548 (2d Cir. 1978) (citation omitted); see also Jordan v. U.S. Dep't of Justice, 591 F.2d 753, 781 (D.C. Cir. 1978) (Bazelon, J., concurring) ("One ofthe principal purposes of [FOIA] is to eliminate 'secret law."'). While the New York Times joins this argument, it clarifies that the ultimate issue is whether the FOIA exemptions apply. (Hr'g Tr. at 22-23.)
To support their "secret law" theory, the New York Times and the ACLU cite no case in which a court applied the "secret law doctrine" to mandate the disclosure of classified national security information protected by Exemptions 1 or 3, and this Court has found none. Indeed, the concept of "secret law" arose in the different context of Exemption 5-which protects certain "inter-agency or intra-agency memorandums or letters," 5 U.S.C. § 552(b)(5}­ and the now-abrogated exemption known as "High 2," which shielded "'predominantly internal' materials whose disclosure would 'significantly ris[k] circumvention of agency regulations or statutes.'" Milner v. Dep't of Navy, l3l S. Ct. 1259, 1263 (2011)(quoting Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1056-57, 1074 (D.C. Cir. 1981» (internal citation omitted); see also Afshar v. Dep't of State, 702 F.2d 1125, 1141 (D.C. Cir. 1983); Cuneo v. Schlesinger, 484 F.2d 1086, 1090-91 (D.C. Cir. 1973). Further, there is no textual basis in FOIA for a freestanding "secret law doctrine." Notwithstanding the ACLU's policy arguments, this
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Court declines the invitation to read a "secret law" exception into the FOIA exemptions without a statutory tether. See Ali v. Fed. Bureau ofPrisons, 552 U.S. 214,228 (2008) ("[Courts] must give effect to the text congress enacted[.]"); see also Milner, 131 S. Ct. at 1267 (rejecting a "text­ light approach" to interpreting FOIA). Accordingly, Plaintiffs' "secret law" argument is unavailing.
F. Evidence of Bad Faith In challenging the adequacy of the Government's submissions, the New York
Times and the ACLU contend that the statements of Senators Wyden and Udall raise the possibility that the Government's decision to withhold the Report reflects bad faith. See Wilner, 592 F.3d at 73 (explaining that evidence of bad faith can undermine agency's a3sertions that document falls within FOIA exemption). However, this Court's in camera review of the Report verifies the Government's public representations that the Report contains properly classified national security information. The Senators' concerns that the Government is misleading Congress and the public about the scope of section 215 do not compel a different conclusion because the Government meets its burden for withholding the Report under Exemptions 1 and 3.
G. Feasibility of Redactions The New York Times and the ACLU maintain that this Court should order the
Government to produce the Report in redacted form ifportions are exempt from disclosure. As they note, any portions of a document that fall outside ofFOIA's exemptions must be disclosed unless they are "inextricably intertwined" with the exempt material. Inner City Press/Cmty. on the Move v. Bd. of Governors ofthe Fed. Reserve Sys., 463 F.3d 239, 249 n.10 (2d Cir. 2006). This Court's in camera review reveals that any potentially non-exempt portions of the Report are
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inextricably intertwined with the exempt portions. Accordingly, the entire Report is exempt from disclosure under FOIA Exemptions I and 3. The disclosure of a redacted version of the Report is neither feasible nor warranted.

CONCLUSION For the foregoing reasons, the New York Times' motion for summary judgment and the ACLU's motion for partial summary judgment are denied. The Government's motions for summary judgment in the New York Times action and for partial summary judgment in the ACLU action are granted. The Clerk of the Court is directed to file this Memorandum & Order in both 11 Civ. 6990 and 11 Civ. 7562. The Clerk ofthe Court is further directed to terminate all pending motions in 11 Civ. 6990 and mark that case closed, and to terminate the motions pending at ECF Nos. 14 and 23 in 11 Civ. 7562.

Dated: May 17,2012 New York, New York

SO ORDERED:
'''J ~'Y.- {:? ~ WILLIAM H. PAULEY III U.S.DJ

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Counsel ofRecord:
David E. McCraw~ Esq. The New York Times Company 620 Eighth Avenue, 18th Floor New York, NY 10018 Counselfor the New York Times Company and Charlie Savage
Alexander A. Abdo, Esq. Jameel Jaffer, Esq. American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004
Beth Haroules, Esq. Arthur Eisenberg, Esq. New York Civil Liberties Union Foundation 125 Broad Street, 19th Floor New York, NY 10004
Charles S. Simms, Esq. Richard I. Haddad, Esq. Stuart A. Youngs, Esq. Proskauer Rose LLP 11 Times Square New York, NY 10036 Counsel for the American Civil Liberties Union and the American Civil Liberties Union Foundation
Emily E. Daughtry, Esq. John D. Clopper, Esq. U.S. Attorney's Office, SDNY 86 Chambers Street New York, NY 10007 Counsel for Defendants
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 Case: 1:11-cv-6990 As of: 06/26/2015 03:16 PM EDT 1 of 4
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:11−cv−06990−WHP

CLOSED,ECF

The New York Times Company et al v. United States Department of Justice Assigned to: Judge William H. Pauley, III Related Case: 1:11−cv−07562−WHP Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 10/05/2011 Date Terminated: 05/17/2012 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

The New York Times Company

represented by David Edward McCraw The New York Times Company (10018) 620 Eighth Avenue 18th floor New York, NY 10018 (212) 556−4031 Fax: (212) 556−1009 Email: mccraw@nytimes.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Charlie Savage

represented by David Edward McCraw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant United States Department of Justice

represented by Emily Ewell Daughtry U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212)−637−2800 x1579 Fax: (212)−637−2717 Email: emily.daughtry@usdoj.gov LEAD ATTORNEY
John Dalton Clopper U.S. Attorney's Office, SDNY 86 Chambers Street New York, NY 10007 212 637 2716 Fax: 212 637 0033 Email: john.clopper@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/05/2011
10/05/2011

# Docket Text
1 COMPLAINT against United States Department of Justice. (Filing Fee $ 350.00, Receipt Number 18281)Document filed by The New York Times Company, Charlie Savage.(ama) (Entered: 10/06/2011)
SUMMONS ISSUED as to United States Department of Justice, U.S. Attorney and U.S. Attorney General. (ama) (Entered: 10/06/2011)

Case: 1:11-cv-6990 As of: 06/26/2015 03:16 PM EDT 2 of 4

10/05/2011 10/05/2011 10/05/2011 10/07/2011 10/17/2011 11/10/2011 11/14/2011 11/21/2011
01/27/2012
02/07/2012
02/27/2012 02/27/2012 02/27/2012 02/27/2012

Magistrate Judge James L. Cott is so designated. (ama) (Entered: 10/06/2011)
Case Designated ECF. (ama) (Entered: 10/06/2011)
2 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Charlie Savage, The New York Times Company.(ama) (Entered: 10/06/2011)
3 CERTIFICATE OF SERVICE of Summons and Complaint. United States Department of Justice served on 10/6/2011, answer due 10/27/2011. Service was made by Mail. Document filed by The New York Times Company; Charlie Savage. (McCraw, David) (Entered: 10/07/2011)
4 ORDER FOR INITIAL PRETRIAL CONFERENCE: Initial Conference set for 11/18/2011 at 10:00 AM in Courtroom 11D at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, NY 10007 before Judge William H. Pauley III. (Signed by Judge William H. Pauley, III on 10/17/2011) Copies Mailed By Chambers. (mro) (Entered: 10/18/2011)
5 ANSWER to 1 Complaint. Document filed by United States Department of Justice.(Clopper, John) (Entered: 11/10/2011)
6 AMENDED RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by The New York Times Company.(McCraw, David) (Entered: 11/14/2011)
7 SCHEDULING ORDER: (1) The Government's brief in support of its motion for summary judgment in 11 Civ. 6990 and in support of its motion for partial summary judgment in 11 Civ. 7562 shall be filed by February 1, 2012; (2) The New York Times' brief in support of its motion for summary judgment in 11 Civ. 6990 and the ACLU's brief in support of its motion for partial summary judgment in 11 Civ. 7562 shall be filed by February 24, 2012; Oral Argument set for 4/20/2012 at 11:00 AM before Judge William H. Pauley III. Status Report due by 1/13/2012. (3) The Government's reply shall be filed by March 16, 2012; (4) This Court will hear oral argument on April 20, 2012, at 11:00 a.m.; and (5) The parties in 11 Civ. 7562 shall submit a joint status report to the Court by January 13, 2012 or earlier. (Signed by Judge William H. Pauley, III on 11/18/2011) (ae) (Entered: 11/21/2011)
8 ENDORSED LETTER addressed to Judge William H Pauley from John D Clopper dated 1/26/2012 re: Request for the briefing schedule as set forth. ENDORSEMENT: Application granted. The proposed schedule is adopted. (NY Times and ACLUS Cross Motions due by 3/9/2012. Governement's Motion due by 2/22/2012. Government Reply due by 4/6/2012.) (Signed by Judge William H. Pauley, III on 1/27/2012) (cd) (Entered: 01/30/2012)
9 ENDORSED LETTER addressed to Judge William H. Pauley, III from John D. Clopper dated 2/1/2012 re: I write respectfully to inform the Court of an error in the Government's January 26, 2012 letter requesting an extension of the briefing schedule in these related cases. I respectfully request that the Court approve the corrected dates, as set forth.ENDORSEMENT: Application granted. The Court adopts the revised scheduled above. ( Cross Motions due by 3/16/2012., Motions due by 2/22/2012., Replies due by 4/6/2012.) (Signed by Judge William H. Pauley, III on 2/6/2012) (lmb) (Entered: 02/07/2012)
10 MOTION for Summary Judgment. Document filed by United States Department of Justice.(Daughtry, Emily) (Entered: 02/27/2012)
11 MEMORANDUM OF LAW in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Daughtry, Emily) (Entered: 02/27/2012)
12 DECLARATION of Mark A. Bradley in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Daughtry, Emily) (Entered: 02/27/2012)
13 NOTICE of Filing of Classified Document re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Daughtry,

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03/06/2012
03/07/2012 03/20/2012
03/22/2012
03/26/2012 03/26/2012 03/26/2012 04/17/2012 04/17/2012
04/23/2012 04/23/2012 05/04/2012 05/09/2012

Emily) (Entered: 02/27/2012)
14 ENDORSED LETTER addressed to Judge William H. Pauley, III from Emily E. Daughtry dated 3/2/201 re: counsel writes to request permission to file a corrected copy of the Unclassified Declaration of Mark A. Bradley on ECF. ENDORSEMENT: Application granted. (Signed by Judge William H. Pauley, III on 3/5/2012) (djc) Modified on 3/14/2012 (djc). (Entered: 03/06/2012)
15 DECLARATION of Mark A. Bradley (Corrected) in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Daughtry, Emily) (Entered: 03/07/2012)
16 ENDORSED LETTER addressed to Judge William H. Pauley, III from Alexander A. Abdo dated 3/16/12 re: Counsel requests a five day extension, from 3/21/12 to 3/26/12, for plaintiffs to file their briefs in support of their cross−motions for summary judgment. ENDORSEMENT: Application granted. So ordered. (Signed by Judge William H. Pauley, III on 3/19/2012) (mro) (Entered: 03/20/2012)
17 ENDORSED LETTER: addressed to Judge William H. Pauley from John D. Clopper and Emily E. Daughtry dated 3/22/2012 re: Counsel writes to clarify that, subject to the Court's approval, the parties have agreed that the Government's reply brief in the above referenced cases would be due on Monday, April 16, 2012, not Friday, April 13, 2012. ENDORSEMENT: Application Granted. So Ordered., ( Replies due by 4/16/2012.) (Signed by Judge William H. Pauley, III on 3/22/2012) (js) (Entered: 03/23/2012)
18 CROSS MOTION for Summary Judgment. Document filed by Charlie Savage, The New York Times Company.(McCraw, David) (Entered: 03/26/2012)
19 MEMORANDUM OF LAW in Support re: 18 CROSS MOTION for Summary Judgment.. Document filed by Charlie Savage, The New York Times Company. (McCraw, David) (Entered: 03/26/2012)
20 DECLARATION of NABIHA SYED in Support re: 18 CROSS MOTION for Summary Judgment.. Document filed by Charlie Savage, The New York Times Company. (McCraw, David) (Entered: 03/26/2012)
21 SCHEDULING ORDER: Oral argument is rescheduled to May 4, 2012 at 10:30 a.m. (Signed by Judge William H. Pauley, III on 4/16/2012) (mro) (Entered: 04/17/2012)
22 ENDORSED LETTER addressed to Judge William H. Pauley III from John D. Clopper and Emily Daughtry dated 4/12/12 re: Counsel requests a one week extension, from 4/16/12 to 4/23/12, for the Government to file its reply brief. ENDORSEMENT: Application granted. So ordered. ( Replies due by 4/23/2012.) (Signed by Judge William H. Pauley, III on 4/16/2012) (mro) (Entered: 04/17/2012)
23 REPLY MEMORANDUM OF LAW in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Clopper, John) (Entered: 04/23/2012)
24 REPLY AFFIDAVIT of Mark Bradley in Support re: 10 MOTION for Summary Judgment.. Document filed by United States Department of Justice. (Clopper, John) (Entered: 04/23/2012)
Minute Entry for proceedings held before Judge William H. Pauley, III: Oral Argument held on 5/4/2012. (rjm) (Entered: 05/11/2012)
25 Letter addressed to Judge William H. Pauley from Emily Daughtry dated 5/8/2012 re: I write respectfully to respond to the Court's request, made at oral argument on May 4, 2012, that the Government submit a letter to the Court providing information as to whether there are written policies regarding the referral of classified information located in response to Freedom of Information Act ("FOIA") requests to the Department of Justice's Department Review Committee ("DRC"), and the subsequent withdrawal of such referrals from the DRC at the onset of FOIA litigation. Document filed by United States Department of Justice.(lmb) (Entered: 05/09/2012)

Case: 1:11-cv-6990 As of: 06/26/2015 03:16 PM EDT 4 of 4

05/17/2012 05/30/2012 05/30/2012

26 MEMORANDUM AND ORDER: For the foregoing reasons, the New York Times' motion for summary judgment and the ACLU's motion for partial summary judgment are denied. The Government's motions for summary judgment in the New York Times action and for partial summary judgment in the ACLU action are granted.The Clerk of the Court is directed to file this Memorandum &Order in both 11Civ. 6990 and 11 Civ. 7562. The Clerk of the Court is further directed to terminate all pending motions in 11 Civ. 6990 and mark that case closed, and to terminate the motions pending at ECF Nos. 14 and 23 in 11 Civ. 7562. (Signed by Judge William H. Pauley, III on 5/17/2012) (js) (Entered: 05/17/2012)
27 TRANSCRIPT of Proceedings re: ARGUMENT held on 5/4/2012 before Judge William H. Pauley, III. Court Reporter/Transcriber: Andrew Walker, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/25/2012. Redacted Transcript Deadline set for 7/5/2012. Release of Transcript Restriction set for 8/31/2012.(McGuirk, Kelly) (Entered: 05/30/2012)
28 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a ARGUMENT proceeding held on 5/4/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 05/30/2012)