As the D.C. Circuit has explained, “[a] Rule 59(e) motion ‘is discretionary’ and need 1

not be granted unless the district court finds that there is an ‘intervening change of controlling

law, the availability of new evidence, or the need to correct a clear error or prevent manifest

injustice.’” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996).

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ELECTRONIC FRONTIER

FOUNDATION,

 Plaintiff,

 v.

DEPARTMENT OF JUSTICE,

 Defendant.

Civil No. 07-00403 (TFH)

MEMORANDUM OPINION

Pending before the Court is Electronic Frontier Foundation’s (“EFF’s”) Motion for

Reconsideration [Docket No. 16], which was filed pursuant to Rule 59(e) of the Federal Rules of

Civil Procedure. EFF seeks reconsideration of this Court’s ruling issued on July 26, 2007 and 1

subsequently memorialized in a Memorandum Opinion dated August 14, 2007. EFF asserts that

an August 3, 2007 Washington Post article constitutes new evidence that the Foreign Intelligence

Surveillance Court (“FISC”) orders it sought from the Department of Justice via the Freedom of

Information Act “‘primarily address[] legal issues, as opposed to operational details’ of the NSA

surveillance program.” Mot. for Recons. 3 (emphasis omitted). According to EFF, “[t]he newly

available facts . . . warrant the Court’s reconsideration of its decision to adjudicate the

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government’s motion for summary judgment without first reviewing the withheld material in

camera.” Id. 

The Washington Post article cited by EFF contains statements suggesting that a FISC

judge “secretly declared a key element of the Bush administration’s wiretapping efforts 

illegal . . . .” Mot. for Recons. Ex. A. The primary source for the purported statements is House

Minority Leader John A. Boehner, who reportedly made the statements during an interview he

gave to Fox News anchor Neil Cavuto. Id. The article further claims that Rep. Boehner’s

“spokesman” said the statements “were based on a public, Jan. 17 letter to Congress by Attorney

General Alberto R. Gonzales . . . .” Id. EFF contends that this newspaper article is significant

because it lends support to EFF’s claim that the FISC orders sought in its FOIA request contain

legal analyses that should be disclosed to the public versus operational details about the NSA

surveillance program. Mot. for Recons. 3.

There are several problems with EFF’s assertion that the newspaper article constitutes

new evidence warranting reconsideration. Notably, a careful review of the article reveals that the

only source for the claim that a FISC judge declared the administration’s wiretapping program

illegal is Rep. Boehner’s statements. Even assuming for the sake of argument that Rep. Boehner

was correct that such a ruling exists, he reportedly stated in July that the ruling was issued “over

the last four or five months,” which would place such a ruling, at the earliest, in March or April

of 2007. Id. EFF’s FOIA request, however, was limited exclusively to “orders referenced by the

Attorney General in his [January 17, 2007] letters to Sens. Leahy and Specter” and orders

“referenced by [former White House Press Secretary Tony Snow] in the January 17 press

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briefing.” See Mem. Op. 2-3 (Aug. 14, 2007). Accordingly, to the extent the FISC allegedly

issued a ruling after January 17, 2007, that ruling would be irrelevant for the purpose of this

Court’s evaluation of the Justice Department’s response to EFF’s FOIA request. 

Moreover, the newspaper article states that Attorney General Gonzales’ January 17, 2007

letter “referred only to ‘approval’ of a government surveillance request and did not refer, as

Boehner did, to the court’s rejection of surveillance of specific foreign communications routed

through the United States.” Mot. for Recons. Ex. A (emphasis added). Consequently, the

newspaper article actually contradicts EFF’s claim that the FISC orders at issue in this case

contain legal analyses of the NSA’s prior surveillance activities. At best, all that can be distilled

from the newspaper article with regard to the Attorney General’s January 17, 2007 letter, and the

White House press briefing on that same date, is that the government applied to the FISC to

engage in surveillance activities and that application reportedly was approved. There is nothing

whatsoever in the newspaper article that offers any support for the contention that the FISC

issued a ruling on or before January 17, 2007 that addressed the legality of the NSA’s so-called

warrantless surveillance program.

These conclusions point to an inevitable result, which is that the newspaper article EFF

cited is not new evidence with regard to consideration of the Justice Department’s response to

EFF’s FOIA request. If, in fact, the premise for Rep. Boehner’s comments was the Attorney

General’s January 17 letter, the existence of that letter and whatever it arguably implicated was

brought to this Court’s attention and considered by this Court before it issued the ruling now

challenged by EFF. The newspaper article provides no new information about the orders that

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were the subject of EFF’s FOIA request. Thus, there is nothing in the newspaper article that

suggests the Justice Department misrepresented the facts in either the public or classified

declarations in this case, or that it acted in bad faith. As the Court explained in its decision

granting the Justice Department’s motion for summary judgment, “[b]ecause the Court found the

Justice Department’s declarations sufficient to conduct a de novo review and verify the

applicability of the asserted FOIA exemptions, it will exercise its discretion to decline an in

camera inspection of the responsive documents.” Mem. Op. 24. Because there is no reason at

this time to reassess that decision, the Court will deny EFF’s motion for reconsideration.

An appropriate order accompanies this memorandum opinion.

January 29, 2008 /s/ Thomas F. Hogan 

Thomas F. Hogan

Chief Judge

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