In a Freedom of Information Act (FOIA) action filed by attorneys for Guantanamo Bay detainees seeking information regarding whether the government intercepted plaintiffs' communications relating to the representation of their detainee clients, an order upholding the National Security Agency's (NSA) and Department of Justice's responses neither confirming nor denying the existence of such records is affirmed where: 1) a Glomar response was available to agencies as a valid response to FOIA requests; 2) an agency may issue a Glomar response to FOIA requests seeking information obtained pursuant to a publicly acknowledged intelligence program, at least when the existence of such information has not already been publicly disclosed; 3) the NSA properly invoked the Glomar doctrine in response to plaintiffs' request for information pursuant to FOIA Exemption 3; 4) the government's affidavits sufficiently alleged the necessity of a Glomar response in this case, making it unnecessary for the court to review or to require the district court to review ex parte and in camera any classified affidavits that the NSA might proffer in support of its Glomar response; and 5) there was no evidence in the record that the NSA invoked Glomar for the purpose of concealing activities that violated the Constitution or were otherwise illegal.
Argued: October 9, 2009
Decided: December 30, 2009
Opinion by Judge Cabranes
Kathryn A. Sabbeth, David C. Vladeck and Karen Borg, Georgetown University Law Center Institute for Public Representation