White House Ordered to Release NSA Surveillance Papers

A federal judge has ordered the White House to release documents on the NSA surveillance program to satisfy a Freedom of Information Act request.

A federal judge ordered the Bush administration on Thursday to release documents about its warrantless surveillance program or spell out what it is withholding, a setback to efforts to keep the program under wraps.

At the same time, the Republican chairman of the Senate Intelligence Committee said he had worked out an agreement with the White House to consider legislation and provide more information to Congress on the eavesdropping program. The panel’s top Democrat, who has requested a full-scale investigation, immediately objected to what he called an abdication of the committee’s responsibilities.

U.S. District Judge Henry Kennedy ruled that a private group, the Electronic Privacy Information Center, will suffer irreparable harm if the documents it has been seeking since December are not processed promptly under the Freedom of Information Act. He gave the Justice Department 20 days to respond to the group’s request. “President Bush has invited meaningful debate about the wireless surveillance program,” Kennedy said. “That can only occur if DOJ processes its FOIA requests in a timely fashion and releases the information sought.”

Justice Department spokeswoman Tasia Scolinos said the department has been “extremely forthcoming” with information and “will continue to meet its obligations under FOIA.”

The Senate is acting properly here in its duty to conduct oversight. Given the limited information in this story, however, the judge’s order is inexplicable. FOIA does not apply to classified documents. Indeed, there are all manner of exemptions.

Update: A bit more from Reuters:

The Washington-based Electronic Privacy Information Center sought documents from four Justice Department offices, including the office of the attorney general, after The New York Times first reported the eavesdropping program’s existence on December 16. It argued that the department played a key role in authorizing, implementing and overseeing the program, which involves surveillance by the National Security Agency.

Records sought by the group include an audit of the program, a “checklist” guide used to determine whether an individual’s phone or e-mail messages could be monitored, documents showing how information gleaned through eavesdropping had been used, and other legal opinions about the program.

These sorts of documents may not be classified and, in any event, the administration has twenty days to explain why they should not have to release any particular document.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Jack Ehrlich says:

    I just wonder what the irreparable harm consists of in the eyes of that judge. I consider irreparable harm to be consistant with revealing our methods and techniques for surveilling our adversaries in this global war on terrorism. I think Judge Kennedy is trying to extend judicial power where none exists. There are limits to judicial power, and line is drawn at the edges of executive and legislative power.