ACLU v. U.S. Dep’t of Justice
By Amy Zhang – Edited by Ashish Bakshi
ACLU v. U.S. Dep’t of Justice (S.D.N.Y. filed Oct. 17, 2013)
Two weeks ago, the American Civil Liberties Union (“ACLU”) and the American Civil Liberties Union Foundation filed a complaint against the United States Department of Justice (“DOJ”) seeking immediate processing and release of DOJ records that the ACLU had requested pursuant to the Freedom of Information Act (“FOIA”) in late March of this year. Complaint, ACLU v. DOJ (S.D.N.Y. filed Oct. 17, 2013).
The ACLU requested information related to the use of evidence derived from surveillance authorized under the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 (“FAA”). Its complaint alleged that the DOJ had failed to process and release the requested information. In addition to the release of the requested documents, the ACLU is seeking a waiver of search, review, and reproduction fees on the grounds that disclosure of the requested records is “in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii).
Ars Technica provides background information on the lawsuit. JOLT Digest and Wired provide summaries of Clapper v. Amnesty International USA, No. 11–1025 (U.S. Feb. 26, 2013), which provides the backdrop for the ACLU’s current suit.
In 2008, Congress enacted the FAA, which authorized the government to electronically spy on Americans’ phone calls and emails without a warrant. In December 2012, Congress reauthorized the act for another five years. According to the ACLU complaint, Senator Diane Feinstein (D-CA) indicated at Senate hearings just prior to the act’s reauthorization that FAA surveillance had resulted in at least eight federal criminal prosecutions. Complaint at 4.
The FAA requires the government to notify criminal defendants when it intends to use information obtained via FAA surveillance in a prosecution. Id. The ACLU indicated that the Fourth and Fifth Amendments to the United States Constitution also require notice. Id. The Supreme Court noted in Clapper that if the government intends to use information collected by FAA surveillance, it must inform the criminal defendant of the source of the evidence, so that the defendant may challenge the lawfulness of the evidence. Clapper, slip op. at 22.
On March 29, 2013, following Clapper, the ACLU submitted a FOIA request to the DOJ. The request sought information relating to “all legal proceedings” in which the DOJ had used or intended to use evidence obtained through FAA surveillance. Complaint 5-6.
The ACLU complaint alleges that three DOJ divisions (the National Security Division, the Criminal Division, and the Executive Office for United States Attorneys) and the Federal Bureau of Investigation (“FBI”) have failed to respond to the ACLU’s request within the twenty-day statutory limit. The ACLU now seeks injunctive relief directing the DOJ and FBI to immediately process and release any information that cannot be properly withheld under FOIA.
The importance of the ACLU’s lawsuit remains uncertain. Even if the ACLU succeeds in getting the DOJ to process its FOIA request, the DOJ may not release any information. As noted by Ars Technica, the government has denied that it has ever used evidence obtained through FAA surveillance in a criminal prosecution. Since the ACLU’s FOIA request only asks for information regarding evidence that the DOJ has used or has intended to use in a case, the DOJ might deny the request on the grounds that there has never been such a case. Also, as Wired has pointed out, the government might choose to assert “state secret privilege that lets the executive branch effectively kill lawsuits by claiming they threaten to expose national security secrets.”