Wilner v. National Security Agency (NSA)

Synopsis

Wilner v. NSA is a Freedom of Information Act (FOIA) lawsuit seeking records of any NSA surveillance gathered on 16 attorneys who represent detainees at Guantánamo.

Status

The Center for Constitutional Rights (CCR) filed the lawsuit in the U.S District Court for the Southern District of New York on May 17, 2007. On June 25, 2008 the district court granted summary judgment to the government on its Glomar claims, accepting that it could refuse to either confirm or deny the existence of records “relating to ongoing or completed electronic surveillance or physical searches” relating to any of the individual plaintiffs. The Court of Appeals for the Second Circuit affirmed the district court’s opinion in all respects on December 30, 2009.

Description

Wilner v. NSA is a FOIA lawsuit filed by the Center for Constitutional Rights (CCR) against the NSA and Department of Justice (DOJ), demanding that the government comply with requests to turn over all records of NSA’s warrantless wiretapping of 16 attorneys representing detainees at Guantanamo. As they represent clients at Guantánamo, the plaintiffs – which include CCR staff attorneys Gitanjali Gutierrez and Wells Dixon as well as law professors and partners at prominent international law firms – may have been the subjects of the NSA's warrantless wiretapping program that began shortly after September 11, 2001. Soon after the NSA's warrantless spying program became public in December 2005, CCR submitted FOIA requests to the NSA and DOJ for records related to the policies, procedures, and guidelines of the NSA program and for records of the warrantless surveillance of the individual requesters. By law, the government is obliged to produce responsive documents within 20 days of FOIA requests. Both the DOJ and the NSA provided inadequate responses to the requests and refused to provide relevant documents within the required time period and refused to even acknowledge the existence of documents related to whether the individual lawyers were being subjected to warrantless surveillance. The NSA produced only two documents, both of which had already been made public, and said that another document was being processed. The DOJ provided 85 pages of unredacted documents and two redacted documents, much of which had already been made public, and stated that it was withholding 84 pages and an e-mail. CCR filed this lawsuit to enforce the government's obligations under the Freedom of Information Act to provide information to the public about government conduct. Chicago-based law firm Butler Rubin Saltarelli & Boyd is co-counsel in this case.  

Timeline

On May 17, 2007, CCR filed Wilner v. NSA in the U.S District Court for the Southern District of New York.

On May 28, 2007, CCR amended their Complaint Wilner v. NSA in the U.S. District Court for the Southern District of New York.

On August 2, 2007, the Defense filed an Answer to the Amended Complaint.

On November 2, 2007, CCR filed a Revised Amended Complaint.

On November 19, 2007, the Defense filed their answer to the second Amended Complaint.

On March 18, 2008, the Defense filed a Partial Motion for Summary Judgment Regarding the Glomar Response, refusing to confirm of deny the existence of records responsive to plaintiffs’ request concerning whether they were subject to warrantless surveillance.  Joseph Brand, David M. Hardy, and J. Michael McConnell, the Director of National Intelligence, wrote declarations in support of the Motion.

On May 5, 2008, the Defense filed a Motion for Summary Judgment (non-Glomar response related).

On May 6, 2008, CCR filed a Memorandum in Opposition to the Government’s Partial Motion for Summary Judgment Regarding the Glomar response, arguing that the Glomar functions to protect legitimate Government interests, not to conceal unconstitutional activity.  The Government’s refusal to disavow interfering with attorneys’ communications violates the First and Fifth Amendment.  Declarations in support of the memorandum were provided by plaintiffs Scott Barker, Charles H. Carpenter, John A Chandler, Joshua Colangelo-Bryan, J. Wells Dixon, Tina Monshipour Foster, H. Candace Gorman, Richard A. Grigg, Gitanjali S. Gutierrez, Jonathan Hafetz, Joseph Margulies, George Brent Mickum IV, Brian J. Neff, Clive A. Stafford Smith, Michael J. Sternhell, Stephen M. Truitt, and Thomas B. Wilner, and by ethics expert David Luban.

On June 3, 2008, the Defense filed their Reply in Further Support of Defendants' Partial Motion for Summary Judgment regarding the Glomar response. 

On June 25, 2008, Judge Denise Cote issued and opinion and order granting the Defendants' March 18, 2008 Partial Motion for Summary Judgment regarding the Glomar response, accepting that the government could refuse to either confirm or deny the existence of records "relating to ongoing or completed electronic surveillance or physical searches" relating  to any of the individual plaintiffs.

On September 24, 2008, Wilner plaintiffs filed a notice of appeal regarding Judge Cote's order granting the defendants' motion for partial summary judgment.

On December 12, 2008, Wilner plaintiffs filed their appellate brief in the Second Circuit. 

On January 30, 2009, the government filed their brief for appellees.

On December 30, 2009, the Court of Appeals for the Second Circuit affirmed the district court's opinion granting partial summary judgment to the government on its Glomar claims.