Okay. It may not be quite that bad but…
It’s called the Glomar Doctrine and it gives the Government a pretty big out when it comes to responding to freedom of information requests.
It’s named for the Glomar Explorer, a giant salvage ship built by Howard Hughes to help the CIA recover a Soviet submarine lost at sea and stems from a Freedom of Information Act case when reporters sought details about the ship.
The government successfully argued that the “existence or nonexistence of the requested records was itself a classified fact exempt from disclosure.”
The doctrine’s back in the news because yesterday, the Second Circuit Court of Appeals ruled the NSA can use it in refusing to disclose whether or not they had intercepted conversations between prisoners being held at Guanantamo Bay and their lawyers.
The Center for Constitutional Rights filed the suit after President Bush disclosed in December 2005, the existence of the Terrorist Surveillance Program. The center’s lawyers — several of which were and are representing detainees at Guantanamo — wanted to know if they had been targeted by the program.
The government then claimed Glomar exempted them from responding to the request “because doing so would compromise the United States Intelligence Communities’ sources and methods, including the manner in which the TSP operated, and the Nation’s intelligence capabilities.”
The lawyers responded that the possibility the government had been listening to their conversations “has had and continues to have a chilling effect” and that “Glomar functions to protect legitimate government interests, not to conceal illegal or unconstitutional activity.”
The lawyers also argued that since President Bush had acknowledged the existence of the program — and the Department of Justice had added several details — the government wasn’t entitled to claim Glomar since the program was no longer secret.
“Never before has Glomar been invoked to protect the secrecy of a program that has been officially acknowledged by the President, the Attorney General and the National Security Advisor,” the lawyers wrote.
The appellate court disagreed, writing that the government could claim Glomar because while “the general existence of the TSP has been officially acknowledged, the specific methods used, targets of surveillance, and information obtained through the program have not been disclosed.”
As for the lawyers having maintained that Glomar was being used to conceal illegal activity because any records relating to them “would have been obtained in violation of the US Constitution” — specifically that “the warrantless interception of plaintiff lawyers’ communications violates the First, Fourth and Fifth Amendments” and violates the constitutional right of detainees and warrantless surveillance violates the separation of powers — the court ruled that there was “no evidence in the record” to back that up.
Regardless, the court ruled, the legality of the TSP didn’t come into play because it was “beyond the scope” of the freedom of information request action.
So, while the Center of Constitutional Rights lost this round, the battle to determine whether the TSP is illegal continues.