Linder v. National Security Agency (95-5291) - Appellant's Reply Brief
95- 5291
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UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT
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DAVID LINDER, et al,
Plaintiffs-Appellants,
- against -
NATIONAL SECURITY AGENCY,
Defendant-Appellee.
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ON APPEAL FROM
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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APPELLANTS' REPLY BRIEF
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HAROLD HONGJU KOH BETH STEPHENS
RONALD C. SLYE MAHLON PERKINS
Allard K. Lowenstein JENNIFER M. GREEN
International Human MICHAEL RATNER
Rights Law Clinic JULES LOBEL
127 Wall Street Center for Constitutional Rights
New Haven, CT 06520 666 Broadway, 7th floor
(203) 432-4932 New York, NY 10012
212-614-6431
Attorneys for Appellants
On the brief:
Adam Steinman
Lowenstein International Human Rights Law Clinic
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Certificate as to Parties, Rulings, And Related Cases
(As Required by Circuit Rule 28)
(A) Parties and Amici:
The following listed Parties appeared below:
Appellants/Plaintiffs
David Linder
Elizabeth Linder
John Linder
Miriam Linder
Appellee/Defendant
National Security Agency
Parties before this court:
(Same as above, although other parties, as yet unknown,
may participate as amici curiae)
(B) Rulings Under Review:
June 28, 1995 final judgment of the District Court below
granting the National Security Agency's motion to quash
plaintiffs '/appellants ' third-party subpoena duces
tecum and denying with prejudice the plaintiffs' motion
to compel compliance with the third-party subpoena duces
tecum. (Judge Stanley Harris). [App. at ].
(C) Related Cases:
The case on review has not previously been before this
Court. Four related cases are pending before the District
Court of the District of Columbia: Misc. No. 94-146,
Misc. No. 94-147, Misc. No. 94-149, and Misc. No. 94-150
(all before Judge Stanley Harris). Plaintiffs filed
third-party subpoenas on the Central Intelligence Agency,
the Department of Defense, the Federal Bureau of
Investigation and the Department of State. After the
government agencies refused to comply or discuss
modifications of the subpoenas, plaintiffs filed Motions
to compel in the District court. In December 1994, the
court modified the subpoenas, and ordered the agencies to
produce documents relevant to four categories of
information. Compliance with that order by the four
agencies is pending.
TABLE OF CONTENTS
TABLE OF AUTHORITIES iii
STATEMENT OF SUBJECT MATTER AND APPELLATE
JURISDICTION 1
ARGUMENT 1
I. SUMMARY OF ARGUMENT
1
II. THE NATIONAL SECURITY AGENCY FAILED TO ADDRESS THE
LINDERS' ARGUMENTS ABOUT THE STATUTORY AND COMMON
LAW STANDARDS FOR DISCLOSURE OF INFORMATION IN THE
CONTEXT OF DISCOVERY 3
A. The NSA failed to address the substance of the
Linders' argument about Public Law 86-36 3
B. The NSA's arguments about the Court's discretion
are flawed because of its failure to address the
elements which courts must balance in their
determinations about discovery in this context 4
1. Standard for review 4
2. The NSA did not address the Linders' argument
about the court's failure to balance the need
of litigants. 6
(a) The failure to address the need of the
Linder family for the information. 7
(b) Government's need for secrecy and
deference to agency determinations 8
(C) Weighing the litigants' needs. 13
(d) It is the plaintiffs who have attempted to
reduce the burden of document production. 15
III. THE NSA IGNORES ARGUMENTS ABOUT ITS ERRORS IN
PROCEDURE. 16
IV. THE NSA FAILED TO ADDRESS ALTERNATIVES AVAILABLE TO THE
DISTRICT COURT TO ADDRESS BOTH PLAINTIFFS' NEEDS FOR
INFORMATION AND GOVERNMENTAL SECRECY CONCERNS 17
A. The NSA did not address in camera review, the
provision of an index of the documents, or
redaction of privileged sections of documents. 17
B. The NSA mistakenly, though inconsistently,
asserts that FOIA standards are inapplicable
to this case. 18
V. THE NSA MISTAKENLY RAISES THE QUESTION OF PLAINTIFFS'
COMPLIANCE WITH THE TOUHY REGULATION. 20
A. The Touhy regulations do not apply to this case 20
B. Plaintiffs supplied a sufficient explanation of the
documents requested under the subpoena. 22
CONCLUSION 24 TABLF OF AUTHORITIES
CASES
Black v. Sheraton Coro. of America, 564 F.2d 531
(D.C. Cir. 1977) 17
Bowers v. U.S. Department of Justice, 930 F.2d 350, 357
(4th Cir.) cert. denied 112 S.Ct. 308 (1991) 9
Church of Scientology v. Turner, 662 F.2d 784
(D.C. Cir. 1980) 17
Coastal Corp. v. Duncan, 86 F.R.D. 514 (D.Del 1980). 16
Davis v. Braswell Motor Freiaht Lines. Inc. 22
Davis Enterprises v. EPA, 877 F.2d 1181
(3rd Cir. 1989) cert. denied, 493 U.S. 1070 (1990) 21
Ellsberg v. Mitchell, 709 F.2d 51 (D.C. Cir. 1983),
cert. denied, 465 U.S. 1038 (1984) 7,18
Ex parse Sackett, 74 F.2d 922, 923-24 (9th Cir. 1935) 23
Firestone Tire & Rubber Co. v. Coleman, 432 F.Supp. 1359
(N.D. Ohio 1976) 19
Founding Church of Scientology. Etc. v. Nat. Sec. Aqcv.,
610 F.2d 824 (D.C. Cir. 1979). passim
Friedman v. Bache Halsey Stuart Shields. Inc., 738 F.2d 1336,
1344 (D.C. Cir. 1984). 19
Halkin v. Helms [Halkin II] 690 F. 2d 977,995-97
(D.C. Cir. 1982) 18
Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980) 10
Hayden v. NSA, 608 F.2d 1381 (D.C. Cir. 1979) passim
Hunt v. CIA, 981 F. 2d 1116, 1119 (9th Cir. 1992). 9
In re Multi-Piece Rim Products Liability Litigation, 653 F.2d
671,679 (D.C. Cir. 1981). 5
Jupiter Painting Contractor Co.. Inc. v. U.S.. 87 F.R.D. 593
(E.D. Pa. 1980). 18
Lead Industries Ass'n v. Occupational S.& H. Admin.,
471 F.Supp. 155, 156 (S.D.N.Y. 1979) 18
Linder v. Calero Portocarrero, 747 F.Supp. 1452
S.D.Fla. 1990). passim
Linder v. Portocarrero, 963 F.2d 332 (llth Cir. 1992) passim
Marshall v. Westinghouse Elec. Co. 576 F.2d 588
(5th Cir. 1978). 5
Military Audit Project v. Casey, 656 F.2d 724, 738
(D.C. Cir.1981) 9
Moore v. Armour Pharmaceutical Co., 927 F.2d 1994
(llth Cir. 1991). 21
Moore-McCormack Lines. Inc. v. I.T.O. Coros. of Baltimore,
508 F.2d 945, 950 (4th Cir. 1974). 18
N.L.R.B. v. Sears Roebuck, 421 U.S. 132 (1975). 18
Navasky v. CIA, 499 F.Supp. 269 (S.D.N.Y. 1980). 17
Northrop Corp. v. McDonnell Doualas Corp., 751 F.2d 395
(D.C. Cir. 1984). passim
Premium Serv. Corp. v. Sperry & Hutchinson Co., 511 F.2d 225
(9th Cir. 1975). 5
Saunders v. Great Western Sugar Co., 396 F.2d 795 (1968) 23
(4th Cir. 1986)
Simmons v. Department of Justice, 796 F.2d 709 (4th Cir.1986) 10
Taylor v. Department of the Army, 684 F.2d 99, 109
(D.C. Cir. 1982) 9
United States v. Beatrice Foods Co., 52 F.R.D. 14
(D.Minn. 1971) 18
United States v. Bizzard, 674 F.2d 1382 22
United States v. Marchetti, 466 F.2d 1309, 1318
(4th Cir.), cert. denied 409 U.S. 1063 (1972). 12
United States Steel Corp v. Mattingly, 663 F.2d 68
(lOth Cir. 1981). 22
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) passim
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir., 1973). passim
Weberman v. United States, 490 F. Supp. 9 (S.D.N.Y. 1980) 11
Westinghouse Electric Corp. v. CitY of Burlinaton. Vt.
351 F.2d 762, 767 (D.C. Cir. 1965). passim
STATUTES
Section 6 of Public Law 86-36
50 U.S.C. 401 . passim
Fed.R.Civ.Pro. 45(c)(3)(A)(iv) passim
MISCELLANEOUS
Note, Discovery from the United States in Suits
Between Private Litigants - The 1958 Amendment of the
Federal Housekeeping Statute, 69 Yale L.J. 452 (1960) 21
4 J. Moore, Federal Practice 26.56[1] at 26-135 (1979) 5
Subject matter jurisdiction of this action in the District Court below is based on the underlying litigation in the Southern District of Florida, where there is jurisdiction over this matter under 28 U.S.C. 1332(a)(3) in that there exists complete diversity of citizenship between plaintiffs and all of the defendants.
Appellate jurisdiction is conferred on this court by 28 U.S.C. 1291, in that this is an appeal of a final judgment of the District Court below granting the National Security Agency's motion to quash the Linders' third-party subpoena duces tecum and denying their motion to compel compliance with the third-party subpoena duces tecum with prejudice. Said judgment was entered on June 28, 1995. [App. at ] A Notice of Appeal was timely filed on August 26, 1995.
Plaintiffs, the parents and brother and sister of Benjamin Linder, filed a wrongful death action for compensatory and punitive damages in the Southern District of Florida on their own behalf and on behalf of Benjamin Linder, who was tortured and murdered by the Nicaraguan contra forces. As part of pre-trial discovery,plaintiffs served a third-party subpoena upon the National Security Agency (NSA). When there was no response to the subpoena, the Linders filed a motion to compel, the National Security Agency 'moved to quash plaintiffs' subpoena in its entirety, and the District Court granted the NSA's motion in a brief opinion.
This appeal challenged the District Court's decision, arguing that the District Court did not apply the correct statutory and common law standards pertaining to governmental claims of privilege. In particular, the District Court did not properly balance the needs of the Linder family for information about the torture and murder of Benjamin Linder, against the government's need for secrecy and the burden to the government of producing the documents.
In addition, the District Court erred in failing to hold the NSA to the proper procedural standards and the NSA made its determination of whether the requested information was privileged free from these procedural constraints. Finally, the District Court did not consider alternatives available to address both plaintiffs' needs for information and governmental secrecy concerns such as the redaction of privileged sections of documents, an in camera review of documents, and the provision to the Linders of an index to the withheld documents.
In Appellee's Brief, the NSA has only selectively responded to the points and authorities cited by the Linders in Appellants' Brief, preferring to repeat previously stated claims of privilege or to make unsubstantiated claims about the laws which codify government privilege. The agency gave no consideration to the Linders' need for the information and repeated its stock answers about its need for secrecy and the burden of document production without responding to the arguments made in the Linders' brief. Similarly, the NSA gave no attention whatsoever to the Linders' arguments about the obligations of the agency to follow proper procedure nor, aside from a passing mention of redaction, inspection and the inappropriateness of a Vauchn index, did it address any of the arguments about possible alternatives available to address plaintiffs' needs for information and governmental secrecy issues.
The NSA's mistaken reading of Public Law 86-36 suggests an absolute bar to disclosure of information, when the plain language states otherwise. Although the NSA provides a fairly lengthy discussion of the statutory language, it does not address the Linders' central point, namely, that the statute does not provide a prohibition, but rather that the statute does not require disclosure: "nothing in this Act or any other law.... shall be construed to recuire disclosure." Section 6(a) of Public Law 8636, the National Security Agency Act of 1959, 50 U.S.C. 402 note. Emphasis Added. See Appellee's Brief at 19-21 and Appellants' Brief at 8-12. Further, the NSA's brief does not discuss congressional intent as stated by the U.S. Congress; rather it addresses the Congressional intent "explained" by this Court in Founding Church of Scientolocy, 610 F.2d 824, 827-828 (D.C. Cir. 1979) and in Hayden v. NSA, 608 F.2d 1381 (D.C. Cir. 1979). Appellee's Brief at 20. It is a legislative role to explain Congressional intent; Appellants' Brief provides an excerpt from the relevant Senate Report, which the NSA does not address in its brief. See Appellants' Brief at 9-10.
Although the NSA cites the Founding Church discussion of Section 6 of Public Law 86-36, it does not address the strong warning against the use of this provision in an overly broad manner: "Even the most casual reading of Section 6 suggests, however, a potential for unduly broad construction.... a term so elastic as 'activities' should be construed with sensitivity to the hazard[s] that Congress foresaw." 610 F.2d at 828-829.
The fact that the NSA joined with the other government agencies in opposing the Linders' motion to compel on April 26, 1994 [App. at ] and failing to raise the question of Section 6 then, indicated that instead of viewing Section 6 as an absolute bar, it in fact did acknowledge that some sort of balancing test about the production of documents was proper. Unfortunately, subsequently the NSA withdrew from these efforts by the other agencies to come to an agreement about the release of information to the Linders. See Appellee's Brief at 22; Appellants' Brief at 6 7
The trial court's discretion extends to determining the relevance of discovery requests, assessing their oppressiveness, and weighing these factors in deciding whether discovery should be compelled. See Marshall v. Westinghouse Elec, Co. 576 F.2d 588 (5th Cir. 1978); Premium Serv. Corp. v. Sperry & Hutchinson Co., 511 F.2d 225 (9th Cir. 1975); 4 J. Moore, Federal Practice 26.56[1] at 26-135 (1979).
The NSA then makes a puzzling reference to the related cases now before the District Court -- apparently to show that the government was at least attempting to comply with the Linders' subpoenas.
Because the actions of the District Court in dealing with the six subpoenas at issue were not clearly unreasonable, arbitrary or fanciful, the Order of the District Court granting NSA's motion to quash the third-party subpoena and denying appellants' motion to quash the third-party subpoena and denying appellants' motion to compel compliance with the subpoena should be affirmed.
Appellee's Brief at 18.
In making this argument, the NSA again acknowledges the balancing test between needs of the plaintiff for discoverable information and government concerns for secrecy. Without addressing the adequacy of the responses here, suffice it to say that as to the other agencies, the District Court did at least attempt to balance the Linders' need for information against the government's interest in secrecy and ordered some disclosure. As to the NSA, the District Court held that no such balancing was required.
The NSA then goes on to argue that the District Court did not abuse its discretion. However, in this case, the District Court did commit such an abuse of discretion. The most glaring omission in the NSA's argument is the failure to even address the duty of the courts to balance the needs of plaintiffs for information in a discovery context against governmental secrecy concerns.
The District Court would have been correct had it found, at the time, NSA joined with other defendants in opposing appellants motion to compel, that with regard to NSA, Section 6 of Pub. L. 86-36 provided an absolute bar to discovery of any information that relates to NSA functions and activities. However, out of an abundance of caution, the District Court conducted a rigorous analysis of the burden the Agencies bore in proving that compliance with the subpoena imposed an undue burden. It is this balance by which the Court of Appeals must measure whether the District Court has abused its discretion.
Appellee's Brief at 22. Emphasis added. In this analysis, the NSA makes two errors. First, it was not a matter of "caution" for the District Court to analyze the agencies' burden in document production; it was its legal obligation. See Appellants' Brief at 8-30. Second, the District Court's analysis was far from "rigorous," but rather, superficial and inadequate -- in contrast to its August 1994 Memorandum. Most disturbing about the NSA's argument, however, is the attempt to group the NSA with the other agencies, for which some balancing of interests did occur.
(a) The failure to address the need of the Linder family for the information.
The NSA's brief nowhere discusses to the need of the Linder family for information about Benjamin Linder's murder. The only reference to the Linders' need for the documents is subsumed into an incorrect "distillation" of the appellants' arguments.
In Ellsberg v. Mitchell, 709 F.2d 51 (D.C. Cir. 1983), cert. denied, 465 U.S. 1038 (1984), the Court discussed the two "critical considerations" when evaluating whether materials should be withheld from litigants:
Whether [and in what spirit] the trial judge in a particular case should examine the materials sought to be withheld depends upon two critical considerations. First, the more compelling a litigant's showing of need for the information in question, the deeper the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate. Second, the more plausible and substantial the government's allegations of danger to national security, in the context of all the circumstances surrounding the case, the more deferential should be the judge's inquiry into the foundations and scope of the claim.
709 F.2d at 58-59.
(b) Government's need for secrecy and deference to agency determinations.
The NSA asserts that the District Court carefully and correctly examined the factors set forth in Northrop v. McDonnell Corp, 751 information." This addresses the content of the information itself rather than the means for gathering that information -- a key The NSA asserts that the District Court carefully and correctly examined the factors set forth in Northrop v. McDonnell Corp, 751 F.2d 395 (D.C. Cir. 1984). Appellee's Brief at 22-23. However, in contrast to the careful standard set out in Northrop, the NSA merely states that District Court relied on 19 pages of declarations. As Northrop specified, the court cannot merely rely on the agency's assertions. Considering the legal arguments laid out, and precedent which demands more than cursory agency statements, the Court clearly abused its discretion in setting aside all of this information in favor of an amorphous argument that the agency's view must receive deference. See Appellants' Brief.The three cases the NSA cites to set out the standard of court deference to government agencies are FOIA cases: none are directly on point for this discovery subpoena. As argued both in the Appellants' Brief and infra, FOIA standards set a floor but not a ceiling for discovery requests. Limitations in FOIA cases do not necessarily translate to any comparable limits on discovery.
The cases cited are also not directly on point for other reasons. First, the analyses by the courts in these cases are far more rigorous than that conducted by the District Court in the instant case. This level of analysis makes clear that deference to the expertise of agencies does not translate into an automatic grant of absolute privilege. Several of the cases involve in camera review of documents, the release of some information to plaintiffs, and/or detailed affidavits by the relevant person at the government agency in question. Second, the courts' objections to the release of the information in these cases concern the content of the documents, e.g., the purpose of the activity or identities of government agents, rather than the mechanisms for gathering information, as does the Linders' case.
For example, in Bowers v. U.S. Department of Justice, 930 F.2d 350, 357 (4th Cir. 1991) cert. denied 112 S.Ct. 308 (1991), in overruling the District Court, the Circuit noted the District Court's failure to address specific exemptions claimed by the Department of Justice and that the court "did not discuss or acknowledge the voluminous and very detailed justifications for withholding certain information as filed by the Department and set forth in its 480 paces of in camera and public declarations" of five agents. g30 F.2d 350, 354. Emphasis added.
In Taylor v. Department of the Army, 684 F.2d 99, 109 tD.C. Cir. 1982), a newspaper reporter and publisher sued under FOIA, seeking documents pertaining to military personnel, equipment, and readiness; the court held in favor of the government. The dispute concerned whether the content of a compilation of documents was classified. See also Hunt v. CIA, 981 F. 2d 1116, 1119 (9th Cir. 1992) (disclosure of records about certain people would expose them as CIA sources or targets; in camera declarations were submitted); Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981) (plaintiffs received over 2000 pages of documentation; dispute over withheld information concerned identities of corporation involved in project and information or technology that would reveal purpose of project, dates, identities or locations). Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980) (information denied to plaintiffs concerned the identities of those working for the CIA and bills paid to these persons).
In Simmons v. Department of Justice, 796 F.2d 709, 711 (4th Cir. 1986), the court discussed the safeguards established under FOIA: where releasing information would defeat the purpose of FOIA exemptions...."Congress provided in the FOIA that courts should make a de novo review of any claimed exemption by an agency, 5 U.S.C. 552(a)(4)(B), review documents in camera if necessary, id. and release any reasonably segregable non-exempt portion of a document that an agency claims is exempt." The NSA's dismissal of the Linders' argument about the information NSA possesses and the damage to national security its public disclosure would cause as "pure speculation" (Appellee's Brief at 19) is typical of its cursory way of arguing its case.
The Linders described the compelling needs of a family attempting to gather information about the events which lead to the murder of their son and brother nine years ago. Far from mere "speculation," information about the National Security Agency and its activities pertaining to Nicaragua during the 1980s is a matter of public record. Both the methods of the agency and its activities in and relating to Nicaragua have been discussed in detail and in depth from sources ranging from a college textbook, other treatises, to internationally circulated newspapers. Appellants' Brief, at 2225.
Precedent holds that if information about a specific method of communication is already in the public domain, a government agency cannot then come forward and claim privilege. In Weberman v. NSA, 490 F. Supp. 9 (S.D.N.Y. 1980), the NSA argued that it could not disclose whether a certain telegram was in its possession, because to do so might allow targets to determine which communications were being intercepted by the NSA. The court determined that confirming or denying the existence of the telegram did not reveal any specific intercept operation, because it was also possible that the telegram was manually delivered to the NSA through public information gathering efforts. Id.
Information can come from many types of technological origins and within each of these categories, from many different geographical locations. The number of permutations for the possibilities of origin for each piece of information is thus quite large. See Appellants' Brief at 21-26. As the NSA itself states:
The text of SIGINT reports is not necessarily helpful in determinina whether they are related to one of NSA's core functions. Rather, whatever information is contained in the report is in need of protection not because of what it says, but because of whence it was gathered. Armed with the knowledge that the NSA had even a foreign entity's grocery list, that entity might be able to identify a breach in the security of its communications and thereby thwart this government's future intelligence gathering.
Appellee's Brief at 27. Emphasis added. And here the NSA goes to the crux of the Linders' argument, which the NSA has failed to address. The underscored sentence in the above passage indicates that it may be possible for the NSA to sever the content from the means of gathering the information.
In its discussion of the appellants' "speculation" and ignorance of national security matters, and the subsequent need for deference to the NSA, the NSA cites to United States v. Marchetti, 466 F.2d 1309, 1318 (4th Cir.), cert. denied 409 U.S. 1063 (1972). ("What may seem trivial to the uninformed may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in context.") However, this case discusses the "practical reason for avoidance of judicial review of secrecy questions. The significance of one item of information may frequently depend upon knowledge of many other items of information." This addresses the content of the information itself rather than the means for gathering that information -- a key distinction made by the Linders. The question is not one of triviality but the correct categorization of the information being sought.
One of the central arguments the Linders have made throughout their attempts to gain information on Benjamin Linder's death through third-party subpoenas is that they are interested in what happened to Benjamin Linder, not in the signals intelligence process or any other means that the NSA has of gathering information. To address the analogy made by the NSA: the Linders are interested in specific information -- the items on the grocery list. The NSA has failed to explain why it cannot redact the list so that its origin and original structure are not identifiable.
Finally, there is a misstatement in the NSA's characterization of the documents that the Linders are requesting. While they have been quite clear about their lack of interest in the means of obtaining information, they are interested in classified information and have never stated otherwise. See Appellee's Brief at 26; Appellants' Brief at 36; April 26, 1994 Stephens Declaration, 7.
(C) Weighing the litigants' needs
Through much of the 1980's, components of the United States government engaged in a sometimes covert, sometimes privatized, sometimes illegal and sometimes Congressionally authorized program of support for the armed opponents of the Nicaraguan Sandinista government who were known as contrast As part of their guerilla campaign, the contras engaged in attacks on civilians and other human rights abuses. Particularly targeted by the contras were U.S. citizens and other persons from outside Central America who supported the Sandinistas.
One of those U.S. citizens was Ben Linder. In 1987, he was killed by the contras while working on a damn project to bring electricity to a small village. His murder was illegal under domestic and international law. The courts of the United States provide a forum for relief from such injuries, so the family of Ben Linder has brought this lawsuit to seek the redress to which they are entitled. As the litigation progressed, the Linders have confronted the difficulty of proving responsibility against a guerilla movement that is now defunct. Two of the four defendants are now dead and the remaining two claim that they have no documents containing any relevant information in their possession or control, and claim to be unaware of the existence, location, or destruction of such documents. Appellants' Brief at 16-21.
It turns out, however, that there is a wealth of relevant information in the files of the U.S. government, for while the U.S. government was funding the contras, it was also clandestinely monitoring their communications, including the collection of information on the contras' human rights abuses.
Indeed, the NSA has admitted that it targeted the communications of the contrast It admits that it has "thousands of intelligence reports related to the Contras." Appellee's Brief at 7. It admits that the amount of responsive material is "staggering."
What is most significant, Mr. Smith, in an affidavit that offers more support for the plaintiffs' arguments than for the NSA's, admits that the NSA has already searched its databases and has found "a large number of reports" that mention the very 12 individuals who were involved in the attack in which Mr. Linder was murdered. Appellee's Brief at 7-8.
Normally, of course, any third party that had such information obviously relevant to a pending lawsuit would be required to disclose it. The NSA would have this court believe that it cannot disclose a single item of information from this "staggering" array of information without serious damage to the national security of the United States. To tell the plaintiffs what it knows about the 12 individuals who killed Ben Linder, and those who directed the attacks, claims the NSA, would allow the foreign targets of that interception to evade interception in the future.
The NSA tries to ignore one salient point: the targets of these interceptions no longer exist. The contras are defunct. This is not a situation like the replacement of the Soviet Union with the Russian Federation, and the adoption of soviet communications channels and methods by the Russians.
The district court had the obligation to determine whether redaction would cure any damage to the national security of the United States.
(d) It is the plaintiffs who have attempted to reduce the burden of document production
The NSA does not even address the factor in the balancing test about the avoidance of undue burden to the government and also ignores that the plaintiffs have continually offered to negotiate about ways to reduce the government's burden. In its statement of facts, the NSA incorrectly asserts that the plaintiffs did not make any concessions or waive any portion of its demand. While this may have been true five weeks after the submission of the subpoena,(the NSA cites to correspondence of November 16, 1993 at Appellee's Brief at 4), with subsequent correspondence and the modification of the subpoena, it was the Linders who were willing to compromise and put forward alternatives and the NSA which refused to compromise and examine alternative to lessen its potential burden. See, e.g., Smith Declaration at 11:
Even if plaintiffs were to narrow their requests to substantially reduce the volume of responsive material, the burden of undertaking the collection and review would still be unreasonable, because the exercise would still be futile: the materials would remain protected from disclosure under the statutory and common law privileges cited above.
Appellee's Brief at 9-10. The Linders remain willing to examine alternatives to lessen the burden, but ask this court to correct the lower court's error in accepting the conclusory statements of the National Security Agency. distinction made by the Linders. The question is not one of triviality but the correct categorization of the information being sought.
One of the central arguments the Linders have made throughout their attempts to gain information on Benjamin Linder's death through third-party subpoenas is that they are interested in what happened to Benjamin Linder, not in the signals intelligence process or any other means that the NSA has of gathering information. To address the analogy made by the NSA: the Linders are interested in specific information -- the items on the grocery list. The NSA has failed to explain why it cannot redact the list so that its origin and original structure are not identifiable.
Finally, there is a misstatement in the NSA's characterization of the documents that the Linders are requesting. While they have been quite clear about their lack of interest in the means of obtaining information, they are interested in classified information and have never stated otherwise. See Appellee's Brief at 26; Appellants' Brief at 36; April 26, 1994 Stephens Declaration, 7.
(C) Weighing the litigants' needs
Through much of the 1980's, components of the United States government engaged in a sometimes covert, sometimes privatized, sometimes illegal and sometimes Congressionally authorized program of support for the armed opponents of the Nicaraguan Sandinista government who were known as contrast As part of their guerilla campaign, the contras engaged in attacks on civilians and other human rights abuses. Particularly targeted by the contras were U.S. citizens and other persons from outside Central America who supported the Sandinistas.
One of those U.S. citizens was Ben Linder. In 1987, he was killed by the contras while working on a damn project to bring electricity to a small village. His murder was illegal under domestic and international law. The courts of the United States provide a forum for relief from such injuries, so the family of Ben Linder has brought this lawsuit to seek the redress to which they are entitled. As the litigation progressed, the Linders have confronted the difficulty of proving responsibility against a guerilla movement that is now defunct. Two of the four defendants are now dead and the remaining two claim that they have no documents containing any relevant information in their possession or control, and claim to be unaware of the existence, location, or destruction of such documents. Appellants' Brief at 16-21.
It turns out, however, that there is a wealth of relevant information in the files of the U.S. government, for while the U.S. government was funding the contras, it was also clandestinely monitoring their communications, including the collection of information on the contras' human rights abuses.
Indeed, the NSA has admitted that it targeted the communications of the contrast It admits that it has "thousands of intelligence reports related to the Contras." Appellee's Brief at 7. It admits that the amount of responsive material is "staggering."
What is most significant, Mr. Smith, in an affidavit that offers more support for the plaintiffs' arguments than for the NSA's, admits that the NSA has already searched its databases and has found "a large number of reports" that mention the very 12 individuals who were involved in the attack in which Mr. Linder was murdered. Appellee's Brief at 7-8.
Normally, of course, any third party that had such information obviously relevant to a pending lawsuit would be required to disclose it. The NSA would have this court believe that it cannot disclose a single item of information from this "staggering" array of information without serious damage to the national security of the United States. To tell the plaintiffs what it knows about the 12 individuals who killed Ben Linder, and those who directed the attacks, claims the NSA, would allow the foreign targets of that interception to evade interception in the future.
The NSA tries to ignore one salient point: the targets of these interceptions no longer exist. The contras are defunct. This is not a situation like the replacement of the Soviet Union with the Russian Federation, and the adoption of soviet communications channels and methods by the Russians.
The district court had the obligation to determine whether redaction would cure any damage to the national security of the United States.
(d) It is the plaintiffs who have attempted to reduce the burden of document production
The NSA does not even address the factor in the balancing test about the avoidance of undue burden to the government and also ignores that the plaintiffs have continually offered to negotiate about ways to reduce the government's burden. In its statement of facts, the NSA incorrectly asserts that the plaintiffs did not make any concessions or waive any portion of its demand. While this may have been true five weeks after the submission of the subpoena,(the NSA cites to correspondence of November 16, 1993 at Appellee's Brief at 4), with subsequent correspondence and the modification of the subpoena, it was the Linders who were willing to compromise and put forward alternatives and the NSA which refused to compromise and examine alternative to lessen its potential burden. See, e.g., Smith Declaration at 11:
Even if plaintiffs were to narrow their requests to substantially reduce the volume of responsive material, the burden of undertaking the collection and review would still be unreasonable, because the exercise would still be futile: the materials would remain protected from disclosure under the statutory and common law privileges cited above.
Appellee's Brief at 9-10. The Linders remain willing to examine alternatives to lessen the burden, but ask this court to correct the lower court's error in accepting the conclusory statements of the National Security Agency.
The NSA argues that the Linders' arguments "distill into" 1) District Court erroneously interpreted NSA's statutory privilege and 2) the District Court failed to balance the Linders' need for discovery with the national security needs for secrecy. It ignores all points made in the plaintiffs' opening brief about the errors by the NSA in its procedure. It asserts that the sampling procedure was adequate and cites Founding Church. Appellee's Brief at 19. However, as Appellants' Brief argues, in Founding Church, this Circuit weighed information presented by both plaintiff and defendant (including the lack of thoroughness of defendant's search), balancing their competing interests. The Court rejected the government's conclusory statements about the dangers to national security, issued a strong warning about the overuse of Section 6, and remanded the case. See Appellants' Brief at 33.
The NSA does not address any of the other precedent set forth in Appellants' Brief: Black v. Sheraton Corp. of America, 564 F.2d 531 (D.C. Cir. lg77); Coastal Corp. v. Duncan, 86 F.R.D. 514 (D.Del 1980); Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395 (D.C. Cir. 1984); Hayden v. NSA, 608 F.2d 1381 (D.C. Cir. 1979); Ray v. Turner, 587 F.2d 1187, 1196 (D.C. Cir. 1978); Vaughn v. Rosen, 484 F.2d 820, 826; Navasky v. CIA, 499 F.Supp. 269, 277 (S.D.N.Y. 1980); Church of Scientology v. Turner, 662 F.2d 784 (D.C. Cir. 1980). See discussion in Appellants' Brief at 31-36.
A. The NSA did not address in camera review. the provision of an index of the documents, or redaction of privileaed sections of documents
The NSA mentions alternatives that courts have used to balance litigants' needs in the context of discovery only in passing. The option of redacting documents is dealt with by an assertion that such an alternative is not appropriate, "[g]iven the unique character of the NSA documents." Appellants' brief at 23-24. There is a brief reference to in camera review of documents and the provision of a list of their contents, as well as one additional, repetitive, brief reference: "The unique character of SIGINT reports makes them particularly ill-suited for elucidation by in camera review and for listing in an index." Appellee's Brief at 27.
B. The NSA mistakenly. though inconsistently, asserts that FOIA standards are inapplicable to this case
The NSA is wrong when it states that Appellants cite no cases that would compel a Vaughn-type index. In fact this Court has recognized that strict procedural guidelines employed in the context of a Freedom of Information Act action do not bind the District Courts in other actions. Ellsbera v. Mitchell, 709 F.2d 51, 64 (D.C. Cir. 1983) (citing Halkin v. Helms tHalkin II], 690 F.2d 977, 995-97 (D.C. Cir. 1982)
Appellee's Brief at 27. In fact, the Linders did argue the applicability of FOIA standards:
Standards developed under FOIA are clearly relevant to this case. In Jupiter Painting Contractor Co., Inc. v. U.S., 87 F.R.D. 593 (E.D. Pa. 1980), the government resisted production of documents on grounds of executive privilege and argued that FOIA precedents were not relevant. Chief Judge Lord disagreed and stated, "FOIA sets a floor for civil discovery against the Government. Moore-McCormack Lines, Inc. v. I.T.O. Corps. of Baltimore, 508 F.2d 945, 950 (4th Cir. 1974)." See also N.L.R.B. v. Sears Roebuck, 421 U.S. 132 (1975), and Lead Industries Asstn v. Occunational S.& H. Admin., 471 F.Supp. 155, 156 (S.D.N.Y. 1979).
Appellants' Brief at 16. After its discussion of the floor which FOIA sets for the context of discovery, Jupiter Painting continues:
The more difficult question is whether FOIA exemptions also set a ceiling. Clearly the exemptions do not create any evidentiary privilege of their own force. Denny v. Cary, 78 F.R.D. 370, 373 (E.D. Pa. 1978). With regard to a qualified privilege, such as governmental privilege, the FOIA exemptions cannot even indirectly delimit claims of privilege since it does not take into account the degree of need for the information exhibited by the claimant. See United States v. Beatrice Foods Co., 52 F.R.D. 14, 20 (D.Minn. 1971).
87 F.R.D. at 596-97.
While FOIA exemptions are comparable to other privileges, the FOIA exemptions do not modify the executive privileges or create any new or different executive privileges. Secondly, there is no balancing of the public interest in non-disclosure against the need of the litigant. Under FOIA, public records which do not fall into any of the enumerated exemptions are available to any requesting member of the public without any showing of need; consequently, if one of the exemptions does apply, that is the end of the matter -the litigant's need simply does not enter the equation. Thirdly, while an agency asserting a FOIA exemption must provide sufficiently detailed information to satisfy the court that the claim is justified, there is no requirement, as there is for example in the case of assertions of executive privilege, that the claim be asserted in an affidavit filed by the head of the agency.
This Circuit has also ruled that FOIA creates a floor for what litigants may obtain during discovery: in Friedman v. Bache Halsey Stuart Shields. Inc., 738 F.2d 1336 (D.C. Cir. 1984), the court held that:
If information in government documents is exempt from disclosure to the general public under FOIA, it does not automatically follow the information is privileged within the meaning of Rule 26(b)(6) and thus not discoverable in civil litigation. Firestone Tire & Rubber Co. v. Coleman, 432 F.Supp. 1359 (N.D. Ohio 1976). The FOIA acts as a "floor" when discovery is sought in the course of civil litigation. Though information available under the FOIA is likely to be available through discovery, information unavailable under the FOIA is not necessarily unavailable....
In the discovery context, when qualified privilege is properly raised, the litigant's need is a key factor. Whether the information is disclosed depends on the relative weight of the claimant's need and the government's interest in confidentiality.
738 F.2d at 1344.
The NSA makes inconsistent arguments about different standards for FOIAs and discovery. NSA acknowledges that discovery is different from FOIA requests in an effort to avoid the obligation to produce Vaughn index, even while relying on FOIA cases like Hayden, supra, and Founding Church, supra.
However, to the extent that FOIA and discovery standards are different in terms of the release of information, the standards in the context of discovery is the one which is more favorable to the disclosure of information.
A. The Touhy regulations do not apply to this case.
The regulations issued under Touhy have no relevance to plaintiffs' subpoenas and do not bind the Court. Touhy dealt with the narrow issue of whether an agency subordinate could be held in contempt for refusing to produce papers in response to a subpoena duces tecum in reliance on a valid order by the agency head. All the case holds is that a subordinate official of an agency cannot be compelled to testify when he or she is told not to by the head of the agency. As the Supreme Court noted, "the case as we understand it raises no question as to the power of the Attorney General himself to make such a refusal." 340 U.s. at 467. The only issue was "whether the Attorney General can validly withdraw from his subordinates the power to release department papers."
The narrow scope of the decision is reinforced in the concurring opinion of Justice Frankfurter, noting that in a case on which the Court relied there "is not a hint . . . that the Government can shut off an appropriate judicial demand" for relevant papers not protected by privilege. 340 U.S. at 471. See. also, Note, Discovery from the United States in Suits Between Private Litigants - The 1958 Amendment of the Federal Housekeeping Statute, 69 Yale L.J. 452 (l960).
The Linders' subpoena in this case was directed to and served on the agency head. The appellants are aware of no case, and the NSA has cited none, in which an agency head may justify refusal to comply with a subpoena on the basis of Touhy or regulations issued on the authority of Touhy.
Plaintiffs argued below that Touhy regulations "have no relevance to plaintiffs' subpoenas and do not bind the Court". July 6, 1994 Plaintiffs' Reply Memorandum In Support of Motion to compel compliance with Third-Party Subpoenas at 7-8; see also Appellee's Brief at 10. At that time, the cases cited by the NSA did not expand the scope of Touhy. Moore v. Armour Pharmaceutical Co., 927 F.2d 1994 (llth Cir. 1991), and Davis Enterprises v. EPA, 877 F.2d 1181 (3rd Cir. 1989) cert. denied, 493 U.S. 1070 (1990) concern the refusal of an agency to allow the deposition of an employee of an agency to be taken. The cases the NSA has cited in this latest round do not do any better. B. Plaintiffs supplied a sufficient explanation of the
B. Plaintiffs supplied a sufficient explanation of the documents reauested under the subpoena.
The NSA's argument that plaintiffs failed to explain the contents of its subpoena amounts to the sheerest quibbling. The statement of relevance in plaintiffs' Schedule A, was inserted precisely to meet the Touhy regulations. Inter alia, the requested documents related to the April 28 attack, to the part played by the defendants in orchestrating the attack, and to the structure, functioning and policies of the FDN and other organizations in which the defendants were the principal actors. Appellee's Brief at 28-29. From this list, it is unclear how this could not "explain the relevance of information regarding other organizations, persons or categories of documents in Schedule A," as the NSA has asserted. Further, the NSA itself has recognized this was part of the request, as is evident from Mr. Smith's inclusion of the twelve named individuals in his sample search. Smith Supplemental Declaration.
The cases cited by the NSA are simply not relevant to this question, but rather address the narrow focus of Touhy: whether a subordinate official may be compelled to produce documents or testify against agency regulations. United States v. gizzard, 674 F.2d 1382, 1387 (although defendant was aware of the regulations prohibiting a former Department of Justice employee from testifying without prior approval of the Attorney General, he failed to comply with them and court quashed subpoena); United States Steel Corp v. Mattingly, 663 F.2d 68 (lOth Cir. 1981) (in 3-paragraph opinion compelling enforcement of subpoena against an employee of the Bureau of Standards, court holds that Touhy and Saunders are controlling); Saunders v. Great Western Sucar Co., 396 F.2d 795 (1968) (Court holds Boske and Touhy govern case in which Small Business Administration officials following agency regulations may not disclose information or produce documents without authorization from the Assistant Administrator for Administration of the agency) Ex parse Sackett, 74 F.2d 922, 923-24 (9th Cir. 1935) (subordinate in the Department of Justice could not be compelled to produce documentary evidence in the Department's custody when Department regulation prohibited their release: court specifically does not address whether the Attorney General could be compelled to produce such records in response to a subpoena).
For all of the above-stated reasons, the decision of the District Court below should be reversed, the National Security Agency's motion to quash the third party subpoena duces tecum denied and plaintiffs' motion to compel compliance with the subpoena granted.
Respectfully submitted, HAROLD HONGJU KOH1. Appellee's Brief at 19:
In challenging the District Court's reliance on Section 6 of Public Law 86-36,...appellants make several specious arguments. However, those arguments distill into: 1) the District court erroneously interpreted NSA's statutory privilege and 2) the District Court failed to balance appellants' need for discovery with the national security needs for secrecy.
Appellee then goes on to discuss appellants' analysis of the national security needs, but there is never any discussion of the Linders' need for the documents.
2. Ms. Stephens' Declaration stated, in relevant part: "But the "very terms" of plaintiffs' [requests] do not call for information which is patently classified, much less for the disclosure of intelligence sources and methods or the functions and activities of the NSA--matters of not the slightest relevance to their lawsuit and not necessarily implicated in providing the information which they do request and which is relevant."
3. Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir., 1973)
4. United States ex ref. Touhy v. Ragen, 340 U.S. 462 (1951). Plaintiffs question whether the NSA has properly brought the issue of compliance with the Touhy regulations before the Court. This argument was not referred to or relied on by the District Court in its ruling on the motion to quash.District Court in its ruling on the motion to quash.