UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
No. 4 8 3
August Term, 1981
December 7, 1981
January 1~, 1982
Docket No. 81-6163
ALAN JULES WEBERMAN,
NATIONAL SECURl.TY AGENCY,
JAN 1 :2a S82.
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LUMBARD, WATERMAN, and VAN GRAAFEILAND,
Circuit Judges .
Weberman appeals from summary judgment entered in
the Southern District of· New York, Brieant,
his suit brought under the Freedom of Information Act, 5
S 552 (1976).
Weberman challenges the district court's
exclusion of his counsel from its in camera viewing of a secret
affidavit submitted by the National Security Agency in support of
its motion for sununary judgment.
LYNCH, ESO. , Washington,
D.C. (American Civil Liberties
Onion Foundation, Washington, D.C.
Susan w. Shaffer, Esq., of
counsel) , for Plaintiff-Appellant.
MARK H •
JOHN S. MARTIN, Onited States
Attorney for the Southern District
of New York, New York, N.Y.
(Stuart M. Bernstein, Peter c.
Salerno, Assistant United States
Attorneys for the Southern Diatric
of New York, of coun&el), for
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LUMBARD, Circuit Judce:
Investigation and speculation about the assassination
of President Kennedy contin·u es unabated.
Lee Harvey Oswald shot
the President on November 22, 1963.
day in Police Headquarters, Dallas, Texas, . by Jack Ruby.
Oswald was killed the next
sent a telegram to Havana, Cuba, on April 1, 1962.
Ruby's brother Earl had, according to appellant Weberman,
Keberman alleged that the telegram had been inter-
cepted by the National Security Agency (NSA) and sought disclosur
of the telegram for a book he was writing on the Kennedy
assassination, "Coup d'Etat".
Weberman brought this suit in the Southern District on
October 17, 19·77, against the NSA under the Freedom of Informa-
tion Act, 5 U.S.c. ~ 552(b). ; The NSA contended that whether the
telegram was or waE not intercepted is a matter of national
security exem?t from disclosure under the FOIA, S S52(b) (1) '
In support of its contention, the NSA submitted a top secret
affidavit by Michie r •. Tillie, assistant
When his request was rebuffed,
for policy and
Judge Brieant originally refuse.d to consider the Tillie
affidavit and granteQ summary judgment to Weberman, 490 F. Supp.
(S.D.N . Y. 1980) .
After this court held such refusal an
abuse of discretion, 646 F . 2d 563 (2d Cir. 1980), Judge Brieant
viewed the affidavit in camera and ex parte, and granted summary
·· judgment to the NSA on June 5, 1981.
On this appeal, Weberman challenges Judge Brieant'&
decision to exclude his coun·sel and view the affidavit !!. parte,
,. 507 F. Supp. 117 (S . D.N.Y. 1981) •
argument of the appeal, the United States Attorney submitted to
·; us the top secret Tillie affidavit.
;; affidavit and we agree with the district court that, under the
We have examined the
circumstances, it was not error to deny to plaintiff's counsel the
to be present at the
camera inspection of the affidavit.
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/ We also conclude from our reading of the Tillie affidavit that
1 there was no error in granting
surr~ary judgment for NSA on the
basis of the affidavit's disclosures.
moved for summary judgment in Deccrr.ber,
it offered two affidavits of John R. Harney,
Both affidavits set forth why the existence or
non-existence of the Ruby intercept was classified, and why the
fact of interception fell under either S 552(b) (1),
exempting froffi FOIA matters "specifically authorized •••• by an
Executive order to be kept secret in the interest of national
security," or under S 552(b) (3), concerning matters "specifically
exempted from disclosure by statute" which "requires that. the
matters be withheld from the public in such a manner as to leave
no discretion on the
Mr. Harney's second affidavit explained that he had
as possible without violating national
He offered to furnish ' an in camera affidavit, if the
,. court reGuirec further information.
We directed the district
court to view the preferred affidavit
district court construed to mean
camera, which the
parte proceeding, i.e.,
There is no dispute that all. Judge
Brieant did was to go to the United States Attorney's office
ir:lr.iediately acjacent to the courthouse, and read the
argument from the United States Attorney
Brieant wrote in his grant of aummary judgment, the
Tillie a.ffida·it sets forth specifically the damage to national
security that might well result from disclosing whether or DOt
the RUby message was intercepted.
si:r.ply c:reates a more complete record ~ PhillipPi v. C~A.
That is, the Tillie affidavit
1009, 1013 (D.C. Cir. 1976).
Disclosure of the
of this affic!avit might result in serious conseqUences
!,,; n~tio:1' s aecurit~· operations.
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'l'he r.ialc. ~ preaented by
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participation of counsel, Hayden v. NSA, 608 F.2d 1381,
(D.c. Cir. 1979), outweighs the utility of counsel, or adversary
process, in construing a supplement to the record.
circumstances, Judge Brieant was correct in following our
I! directions and excluding counsel from the in camera viewing •
1 We also find no error in his grant of summary judgment.
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UNITED STATES A'f'TORNEY
SOUTllERN DISTRICT 01' NEW YORK
ONE ST. ANDREW' S PLAZA
NEW YORJi. NEW YORK 10007
ADVRJtfiiS BIU"LT "rO
.. UN1T¥D &TA.TJ'i8 ATXOJI.NET"
AM'D REY'E.K TO
1SITIAL8 A.XD NTJ'KBitB
December 21, 1979
Honorable Charles L. Brieant
United States District Judge
Southern District of New York
United States Courthouse
New York, New York 10007
Re: Alan Jules Weberman v. National
Security Agency et al.
77 Civ . 5058 (CLB)
Dear Judge Brieant:
Enclosed are copies of the following unreported decisions
cited in the memorandum of law which was served today in support
of the motion of the defendants National Security Agency ("NSA")
and NSA's Director, Admiral Inman, for summary judgment and
Admiral Inman's motion to dismiss the complaint as against him
as an improper party defendant :
1. Bachrack v. CIA, Civ. No. CV-75-3227 (C.D. Cal.
May 13, 1976);
2. Ba~z v. NSA, Civ. No. 76-1Y21 (D.D.C. Apr . 7, 1978);
3. Duna~evskaya v. NSA , Civ. No. 7-71947 (F..D. Mich.
May 9, 1979); 4 . Foundin
D.C . c~r .
5. Goland v. CIA, Dkt. 76-1800 (D . C. Cir . May 23, 1978);
6. Haydez v. NSA, Dkt . Nos. 78-1728 & 78-1729 (D.C. Cir.
Oct. 9, 1979) ; and
/.Woolbright v. Department of Justice, Civ. No. CV 76b4~(C.D. Cal. Jan. 12, 1977).
Honorable Charles L . Brieant
December 21 , 1979
We note that a petition for rehearing was denied in the Goland
case (item 5 abov e) and that the portion o f the original decision relating to attorney's fees was vacated by a later opinion
of the District of Columbia Court of Appeals. Golahd v. CIA,
76-1800 (Mar. 28, 1979). We do not believe that the latteropinion has any bearing on the issues raised in the instant case,
but we will supply a copy of that opinion if the Court so desires.
We have also enclosed a courtesy copy of the defendants'
motion papers .
Pursuant to my telephone call to Your Honor's chambers last
week , the revised motion schedule which plaintiff has consented to
is as follows:
Defendants' motion to be served on December 21 , 1979 ;
Plaintiff's papers in opposition to be served on January 11, 1980;
Defendants' reply papers to be served on January 18,
Oral argument to be held on the return date of the motion,
January l5 , 1980.
Respectfully y ours ,
ROBERT B . FISKE , JR.
United States Attorney
Assistant United States Attorney
Telephone: (212) 791-197 0
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cc w/ copies of enclosed decisions :
Alan J. Weberman
6 Bleecker Street
New York, New York