Weberman v NSA
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Weberman v NSA

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Judge Brient ordered NSA to turn info over to me but NSA as for ex parte meeting with Judge and he changed his tune.

Judge Brient ordered NSA to turn info over to me but NSA as for ex parte meeting with Judge and he changed his tune.

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Weberman v NSA Weberman v NSA Document Transcript

  • ' • .. ' :· . t UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 2 ' 3 No. 4 8 3 4 Arguec: August Term, 1981 Decid.ed~ December 7, 1981 January 1~, 1982 Docket No. 81-6163 .. 6 '1 ALAN JULES WEBERMAN, 8 Plaintiff-Appellant, B -against- JO i. NATIONAL SECURl.TY AGENCY, 11 JAN 1 :2a S82. ..' Defendant-Appellee. ,• ·~ ' ' 12 . . . " .. . .. ,_,'. . .. • . , I ' ., ~-· ·l• .•. ) _:::.-.~ l.l~-~~ :;y •...0:. - - - ~ / ~..· ~ • 13 Before: LUMBARD, WATERMAN, and VAN GRAAFEILAND, 1-4 Circuit Judges . 15 Weberman appeals from summary judgment entered in )6 ~.,which 1'1 the Southern District of· New York, Brieant, dismissed Jl his suit brought under the Freedom of Information Act, 5 11 S 552 (1976). u.s.c. 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 %1 its motion for sununary judgment. · 22 I I! Affirmed. I' ,! !. LYNCH, ESO. , Washington, D.C. (American Civil Liberties Onion Foundation, Washington, D.C. Susan w. Shaffer, Esq., of counsel) , for Plaintiff-Appellant. MARK H • I li ' I! 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 Defendant-Appellee . II - X - .,..•,..
  • ; J LUMBARD, Circuit Judce: ' Investigation and speculation about the assassination 2 3 of President Kennedy contin·u es unabated. Lee Harvey Oswald shot • the President on November 22, 1963. 6 day in Police Headquarters, Dallas, Texas, . by Jack Ruby. Oswald was killed the next .. ·~ Jack ~ 6 7 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- 8 cepted by the National Security Agency (NSA) and sought disclosur 10 of the telegram for a book he was writing on the Kennedy 11 assassination, "Coup d'Etat". 12 Weberman brought this suit in the Southern District on u October 17, 19·77, against the NSA under the Freedom of Informa- IC tion Act, 5 U.S.c. ~ 552(b). ; The NSA contended that whether the 15 telegram was or waE not intercepted is a matter of national 16 security exem?t from disclosure under the FOIA, S S52(b) (1) ' 17 In support of its contention, the NSA submitted a top secret II I u affidavit by Michie r •. Tillie, assistant i liaison. 20 I ! I 21 I When his request was rebuffed, ~irector (3). for policy and Judge Brieant originally refuse.d to consider the Tillie affidavit and granteQ summary judgment to Weberman, 490 F. Supp. I '22 23 ~ Z5 (S.D.N . Y. 1980) . After this court held such refusal an I 9 lIIi abuse of discretion, 646 F . 2d 563 (2d Cir. 1980), Judge Brieant viewed the affidavit in camera and ex parte, and granted summary ji ·· judgment to the NSA on June 5, 1981. I' On this appeal, Weberman challenges Judge Brieant'& • decision to exclude his coun·sel and view the affidavit !!. parte, 27 ,. 507 F. Supp. 117 (S . D.N.Y. 1981) • • .. Immediately following argument of the appeal, the United States Attorney submitted to 2t ·; us the top secret Tillie affidavit. JO ;; affidavit and we agree with the district court that, under the JJ I m I· ;; •• I! We have examined the circumstances, it was not error to deny to plaintiff's counsel the ri~ht to be present at the ~ .xi - camera inspection of the affidavit. . ··' . •.
  • ; ·- ·----• -a ., . . , _ __ .. ... . . .. .. - . ······-----··-·-- ·- - ... ·- -- . .--..... ........ _______ / We also conclude from our reading of the Tillie affidavit that 2 1 there was no error in granting I 3 4 I. ,, t! ,. 5 surr~ary judgment for NSA on the basis of the affidavit's disclosures. When the 1~79, NSA moved for summary judgment in Deccrr.ber, it offered two affidavits of John R. Harney, ~illie's · :• 8 predecessor. Both affidavits set forth why the existence or 1 non-existence of the Ruby intercept was classified, and why the • fact of interception fell under either S 552(b) (1), II exempting froffi FOIA matters "specifically authorized •••• by an 10 Executive order to be kept secret in the interest of national 11 security," or under S 552(b) (3), concerning matters "specifically 12 exempted from disclosure by statute" which "requires that. the 13 matters be withheld from the public in such a manner as to leave 14 I no discretion on the I' J5 Mr. Harney's second affidavit explained that he had I I Jl ,. I I 17 , issue.~ disclosed as security. ~uch as possible without violating national He offered to furnish ' an in camera affidavit, if the 16 I '• ,. court reGuirec further information. 11 I 2111 21 I I !· ' I. We directed the district court to view the preferred affidavit district court construed to mean withou~ counsel present. !E an~ camera, which the parte proceeding, i.e., . There is no dispute that all. Judge !Z i· ! Brieant did was to go to the United States Attorney's office 23 ir:lr.iediately acjacent to the courthouse, and read the 24 affidavit u 26 r. As J~cqe alc~e, ~ithout ~illie 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 2S the RUby message was intercepted. 25t si:r.ply c:reates a more complete record ~ PhillipPi v. C~A. ,. Jl r.2c ~~6 •lt·t.~ilr: That is, the Tillie affidavit 1009, 1013 (D.C. Cir. 1976). Disclosure of the of this affic!avit might result in serious conseqUences -,,·. ' S:! tc... 1 !,,; n~tio:1' s aecurit~· operations. - xii - 'l'he r.ialc. ~ preaented by I )
  • ; ---------- r l .. --- -- -- ~-- · · ·------- --------------- - participation of counsel, Hayden v. NSA, 608 F.2d 1381, 1385~86 · (D.c. Cir. 1979), outweighs the utility of counsel, or adversary process, in construing a supplement to the record. 3 Given these circumstances, Judge Brieant was correct in following our 5 I. I! directions and excluding counsel from the in camera viewing • 6 1 We also find no error in his grant of summary judgment. : ii 7 " Affirmed. 8 II 10 I 11 I! 13 15 _ J6 li ' I' l& Ill I ., I tl I l ; 20 2J I· •• ,, i' I· • Z2 I !t 23 I I •: 24 xi i i II . )"·. . :- -.
  • • 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 77-3338 BY HAND Honorable Charles L. Brieant United States District Judge Southern District of New York United States Courthouse Room 2103 Foley Square 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 Inc. v. T979); of Washin 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, 1980; and -~· · 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 .·_ By:~'.~ . Assistant United States Attorney Telephone: (212) 791-197 0 i; . ~. "' I ( '· ... • ~- . . .. cc w/ copies of enclosed decisions : Alan J. Weberman 6 Bleecker Street New York, New York