SAN FRANCISCO (CN) — A leaked FBI file shows the government lied about strengthening rules to limit its warrantless surveillance of journalists, a press advocates' attorney told a federal judge Thursday.
The Intercept on June 30 published a classified 2013 document, Annex G, which gives FBI agents authority to seize journalists' phone records with approval from two internal officials: the FBI's general counsel and the executive assistant director of the bureau's National Security Branch.
During a Thursday hearing, attorney Marcia Hoffman said the government cannot withhold files on that program by invoking the deliberative process exemption because the exception does not apply when records expose government misconduct.
"Guidelines to protect the press and bolster their right to report on issues of public matters are not there," Hoffman told U.S. District Judge Haywood Gilliam Jr. "The government doesn't want to disclose that because that's embarrassing to them."
At issue was the government's motion for summary judgment, and the Freedom of the Press Foundation's cross-motion for summary judgment.
Hoffman represents Freedom of the Press Foundation, which sued the Department of Justice in July 2015 for refusing to turn over records on its process of issuing National Security Letters to get journalists' phone records without a warrant.
The Associated Press revealed in 2013 that the Department of Justice seized two months of at least seven journalists' phone records to try to find the source of a leak about a foiled terror plot.
On Thursday, Judge Gilliam suggested it might be improper for him to consider a leaked document when deciding whether to order the release of records.
"How does the leaked document inform the court in any way whether the withheld documents are within the FOIA exemptions?" Gilliam asked.
Hoffman said that after the AP revealed in 2013 that the FBI had seized its reporters' phone records, the Justice Department announced "with great fanfare" that it was updating its guidelines to strengthen protections for reporters.
However, the Annex G document shows the approval process for spying on the media is much weaker than what the attorney general put in place for other procedures intended to protect privacy rights, Hoffman argued.
"The document shows there is a method crafted by the FBI to circumvent substantial protections and safeguards the Department of Justice has created for warrants and subpoenas and other types of legal processes in cases where the government is trying to get information about the press," Hoffman said.
Department of Justice attorney Andrew Bernie said the leaked document should play no role in the judge's analysis: that the law requires the judge to assess whether government declarations adequately justify withholding the files.
"There's no evidence or logical reason to believe that those materials would uncover misconduct," Bernie said.
Gilliam voiced concern about whether he should "reward" the leaking of classified documents by considering them in his FOIA analysis.
"I think you don't reward anything," Hoffman said. "The fact is that document is out there in the public domain. It's worth looking at that material and making an independent assessment as to whether the government's assertions hold water."
Hoffman also questioned the adequacy of the government's search for records, given that emails indicate the Justice Department updated its approval guidelines for the program in 2014 or 2015, but failed to identify a newer, final version of the document, Annex G.
Bernie replied that the FBI's failure to identify a final version of the document does not prove the government acted in bad faith.
"Case law makes clear searches don't have to be perfect," Bernie said. "Just because a document wasn't located doesn't mean the search was inadequate."
Given the final word, Hoffman said it would be appropriate for the judge to order the FBI to "go back and look for those" final versions.
After about 30 minutes of debate, Gilliam ended the hearing, saying he has "a lot of work to do" on FOIA case law before he issues his ruling.
In 2013, U.S. District Judge Susan Illston found the practice of issuing National Security Letters to seize records without a warrant unconstitutional, but she stayed her ruling pending appeal to the Ninth Circuit.
In March, Illston reversed her ruling on remand, finding the USA FREEDOM Act of 2015 adequately addressed the constitutional problems with using National Security Letters to obtain records from banks, phone companies, Internet providers and others without a warrant.
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