Patriot Act Memo Will Stay Under Wraps

MANHATTAN (CN) - New York Times reporter Charlie Savage has lost his effort to expose the U.S. government's secret interpretation of a section of the Patriot Act, a federal judge ruled.

An attorney at the American Civil Liberties Union, a co-plaintiff in that lawsuit, said that he was still "hopeful" for a more favorable ruling on two other pending requests to unseal related documents that his organization requested separately.

"We are hopeful that the court will agree with us," said Alex Adbo of the ACLU, adding later, "You cannot have an informed democracy without the public knowing what the law says."

Meanwhile, the dismissal marks the second time that a Manhattan federal judge turned down Savage's attempts to unearth information about national security policies that have troubled civil libertarians.

Last November, U.S. District Judge Robert Patterson snuffed requests for the Federal Bureau of Investigation to break down how many of its inquiries looked into criminal activity versus national security threats.

On Thursday, a different district court judge declined to release a secret interpretation of the Patriot Act that Savage sought.

"Section 215 of the Patriot Act authorizes the Government to apply to the Foreign Intelligence Surveillance Court for an order directing the production of 'any tangible things' for certain investigations," Judge William H. Pauley III summarized in his order. "The Government contends that its use of this authority is critical to countering national security threats. It represents that public disclosure of the Report would expose sensitive intelligence sources and methods to America's adversaries and therefore harm national security."

The New York Times and ACLU countered that two U.S. Senators sitting on the Intelligence Committee, Ron Wyden, D-Ore., and Mark Udall, D-Colo., undermined that assertion in comments made on the congressional record.

While Judge Pauley's opinion quotes several of these statements, it leaves out much stronger words the senators shared with Savage in subsequent reports.

On March 18, Savage reported that the senators told him that Americans would be "stunned" to know what the government believed the Patriot Act authorized.

"We would also note that in recent months we have grown increasingly skeptical about the actual value of the 'intelligence collection operation,'" the senators said, according to Savage. "This has come as a surprise to us, as we were initially inclined to take the executive branch's assertions about the importance of this 'operation' at face value."

Though New York Times fought vigorously to bring the information to light, Judge Pauley found that the government did not have to work too hard to keep the document under wraps.

"[T]he government's burden is a light one" in claiming privilege, Pauley wrote, citing the D.C. Circuit opinion in the case of ACLU v. U.S. Department of Defense.

After scoping the document in private, Judge Pauley ruled that the government met that burden.

"[T]his Court credits the government's assertion that disclosing this information could enable America's adversaries to develop means to degrade and evade the nation's foreign intelligence collection capabilities," he wrote.

Later, he added, "This Court's in camera review confirms that disclosing the Report would reveal and potentially compromise intelligence sources and methods."

Pauley added that the plaintiffs' concerns about "secret law" and the senators' imputations of "bad faith" by the government did not convince him to reach a different conclusion.

Failing disclosure, the New York Times and ACLU hoped that the judge would release a redacted version of the document, but the judge wrote that this would be impossible.

"This Court's in camera review reveals that any potentially non-exempt portions of the Report are inextricably intertwined with the exempt portions," the order states.

Adbo said the ACLU has not decided yet whether to appeal, but called this setback a "preliminary step in our broader effort" to learn how the government views Section 215 of the Patriot Act.

While the document Savage requested involved the Offices of the Attorney General and Director of National Intelligence's interpretation, the ACLU placed a broader Freedom of Information Act request that matched two Office of Legal Counsel memos, Adbo explained.

He added that he was "confident" that the judge would come around to Sen. Wyden and Udall's views after he saw the remaining documents.

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