Case: The New York Times Company v. United States Department of Justice

On September 7, 2016, the New York Times and one of its reporters specializing in national security issues filed a complaint under 5 U.S.C. § 552 (the Freedom of Information Act) in the U.S. District Court for the Southern District of New York against the U.S. Department of Justice (DOJ). The complaint alleged that the reporter properly filed Freedom of Information (FOIA) requests with the DOJ for three documents related to counterterrorism issues, that the DOJ had not provided the requested documents in a timely manner, and that the Court should compel the DOJ to release the records at issue. Judge Lewis Kaplan presided over the case.

The documents that the reporter sought and the status of the requests at the time of complaint are below:

• the reporter initially submitted a FOIA request for the final reports by the Special Interagency Task Force on Detainee Disposition established by Executive Order 13,493 and the Special Interagency Task Force on Interrogation and Transfer Policies established by Executive Order 13,491 to the DOJ on October 28, 2015.
• the reporter initially submitted a FOIA request for a May 4, 2005 memo on discovery issues presented by the Stellarwind warrantless wiretapping and bulk data collection program on January 7, 2016.
• the reporter initially submitted an identical FOIA request to the Office of the Director of National Intelligence (ODNI) and the DOJ for unreleased documents from Foreign Intelligence Surveillance Court (FISC) Judge John Bates' redacted docket that yielded publicized opinions on October 3 and November 3 of 2011 on May 10, 2016 (the original case is available in this Clearinghouse). These requests sought information on the widely-cited statistics on the National Security Agency's (NSA) upstream internet surveillance program, and the 2008 version of the FBI's standard minimization procedures for data collection.

Outside of the court, the parties agreed to a document release schedule, and submitted a schedule for document release on March 1, 2017. The schedule was not publicized, though the docket shows that release dates for a few of the documents were slightly altered over the course of the year. On October 11, 2017, the plaintiffs submitted a status report to the court showing that the parties cooperated in releasing the requested documents. Judge Kaplan dismissed the case on October 26, 2017; it is now closed.

The released documents provided important context to frequently cited surveillance and interrogation information, while leaving other important questions unanswered. A brief summary of the collected documents is available below:

• For the Special Interagency Task Force on Interrogation reports, the reporter found examples of three new areas of information not previously publicized. The first noted that Obama-era officials asked the Central Intelligence Agency (CIA) if it wanted to use anything other than the Army Field Manual detention policies, and the CIA did not suggest an alternative. Second, it added that the CIA maintained a policy of transferring detainees to countries where they might be abused on a case-by-case basis. Third, it noted that the CIA maintained policies allowing for prisoner separation in detention centers, which previously had been used to authorize torture techniques like sleep deprivation.
• For the Stellarwind bulk collection discovery memo, the unredacted sections of the documents did not provide a clear policy for when the Justice Department needs to turn over classified information to a defendant in a terrorism case, in line with Brady prosecutorial standards. However, the memo did note that this is an issue that the DOJ needs to grapple with in the future.
• For the 2008 FBI Standard Minimization Procedures, the reporter found that it allowed the FBI to search for evidence of an ordinary crime in the warrantless surveillance repository.
• Finally, the 2011 FISC documents confirmed that Judge Bates' frequently cited statistic that nine percent of all internet communications picked up by the NSA came through the upstream surveillance program, which pulled its information from internet switchboards rather than email accounts, may be misleading. The released documents showed that the NSA referred to "communication" and "transaction" interchangeably, and that one transaction can contain multiple internet communications, like emails. As a result, the nine percent provided by Judge Bates could be a larger or smaller percentage depending on how many bits of internet communication were picked up in each "transaction." The released documents demonstrated that some of these upstream communications contained information from purely domestic servers, though it was a small percentage.