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Case 1:17-cv-01000-CKK Document 28 Filed 09/13/18 Page 1 of 17

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

THE PROTECT DEMOCRACY PROJECT, INC.,

Plaintiff,

v.
No. 1:17-cv-01000-CKK
U.S. NATIONAL SECURITY AGENCY, et al.,

Defendants.

DEFENDANT’S REPLY IN SUPPORT OF ITS


CROSS-MOTION FOR SUMMARY JUDGMENT
Case 1:17-cv-01000-CKK Document 28 Filed 09/13/18 Page 2 of 17

TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 1

STATEMENT OF MATERIAL FACTS ....................................................................................... 1

ARGUMENT .................................................................................................................................. 2

I. NSA PROPERLY DECLINED TO CONFIRM OR DENY THE EXISTENCE OF ANY RECORDS


RESPONSIVE TO PLAINTIFF’S FOIA REQUEST. ................................................................. 2

a. NSA’s Application of the National Security Agency Act In this Case is Not
Overbroad. ............................................................................................................ 3

b. Plaintiff’s Request Implicates Core Functions and Activities of the NSA. .......... 7

II. PLAINTIFF STILL HAS NOT SUBSTANTIATED ITS ALLEGATIONS OF GOVERNMENT


MISCONDUCT. ................................................................................................................ 10

III. PLAINTIFF’S PREFERENCE FOR WITHHOLDINGS IS IRRELEVANT. ................................... 11

CONCLUSION ............................................................................................................................. 12

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TABLE OF AUTHORITIES

Cases

Ass’n of Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd.,


830 F.2d 331 (D.C. Cir. 1987) .................................................................................................... 5
Dep’t of Justice v. Reporters Comm. For Freedom of Press,
489 U.S. 749 (1989) .................................................................................................................... 5
Elec. Privacy Info. Ctr. (“EPIC”) v. NSA,
678 F.3d 926 (D.C. Cir. 2012) ................................................................................................ 3, 9
Hayden v. Nat’l Sec. Agency,
608 F.2d 1381 (D.C. Cir. 1979) .............................................................................................. 4, 6
Larson v. Dep’t of State,
565 F.3d 857 (D.C. Cir. 2009) .................................................................................................... 3
Linder v. NSA,
94 F.3d 693 (D.C. Cir. 1996) ................................................................................................ 4, 11
Nat’l Sec. Counselors v. CIA,
960 F. Supp. 2d 101 (D.D.C. 2013) ............................................................................................ 5
People for the Am. Way Found. v. NSA,
462 F. Supp. 2d 21 (D.D.C. 2006) .............................................................................. 3, 4, 10, 11
Pub. Citizen v. Dep’t of State,
11 F.3d 198 (D.C. Cir. 1993) ...................................................................................................... 8
SafeCard Servs., Inc. v. SEC,
926 F.2d 1197 (D.C. Cir. 1991) ................................................................................................ 10
SAI v. Transportation Sec. Admin.,
315 F. Supp. 3d 218 (D.D.C. 2018) .......................................................................................... 11
Terkel v. AT&T Corp.,
441 F. Supp. 2d 899 (N.D. Ill. 2006) ........................................................................................ 11
Wolf v. CIA,
473 F.3d 370 (D.C. Cir. 2007) ................................................................................................ 3, 9

Statutes

5 U.S.C. § 552(b)(3) ....................................................................................................................... 2


50 U.S.C. § 3605 ................................................................................................................. 1, 2, 3, 4

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INTRODUCTION

In the opening line of its Reply and Opposition Brief, Plaintiff Protect Democracy Project

contends that this case concerns “accusations against the President.” See Pl. Reply & Opp., ECF

No. 26 (hereinafter “Pl. Opp.”) at 1. In fact, this case concerns a Freedom of Information Act

(“FOIA”) request, the motivation for which is irrelevant. The sole question before the Court is

whether Defendant, the U.S. National Security Agency (“NSA”), properly declined to confirm or

deny the existence of records responsive to that request—i.e., the propriety of a narrow Glomar

response issued by a member of the intelligence community. And it is clear beyond cavil that

unofficial statements, speculation, and “accusations” do not render unlawful an agency’s decision

to issue a Glomar response.

Aware of the pellucid precedent on that point, Plaintiff seeks additionally to argue that

NSA’s invocation of the National Security Agency Act, 50 U.S.C. § 3605, effectively exempts

that Agency from the FOIA altogether. Not so; the modest Glomar at issue in this case falls

squarely within that Act’s core protections, which are critical for the functioning of the Agency

the Act was enacted to facilitate. Rather than becoming the first in this Circuit to delineate the

outer boundaries of the Act’s broad and repeatedly reaffirmed protections, the Court should uphold

NSA’s straightforward and appropriate Glomar response to Protect Democracy Project’s request.

STATEMENT OF MATERIAL FACTS

Plaintiff erroneously asserts that “NSA’s opposition does not contest any of th[e] factual

assertions” in Plaintiff’s summary judgment motion. See Pl. Opp. at 2. On the contrary, NSA

stated that it “does not believe that any of the Factual Issues discussed at pages 2-8 of Plaintiff’s

summary judgment motion are material to . . . the sole legal question before the Court,” and “NSA

therefore takes no position as to their accuracy.” See Defendant’s Motion for Summary Judgment,

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ECF No. 24 (“Def. MSJ”), at 1 n.1. It is Protect Democracy Project that makes no attempt to

justify the inclusion of those “facts” – a litany of newspaper stories and media speculation

unmoored from any official NSA statements – in the record.

In any event, Plaintiff appears to agree that the dispute in this case is a legal one. It is

undisputed that Plaintiff’s FOIA request seeks the following records from NSA:

Any memoranda (and, as noted below, associated documents)


written by senior NSA officials documenting a conversation
between White House personnel, including the President, and NSA
senior officials, including Adm. Rogers, in which the White House
asked the NSA to publicly dispute any suggestion of collusion
between Russia and the Trump campaign.

Declaration of Steven Thompson, ECF No. 24-1 (“Thompson Decl.”) ¶ 20. It is also undisputed

that NSA declined to confirm or deny the existence of any records responsive to that request. See

id. ¶ 21 & Ex. D. Those facts form the core of the issue for this Court to decide.

ARGUMENT

I. NSA PROPERLY DECLINED TO CONFIRM OR DENY THE EXISTENCE OF ANY RECORDS


RESPONSIVE TO PLAINTIFF’S FOIA REQUEST.

Plaintiff’s amended FOIA request seeks records pertaining to an alleged communication

between former NSA Director Admiral Rogers or any other NSA official and President Trump or

any other White House official on the subject of Russian collusion with the Trump campaign.

Because confirming or denying the existence of records responsive to this request would reveal

statutorily protected information concerning NSA’s core functions and activities, the Agency has

invoked its authority to issue a Glomar response to the request, pursuant to Exemption 3 of the

FOIA, see 5 U.S.C. § 552(b)(3), and Section 6 of the National Security Agency Act, see 50 U.S.C.

§ 3605 (“Act” or “NSA Act”).

An agency is entitled to protect from disclosure information that falls within a FOIA

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exemption so long as the agency’s explanation of why the information falls within that category is

“logical or plausible.” Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007). And this Circuit has

held that “the policing role assigned to the courts in a[n Exemption 3] case is reduced.” Ass’n of

Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd., 830 F.2d 331, 336 (D.C. Cir. 1987). Here, NSA’s

contention that the existence or non-existence of responsive records would reveal key functions or

activities of the Agency, and therefore is protected by Section 6 of the NSA Act, is both logical

and plausible. Accordingly, NSA is entitled to summary judgment.

a. NSA’s Application of the National Security Agency Act In this Case is Not
Overbroad.

Plaintiff’s primary response to NSA’s motion for summary judgment is that Defendant has

wrongly “implie[d] that Congress enacted Section 6 of the NSA Act, 50 U.S.C. § 3605, in order

to place all of the Agency’s documents off limits from FOIA requesters.” Pl. Opp. at 2. Plaintiff

does not dispute that courts have repeatedly held that Section 6 of the Act is a qualifying

withholding statute under Exemption 3 of the FOIA. See Plaintiff’s Motion for Summary

Judgment, ECF No. 23-1(“Pl. MSJ”) at 14 n.7; see also, e.g., Elec. Privacy Info. Ctr. (“EPIC”) v.

NSA, 678 F.3d 926, 931 (D.C. Cir. 2012); Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir.

2009); People for the Am. Way Found. v. NSA, 462 F. Supp. 2d 21, 28 (D.D.C. 2006). Instead,

Plaintiff contends that this Court must impose “some logical limit to Section 6.” Pl. Opp. at 3.

Offering such a limit – which this Court would be the first to adopt – Plaintiff proposes that Section

6 should apply only to “specific intelligence programs run by the NSA.” Id. at 4.

Protect Democracy Project does not derive its proposed limit on Section 6 either from the

text of the NSA Act or from case law in this Circuit. Nor could it, because the statute itself, and

this Circuit’s interpretation of it, counsel in favor of a broad reading and strict application of

Section 6’s protections from disclosure. See 50 U.S.C. § 3605 (providing that “nothing in this

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[Act] or any other law . . . shall be construed to require the disclosure of the organization or any

function of the National Security Agency, or any information with respect to the activities thereof”

(emphasis added)); Hayden v. Nat’l Sec. Agency, 608 F.2d 1381, 1389-90 (D.C. Cir. 1979); see

also Linder v. NSA, 94 F.3d 693, 696 (D.C. Cir. 1996) (“[T]he plain language of the statute . . .

states unequivocally that ‘nothing in this Act or any other law shall be construed to require the

disclosure,’” and this “statutory language . . . cannot be confined.” (citation omitted)). These cases

re-affirmed the statute’s broad scope without expressing any concern that doing so might be

construed as freeing NSA from any of its obligations under the FOIA whatsoever. And while

Plaintiff is correct that People for the American Way does note that “Section 6 is not without

limits,” 462 F. Supp. 2d at 31, the court in that case declined to offer any specific instruction or

even guiding principles about what those limits ought to be.1

Because Plaintiff cannot find support for its proposed limit in the provisions of the NSA

Act or the precedent interpreting it, Protect Democracy Project instead attempts to derive a limiting

principle from the cases that have affirmed the statute’s broad application: Thus far, they have

applied mostly to “intelligence programs run by the NSA.” Pl. Opp. at 4 (emphasis added). But

those cases do not suggest that Section 6 does not also protect the existence of or characteristics

about the intelligence gathered by the NSA. Nor do they imply that an activity that is part of the

Agency’s fundamental role in the Executive Branch – sharing intelligence with and providing

advice to senior government officials – could not constitute an activity of the Agency, or

“information with respect to the activities” of the Agency, which are protected by the Act. Cf.

1
Instead, it noted that it “need not grapple with the problem of defining those limits here,
for the well-established operation of Section 6, which forbids disclosure of information relating to
the NSA’s SIGINT activities.” People for the American Way, 462 F. Supp. 2d at 31. The same is
true here, see infra Section I.b; records related to an alleged conversation with the President might
very well “relate to the NSA’s SIGINT activities,” even if not to a specific SIGINT program.
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Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d 101, 177 (D.D.C. 2013) (explaining that the NSA

Act sweeps more broadly than the CIA Act, as the latter does not protect records pertaining to

CIA’s organizational functions). In fact, Plaintiff actively ignores the plain language of the NSA

Act, which explicitly protects against the compelled disclosure of NSA’s “organization,” as well

as “any function,” or “any information with respect to the activities” of the NSA.

Ultimately, Plaintiff’s doomsday prediction that accepting NSA’s Glomar here would

effectively exempt the Agency from the FOIA altogether is nothing more than hyperbole. NSA

obviously does not believe that it is exempt from the FOIA; indeed, the agency produced records

in response to Plaintiff’s original FOIA request in this very case. See Thompson Decl. ¶ 19 &

Ex. C. Clearly, not all NSA records pertain to its functions and activities such that they are exempt

from disclosure under the FOIA.

To be sure, many do, which means that Section 6 may have a potentially very broad

application. Yet such a result is appropriate, as NSA is an agency whose mission would be

rendered impossible in the face of constant or complete public disclosure. See Thompson Decl.

¶ 11 (“Congress has specifically recognized the inherent sensitivity of the SIGINT activities of the

NSA; thus, Congress has passed statutes to protect the fragile nature of NSA’s SIGINT efforts.”).

The FOIA represents a delicate balance between the public’s right to know and an agency’s need

to protect some information from disclosure for legitimate purposes, as recognized in the statute’s

exemptions. See, e.g., Dep’t of Justice v. Reporters Comm. For Freedom of Press, 489 U.S. 749,

776 (1989). In enacting the NSA Act, Congress recognized that NSA’s unique responsibilities

necessarily mean it has a wide array of legitimate bases for non-disclosure – perhaps more than

many other federal agencies. See Thompson Decl. ¶ 29.

As NSA noted in its cross-motion for summary judgment, the broad sweep of the NSA Act

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is underscored by Congress’s decision not to require the Agency to demonstrate any specific harm

from disclosure in order to invoke the protections of Section 6. Hayden, 608 F.2d at 1390. Here,

however, Mr. Thompson has detailed the harms that could result if, as Plaintiff suggests, the NSA

Act only protected the existence of or information about a specific intelligence-gathering program,

but did not protect fundamental NSA activities such as the provision of intelligence and counsel

to named senior government officials about specific topics. See Thompson Decl. ¶¶ 31-32. In

addition to exposing specific information about “the identity of those who may or may not be

potential (or actual) surveillance targets, and/or whether or not the Agency possesses foreign

intelligence on a particular topic,” a request for records about a particular conversation between

NSA and a named government entity or agency could reveal additional contextual information that

might even allow a clever requester to confirm sensitive information about military operations or

treaty negotiations. See id. Worse, if Section 6 provided no protection for conversations between

government principals and the NSA, cabinet members and other officials would face a strong

incentive not to exercise their ability to consult with NSA when making key decisions regarding

that which the Agency may have relevant intelligence or counsel. See id. ¶ 33. This would hobble

one of the Agency’s primary missions – “to provide the foreign intelligence it is charged with

collecting to principals in government, among them the President.” Id. ¶ 8.2

This Court need not become the first in the Circuit to circumscribe the protections of

2
Plaintiff wrongly contends that these are “[g]eneralized fears” arising from “other,
hypothetical circumstances.” see Pl. Opp. at 6-7. On the contrary, these are the inevitable
consequences of the limiting principle Plaintiff itself proposes to apply to Section 6: that it protects
only specific SIGINT programs. If accepted, that limit necessarily excludes the “other,
hypothetical circumstances” Plaintiff contends are not at issue here, including requests made for
records reflecting whether or not NSA spoke to a specific government official or agency on a
particular topic or on a particular date. Thus these harms are not a “boilerplate response” to
Plaintiff’s request, see id. at 6, but rather the natural result of any limitation on Section 6 that did
not cover requests of the type at issue here.
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Section 6, as the information NSA seeks to protect here is nowhere near the outer limits of that

provision (whatever they may be). At a minimum, the Court should reject Plaintiff’s invitation to

impose an arbitrary limit on Section 6, under which some activities are protected from disclosure

and others – those in which Plaintiff has an interest – are not; such a proposal finds no support in

the law of this Circuit or the text of the NSA Act.

b. Plaintiff’s Request Implicates Core Functions and Activities of the NSA.

Plaintiff acknowledges that “[t]here are times, of course, when revealing the mere fact of

a communication between the NSA and another person or entity might well reveal . . . sources,

methods, or targets.” Pl. Opp. at 3. The Court need look no further than that inescapable admission

in determining whether the NSA Act applies here.

Plaintiff claims that because the White House and the NSA “have repeatedly and publicly

disclosed their interest in the Russia investigation,” there is no risk that anything further would be

revealed about NSA’s activities by confirming or denying the existence of responsive records. Id.

In other words, because Protect Democracy Project believes it knows whether and to what extent

NSA has gathered intelligence on the subject at issue in the alleged conversation between the

President and officials at NSA, there is no harm to the Agency in disclosing whether such a

conversation occurred.

But Plaintiff is mistaken about the information that NSA has previously disclosed. As the

Thompson Declaration explains, though “NSA has publicly acknowledged that [] it contributed to

the production of the Intelligence Community Assessment” about Russian interference with the

2016 election, “NSA has nevertheless repeatedly declined to provide more detailed information

concerning its intelligence collection related to the 2016 election.” Thompson Decl. ¶ 32.

Disclosure of a general intelligence “interest” in a topic, contrary to Plaintiff’s suggestion, does

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not constitute disclosure of all details concerning that topic, which may include classified and/or

protected information. See also Pub. Citizen v. Dep’t of State, 11 F.3d 198, 203 (D.C. Cir. 1993)

(declining, in FOIA context, “to fashion a rule that would require an agency to release all related

materials any time it elected to give the public information about a . . . matter”). In other words,

NSA has never publicly confirmed or denied the extent to which it has gathered intelligence about

Russian interference in the 2016 presidential election, nor details concerning that intelligence, such

as those sought by Plaintiff in its amended FOIA request.

Furthermore, the request, by its terms, seeks records related to an alleged conversation “in

which the White House asked the NSA to publicly dispute any suggestion of collusion between

Russia and the Trump campaign.” 3 Thompson Decl. ¶ 20. The Amended Request thus seeks

records the existence of which would suggest that the President believed NSA had gathered no

intelligence “suggesti[ng] . . . collusion between Russia and the Trump campaign.” Id. However,

Plaintiff nowhere points to any official, public disclosure in which the NSA has announced that it

does or does not possess that specific intelligence.4 In particular, NSA has never acknowledged

the existence of anything resembling the specific records sought by Plaintiff here. Accordingly,

only by declining to confirm or deny the existence of responsive materials can NSA protect its

core function—intelligence gathering concerning specific topics and the sharing of that

3
Throughout its briefs, Plaintiff repeatedly maintains that its FOIA request seeks
“documents showing that the President improperly asked the NSA to undermine an FBI
investigation.” Pl. Opp. at 5. The actual request is broader than this, and never mentions an FBI
investigation or a request to undermine anything.
4
The closest Plaintiff gets is its claim that “NSA itself has already disclosed that it first
discovered Russian attempts to influence the election and passed that information along to their
‘FBI teammates.’” Pl. Opp. at 6 (citation omitted). Although the Government has taken no
position on the accuracy of that assertion, see Def. MSJ at 1 n., even if it were true it would not
defeat NSA’s Glomar response. The assertion simply does not establish that NSA has officially
disclosed that it does or does not possess intelligence on Russian collusion with the Trump
campaign.
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information with named governmental principals.

In any event, Plaintiff’s argument is essentially a reformulation of the classic official-

disclosure challenge to a Glomar response. Protect Democracy Project contends that the

information NSA seeks to protect has already been publicly disclosed by the Agency and therefore

does not merit protection under the NSA Act, a claim no different than one asserting that prior

official disclosures render inapposite a Glomar response under any particular Exemption. But the

FOIA requires an exact match between an official disclosure and the information the agency seeks

to protect. Wolf, 473 F.3d at 378.5 Plaintiff obviously has not established such a match, for its

briefs do not identify – nor do its cited news articles describe – any official disclosure from an

NSA representative declaring that the Agency possesses (or does not possess) intelligence

suggesting that the Trump campaign colluded with Russia. Without such a “match,” and under

the law of this Circuit, if it is logical or plausible that confirming or denying the existence of

responsive records would disclose non-public information about NSA’s activities, the Court must

sustain NSA’s Glomar response. See EPIC, 678 F.3d at 931.

5
Accordingly, any statements that Admiral Rogers has made “about the Russia
investigation” broadly, see Pl. Opp. at 7, have no bearing on the Glomar response at issue here,
which concerns a far narrower slice of information. Plaintiff points to statements about the
Intelligence Community Assessment on Russia and the Nunes Memo, but in none of the statements
Plaintiff has identified did Admiral Rogers discuss whether NSA is collecting or has collected
intelligence suggesting collusion between Russia and the Trump campaign. And, as Mr.
Thompson explains, Admiral Rogers has specifically declined to reveal the existence or non-
existence of the alleged memoranda and other communications identified in Plaintiff’s Amended
Request. See Thompson Decl. ¶ 35 (noting that “in a June 2017 hearing before the U.S. Senate
Select Committee on Intelligence, Admiral Rogers, reflecting the official position of the Agency,
repeatedly stated that he was ‘not going to discuss the specifics of conversations with the President
of the United States,’” and he “declin[ed] to confirm or deny [the] existence” “of materials similar
in description to those which Plaintiff seeks here”).
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II. PLAINTIFF STILL HAS NOT SUBSTANTIATED ITS ALLEGATIONS OF GOVERNMENT


MISCONDUCT.

Throughout its opposition, Protect Democracy Project argues that this case is “unique and

troubling” on its facts and involves a “remarkable series of events” – namely, “[t]he President’s

improper request of the NSA.” Pl. Opp. at 1. In short, Plaintiff asks the Court to treat this case,

and NSA’s invocation of the NSA Act, differently because the FOIA request at issue seeks to

expose alleged wrongdoing by the President. But Plaintiff still has marshalled no evidence

establishing any wrongdoing by either the White House or the NSA. Nor is Plaintiff correct that

a baseless suspicion of presidential wrongdoing alters this Court’s calculus in assessing the

propriety of NSA’s Glomar response under Section 6.

First, an agency’s declaration and its contents are afforded a “presumption of good faith,”

which cannot be defeated by speculation about the existence of documents. SafeCard Servs., Inc.

v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation omitted). Crucially, Plaintiff has provided

not a shred of evidence demonstrating that NSA has acted in bad faith in issuing this Glomar

response, and none to support its claim that the President acted unlawfully. And Plaintiff’s belief

that responsive records exist relies entirely on “reports by major media outlets” citing a single

unnamed and therefore unofficial source. See Pl. Opp. at 1. This is self-evidently insufficient to

raise Plaintiff’s conclusory allegations above the level of pure speculation.

Second, even had Plaintiff offered more than an unnamed source to substantiate its

assertion that the President behaved improperly, People for the American Way Foundation directly

addresses the impact of that assertion on NSA’s Glomar response. The court there held that even

if the underlying activity to which the requested records pertain – in that case, an NSA program;

in this case, a conversation between the President and the NSA – “is ultimately determined to be

unlawful, its potential illegality cannot be used . . . to evade the ‘unequivocal’ language of Section

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6, which ‘prohibits the disclosure of information relating [to] the NSA’s functions and activities.’”

462 F. Supp. 2d at 31 (quoting Linder, 94 F.3d at 696).6 This facet of Section 6 distinguishes it

from other FOIA Exemptions or bases for withholding, including the deliberative process

privilege. See Pl. Opp. at 1 (citing SAI v. Transportation Sec. Admin., 315 F. Supp. 3d 218 (D.D.C.

2018)). And, as the Government has already explained, see Def. MSJ at 22-23, Plaintiff here has

made a far more tenuous showing of any government wrongdoing than the requester in People for

the American Way Foundation, who was able to rely at the time on a previous district court holding

that the underlying government activity was unconstitutional—albeit a holding later reversed on

appeal. In any event, NSA’s declaration makes clear that NSA’s Glomar response is intended to

protect the current and future provision of specific intelligence information, concerning specific

topics, to named governmental officials, and not, as Plaintiff suggests, to conceal wrongdoing.

III. PLAINTIFF’S PREFERENCE FOR WITHHOLDINGS IS IRRELEVANT.

Plaintiff half-heartedly seeks to resurrect its argument that NSA should have provided

responsive records to Protect Democracy Project, with redactions for exempt materials. See Pl.

Opp. at 7-8. This argument not only assumes the existence of responsive records, it also

necessarily discounts the foregoing analysis about the NSA Act’s statutory protections over the

disclosure of the very fact of the existence of responsive records. Plaintiff cannot plausibly assert

that redactions or withholdings would “provide more than adequate protection to any legitimate

6
Plaintiff points out that a district court in Illinois once observed, in dicta, that “taken to
its logical conclusion,” Section 6 of the NSA Act could allow agencies “to conceal information
regarding blatantly illegal or unconstitutional activities simply by . . . claiming that they implicated
information about the NSA’s functions.” Terkel v. AT&T Corp., 441 F. Supp. 2d 899, 905 (N.D.
Ill. 2006). Plaintiff argues that this is what NSA has done here. Pl. Opp. at 3. But in People for
the American Way, a court in this district actually addressed this issue directly, holding that
potential illegality of underlying government conduct did not defeat an otherwise proper
invocation of Section 6. That holding is far more persuasive that the out-of-circuit dicta in Terkel,
in which the court ultimately did not rule on the NSA’s invocation of Section 6.
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intelligence interest” that the NSA has asserted in this case unless it could establish that there is

no legitimate statutory interest in protecting the existence or non-existence vel non of responsive

records. It cannot, for the reasons set forth above. And because such a legitimate interest exists,

only a Glomar response is appropriate, for only a Glomar response protects the fact of the existence

of responsive records, or lack thereof.

Of course, if the Court were to find that NSA’s Glomar response is improper, the Agency

might later assert Exemptions over full or portions of any responsive records that it located, if any

such records existed. But the Court is well aware of the “normal procedures that apply in a FOIA

case,” see Pl. Opp. at 8, and the Government does not dispute that such a procedure – searching

for responsive records, if they exist, and asserting exemptions over those records, if appropriate –

would be the next step in this litigation. Plaintiff’s argument therefore either misunderstands the

nature of a Glomar response or is premature. No doubt, Plaintiff would have preferred that NSA

not assert a Glomar response, and instead produce with redactions any responsive records that may

exist. But NSA is well within its rights under Exemption 3 of the FOIA and Section 6 of the NSA

Act to issue the Glomar response here, and the Court should hold as much.

CONCLUSION

For the foregoing reasons, NSA respectfully submits that the Court should deny Plaintiff’s

motion for summary judgment and grant Defendant’s cross-motion for summary judgment.

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Respectfully submitted this 14th day of September, 2018,

CHAD A. READLER
Principal Deputy Assistant Attorney General

ELIZABETH J. SHAPIRO
Deputy Branch Director

/s/ Anjali Motgi________________________


ANJALI MOTGI (TX Bar 24092864)
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave. NW
Washington, DC 20530
(202) 305-0879 (tel.)
(202) 616-8470 (fax)
Anjali.Motgi@usdoj.gov

Counsel for Defendant

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CERTIFICATE OF SERVICE

I hereby certify that on September 14, 2018, a copy of the foregoing pleading was filed

electronically via the Court’s ECF system which sent notification of such filing to counsel of

record for all parties.

/s/ Anjali Motgi _


ANJALI MOTGI
Texas Bar # 24092864
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, D.C. 20530
(202) 305-0879 (tel.)
(202) 616-8470 (fax)
anjali.motgi@usdoj.gov

Counsel for Defendant

14