A federal judge said Friday he was considering setting a deadline for the Justice Department to produce records on the Bush administration’s warrantless surveillance program or to explain in court why it was refusing to do so.
U.S. District Judge Henry Kennedy said he was convinced the public would suffer irreparable harm if the government dragged its feet in a lawsuit filed over access to the documents.
The lawsuit was filed by three private groups who say the government is engaging in a pattern of delay and should be compelled to provide information on the underlying legal rationale for the surveillance and the scope of the eavesdropping program.
Congress is having difficulty getting the same information.
The Electronic Privacy Information Center, the American Civil Liberties Union and the National Security Archive asked for the material shortly after The New York Times revealed the eavesdropping on Dec. 16. The only response from the government was agreeing to put the requests on a fast track for decision-making.
Justice Department lawyer Rupa Bhattacharyya said the government would respond starting March 3, but she said she had no information on when the process might be completed.
The Freedom of Information Act says the government shall respond “as soon as practicable.”
“Seven, eight, nine, 10 years? Is that the government’s position?” Kennedy asked the Justice Department attorney.
Timing will depend on complexity, “and in this case there are a lot of complexities,” Bhattacharyya said of the highly classified program.
David Sobel, an attorney representing the three groups, said the Bush administration was taking the position that putting FOIA requests on a fast track for consideration frees the government from a specific 20-day deadline for responding that applies to ordinary requests.
“The government is suggesting it’s now open-ended,” Sobel complained.
Given the highly classified nature of the program, the Bush administration is likely to withhold all information about it.
Part of the groups’ effort is aimed at obtaining an index of what documents exist, enabling them to present arguments in court that some of the data be declassified and released to the public.
“It’s fashionable to suggest that the courts don’t have a significant role to play in these matters, but I urge the court to exercise its authority to hold the government accountable,” Sobel told the judge.
Sobel was referring to the fact that the Bush administration bypassed the Foreign Intelligence Surveillance Court and is conducting the program without obtaining court warrants.
Several of Kennedy’s colleagues at the federal courthouse who are current or former members of the intelligence court have expressed concern about the program.
Kennedy was appointed to the court by President Clinton in 1997.