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Court says US can stay mum about Guantánamo surveillance

Lawyers for Guantánamo detainees want surveillance records. An appeals court ruled Wednesday that agencies could refuse to confirm or deny the existence of such records for national security.

In this image reviewed by US military officials, a Guantánamo detainee walks past a cell block at Camp 4 detention facility, at the US Naval Base, in Guantánamo Bay, Cuba.

Brennan Linsley/AP/file

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A federal appeals court in New York ruled on Wednesday that US government agencies may refuse to confirm or deny the existence of records when faced with a Freedom of Information Act request that might disclose sensitive intelligence activities, sources, or methods.

The ruling by a three-judge panel of the Second US Circuit Court of Appeals was in connection with a lawsuit seeking information about whether the US conducted secret surveillance of lawyer communications with detainees at the Guantánamo Bay, Cuba, prison camp.

The FOIA request was submitted in 2006 by 23 lawyers who represent individuals being held as terror suspects at Guantánamo. The request sought records from the National Security Agency (NSA) and Justice Department “obtained or relating to ongoing or completed warrantless electronic surveillance or physical searches regarding, referencing, or concerning…” any of the 23 lawyers.

Bush authorized Terrorist Surveillance Program

Government officials have acknowledged that the NSA conducted warrantless surveillance under the Terrorist Surveillance Program (TSP) authorized by President Bush. It was conceived as an early warning system to prevent imminent terror attacks, but was conducted for a time without judicial oversight.

NSA officials refused to confirm or deny whether the agency had any records responsive to the FOIA request.

The Guantánamo lawyers sued. They argued that since the TSP was no longer secret, the government should not be excused from acknowledging the presence of responsive documents.

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