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26 May 1998: Link to list of NSA court cases
22 May 1998
Source: Hardcopy from William H. Payne
See related documents: http://jya.com/whpfiles.htm
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U.S. Department of Justice | |
| United States Attorney District of New Mexico |
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| _________________________________________________________________ | ||
| Post Office Box 607 | 505-766-3341 |
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| Albuquerque, New Mexico 87105 | FTS 8-505-766-3342 |
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May 20, 1998 |
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Santiago E. Campos
Senior United States District Judge
P.O. Box 2244
U.S. Courthouse
South Federal Place
Santa Fe, NM 87504-2244
Re: William H. Payne v. National Security Agency
Civ. No. 97-0266 SC/DJS
Dear Judge Campos,
I reference your Memorandum Opinion and Order dated April
30, 1998, in which you requested that the Defendant provide an in
camera ex parte declaration or detailed affidavit concerning its
"Glomar response" to Mr. Payne's FOIA request. Because of the
nature of the classified material, the in camera review may be
different from prior reviews of classified documents made by this
Court. I would like to briefly acquaint the Court with the
procedure for review of the declaration which is necessitated by
the nature of the classified information which will be contained in
the declaration. Because the declaration will be classified,
counsel for the National Security Agency, who holds a security
clearance for this information, will travel to Santa Fe to present
the declaration to the Court, in camera and ex parte. I
respectfully request that the Court issue an order setting a date
and time at your convenience for the review of the declaration.
It is my understanding from my discussions with Susan A.
Arnold, Assistant General Counsel from the Office of General
Counsel, National Security Agency (NSA), Fort Meade, Maryland, that
because of the classified nature of the document, you will be the
only person authorized access to the declaration unless another
individual on your staff possesses a security clearance
commensurate with the highest level of classification of the
material of the declaration. NSA anticipates that the
classification level will be TOP SECRET (TS), Sensitive
Compartmented Information (SCI), CODEWORD. This necessarily means,
as the Court pointed out at footnote 20 of the memorandum, that
Plaintiff in this case may not be present and may not have access
to the declaration. Because I do not possess this level clearance,
I will not have access to the declaration either, nor will I be
present during the Court's review of the declaration.
Santiago E. Campos
May 20, 1998
Page 2
In accordance with security requirements, classified SCI
may only be stored in a SCI Facility (SCIF). Because the court in
Santa Fe does not have a SCIF, the declaration may not be stored at
the Santa Fe Courthouse. Pursuant to security requirements, it is
the duty of Agency counsel to remain with the classified material
at all times until it can be properly returned and secured in a
SCIF. Therefore, Agency counsel must remain with the document
while it is being reviewed. NSA has presented similarly classified
declarations to a number of United States District Court judges.
It is my understanding that it is the Agency's experience that
Agency counsel typically appear personally in chambers before the
Judge. In those previous instances, the Judge has read the
declaration and asked questions of Agency counsel. After the
review is completed the Agency counsel delivers the declaration
back to NSA for storage or delivers it to a certified SCIF. In
most cases the declaration is returned to NSA with the clear
understanding that it will be returned to the Court for further
review any time the Court so orders. It has been NSA's experience
that court reporters have not been used in these cases, and of
course, they, like other Court personnel, could not be present
unless they possess the level of clearance required.
If you or your staff have any questions, please do not
hesitate to contact me.
Sincerely,
JOHN J. KELLY
United States Attorney
[Signature]
JAN ELIZABETH MITCHELL
Assistant U.S. Attorney
cc: William H. Payne
[End]
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