•

:·' · '• I

UNITED STATES COURT OF APPEALS

2
FOR THE SECOND CIRCUIT
'\
3 No. 4 83 August Term, 1981
Arguec: December 7, 1981 Decided: January l~, 1982
4

Docket No. 81-6163

6

1
..
ALAN JULES WEBERMAN,
8
Plaintiff-Appellant,

-against- \
10
i.
JAN 1 a \~82
NATIONAL SECURl.TY AGENCY,
11 " ' .··.:, ".
·. . ..,.\\'.
'
/
Defendant-Appellee. .. r~\.·~
~-· l·'~-~~:,y
' • ... ' I' ,

12 ·....:..1,.--... . ) _;:..-~ .
13
----------------------------------------
Before: LUMBARD, WATERMAN, and VAN GRAAFEILAND,
Circuit Judges.

)6
Weberman appeals from summary judgment entered in
the Southern District of· New York, Brieant, ~.,which dismissed
1'1

JI his suit brought under the Freedom of Information Act, 5 u.s.c.

§ 552 (1976). Weberman challenges the district court's
exclusion of his counsel from its in camera viewing of a secret

21 affidavit submitted by the National Security Agency in support of

. Z2 I its motion for summary judgment.

I
~ 1! Affirmed .
I'.I
!. MARK H. LYNCH, ESQ., Washington,
I
D.C . (American Civil Liberties
1: Union Foundation, Washington, D.C.
I Susan w. Shaffer, Esq., of
counsel) , for Plaintiff-Appellant.
I!
JOHN s. MARTIN, Onited States
:j Attorney for the Southern District
Ii,, of New York, New York, N.Y.
(Stuart M. Bernstein, Peter c.
Salerno, Assistant United Statas
JD Attorneys for t.he Southern Distric
of New York, of counsel) , for
Defendant-Appellee •

. 4.
'11··· ';
- x -
 ;

J
LUMBARD, Circuit Judce:

2 '
Investigation and speculation about the assassination
3 of President Kennedy contin·u es unabated. Lee Harvey Oswald shot
the President on November 22 , 1963 . Oswald was killed the next
' ..
5 day in Police Headquarters, Dallas, Texas, by Jack Ruby. Jack -~

6 Ruby's brother Earl had, according to appellant Weberman ,

7 sent a telegram to Havana, Cuba, on April 1, 1962.

I ~eberman alleged that the telegram had been inter-
9 cepted by the National Security Agency (NSA) and sought disclosur
10 of the telegram for a book he was writing on the Kennedy
1J assassination , "Coup d'Etat". When his request was rebuffed,
12 Weberman brought this suit in the Southern District on
13 October 17, 19·77, against the NSA under the Freedom of Informa-
IC tion Act, 5 U.S.c. s 552(b). ; The NSA contended that whether the
1$ telegram was or was not intercepted is a matter of national
16 security exem?t from disclosure under the FOIA, S 552(b) (1) ' (3).
17 In support of its contention, the NSA submitted a top secret
11 affidavit by Michie F •. Tillie, assistant ?irector for policy and
19 liaison. Judge Brieant originally refused to consider the Tillie
20 affidav i t and granted summary judgment to Weberman, 490 F. Supp.
21 9 (S.O.N . Y. 1980) . After this court held such refusal an
'22 l! abuse of discretion, 646 F.2d 563 (2d Cir. 1980), Judge Brieant
2:1 II viewed the affidavit in camera and ex parte, and qranted summary
ji
i4 .. judgment to the NSA on June 5, 1981.
I'
J5
On this appeal, Weberman challenges Judge Brieant'&
a decision to exclude his coun·sel and view the affidavit !.!. parte,
27 ,. 507 F . Supp. 117 (S.D.N.Y. 1981) • Immediately f ollowinq

• ..
argument of the appeal, the United States Attorney submitted to
2t ·; us the top secret Tillie affidavit. We have examined the
JO
;; affidavit and we agree with the diatrict court that, under the
JI
I
circumstances, it was not error to deny to plaintiff'• counsel the
S% i·
ri~h~ to be present at the ~ camera in•pection of the affidavit •
..·'i".
;;
,,•• xi -
;

- ·--- -·---· ..... _.. __ ·-- . . .. .. - ___

.. . _...
··-·-- ··- - ·- .- - - ---- ...............
. ____
/ \~e al so con cl udc f ror.i our reading of the: Tillie affidavi t that

3
2
I I
there was no error in granting surr~ary judgment for
basis of the affidavit's disclosures.
NSA on the

When the NSA moved for summary judgment in Dece~ber,

r
,)

5 ,: 1~79, it offered two affidavits of John R. Harney, Tilli e•s ·

,.:·
I predecessor. Both affidavits set forth why the existence or
·1
7 non-existence of the Ruby intercept was classified, and why the
1
,I
,.
•• I•
I
fact of interception fell under either S 552(b) {l),
i, exempting froffi FOIA matters "specifically authorized •••• by an
'
10
I' Executive order to be kept secret in the interest of national
ll 11
security ," or under S 552(b) (3), concerning matters "specifically
'
12 I: exempted from disclosure by statute" which "requires that the
i
13 .· matters be withheld from the public in such a manner as to leave
14 ! no discretion on the issue . ~

15
1'
Mr . Harney's second affidavit explained that be had
I
JI
It
disclosec as ~uch as possible without violating national
17 J· security . He offered to furnish ' an in camera affidavit, if the
, I
16 I
,.'• court re~u irec further information. We directed the district
l9 ! court to vie~ the preferred affidavit £..!! camera, which the
I
20 I
district court construed to mean an~ parte proceeding, i.e.,
!·
J,
.
21 There is no dispute that all. Judge
""ithou~ counsel present.
Brieant did was to go to the United States Attorney's office
ir:ir.-1ediately acjacent to the courthouse, and read the Tillie
a!ficavit alc~c, ""ithout argument from the United States Attorney
As J~c~e Bri eant wrote in h i s grant of •ummary judgment, the
Tillie a! f ida \• it sets forth specifically the damage to national
security that might well result from diac::losinq whether or not
.. the Ruby message wa~ intercepted. That is, the. Tillie affidavit
si:r.ply c:reates a more complete record~ Phillippi v. C~A .
,,. ~~6 F.2c 1009, 1013 (D. C. Cir . 1976). Disclosure of the l
JI I
·l•·t~ i 1 i: of thi• affidavit might result in serious conaeq\lences
tc.... • ~.•: n r.s t.iCJ:')• s •ecurit)• operation•· Th• ri•k.. ~ pr•••nted by I
- xii -
;

_..--------· . .
.. ·-···----· .,, ___
participation of counsel, Hayden v. NSA, 608 F.2d 1381, 1385~86 ·

(D.c. Cir. 1979), outweigti.s the utility of counsel, or adversary

process, in construing a supplement to the record. Given these
circumstances, Judge Brieant was correct in following our

I! directions and excluding counsel from the in camera viewing.

Ii We also find no error in his grant of summary judgment. • ~ -.
ii
;i Affirmed.

II
H

I!

!.
I'

.,I

'II

xiii
 - --.... • e
UNITED STA.TES ATTORNEY
SOUTIIBRN DISTRICT 01' NEW YoRK
ONE ST. ANDREW ' S PLAZA
•:Ir ·.·;· NEW YORIC NEW YORK 10007
'.l',- ~
. .•..
~--
..\JW&T.MD IJTA.TJlll:& ATJ'OJlNJCY"

.,
. .. .... 77-3338 December 21, 1979
' ..
..._.. · .·
. .
:~
BY HAND
..:·-~ .< •.•. .•
~

·~ •'

Honorable Charles L . Brieant

~-
~·-~
_;;. •
. . -·.·
- ~­
United States District Judge
f - .
Southern District of New York
I
. :• United States Courthouse
... . _ -~ ,,.- Room 2103
' ..
Foley Square
~~ ~ .• ' . '· New York, New York 10007
Re: Alan Jules Weberman v. National
Security Agency et al.
7 7 Civ . 5 0 5 8 ( CLB) '

Dear Judge Brieant:

Enclosed are copies of the following unreported decisions
cited in the memorandum of law which was served today in support
of the motion of the defendants National Security Agency ("NSA")
and NSA's Director, Admiral Inman, for summary judgment and
Admiral Inman's motion to dismiss the complaint as against him
as an improper party defendant :
1 . Bachrack v. CIA, Civ. No. CV-75-3227 (C.D. Cal .
Hay 13, 1976);
2. Ba~z v. NSA, Civ. No. 76-1Y21 (D.D .C . Apr. 7, 1978);
3. Duna;evskay a v . NSA, Civ. No. 7-71947 (F..D. Mich.
May 9, 1979) ; -
4. Foundin Church of Scientolo
Inc. v. NSA, D t. No .
'f979);
5 . Goland v. CIA, Dk t. 76-1800 (D.C. Cir. May 23, 1978);

6. Haydez v. NSA, Dkt. Nos. 78-1728 & 78-17 29 (D.C. Cir.

Oct. 9 , 1979) ; and
/.Woolbright v. Department of Justice, Civ. No. CV 76-
LZ..'q:g-(C.D. Cal. Jan. 12, 1977) .
 •'···.. •
Honorable Charles L . Brieant
•
December 21, 1979
. :,

., We note that a petition for rehearing was denied in the Goland

case (item 5 above) and that the portion of the original deci-
sion relating to attorney's fees was vacated by a later opinion
:~ . of the District of Columbia Court of Appeals. Goland v. CIA,
.· ; .
~I :• • '
76-1800 (Mar. 28, 1979). We do not believe that the latter--
:· ' ,/
opinion has any bearing on the issues raised in the instant case,
but we will supply a copy of that opinion if the Court so desires,
We have also enclosed a courtesy copy of the defendants'
.'. :~ :
,, _.
\ , ... . motion papers .
.,....._. .
; ~.
-:

~ ..
...... , ...
Pursuant to my telephone call to Your Honor's chambers last
J:.. ·. ..: week , the revised motion schedule which plaintiff has consented to
1' . 1:.
is as follows :
Defendants' motion to be served on December 21 , 1979;
Plaintiff ' s papers in opposition to be served on Janu-
ary 11 , 198 0;
Defendants' reply papers to be served on January 18,
1980; and
. . ·: Oral argument to be held on the return date of the motion,
...·· January l5 , 1980 .
.,
' • -
... ..
: ';_:-
,. - ~-
Respectfully yours,
;. .;
(:_..•
{

'

...
:-1 Assistant United States Attorney
Telephone : (212) 791-1970
..
~ ,. cc w/ copies of enclosed decisions:
:·
Alan J . Weberman
t
6 Bleecker Street
,_
New York, New York
-.

('

-).,