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• UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT '\

No. 4 8 3 August Term, 1981

Arguec: December 7, 1981 Decid.ed~ January 1~, 1982

Docket No. 81-6163

.. ALAN JULES WEBERMAN,

Plaintiff-Appellant,

-against- \

NATIONAL SECURl.TY AGENCY, i. JAN 1 :2a \S82.

Defendant-Appellee. .. . / ' . , • . "

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Before: LUMBARD, WATERMAN, and VAN GRAAFEILAND,

Circuit Judges .

Weberman appeals from summary judgment entered in

the Southern District of· New York, Brieant, ~.,which dismissed

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

S 552 (1976). Weberman challenges the district court's

exclusion of his counsel from its in camera viewing of a secret

affidavit submitted by the National Security Agency in support of

its motion for sununary judgment.

Affirmed.

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MARK H • LYNCH, ESO. , Washington, D.C. (American Civil Liberties Onion Foundation, Washington, D.C. Susan w. Shaffer, Esq., of counsel) , for Plaintiff-Appellant.

JOHN S. MARTIN, Onited States Attorney for the Southern District of New York, New York, N.Y. (Stuart M. Bernstein, Peter c. Salerno, Assistant United States Attorneys for the Southern Diatric of New York, of coun&el), for Defendant-Appellee .

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LUMBARD, Circuit Judce:

' Investigation and speculation about the assassination

of President Kennedy contin·ues unabated. Lee Harvey Oswald shot

the President on November 22, 1963. Oswald was killed the next . .

day in Police Headquarters, Dallas, Texas, . by Jack Ruby. Jack · ~

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

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

Keberman alleged that the telegram had been inter-

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cepted by the National Security Agency (NSA) and sought disclosur

of the telegram for a book he was writing on the Kennedy

assassination, "Coup d'Etat". When his request was rebuffed,

Weberman brought this suit in the Southern District on

October 17, 19·77, against the NSA under the Freedom of Informa­

tion Act, 5 U.S.c. ~ 552(b). ; The NSA contended that whether the

telegram was or waE not intercepted is a matter of national

security exem?t from disclosure under the FOIA, S S52(b) (1) ' (3).

In support of its contention, the NSA submitted a top secret

affidavit by Michie r •. Tillie, assistant ~irector for policy and

liaison. Judge Brieant originally refuse.d to consider the Tillie

affidavit and granteQ summary judgment to Weberman, 490 F. Supp.

9 (S.D.N . Y. 1980) . After this court held such refusal an

abuse of discretion, 646 F . 2d 563 (2d Cir. 1980), Judge Brieant

viewed the affidavit in camera and ex parte, and granted summary ji ·· judgment to the NSA on June 5, 1981. I'

On this appeal, Weberman challenges Judge Brieant'&

decision to exclude his coun·sel and view the affidavit !!. parte,

,. 507 F. Supp. 117 (S . D.N.Y. 1981) • Immediately following

argument of the appeal, the United States Attorney submitted to .. ·; us the top secret Tillie affidavit. We have examined the

;; affidavit and we agree with the district court that, under the

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circumstances, it was not error to deny to plaintiff's counsel the

ri~ht to be present at the ~ camera inspection of the affidavit.

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/ We also conclude from our reading of the Tillie affidavit that

there was no error in granting surr~ary judgment for NSA on the I

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basis of the affidavit's disclosures.

When the NSA moved for summary judgment in Deccrr.ber,

1~79, it offered two affidavits of John R. Harney, ~illie's ·

predecessor. Both affidavits set forth why the existence or

non-existence of the Ruby intercept was classified, and why the

fact of interception fell under either S 552(b) (1),

exempting froffi FOIA matters "specifically authorized •••• by an

Executive order to be kept secret in the interest of national

security," or under S 552(b) (3), concerning matters "specifically

exempted from disclosure by statute" which "requires that. the

matters be withheld from the public in such a manner as to leave

no discretion on the issue.~

Mr. Harney's second affidavit explained that he had

disclosed as ~uch as possible without violating national

security. He offered to furnish ' an in camera affidavit, if the

court reGuirec further information. We directed the district

court to view the preferred affidavit !E camera, which the

district court construed to mean an~ parte proceeding, i.e., . withou~ counsel present. There is no dispute that all. Judge

Brieant did was to go to the United States Attorney's office

ir:lr.iediately acjacent to the courthouse, and read the ~illie

affidavit alc~e, ~ithout argument from the United States Attorney

As J~cqe Brieant wrote in his grant of aummary judgment, the

Tillie a.ffida\·it sets forth specifically the damage to national

security that might well result from disclosing whether or DOt

the RUby message was intercepted. That is, the Tillie affidavit

si:r.ply c:reates a more complete record ~ PhillipPi v. C~A.

~~6 r.2c 1009, 1013 (D.C. Cir. 1976). Disclosure of the

•lt·t.~ilr: of this affic!avit might result in serious conseqUences ' -,,·.

tc... 1 !,,; n~tio:1' s aecurit~· operations. 'l'he r.ialc. ~ preaented by

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

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

process, in construing a supplement to the record. Given these

circumstances, Judge Brieant was correct in following our

5 I! directions and excluding counsel from the in camera viewing •

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Affirmed.

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• ADVRJtfiiS BIU"LT "rO

UNITED STATES A'f'TORNEY

SOUTllERN DISTRICT 01' NEW YORK

ONE ST. ANDREW' S PLAZA

NEW YORJi. NEW YORK 10007

.. UN1T¥D &TA.TJ'i8 ATXOJI.NET"

AM'D REY'E.K TO

1SITIAL8 A.XD NTJ'KBitB

77-3338 December 21, 1979

BY HAND

Honorable Charles L. Brieant United States District Judge Southern District of New York United States Courthouse Room 2103 Foley Square New York, New York 10007

Re: Alan Jules Weberman v. National Security Agency et al. 77 Civ . 5058 (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. May 13, 1976);

2. Ba~z v. NSA, Civ. No. 76-1Y21 (D.D.C. Apr . 7, 1978);

3. Duna~evskaya v. NSA , Civ. No. 7-71947 (F..D. Mich. May 9, 1979); -

4 . Foundin Inc. v. T979);

of Washin D.C . c~r .

5. Goland v. CIA, Dkt. 76-1800 (D . C. Cir . May 23, 1978);

6. Haydez v. NSA, Dkt . Nos. 78-1728 & 78-1729 (D.C. Cir. Oct. 9, 1979) ; and

/.Woolbright v. Department of Justice, Civ. No. CV 76-b4~(C.D. Cal. Jan. 12, 1977).

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• • 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 deci­sion relating to attorney's fees was vacated by a later opinion of the District of Columbia Court of Appeals. Golahd v. CIA, 76-1800 (Mar. 28, 1979). We do not believe that the latter­opinion 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 week , the revised motion schedule which plaintiff has consented to is as follows:

Defendants' motion to be served on December 21 , 1979 ;

Plaintiff's papers in opposition to be served on Janu­ary 11, 1980;

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 ,

ROBERT B. FISKE , JR. United States Attorney

By:~'.~ Assistant United States Attorney Telephone: (212) 791-1970

cc w/ copies of enclosed decisions : Alan J. Weberman 6 Bleecker Street New York, New York