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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:

U.S. Department of Justice
                             United States Attorney
District of New Mexico
Post Office Box 607


Albuquerque, New Mexico 87105

FTS 8-505-766-3342

May 20, 1998

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


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