Weberman v. National Security Agency

Investigation and speculation about the assassination of President Kennedy continues 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. Weberman alleged that the telegram had been intercepted by the National Security Agency (NSA) and sought disclosure 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, 1977, against the NSA under the Freedom of Information Act, 5 U.S.C. § 552(b). The NSA contended that whether the telegram was or was not intercepted is a matter of national security exempt from disclosure under the FOIA, § 552(b)(1) & (3). In support of its contention, the NSA submitted a top secret affidavit by Michie F. Tillie, assistant director for policy and liaison. Judge Brieant originally refused to consider the Tillie affidavit and granted 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 judgment to the NSA on June 5, 1981. On this appeal, Weberman challenges Judge Brieant's decision to exclude his counsel and view the affidavit ex 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 circumstances, it was not error to deny to plaintiff's counsel the right to be present at the in camera inspection of the affidavit. We also conclude from our reading of the Tillie affidavit that there was no error in granting summary judgment for NSA on the basis of the affidavit's disclosures.