Homeland Security officials were under a court order to fulfill a public records request about the program by Nov. 1. Just weeks before the deadline, top officials abruptly said they would review the documents for classified material and asked that the case be shelved while they did so.
At issue are about 2,300 pages of documents regarding an agreement between the U.S. and the EU to share data about passengers on trans-Atlantic flights.
Homeland Security Secretary Michael Chertoff has said the agreement would have identified 11 of the 19 hijackers from the Sept. 11 attacks before they arrived in the country.
At a hearing Thursday, government lawyers told an annoyed federal judge they expected that many of the documents would be classified and withheld.
Deputy Assistant Homeland Security Secretary Paul Rosenzweig first raised that possibility in May, an "unanticipated development" that the government told the court about last month in asking for the delay.
"It's kind of late in the game" to raise this issue, U.S. District Judge Ellen Segal Huvelle said Thursday.
Huvelle quickly rejected the request. She also told lawyers for the Electronic Frontier Foundation, which asked for the documents, that if the government classifies the documents, the foundation would almost certainly have little chance of getting the records.
The government is within its rights to classify national security and foreign affairs documents, she said. "They have the trump card."
Huvelle extended the department's deadline until April. By then, she said, government lawyers must say what they're withholding and why. That includes the 2,300 pages, Huvelle said, plus 1,400 pages the agency has not begun to review, two days of Assistant Secretary Stewart Baker's e-mails that have gone missing and whatever else turns up in the meantime.
"If you can't figure out if something's classified in all that time," Huvelle said, resting her head in her hands, "well, figure out a new bureaucracy, I guess."