By: Josh Baker
Article: http://www.wired.com/threatlevel/2013/04/secret-surveillance-court/
Government’s brief: http://www.wired.com/images_blogs/threatlevel/2013/04/fisacourt.pdf
The Electric Frontier Foundation (EFF), a digital rights group in San Francisco, brought suit in the District Court for the District of Columbia after the government denied EFF’s Freedom of Information Act (FOIA) request to disclose a ruling of the Foreign Intelligence Surveillance Court (FISC). FISC opinions are almost never disclosed to the public as a general matter.
In this case, the opinion was not revealed, but Sen. Ron Wyden was briefed on the ruling as a member of the Intelligence Committee. Wyden was authorized to reveal that FISC had found an instance of surveillance that “circumvented the spirit of the law” and failed Fourth Amendment reasonableness scrutiny, violating the FISA Amendments Act. The declassified statements also noted that “government has remedied these concerns and the FISC has continued to approve []
collection [pursuant to Section 702] as consistent with the statute and reasonable under the Fourth Amendment.” The public would not have been aware of the ruling in this case were it not for Sen. Wyden’s authorized comments.
The Department of Justice (DOJ), in its brief, contends that FOIA exempts this information from disclosure. It argues that the FISC Rules of Procedure prohibit the disclosure of the FISC opinions and Intelligence Committee briefings. In the alternative, the DOJ declared that the information sought “necessarily implicates classified intelligence sources and methods” and is therefore exempted from FOIA disclosure. Finally, the DOJ asserts that disclosure of the information sought by EFF “could result in exceptionally grave and serious damage to the national security,” and that the court should defer to the Department’s finding on this matter.
This exemplifies the government’s general rationale for maintaining secrecy as to FISC opinions. The FISC was designed to have Article III judges rule on information collection/surveillance requests from intelligence agencies, while preserving the secrecy of the government’s investigations that could be jeopardized by public disclosure. By declassifying certain statements regarding the FISC opinion, the government sought to balance the interest in government transparency with the protection of critical intelligence activities.