The Obama administration, in a new court filing, urged the nation’s surveillance court to throw out a request by civil liberties groups to disclose its secret rulings about the scope and legality of the Patriot Act.In the filing, embedded below, the Justice Department quotes with approval the Foreign Intelligence Surveillance Court’s own view of its power, expressed in 2007, that “[t]he FISC is a unique court … [o]ther courts operate primarily in public, with secrecy the exception; the FISC operates primarily in secret, with public access the exception.”
The filing, which comes in response to a June lawsuit from the ACLU, coincides with a critical profile by the New York Times that claims the FISA court has “become almost a parallel Supreme Court” with its own “secret body of law” that bolsters the powers of the NSA.
In its June lawsuit, the ACLU challenged the secret nature of the decisions with support from 16 members of Congress; the suit claims the FISA court has a First Amendment and public policy duty to disclose the constitutional grounds for the surveillance powers it is granting to America’s spy agenices. The ACLU, which made a similar request in 2007, says that it’s possible to reveal such information without compromising classified intelligence operations.
The request attempts to shed light on the workings of the FISA court which, in the past 30 year, has disclosed only a handful of its decisions (most recently in 2009.) In the last month, though, the court has attracted unprecedented attention over its role in authorizing the federal government to collect vast amounts of meta-data from phone companies and from tech firms like Google and Facebook.
The Justice Department, in its response, rejects the First Amendment argument and claims that the ACLU has no standing to bring the case in the first place. It also urges the court to show deference to the executive branch in deciding what counts as classified material.
Such arguments may provide further grist to critics who argue the FISA court is a “rubber stamp,” and that its secret operations undercut the separation of powers between the executive and judicial branches of government.
The Justice Department filing also, however, suggests the Obama administration is taking steps to make the court more transparent. The filing notes that “a declassification review process is already occurring.”
The court is likely to issue its decision in coming weeks or months but it’s unclear if the ruling will be public. In the meantime, the ACLU is also suing in federal court to challenge the scope of telephone surveillance, and another group, the Electronic Frontier Foundation, won a FISC court ruling to proceed with a Freedom of Information Act request to obtain court documents.
Here’s the filing – scroll to page 20 to see a rare memo from the FISA court explaining some of its powers: