Access to wiretap orders sought
on Aug 8, 2007 at 5:28 pm
In a highly unusual plea to a notably secret court, the American Civil Liberties Union on Wednesday asked the Foreign Intelligence Surveillance Court on Wednesday to release publicly a series of orders or opinions on the scope of the government’s power to conduct electronic eavesdropping that may affect Americans. The motion argued that the country is entering a period of national debate about how much power the government should have to conduct international wiretapping without prior court approval, and said the still-secret court materials will have an immediate bearing on that discussion.
The motion for release can be found here. It contended that private lawyers are free to ask the FIS Court for public release of documents, and that the Court clearly has the authority to do so.
The papers sought by the motion include these:
1. Several orders issued by the FIS Court on Jan. 10 of this year, containing interpretations of federal wiretap law that caused the Bush Administration to stop a prolonged, secret program of international wiretapping — sometimes reaching Americans’ telephone calls or e-mailing — that had been conducted without any court’s approval. The Jan. 10 orders supposedly added a new layer of wiretapping authority in place of the abandoned warrantless scheme. While never released up to now, those orders have been widely discussed in public statements and congressional testimony by high government officials. These authorization orders may have allowed the government to conduct an entire program of wiretapping, without getting individualized warrants.
2. Any later orders that may have changed the authorization granted on Jan. 10.
3. Any legal briefs that the government had filed in the Court in order to obtain the Jan. 10 or subsequent authorization orders.
4. An order, issued sometime in the last four or five months, by a judge of the FIS Court that administration officials and members of Congress have said curbed government eavesdropping power in ways that led the Bush Administration to press for — and obtain — new emergency legislation to fill the supposed “gaps” opened in eavesdropping authority. This most recent order was disclosed in a television interview last week by House Republican Leader John Boehner of Ohio, and was discussed by other members of Congress during debates last week that led to the hurried passage of the so-called “Protect America Act,” signed into law on Aug. 5 by President Bush, perhaps adding significantly to international eavesdropping authority.
The ACLU asserted in its motion: “It is inappropriate, to say the least, that the judicial decisions that led to these major changes in the landscape of U.S. privacy law remain secret.” It noted that the Bush Administration has already made clear that it wants the expanded authority in the Protect America Act to be made permanent; that legislation is set to expire in six months.
Conceding that some parts of the demanded materials may have to remain classified, the motion sought release of edited versions as soon as possible. The deletions should only encompass material that the FIS Court itself deems necessary to keep classified, the ACLU contended. “The question whether — and to what extent — judicial records should be made available to the public is ultimately one for the Court to decide, and requires a particularized inquiry into any national security interests offered by the government in support of secrecy,” the motion said.
The Senate Judiciary Committee has previously sought access at least to the Jan. 10 orders, but so far has been unable to obtain them for use in investigating how much authority the government now has to conduct surveillance.
The new wiretap law signed by President Bush is now formalized as Public Law 110-55. It was passed as S. 1927. It can be downloaded from the congressional site, found at http://thomas.loc.gov/
