Secret court won’t release spying orders
on Dec 11, 2007 at 8:19 pm
Describing itself as a “unique and uniquely non-public court,” the U.S. Foreign Intelligence Surveillance Court on Tuesday denied a request by civil liberties lawyers for public release of that tribunal’s orders authorizing the Bush Administration to carry on a broadened program of global electronic spying that may include the telephone calls and e-mails of people in the United States. The denial order and a 22-page opinion can be downloaded at this site of the American Civil Liberties Union, which sought the release.
The FIS Court rejected the government’s argument that it had no authority to consider the ACLU’s request, but then went on to conclude that the organization “has not established a right of access to these records, nor has it made a persuasive csase that, as a matter of discretion, this Court should grant the relief requested.” It was signed by U.S. District Court John D. Bates of Washington, D.C., one of 11 members of the special Court created in 1978 that has authority to permit the government to engage in electronic and other forms of spying to gather foreign intelligence data inside the U.S.
The denial of public release of the Court’s ruling could mean that the authorization the Court gave to the National Security Agency for its controversial spying program “may remain secret forever,” the ACLU said in a statement. ” Calling the ruling disappointing, the ACLU’s national security project director Jameel Jaffer said: “A federal court’s interpretation of federal law shoujld not be kept secret from the American public. The Bush administrration is seeking expanded surveillance poweers from Congress because of the rulings by the Foreign Intelligence Surveillance Court earlier this year.”
In denying public access to any orders that allow that expansion, The Court said that it “operates primarily in secret, with public access the exception.” It noted that a court security officer had cleared the way for publication of the opinion, finding no classified information in it.
The Court said that Tuesday’s opinion was only the third it had ever made public in its 29-year history. This was the first time it had ever ruled on a formal request submitted by anyone other than the government. Ordinarily, as it does its work, it hears only from the government as authorization for intelligence wiretapping is sought. It rarely turns down government requests for permission.
Reciting how secret the FIS Court’s records are, Judge Bates’ opinion said that such documents are protected in a way that records of no other federal court are.
In turning down the ACLU request for access to the orders, after necessary deletions were made to protect secrets, the opinion said that the ACLU had shown no common law right of public access to FIS Court records. The laws and regulations governing secrecy, according to the opinion, override any common law right of access.
Judge Bates then moved on to deny that the Constitution’s First Amendment provided any basis for public access to the Court’s records. There is no tradition of such access, the opinion noted. The prior publication of two opinions of the Court does not create such a tradition, it added.
The Court conceded that there could be “certain benefits” from releasing the records — perhaps “greater understanding” of how it makes its decisions, perhaps “an additional safeguard against mistakes, overreaching or abuse,” and perhaps allowing for “better-informed…debates over legislative proposals” on the government’s spying powers. But none of those overcome the need for secrecy, it concluded, and the harm of “broad public access” would “greatly outweigh any such benefits.”
If the records were redacted to take out secrets about how intelligence is gathered, or the targets of such spying, such edited versions “may confuse or obscure” what the Court had decided, it said.
Judge Bates also wrote that the Court’s relations with the Executive Branch might suffer if the Court were to subject the government to greater judicial review, perhaps leading government officials to forgo surveillance in order to avoid disclosing sensitive information to the Court.
The opinion closed with a comment that the ruling did not bar the ACLU from going to a regular U.S. District Court with a Freedom of Information Act request “addressed to the Executive Branch.” It did not opine on how successful such an effort might be — especially in the face of the government’s power to assert a “state secrets privilege” to defeat litigation that would expose national secrets.
