FISC judge orders review of secret court rulings on NSA phone surveillance

A judge on the secret Foreign Intelligence Surveillance Court set in motion a process that could give the public more information on the legal opinions behind the vast surveillance of phone records exposed by former NSA contractor Edward Snowden.

Rick Bowmer/AP/File
NSA's Utah Data Center in Bluffdale, Utah, in June. A judge on the Foreign Intelligence Surveillance Court has ordered the White House to review for public release legal opinions issued by the secret court about collecting data on Americans' phone calls.

A judge on the Foreign Intelligence Surveillance Court has ordered the Obama administration to review for possible public release legal opinions issued by the secret court dealing with the constitutionality of the widespread collection of phone records by the National Security Agency.

Friday’s ruling by one of the FISC judges, F. Dennis Saylor IV, a US district judge in Boston, is important, because it could mark a new willingness by the court to permit a level of public scrutiny of its decisions.

The special court was created in 1978 to facilitate judicial oversight of the government’s use of highly classified sources and methods to track potential terrorists and head-off future attacks.

The FISA court had authorized the collection of telecommunications meta-data that formed a massive surveillance effort that was disclosed, in part, by leaks last summer from former NSA contractor Edward Snowden.

The disclosures have prompted significant public concern and debate about the extent of government collection of information about ordinary Americans as part of its anti-terrorism surveillance.

The ruling on Friday came as a result of a motion filed in June by the American Civil Liberties Union directly to the FISA court.

The ACLU is also seeking some of the same documents via a Freedom of Information Act lawsuit filed in October 2011 in federal court in New York. That suit prompted the release of some of the requested documents earlier this week.

In his ruling on Friday, Judge Saylor gave government lawyers until Oct. 4 to identify all legal opinions sought by the ACLU and to establish a timetable to review any classified sections of the opinions for possible redactions prior to public release.

The judge said that after the reviews are complete, it would be up to the author of each opinion whether to propose that the opinion be publicly disclosed.

The Obama administration has opposed release of any FISC opinions in both the New York litigation and in response to the ACLU motion.

Judge Saylor’s order does not guarantee that the FISC decisions will be made public, but it sets in motion a process that opens a door to that possibility.

ACLU lawyers said the ruling was an important decision and a significant victory.

“We are pleased that the surveillance court has recognized the importance of transparency to the ongoing public debate about the NSA’s spying,” said ACLU National Security Project Staff Attorney Alex Abdo, in a statement.

“For too long, the NSA’s sweeping surveillance of Americans has been shrouded in unjustified secrecy,” he said. “Today’s ruling is an overdue rebuke of that practice. Secret law has no place in our democracy.” 

Specifically at issue in the motion was an ACLU request for copies of FISC opinions interpreting the scope and constitutionality of Section 215 of the Patriot Act, which authorizes government officials to seize “any tangible things” relevant to US intelligence gathering related to foreign agents or terrorists. Officials relied on Section 215 for authorization of the telecommunications meta-data collection.

In his opinion, Judge Saylor referred to the Snowden affair and the resulting public controversy. “The unauthorized disclosure in June 2013 of a Section 215 order, and government statements in response to that disclosure, have engendered considerable public interest and debate about Section 215,” the judge wrote. “Publication of FISC opinions relating to this provision would contribute to an informed debate.”

He added: “Publication would also assure citizens of the integrity of this Court’s proceedings.”

Judge Saylor said publication of the orders with only limited redactions was now possible after recent government disclosures about how Section 215 was being implemented. He noted that a declassification review by the government was already underway.

“In view of these circumstances, and as an exercise of discretion, the Court has determined that it is appropriate to take steps toward publication of any Section 215 opinions that are not subject to ongoing FOIA litigation [in the New York court case], he said.

The Saylor opinion is also important for what it does not decide. The judge declined to require release of any documents involved in the New York FOIA litigation. He said the New York case had been filed before his case and he would decline to decide issues already before another judge.

But Saylor also said that there likely other FISC opinions delivered after the New York case was filed that could be released.

The judge also declined to rule on an ACLU argument that it possessed a First Amendment right to obtain access to the FISC rulings. Instead, the judge based his actions on a FISC rule that grants judges on the secret court discretion to direct the publication of an opinion, order, or other decision of the FISC.

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