May 22, 2013 | By Mark Rumold

EFF Takes FOIA Fight Over Secret Wiretaps to the Foreign Intelligence Surveillance Court

Today, EFF filed a motion in a secret court.

This secret court isn’t in a developing nation, struggling beneath a dictatorship. It’s not in a country experimenting for the first time with a judiciary and the rule of law. And, as Wired recently noted, it’s “not in Iran or Venezuela, as one might expect.” No, the court is here, in the United States (it’s in Washington, D.C., in fact). It’s called the Foreign Intelligence Surveillance Court (or the FISC), and it reviews the federal government’s applications to conduct surveillance in national security cases. It’s comprised of 11 district court judges from around the country, and its opinions and orders are the law of the United States, like other federal courts.

But the FISC is different from typical courts in one fundamental way: almost everything about the FISC is secret.1 In fact, just being able to publicly say that we filed a motion with the FISC is unusual. Most proceedings are done ex parte (in this context, meaning just with the government and the judge), and any non-governmental parties involved in proceedings are typically forbidden from ever disclosing it. Even when the FISC finds that the government has acted illegally, so far, that illegality has been been kept hidden from public scrutiny and accountability.

EFF is trying to change that. We filed a lawsuit under the Freedom of Information Act (FOIA) after the Department of Justice refused to disclose a FISC opinion we requested. The FISC opinion held that the government engaged in surveillance that was unconstitutional and violated the spirit of federal surveillance laws. We only know the opinion exists because Senators, like Ron Wyden and Mark Udall, essentially forced the government to publicly acknowledge its existence.

So why did EFF file something with the FISC? In response to our FOIA lawsuitand in an attempt to justify hiding the government’s unconstitutional conductthe DOJ pointed to the FISC. The DOJ argued the FISC’s procedural rules prohibited DOJ from releasing the opinion under FOIA. But, five years earlier (in response to a separate case brought by the ACLU), the FISC itself said FOIA was the proper avenue to access FISC opinions. In fact, in that case, the DOJ argued that FOIA was the only way the public could access the opinions. So we filed a motion with the FISC to allow that court to definitively resolve whether its rules prohibit the disclosure of its opinions.

But, for the time being, a DOJ-imposed Catch-22 blocks the public from knowing more about the government’s illegal surveillance. According to the DOJ, we can’t use FOIA, because the FISC rules prevent it; and we can’t go to the FISC, because the FISC says FOIA is the proper avenue. If Joseph Heller were alive today, he would be impressed. So, too, would Franz Kafka. A public trapped between conflicting rules and a secret judicial body, with little transparency or public oversight, seems like a page ripped from The Trial.

In fact, simply figuring out how to file the motion was a bit of a nightmare. Not surprisingly, there’s no e-filing with the FISC or public mailing address to send the motion. All we had was a phone number. And all we could do was leave messages and hope the court staff would return our calls.

But, sadly, this isn’t a work of dystopian fiction. This is a product of our democratic system. The government may assert that FISC opinions can’t be disclosed because they would reveal the legal limits of our nation’s intelligence collection capabilities, but the fact that we are a nation of laws is not a vulnerability our enemies may exploit. It is among our greatest national assets.

Granted, it’s likely that some of the information contained within FISC opinions should be kept secret; but, when the government hides court opinions describing unconstitutional government action, America’s national security is harmed: not by disclosure of our intelligence capabilities, but through the erosion of our commitment to the rule of law.

  • 1. Another difference is the very limited subject-matter jurisdiction of the court. Although the subject matter of the issues before it is certainly unique, in the federal system, having a restricted jurisdiction is not unique to the FISC

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