EFF pushed ahead with its lawsuit, and in a filing in April, the Justice Department acknowledged that the document in question was an 86-page opinion the FISA court had issued on October 3, 2011. Again, there was no reference to the specific surveillance activity that the court had found improper or unconstitutional. And now the department argued that the opinion was controlled by the FISA court and could only be released by that body, not by the Justice Department or through an order of a federal district court. In other words, leave us alone and take this case to the secret FISA court itself.
This was puzzling to EFF, according to David Sobel, a lawyer for the group. In 2007, the American Civil Liberties Union had asked the FISA court to release an opinion, and the court had informed the ACLU to take the matter up with the Justice Department and work through a district court, if necessary.
So there was a contradiction within the government. "It's a bizarre catch-22," Sobel says. On its website, EFF compared this situation to a Kafka plot: "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."