Despite What the President Said, There's Nothing “Transparent” About a Secret Court Issuing Secret Rulings
On Charlie Rose last night, President Obama gave his most detailed defense of the NSA surveillance programs since a FISA court order demanding that Verizon hand over phone records information on all its US customers leaked to the Guardian two weeks ago. In a key portion of the interview, he talked about the secret FISA court that, under the auspices of the PATRIOT Act and FISA Amendments Act, has been approving the NSA’s sweeping surveillance requests. Curiously, President Obama referred to these secret courts as “transparent”:
Charlie Rose: But has FISA court turned down any request?
Barack Obama: The — because — the — first of all, Charlie, the number of requests are surprisingly small… number one. Number two, folks don’t go with a query unless they’ve got a pretty good suspicion.
Charlie Rose: Should this be transparent in some way?
Barack Obama: It is transparent. That’s why we set up the FISA court….
The FISA court, by its nature, is the opposite of transparent. In fact, it’s hard to imagine how the FISA court could be more secretive.
Let’s start with the court building itself. After the FISA Amendments Act passed in 2008, which greatly expanded the government abilities to make broad surveillance requests, the court was remodeled. The Washington Post reported at the time about secrecy measures in place to make sure the public did not find out what the court was up to:
First, the workers encased the room in reinforced concrete. Then came the thick wood-and-metal doors that seal into the walls. Behind those walls they labored in secret for two years, building a courtroom, judge's chambers and clerk's offices. The only sign that they were done came recently, when biometric hand scanners and green "Restricted Access" placards were placed at the entrances.
What workers have finally completed—or perhaps not; few really know, and none would say—is the nation's most secure courtroom for its most secretive court.
The decisions by the court, far from being transparent, are some “of the most highly classified documents inside the U.S. government,” as The Daily Beast reported today. The Daily Beast described the ultra-secretive process for those companies who receive the orders, and the senators who want to provide oversight to the court.
Those who receive [FISA orders]—the first of its kind to be publicly disclosed—are not allowed “to disclose to any other person” except to carry out its terms or receive legal advice about it, and any person seeing it for those reasons is also legally bound not to disclose the order. The officials say phone companies like Verizon are not allowed to store a digital copy of the [FISA orders]...
Even lawmakers and staff lawyers on the House and Senate intelligence committees can only view the [FISA orders] in the presence of Justice Department attorneys, and are prohibited from taking notes on the documents.
For years now, EFF has been trying to get one of these FISA opinions declassified. Last year, the Director for National Intelligence publicly admitted that “on at least one occasion” the FISA court has ruled the NSA’s collection of domestic communications violated the Fourth Amendment, yet refused to release any other information about it.
We’ve filed a Freedom of Information Act lawsuit to have the opinion released, but as EFF’s Mark Rumold described in detail, it was extremely difficult for EFF to even file a brief in the FISA court. The government’s Kafkaesque secrecy arguments, which they used in an attempt to prevent the opinion’s release, really have to be read to be believed.
Thankfully, the FISA court ruled last week that there was nothing barring the decision from being subject to the Freedom of Information Act, and the district court will now rule on how much of the opinion should be released to the public. To give one an idea about how secretive the court is, EFF’s motion was the first to be placed on the court’s online public docket and the first (known) win by a non-government party in the court’s history.
Today, Google commendably filed a challenge to FISA gag orders in the FISA court as well, citing their First Amendment right to tell the public a general number of how many users are affected by FISA court orders. We hope other companies follow suit. In Google’s motion to the court, they wrote, "Transparency is critical to advancing public debate in a thoughtful and democratic manner."
We couldn’t agree more. Once upon a time, the President did too. Twice, once in 2010 and again in 2011, the Obama administration promised to declassify significant FISA court rulings. They still have not done so. If President Obama wants the FISA courts to be more transparent, he can act today.