June 12, 2013 | By Mark Rumold

FISA Court Rejects Catch-22 Secrecy Argument in FOIA Case

In the first publicly known victory by a non-government party before the Foreign Intelligence Surveillance Court (FISC), the secret court today granted a motion filed by EFF related to an ongoing Freedom of Information Act lawsuit.

The FISC gave its OK to the public disclosure of an earlier opinion of the FISC—an opinion that declared aspects of the NSA's surveillance under Section 702 of the FISA Amendments Act to be unconstitutional.

Last week, the Department of Justice made a confusing, head-spinning argument in opposition to our motion, arguing that the FISC's procedural rules operated as a seal, which prevented the executive branch from releasing the opinion. And the court saw right through that claim. In fact, it took EFF longer to figure out how to physically file a motion with the FISC than it did for the FISC to dispatch with the DOJ's arguments.

The victory today was a modest one. The Court didn't order disclosure of its opinion; it just made clear, as EFF had argued, that the FISC's own rules don't serve as an obstacle to disclosure of the opinion. The FISC also clarified that the executive branch cannot rely on the judiciary to hide its surveillance: the only thing obstructing the opinion from the public's review is the executive branch's own claims that it can hide its unconstitutional action behind a veil of classification.

The effect of the Court's decision could be more significant. In earlier arguments, the Department of Justice tried to pin the blame for withholding the opinion in its entirety on the FISC. But, with that argument gone, DOJ should have no choice but to release, at the very minimum, parts of the opinion describing the government's unconstitutional practices.

EFF isn't alone in fighting for the release of these documents. A bipartisan coalition of Senators today announced legislation that would require the Attorney General to declassify significant FISC opinions, a move they say would help put an end to "secret law."

The FISC's decision was a welcome move toward greater transparency concerning the NSA's domestic surveillance program. It's now incumbent on the executive branch to provide the public with access to this vitally important document.

You can find the opinion, along with related documents and a motion filed by the ACLU urging the court to release its interpretation of Section 215, on the FISC's recently-created public docket.


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