June 13, 2014 | By Dave Maass

Citing “Intense Public Interest and Concern” Over Mass Surveillance, Judge Orders DOJ to Turn Over Secret Legal Opinions for Court to Review

Courtroom sketch by Susie Cagle. Click to enlarge.

A federal judge today ordered the Department of Justice to hand over key opinions by the Foreign Intelligence Surveillance Court (also known as the “FISA court”) so the judge can directly review whether information about mass surveillance was improperly withheld from the public.

The order is another victory in EFF’s Freedom of Information Act lawsuit against the DOJ, which sought to reveal how the government uses Section 215 of the Patriot Act to secretly gather communications records from millions of American citizens. The suit has already forced the government to release thousands of pages of FISA court opinions, internal executive branch reports, congressional briefings, and other documents concerning Section 215. Documents released as part of the suit have shown the NSA repeatedly misled the FISA court concerning the operation of the bulk call records program, nearly leading the court to terminate the program altogether.

EFF Staff Attorney Mark Rumold argued for further disclosure of records during a June 3 hearing in Oakland. The resulting order, issued today, applies to 66 pages of five still-secret FISA court opinions. While Judge Yvonne Gonzales-Rogers may ultimately decide the documents cannot be released, her order reveals an appreciation of the civil liberties concerns as well as skepticism of the government’s blanket refusal to release any portion of the opinions.

The judge writes:

The evidence in the record shows that some documents, previously withheld in the course of this litigation and now declassified, had been withheld in their entirety when a disclosure of reasonably segregable portions of those documents would have been required. Further, the withholding followed an Order from this Court expressing concern that the agency had failed to explain sufficiently why the withheld documents “would be so replete with descriptions of intelligence activities, sources and methods that no portions thereof would contain” reasonably segregable and producible, non-exempt information…

Further, the Court finds that the public’s interest in the documents withheld is significant. The scope and legality of the government’s current surveillance practices of broad swaths of its citizenry is a topic of intense public interest and concern. “The Freedom of Information Act was aimed at ending secret law and insuring that this country have ‘an informed, intelligent electorate.” … In light of this public interest, in camera review to assure that the agency is complying with its obligations to disclose non-exempt material is certainly merited. Finally, as the parties have narrowed the range of documents for review, the burden on judicial resources is not significant.

More information on EFF’s battle to obtain legal opinions about the government’s mass surveillance operations is available on our Section 215 of the USA PATRIOT Act case page.


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