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Summary:

In a new court filing, the Obama Administration says the secret FISA court has no obligation to publish its decisions — not even those that explain why new forms of spying are constitutional.

Internet Privacy - spy - computer - magnifying glass
photo: Corbis / Stanley Eales

The Obama administration, in a new court filing, urged the nation’s surveillance court to throw out a request by civil liberties groups to disclose its secret rulings about the scope and legality of the Patriot Act.

In the filing, embedded below, the Justice Department quotes with approval the Foreign Intelligence Surveillance Court’s own view of its power, expressed in 2007, that “[t]he FISC is a unique court … [o]ther courts operate primarily in public, with secrecy the exception; the FISC operates primarily in secret, with public access the exception.”

The filing, which comes in response to a June lawsuit from the ACLU,  coincides with a critical profile by the New York Times that claims the FISA court has “become almost a parallel Supreme Court” with its own “secret body of law” that bolsters the powers of the NSA.

In its June lawsuit, the ACLU challenged the secret nature of the decisions with support from 16 members of Congress; the suit claims the FISA court has a First Amendment and public policy duty to disclose the constitutional grounds for the surveillance powers it is granting to America’s spy agenices. The ACLU, which made a similar request in 2007, says that it’s possible to reveal such information without compromising classified intelligence operations.

The request attempts to shed light on the workings of the FISA court which, in the past 30 years, has disclosed only a handful of its decisions (most recently in 2009.) In the last month, though, the court has attracted unprecedented attention over its role in authorizing the federal government to collect vast amounts of meta-data from phone companies and from tech firms like Google and Facebook.

The Justice Department, in its response, rejects the First Amendment argument and claims that the ACLU has no standing to bring the case in the first place. It also urges the court to show deference to the executive branch in deciding what counts as classified material.

Such arguments may provide further grist to critics who argue the FISA court is a “rubber stamp,” and that its secret operations undercut the separation of powers between the executive and judicial branches of government.

The Justice Department filing also, however, suggests the Obama administration is taking steps to make the court more transparent. The filing notes that “a declassification review process is already occurring.”

The court is likely to issue its decision in coming weeks or months but it’s unclear if the ruling will be public. In the meantime, the ACLU is also suing in federal court to challenge the scope of telephone surveillance, and another group, the Electronic Frontier Foundation, won a FISC court ruling to proceed with a Freedom of Information Act request to obtain court documents.

Here’s the filing – scroll to page 20 to see a rare memo from the FISA court explaining some of its powers:

US Opposes ACLU at FISA Court

  1. mechtild jd (@mechtild5) Monday, July 8, 2013

    How much more cloak & dagger can one get? We’re use to thinking of action agencies like the CIA & the FBI in terms of cloak & dagger. But courts rule. And that’s an expression as well as a reality. Here we have a cloak & dagger court ruling over all the cloak & dagger agencies. This is not to say it isn’t necessary. But how good it is depends on who’s running the affair. And we all know how that goes eventually. Not so hot when indiscretions & ineptitudes are cyclically repeated & revealed agency after agency year after year. Whatever the ACLU has to say, without even knowing what it says exactly, is better then saying nothing. Which will in effect be the sum of it all should the Justice Dept’s current ruling be permitted to stand.

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  2. Calling this a “Court” is a twisted, sick joke. There are no “parties”
    to adjudicate justice between. There’s no “rule of law” when law is
    secret. There are no rights to defend when there’s no representation.

    Secret law isn’t even the pathetic trappings of a democratic society.

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    1. Jonathan and mechtild jd — thanks for your comment. I get a little weary of the privacy hysteria espoused by some of colleagues in the press but, in this case, I think you guys are bang on. There’s something very wrong when a secret court is providing cover for secret spying operations.

      The government does need to keep some secrets about genuine bad guys — but refusing to discuss (or even disclose!) the constitutional justifications for doing so is unconscionable.

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      1. “There’s something very wrong when a secret court is providing cover for secret spying operations.”

        That statement makes it pretty clear to me you don’t understand what this court does and that your subjectivity and opinions are getting in the way of journalistic objectivity.

        The FISA court operates like a magistrate in reviewing warrant applications. That’s it. It’s not holding secret trials.

        All magistrates in every local, state, and federal court are in secret. That’s because they’re reviewing on-going criminal investigations. FISA is no different.

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  3. I think the “separation of powers” issue certainly merits *public* (not secret nor classified) discussion.

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  4. The FISA faux-court is definitely unconstitutional and should be closed down immediately. We should also disband the NSA, CIA, HSA, and DEA because they’re dangerous, out-of-control, and definitely not worth the cost. Look at this: Since 2001 about 25,000,000 (!) Americans have died for one reason or other (around 2 million/year). Over 50,000 people a year die on highways. In the last few years over 50,000 women have died from addictions to pain killers. A few years ago 200,000 people died in a tsunami in southeast Asia.

    And yet since 2001 LESS THAN 4,000 people have died from terrorist activities in the U.S.

    So the governmental agencies are essentially maintaining that 1 terrorist-caused death is more important on average than over 6,000 other American deaths. What the f..k are they thinking? ALL that money wasted on those useless governmental agencies should instead be used to improve this country’s infrastructure and facilities.

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    1. You make a lot of sense, but you forgetting the most important point – bottom line issue.
      Improving infrastructure and facilities is not going to be as profitable, and does require a lot more real work, then wasting the money on easier jobs like surveillance … Money wasted and no accountability, everything is a secret, no one needs to know who really benefit from it all, its all ‘closed’… security business is more profitable and easier … thats the bottom line

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  5. The government receives its legitimation by votes from the public. A representative democracy depends on the citizens knowing what they are voting for. Operations that are not covered by the constitution and by publicly available laws and records are an attack on the pillars of democracy.

    Congress is bullshitting the people about what they know about the NSA’s operation, and the NSA is bullshitting Congress (including lying under oath and then shrugging shoulders when caught) about what it is doing.

    When will the enemies of democracy and the constitution be jailed?

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  6. …And people like to say that obama has no power and its all congress’s fault.

    Time to dissolve the NSA and CIA. They are evil institutions that have run amuck with power.

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  7. Robert Kriegar Friday, July 12, 2013

    This is not a court I want in my free country. What in hell is going on here?

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