Bits Blog: Secret Surveillance Court May Reveal Some Secrets

The secret court that adjudicates national security-related information requests lifted the veil on its operations a tiny bit on Wednesday, ruling that portions of one of its earlier opinions could be disclosed to the public.

The ruling came in a case by the San Francisco-based Electronic Frontier Foundation. It had pressed the Foreign Intelligence Surveillance Court to allow one of its opinions to be disclosed under a Freedom of Information Act request. The government argued that there is good reason to keep the case sealed.

The court said it saw no reason to prohibit disclosing the documents sought under the Freedom of Information request. It left it to a federal court in the District of Columbia to make a ruling on the specific Freedom of Information Act litigation.

In other words, the court said it would not stand in the way of another court, if it ruled in favor of the organization’s Freedom of Information Act lawsuit.

“The victory today was a modest one,” E.F.F. wrote in a blog post announcing the decision.

The actions of the court have been the subject of fierce public debate ever since last week’s disclosures, first reported in The Guardian and The Washington Post, of widespread telephone and Internet surveillance efforts authorized under the Foreign Intelligence Surveillance Act. On Tuesday, bipartisan legislation was introduced in the Senate calling for the Attorney General to declassify portions of the surveillance court’s opinions, at least its interpretations of the law.

“It is impossible for the American people to have an informed public debate about laws that are interpreted, enforced, and adjudicated in complete secrecy,” Senator Ron Wyden, Democrat of Oregon, one of the co-sponsors of the bill said in a statement.

The chairwoman of the Senate intelligence committee, Dianne Feinstein, Democrat of California, earlier this year asked the court to summarize its major opinions, at least explaining its legal reasoning, while excising the classified facts of the case. The court’s chief justice, Reggie B. Walton, wrote back, explaining why that was not feasible. For one thing, the judge said, summaries would miss out on “the more nuanced or technical point of a court’s analysis.” He added, “For FISC opinions specifically, there is also the very real problem of separating the classified facts from the legal analysis.”