Secret court won’t release spying orders
Describing itself as a “unique and uniquely non-public court,” the U.S. Foreign Intelligence Surveillance Court on Tuesday denied a request by civil liberties lawyers for public release of that tribunal’s orders authorizing the Bush Administration to carry on a broadened program of global electronic spying that may include the telephone calls and e-mails of people in the United States. The denial order and a 22-page opinion can be downloaded at this site of the American Civil Liberties Union, which sought the release.
The FIS Court rejected the government’s argument that it had no authority to consider the ACLU’s request, but then went on to conclude that the organization “has not established a right of access to these records, nor has it made a persuasive csase that, as a matter of discretion, this Court should grant the relief requested.” It was signed by U.S. District Court John D. Bates of Washington, D.C., one of 11 members of the special Court created in 1978 that has authority to permit the government to engage in electronic and other forms of spying to gather foreign intelligence data inside the U.S.
The denial of public release of the Court’s ruling could mean that the authorization the Court gave to the National Security Agency for its controversial spying program “may remain secret forever,” the ACLU said in a statement. ” Calling the ruling disappointing, the ACLU’s national security project director Jameel Jaffer said: “A federal court’s interpretation of federal law shoujld not be kept secret from the American public. The Bush administrration is seeking expanded surveillance poweers from Congress because of the rulings by the Foreign Intelligence Surveillance Court earlier this year.”
In denying public access to any orders that allow that expansion, The Court said that it “operates primarily in secret, with public access the exception.” It noted that a court security officer had cleared the way for publication of the opinion, finding no classified information in it.
The Court said that Tuesday’s opinion was only the third it had ever made public in its 29-year history. This was the first time it had ever ruled on a formal request submitted by anyone other than the government. Ordinarily, as it does its work, it hears only from the government as authorization for intelligence wiretapping is sought. It rarely turns down government requests for permission.
Reciting how secret the FIS Court’s records are, Judge Bates’ opinion said that such documents are protected in a way that records of no other federal court are.
In turning down the ACLU request for access to the orders, after necessary deletions were made to protect secrets, the opinion said that the ACLU had shown no common law right of public access to FIS Court records. The laws and regulations governing secrecy, according to the opinion, override any common law right of access.
Judge Bates then moved on to deny that the Constitution’s First Amendment provided any basis for public access to the Court’s records. There is no tradition of such access, the opinion noted. The prior publication of two opinions of the Court does not create such a tradition, it added.
The Court conceded that there could be “certain benefits” from releasing the records — perhaps “greater understanding” of how it makes its decisions, perhaps “an additional safeguard against mistakes, overreaching or abuse,” and perhaps allowing for “better-informed…debates over legislative proposals” on the government’s spying powers. But none of those overcome the need for secrecy, it concluded, and the harm of “broad public access” would “greatly outweigh any such benefits.”
If the records were redacted to take out secrets about how intelligence is gathered, or the targets of such spying, such edited versions “may confuse or obscure” what the Court had decided, it said.
Judge Bates also wrote that the Court’s relations with the Executive Branch might suffer if the Court were to subject the government to greater judicial review, perhaps leading government officials to forgo surveillance in order to avoid disclosing sensitive information to the Court.
The opinion closed with a comment that the ruling did not bar the ACLU from going to a regular U.S. District Court with a Freedom of Information Act request “addressed to the Executive Branch.” It did not opine on how successful such an effort might be — especially in the face of the government’s power to assert a “state secrets privilege” to defeat litigation that would expose national secrets.
What a remarkably obtuse and/or disingenuous decision by Bates. Well, he serves his masters well. I mean, who could have predicted that a judge appointed by Bush and put on the FISC by Roberts would write an opinion so completely abdicating any independent role for the courts and so utterly deferential to the Executive Branch? Shocking, no?
My favorite bit of reasoning — one which you left out, Lyle — is that if he were to rule that there were a First Amendment right of access to the FISC’s legal rulings, then the Executive Branch might just stop seeking warrants for its surveillance activities — i.e., just say to hell with FISA. Granted, with this administration that’s an utterly plausible premise, but the notion that a federal judge should allow his determination of the scope of a constitutional right to be based on the fact that the President might then blatantly disobey the law is certainly a novel addition to our jurisprudence. One which the Bush administration will find many uses for, one imagines.
My other favorite piece of “logic” (since Bates’ opinion places such emphasis on that word) is that, since the FISC has been generally secretive since its creation 1978, there can therefore be no “tradition” of access for First Amendment purposes. So, all you have to do to shield your activities from public scrutiny is (1) create a new court (or agency, or what have you), and (2) start right away with denying public access to its records. Never mind that your activities — such as, oh, pronouncing the scope and meaning of federal law — are ones that traditionally the public has had access to. No, as long as you never allow that pesky tradition of access to your new court to develop, you’re home free. Neat trick! One, again, that I imagine the Bush administration will have many ideas for utilizing.
Comment by Glenn Edwards — December 12, 2007 @ 1:49 pm
The question I would have to ask is why is the ACLU asking for such information? Perhaps on “fishing” expedition. The persons who have commented on Judge Bates’ refusal quickly cite to the First Amendment rights and of course to a little “Bush” bashing.
Comment by Al Kaplan — December 13, 2007 @ 7:24 pm
Judge Bates came to the singularly unremarkable conclusion that disclosing to al Qaeda the means and methods of intelligence gathering against al Qaeda would aid that enemy and seriously damage national security.
This decision slaps down the ridiculous fiction the NYT was hiding behind that their disclosure of the TSP did not give al Qaeda anything that they already did not possess.
It will be interesting to see if the district courts considering the various civil suits against the government and the telecoms will follow the lead of the court most familiar with the Terrorist Surveillance Program when the plaintiffs attempt discovery of top secret NSA intelligence operations.
Comment by Bart DePalma — December 13, 2007 @ 8:18 pm
Glenn Edwards:
My favorite bit of reasoning — one which you left out, Lyle — is that if he were to rule that there were a First Amendment right of access to the FISC’s legal rulings, then the Executive Branch might just stop seeking warrants for its surveillance activities — i.e., just say to hell with FISA. Granted, with this administration that’s an utterly plausible premise, but the notion that a federal judge should allow his determination of the scope of a constitutional right to be based on the fact that the President might then blatantly disobey the law is certainly a novel addition to our jurisprudence.
I also thought this reasoning was interesting, but for different reasons. Judge Bates appears to be joining the other FISC judges who testified before the Senate in recognizing that the President has plenary power over foreign intelligence gathering and that FISA cannot limit that power. Judge Bates recognizes that the President’s participation in the FISA process is largely voluntary and he could again decide not to allow the FISC to supervise the NSA.
Comment by Bart DePalma — December 13, 2007 @ 8:24 pm
Bart’s second comment (#4) turns the history of FISA upside down. The Executive has always claimed inherent authority to wiretap. Since Katz v. US, this has been rejected for domestic law enforcement. Since US v. US District Court, this has been rejected for foreign intelligence surveillance of US persons. When Congress passed FISA, it recognized that the Executive made such a claim but nonetheless asserted that its domestic and foreign surveillance laws covered the entire subject of wiretapping. Whether there is any source of power for the Executive to act contrary to the will of Congress (and whether there is any judicial remedy against the exercise of such an asserted power) has not been adjudicated. So the idea that compliance with FISA is “largely voluntary” is unsupported in law. Frankly, I think the proper remedy against executive supremacists such as Jose Rodriguez and John Yoo is impreachment, under color of law they have violated the norms of democratic government.
Comment by Roger Friedman — December 15, 2007 @ 12:54 am
Roger:
United States v. United States District Court, 407 U.S. 297 (1972), addressed whether the 4th Amendment required a warrant for surveillance in “internal security matters” such as subversion of our sedition against the government. The Court did not hold that the 4th Amendment required a warrant for surveillance of suspected agents of foreign groups of any nationality for the primary purpose of foreign intelligence gathering. Indeed, the subsequent Truong line of cases in the Circuit Courts of Appeal held that the 4th Amendment does not require warrants for foreign intelligence gathering.
In sum, neither the 4th Amendment nor Article I anywhere grants Congress the power to direct who may and may not be the target of surveillance for the purposes of foreign intelligence gathering. Consequently, FISA is unconstitutional to the extent that it attempts to limit or eliminate the President’s executive and CiC power to direct foreign intelligence gathering. Judge Bates and a number of FISA judges before him appear to recognize that fact.
Comment by Bart DePalma — December 15, 2007 @ 5:47 pm