Government opposes release of secret court orders
on Sep 3, 2007 at 5:41 pm
The Justice Department has urged the special secret court that oversees global electronic eavesdropping to refuse a request that it open to the public any version of its orders authorizing the current wiretapping program. In a 23-page brief, filed Friday with the U.S. Foreign Intelligence Surveillance Court, the Department contended that any release of even censored versions of such orders would threaten national security. The ACLU has provided a link to the document at its website, here.
The materials being sought by the American Civil Liberties Union, the brief argued, “are properly classified in their entirety. The public disclosure of the documents that ACLU requests would seriously compromise sensitive sources and methods relating to the collection of intelligence necessary for the Government to conduct counterterrorism activities.” Even if the FIS Court were to release unclassified summaries of its orders, the most that they could say, the brief said, was that the orders “authorize the United States to conduct foreign surveillance, and specifically, to target for collection international communications where there is probable cause to believe that one of the communicants is a member or agent of Al Qaeda or an associated terrorist organization.” That general information, of course, has been stated publicly numerous times by public officials, including President Bush.
Moreover, the Department said, the law creating this Court does not allow any outsider to file a “free-standing motion” about that Court’s business, and the First Amendment does not compel release of any of the orders or of government legal briefs filed with the Court seeking approval for its global wiretapping program.
The ACLU on Aug. 8 filed a formal motion with the FIS Court requesting public release of orders on the scope of international eavesdropping authority. The Court then asked the Justice Department to respond, saying the issue “warrants further briefing.” The ACLU has until Sept. 14 to respond to the government’s opposition.
In challenging the ACLU request, the Justice Department conceded that there is “significant and legitimate public interest in the ongoing debate over Government surveillance of foreign terrorist and intelligence targets.” It said it contributed to that debate with the disclosure in January that the FIS Court had authorized a surveillance program. And, it said, it has shared the Court’s orders and Government legal briefs with congressional committees and has given members of Congress “numerous briefings.”
But, in the wake of the ACLU motion, it added, it has considered the balance of interests anew, and has “concluded that the substantial risk of harm that disclosure would pose to the Nation’s security currently outweighs any public benefit.”
Even individuals or organizations that claim to have been aggrieved by FIS Court-approved eavesdropping have always been denied access “to any part of orders authorizing surveillance.” It added: “It would be strange indeed if the ACLU, asserting a generalized desire to know, could obtain the relief it seeks while an aggrieved person could not.”
The brief also noted that the ACLU tried, without success, to get access to the FIS Court orders in a lawsuit it is now pursuing in regular federal courts. Since its request have been turned down in litigation where it is a party, the brief said, “it is even more clear that the ACLU’s free-standing non-party motion should be denied here.”
If the ACLU should now try to get access to the documents from the government by moving under the Freedom of Information Act, the Department said, it would oppose that, too.
The brief also reiterated the government argument that the Executive Branch, alone, has the authority to classify and control access to information bearing on national security.
In asking the Justice Department to respond to the ACLU request, the Court allowed government officials to include secret material, and then to provide the ACLU with a censored version. But the government said that, since it believes the ACLU has no basis even for making its motion, it had chosen not to provide any classified material with its brief.
