Constitution Daily

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Embattled secret court may not spill some secrets after all

July 17, 2013 by Scott Bomboy


A secret government court that reviews government surveillance requests is ready to reveal some inner workings, but will they make sense after a Justice Department editing job?


Courtroom_United_States_CourthouseFISC, or the Foreign Intelligence Surveillance Court, had sided with Internet content provider Yahoo! and it has asked the Justice Department to do a “declassification review” of a key April 25, 2008 secret ruling involving Yahoo!


Yahoo! hopes the court’s memorandum of opinion and the legal briefs submitted in the case will prove that it put up a strong argument about government requests for user data needed for the National Security Agency’s PRISM surveillance program.


Yahoo! said in an official filing that the information would show it “objected strenuously” to the government requests and would reveal “how the parties and the Court vetted the Government’s arguments supporting the use of directives” to gather information about citizens without their knowledge.


In agreeing to the request, Reggie B. Walton, the presiding judge of FISC, asked for the Justice Department to report back to him by July 29 about when the documents could be ready for public inspection “in a form that redacts any properly classified information.”


Or in other words, the documents will contain passages with missing information indicated by brackets, such as [redacted text].


Even in its redacted form, scholars and privacy experts are hoping enough information will be left to get some clues about the government’s constitutional reasoning for using surveillance tactics that could be construed by some as violating the Fourth Amendment.


The government, including President Barack Obama and congressional leaders, insist the workings of FISC are well within the constitutional boundaries posed by the Patriot Act.


But based a letter in March 2013 from Judge Walton to Senator Dianne Feinstein, understanding the redacted documents could pose challenges.


Walton sent the three-page letter to Feinstein that contained his official comments for the Senate Intelligence Committee, which was asking about the availability of FISC case summaries for public evaluation.


Walton didn’t see the usefulness of the summaries unless they came along with the court’s full opinion.


“Without the full opinion, however, the summary is much more likely to result in misunderstanding or confusion regarding the court’s decision or reasoning,” Walton said.


Walton then added that full opinion, in redacted form, was about as valuable as a summary was.


“For FISC opinions specifically, there is also the very real problem of separating the classified facts from the legal analysis. While classification determinations are made by the Executive Branch in the first instance, the facts presented in applications to the FISC always or almost always involve classified intelligence activities, the disclosure of which could be harmful to the nation’s security,” Walton said.


“As members of Congress who have seen the opinions know,  most FISC opinions rest heavily on the facts presented in the particular matter before the court. Thus, in most cases, the facts and the legal analysis are so inextricably intertwined that excising the classified information from the FISC’s analysis would result in a remnant void of much or any useful meaning.”


But one of the few basically unredacted documents to come from FISC (actually from its Review Court) shows that the opinion could contain some interesting reading, if enough paragraphs are left.


The 29-page opinion from August 2008 was released in January 2009, and it gave some reasoning about how FISC decided the constitutionality of the Protect America Act of 2007, which allowed Congress to give the government the power to conduct warrantless wiretaps on people located outside of the United States.


Bruce Selya, Chief Judge of the U.S. Foreign Intelligence Surveillance Court of Review, said that, “after a careful calibration of this balance and consideration of the myriad of legal issues presented, we affirm the lower court’s determinations that the directives at issue are lawful and that compliance with them is obligatory.”


Selya also peppered his opinions with catch phrases like, “game, set, and match” and “that dog will not hunt” in evaluating arguments.


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