Daily Updates

September 10, 2013

Feds plan to release details of secret spy court

SAN FRANCISCO — The Obama administration is releasing hundreds of previously classified documents detailing activities of the country’s long-secret spy court that authorizes domestic surveillance programs.

In a court filing last week, the U.S. Department of Justice said it will turn over the documents to the Electronic Frontier Foundation by Tuesday. EFF officials said they’ll receive the documents in disk form and it will take some hours for technicians to upload the documents to the civil liberty group’s website later Tuesday.

The DOJ told a federal judge in Oakland last week it was turning over the documents to partially settle a lawsuit EFF filed for access to court orders, administration memos and other information government officials relied on to design and implement a domestic surveillance program. That program was initially revealed a decade ago by newspapers and a telecom worker who claimed first-hand knowledge of the surveillance.

The EFF’s lawsuit against telecommunication companies for allegedly participating in the surveillance was tossed out when Congress granted the industry immunity. The group’s lawsuit against the government seeking the documents was languishing for years until former intelligence worker Edward Snowden released detailed information about the domestic surveillance program earlier this year, reigniting public debate and prompting widespread calls for more public information about the surveillance programs and the secret federal court that authorizes them.

EFF lawyers called the Snowden disclosure a “tipping point” for the Obama administration that “forced their hand” for more disclosure.

Steven Aftergood, head of a project on government secrecy at the Federation of American Scientists in Washington, said he hopes the documents will show how the secret Foreign Intelligence Surveillance Court operates.

The surveillance court, known as FISC, was established in 1978 to oversee domestic surveillance operations, and little is known about it. The court’s proceedings are conducted behind closed doors, and all its rulings are considered classified. Up until now, only a few of the court’s opinions have been made public.

Aftergood said he is particularly interested in how judges interpreted federal law concerning espionage in crafting their rulings allowing surveillance. He’s also looking to see how government officials interpreted those rulings.

“There are indications that there have been some very creative interpretations,” Aftergood said. “There’s a lot we just don’t know, and there are likely to be a few surprises.”   

The DOJ said in a court filing last week that it would turn over to EFF “orders and opinions of the FISC issued from Jan. 1, 2004, to June 6, 2011, that contain a significant legal interpretation of the government’s authority or use of its authority under” a section of the U.S. Patriot Act.

The section of the act allows the government to seize a wide range of documents. It requires the government to show that there are “reasonable grounds to believe” that the records are relevant to an investigation intended to “protect against international terrorism or clandestine intelligence activities.”

The DOJ said it will also release “significant documents, procedures, or legal analyses incorporated into FISC opinions or orders and treated as binding by the Department of Justice or the National Security Agency.”  

DOJ lawyers are also reviewing a second batch of documents for declassification by Oct. 31.

The Obama administration’s decision in the case comes just two weeks after it declassified three secret FISA opinions — including one in response to a separate EFF lawsuit in the federal court in Washington. In that October 2011 FISA opinion, Judge James D. Bates rebuked government lawyers for repeatedly misrepresenting the operations of the National Security Agency’s surveillance programs. He said the government’s “upstream” collection of data — taken from internal U.S. data sources — was unconstitutional. Portions of that order remain blacked out.

On Wednesday, while the Justice Department said it would declassify documents in the California case, it asked a judge in the Washington case to rule that it can continue to black out those materials in the October 2011 FISA opinion. Among other reasons given, the government says that disclosure could damage national security.

 

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