Bloomberg News

U.S. Surveillance Court Won’t Stop Release of Secret Ruling

June 14, 2013

The secret U.S. court that rules on surveillance requests from intelligence agencies said it won’t stand in the way of an activist group’s lawsuit seeking the release of one of its nonpublic opinions.

U.S. District Judge Reggie Walton, in his capacity as presiding judge of the Foreign Intelligence Surveillance Court, ruled June 12 that copies of the opinion in the possession of the government being sought by the Electronic Frontier Foundation are subject to review under the Freedom of Information Act, FOIA.

“There is nothing anomalous in the conclusion that the rules of this court do not prohibit the government from disclosing the copies of the opinion,” Walton said in the ruling. “It is fundamentally the executive branch’s responsibility to safeguard sensitive national security information.”

The ruling, which left it up to the court hearing the FOIA case to determine whether the document would be disclosed, comes amid new debate over the government’s surveillance powers after a former National Security Agency contractor admitted leaking classified documents about secret programs that scoop up Americans’ phone and Internet records.

Fourth Amendment

The San Francisco-based Electronic Frontier Foundation sued the Justice Department on Aug. 30 in federal court in Washington after the government refused to turn over a court opinion in which a judge found that some of the surveillance being carried out by intelligence agencies was unreasonable under the Fourth Amendment or circumvented the spirit of the Foreign Intelligence Surveillance Act.

The surveillance court’s opinion was mentioned in a July 2012 letter from Kathleen Turner, director of legislative affairs for the Office of Director of National Intelligence to Senator Ron Wyden, who sought a classification review of three statements he sought to publicly make about surveillance efforts.

On at least one occasion the surveillance court held that some of the data collection was unreasonable under the Fourth Amendment, according to the foundation’s lawsuit citing the letter.

The lawsuit was put on hold while Walton considered the Justice Department’s argument that the intelligence court’s rules prevented the opinion from being disclosed.

The foundation said in a blog post that its victory was ’’a modest one.’’

“The court didn’t order disclosure of its opinion; it just made clear, as EFF had argued, that the FISC’s own rules don’t serve as an obstacle to disclosure of the opinion.”

Andrew Ames, a Justice Department spokesman, said in an e-mail that the department was reviewing the decision.

The FOIA case is Electronic Frontier Foundation v. Department of Justice, 12-cv-01441, U.S. District Court, District of Columbia (Washington).

To contact the reporter on this story: Tom Schoenberg in Washington at tschoenberg@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net.


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