Stung by Criticism, FISA Court Judges Ask to Make Public their Decisions

Monday, September 16, 2013
Judge F. Dennis Saylor IV

Just one day after Director of National Intelligence James Clapper admitted that whistleblower Edward Snowden’s disclosures about domestic spying have “generated…debate [that] actually needed to happen,” a judge on the Foreign Intelligence Surveillance Court (FISC) agreed, ordering the executive branch to review the Court’s classified opinions on the snooping—in order to release edited versions to the public and “contribute to an informed public debate.” 


The order, signed by Judge F. Dennis Saylor IV, specifically covers cases concerning the legal interpretation of Section 215 of the Patriot Act used by the National Security Agency (NSA) to justify its indiscriminate collection of domestic telephone metadata. Metadata includes phone numbers of both parties involved in calls, the international mobile subscriber identity number for mobile callers, calling card numbers used in the call, and the time and duration of the calls.


According to the NSA, Section 215 allows it to request the FISC to authorize broad warrants for almost any “tangible” record, including those held by banks, doctors and phone companies, simply by showing that the information is “relevant” to an authorized investigation. No connection to a terrorist or spy is required, according to the NSA.


Many in Congress from both parties, however, insist that the NSA’s interpretation goes far beyond what Congress intended. Rep. Jim Sensenbrenner (R-Wisconsin), one of the authors of the Patriot Act, says he never thought every U.S. telephone call would be considered relevant to an investigation and that the NSA is posing a “dangerous version of ‘relevance.’”


The court’s ruling was a major victory for the American Civil Liberties Union and the Media Freedom and Access Information Clinic at Yale Law School, who filed the motion to declassify the opinions. Claiming that the court “has recognized the importance of transparency to the ongoing public debate about the NSA’s spying,” ACLU lawyer Alex Abdo said “for too long, the NSA’s sweeping surveillance of Americans has been shrouded in unjustified secrecy. Today’s ruling is an overdue rebuke of that practice. Secret law has no place in our democracy.”


Perhaps the most significant aspect of the ruling is that the court found that the ACLU had the right to bring the case in the first place, contrary to government arguments that the organization lacked standing. Judge Saylor, however, found that in light of Snowden’s ongoing disclosures, “the compelling public interest in an open debate about the scope and propriety of government surveillance programs authorized under FISA” means that the public deserves to be informed in that debate and gave the ACLU standing to bring the case.


The government has until October 4 to identify relevant opinions and start reviewing them for declassification and release.

-Matt Bewig


To Learn More:

Judge Urges U.S. to Consider Releasing N.S.A. Data on Calls (by Scott Shane, New York Times)

Secret Spy Court Demands Surveillance Transparency From Feds (by David Kravets, Wired)

In re Orders of this Court Interpreting Section 215 of the Patriot Act, Opinion and Order (FISA Court) (pdf)

Obama Assurance of Surveillance Oversight is undercut by FISA Court’s Chief Judge (by Noel Brinkerhoff, AllGov)

Judicial Oversight of U.S. Spying Rests with One Man…John Roberts (by Noel Brinkerhoff, AllGov)

FBI’s Use of Patriot Act to Secretly Obtain Americans’ Business Records Increased by 1,000% Under Obama (by Noel Brinkerhoff and Danny Biederman, AllGov)


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