Updated 5:58 p.m.
The Foreign Intelligence Surveillance Court in Washington operates largely out of the public spotlight, issuing secret orders that are not generally available for public review. In a pending lawsuit, the U.S. Justice Department is fighting to block the disclosure of information about a case in which the court determined government surveillance activity violated the law.
Last August, the advocacy group Electronic Frontier Foundation sued the department in U.S. District Court for the District of Columbia to try to get any written order or opinion from the surveillance court about that case. The lawsuit followed the release of information from U.S. Senator Ron Wyden (D-Oregon) about once instance when the secret court found the government's implementation of the Foreign Intelligence Surveillance Act had "circumvented the spirit of the law."
The government said it declassified four statements and permitted Wyden to disclose the information "in an effort to strike the right balance between government transparency and the protection of critical intelligence activities." The Justice Department on Monday night filed court papers asking a judge to terminate the case, saying that no more information about the apparent transgression can be, or should be, revealed to the public.
Justice Department attorneys make an array of arguments in their papers, including the contention that the presiding federal trial judge, Amy Berman Jackson, lacks authority to force the government to disclose opinions and orders of the surveillance court. Central to the pending dispute is an 86-page order, dated October 3, 2011, from the surveillance court, DOJ records show.
At issue in the suit is Section 702 of the Foreign Intelligence Surveillance Act, which authorizes DOJ and the Director of National Intelligence to target any non-U.S. person "reasonably believed to be outside the United States for the purpose of acquiring foreign intelligence information."
Department lawyers said the surveillance court's rules do not permit the government to release opinions and orders other than to members of Congress. The author of a surveillance court opinion can, on his or her own, order the public disclosure of an opinion.
"The government has determined that disclosure of the information withheld from plaintiff could result in exceptionally grave and serious damage to the national security," Jacqueline Coleman Snead, senior counsel in the U.S. Justice Department's federal programs branch, said in court papers. EFF, she said, "obviously cannot contend otherwise."
Mark Rumold, a staff attorney at EFF, said the plaintiffs intend to challenge the argument that surveillance court rules do not permit disclosure of the court's orders. EFF has until May 3 to file its papers responding to the Justice Department’s effort to end the case.
The Freedom of Information Act suit, Rumold said, is rooted in the position that, in the least, "there is some--and perhaps a significant amount--of segregable legal analysis that's contained in the FISC order."
The government's argument that surveillance court restrictions block disclosure of the court orders, Rumold said, is "particularly unpersuasive" considering that the court itself pointed to FOIA as a potential avenue to access the records.
"It's a little bit of a Kafka-esque nightmare," Rumold said.
In that dispute, the surveillance court rejected a request from the American Civil Liberties Union that certain court records be unsealed.
"Of course, nothing in this decision forecloses the ACLU from pursuing whatever remedies may be available to it in a district court through a FOIA request addressed to the Executive Branch," Judge John Bates wrote in the surveillance court's ruling.