Six years ago, the Justice Department fought a civil liberties group's effort to obtain documents directly from a secretive Washington court that hears government surveillance requests. The American Civil Liberties Union, the government said, was trying to make an "end run" around federal public records laws.
Then another group, the Electronic Frontier Foundation, went to court to try to get a copy of an opinion from the Foreign Intelligence Surveillance Court. The advocacy group sued the Justice Department last year under the Freedom of Information Act. In that case, the government said prosecutors are not permitted, by the surveillance court's own rules, to disclose the requested opinion.
The DOJ legal positions left spinning heads—at least those of the challengers. Today, the Electronic Frontier Foundation said it was filing papers in the surveillance court asking it to release the requested opinion—an 86-page ruling in which the court found surveillance activity violated the law. Alternatively, the advocacy group asked the court for a determination that its rules don't bar the release of the requested material.
"EFF asserts the government cannot have it both ways," wrote David Sobel and Mark Rumold, lawyers for the group, in their motion in the surveillance court. "The argument DOJ seeks to advance in the district court would, if accepted, impose a 'Catch 22' preventing any judicial review of access rights to this court's materials."
In 2007, the surveillance court said in a ruling, rejecting the ACLU request for records, that "nothing in this decision forecloses the ACLU from pursuing whatever remedies may be available to it" in public records action in a federal district court. The court in that case declined to release the requested paperwork.
Justice Department lawyers contend in EFF's case that the government has no discretion to release the surveillance court's orders. The government points to a surveillance court rule that says the presiding judge on the court, after consultation with other judges on the court, can publicly issue an opinion.
EFF's public records suit is on hold pending the resolution of the motion filed in the surveillance court.