Amid the national debate over privacy and surveillance, the Justice Department is fighting a civil liberties group's effort to obtain a copy of a lengthy, secret court ruling that declared government monitoring of communications unlawful.
The Justice Department today filed papers in the Washington-based Foreign Intelligence Surveillance Court, saying "there is good reason not to vacate the seal on the opinion." The ruling—sealed by the surveillance court, and considered classified by the executive branch—is at the center of a Freedom of Information Act case pending in Washington federal district court.
The Electronic Frontier Foundation sued in August to try to get a copy of the surveillance court ruling. In the trial court litigation, the Justice Department said the surveillance court's rules don't allow the government to release the opinion and that DOJ doesn't have discretion to do so. Lawyers for the civil liberties group asked to put the case on hold to allow them to test the government's argument in the surveillance court itself.
"The fact that there are two separate reasons why [EFF] cannot obtain the FISC opinion it seeks—because it is properly classified by the Executive Branch and because it is under this court’s seal—does not imply a 'Catch-22,'" DOJ lawyers said today in the government's court papers.
In the surveillance court, EFF's legal team in May asked the court for consent to disclose the requested court records. Alternatively, the challengers asked the court to make a determination that its rules don't prohibit the government to release court documents under the federal public records laws.
Justice Department National Security Division lawyers, including Jeffrey Smith and Nicholas Patterson, said in today's 11-page filing that the surveillance court doesn't have jurisdiction to hear EFF's request. The court, DOJ said, is largely limited to hearing applications for surveillance filed by the government. (For example, a judge on the court in April approved the government’s effort to review millions of phone calls of Verizon subscribers.)
"[E]ven if this court had jurisdiction over this motion, it should deny it, rather than allow another court to determine whether any portions of its opinion should be released under FOIA," the government lawyers said. "Any such release would be incomplete and quite possibly misleading to the public about the role of this Court and the issues discussed in the opinion."
The challengers, DOJ said, are not directly asking the court to release a copy of the October 2011 surveillance ruling, the details of which remain unknown. U.S. Senator Ron Wyden (D-Oregon), who has seen the ruling, said the court found the government's surveillance "circumvented the spirit of the law." The opinion is 86 pages.
The plaintiffs are "functionally asking this court to vacate in part the seal on a FISC proceeding to which it is not a party so that another court can order the government to release an opinion of this court from the government’s files," DOJ said.
The government is authorized to disclose the surveillance court's opinions to members of Congress. In those instances, DOJ lawyers give notice to the surveillance court but are not required to seek the court's approval.
The surveillance court's "orders, opinions, and related records are under seal, that both the government and this court have treated them as such, and that the government does not have discretion to disclose such records without the approval of this court," DOJ lawyers said in their papers.
If the surveillance court finds its rules do not operate to seal opinions at all, DOJ lawyers said, "the consequences would be even more dramatic: the government would be free to release any opinion or portion thereof without Court approval, and other courts could likewise order the release of any FISC opinion."
The government also argued that the facts and legal analysis of the surveillance court's ruling are "so inextricably intertwined" that the removal of classified information "would result in a remnant void of much or any useful meaning."
"That the Court did not consider the opinion at issue here a good candidate for public release is unsurprising given the fact-intensive nature of FISC opinions," DOJ said.
The government, DOJ noted, isn't asking the surveillance court to give the government blessing to keep the opinion secret under federal public records law. "That is a decision for Judge [Amy Berman] Jackson to make in the FOIA litigation pending before her," DOJ said.
EFF lawyers David Sobel and Mark Rumold said this afternoon that "the government is making a circular argument guaranteed to make heads spin.”
“In the district court, DOJ argued that the agency lacks discretion to release the FISC opinion,” the EFF lawyers said. “Now, it argues that if the FISC were to agree with EFF, 'the consequence would be that the government could release the opinion or any portion of it in its discretion.' But FISC material is classified solely because the Executive Branch demands that it be, so this has always been a matter of executive discretion.
The EFF statement ends with this: “Frankly, it's difficult to understand what DOJ is saying."