Over the objection of the U.S. Department of Justice, the Foreign Intelligence Surveillance Court today ordered the government to conduct a declassification review of rulings that address the provision of federal law that allowed the government to collect data on hundreds of millions of phone calls.
The American Civil Liberties Union in June asked the surveillance court to disclose opinions that evaluate the "meaning, scope and constitutionality" of Section 215 of the USA Patriot Act. Under that provision, the National Security Agency obtains phone record data, including the time and duration of calls, from major telecommunications companies.
In ordering the government to conduct a declassification review, U.S. District Judge F. Dennis Saylor IV, who sits on the Foreign Intelligence Surveillance Court, today noted the ongoing, national debate about the scope of surveillance. That debate began this summer after The Guardian newspaper published a series of stories based on FISA court and other information former NSA contractor Edward Snowden obtained.
"The unauthorized disclosure in June 2013 of a Section 215 order, and government statements in response to that disclosure, have engendered considerable public interest and debate about Section 215," Saylor, a federal trial judge in Massachusetts, wrote in today's ruling. "Publication of FISC opinions relating to this provision would contribute to an informed debate."
The publication of select FISA opinions, Saylor wrote, "would also assure citizens of the integrity of this Court's proceedings." Saylor, a U.S. district judge since 2004, said "publication with only limited redactions may now be feasible, given the extent of the government's recent public disclosures about how Section 215 is implemented."
Justice Department lawyers objected to the challengers' request for the disclosure of Section 215-related opinions, arguing that the ACLU lacked standing. Saylor today said the challengers had, in fact, demonstrated the harm caused by the government's refusal to disclose Section 215 opinions.
"The claimed injury is actual, rather than imminent: the Section 215 Opinions are not now available to the public," Saylor wrote.
Saylor's ruling only covers surveillance court opinions that are not subject to a Freedom of Information Act lawsuit that's pending in U.S. District Court for the Southern District of New York. The ACLU sued in October 2011 over access to certain opinions. Saylor said he sees "no reason to presume that the remedies available in the FOIA litigation in the Southern District of New York are inadequate."
Saylor set an October 4 deadline for the government to report back to the surveillance court the Section 215 opinions that are not subject to the lawsuit in New York.
The author of each such opinion, Saylor said, will then decide whether the ruling should be published.
"For too long, the NSA's sweeping surveillance of Americans has been shrouded in secrecy," Alex Abdo, staff attorney with the ACLU National Security Project, said in a statement. "Today's ruling is an overdue rebuke of that practice. Secret law has no place in our democracy."