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Obama's DOJ Moves to Keep Secret Spy Court in the Shadows

White House issues "circular" defense of secret system despite growing calls for transparancy

Lauren McCauley, staff writer

The rulings and rationale behind the Foreign Intelligence Surveillance Court's (FISC) decisions must remain a secret because... that's just how it works, reasoned the Department of Justice in a court filing Friday.

In the motion, which was issued in response to a recent ACLU suit, the DOJ makes the "circular" argument that, because "FISC has always conducted activities in secret, it must continue in secret," as ACLU attorney Patrick Toomey explained to Common Dreams.

The civil liberties group is asking FISC, also known as the FISA court, to release their 'secret opinions' in regards to the "meaning, scope, and constitutionality of Section 215 of the Patriot Act." In the suit they challenge that the court has a First Amendment obligation to reveal what surveillance powers it is granting to America's spy agencies.

Section 215 was the legal basis for the FISA court order requiring Verizon to turn over months' worth of phone metadata, information which was revealed by NSA whistleblower Edward Snowden and published by the Guardian newspaper.

"The substance of a law is how a court interprets that law. Without knowing how the courts interpret it, we don't actually know what the law is," Toomey points out. The ACLU charges that it is possible to reveal such information without compromising classified intelligence operations.

In the motion—which largely cites a 2007 ruling in response to a similar ACLU request—the DOJ further argues that, because of the classified nature of the court's dealings, that laws such as the First Amendment are not relevant:

Indeed, proceedings before the FISC involve highly sensitive and classified matters involving national security, relating, for example, to efforts by the United States to foil acts of international terrorism. By their very nature, such proceedings need to be conducted in secrecy.

{...] The FISC has in fact issued other legally significant decisions that remain classified and have not been released to the public.

This Court has also observed that "the detrimental consequences of broad public access to FISC proceedings or records would greatly outweigh any such benefits resulting from a finding of a First Amendment right of access to FISC records and proceedings. [...] In this vein, the Court found that the possible harms from a finding of a First Amendment-based right of access "are real and significant, and, quite frankly, beyond debate."

"The DOJ is being incredibly dishonest and disingenuous in conflating the two issues, arguing that because the FISC deals with intelligence operations, that its rulings on the interpretation of the law must also be secret," writes Techdirt's Mike Masnick. "The only reason to keep the interpretation of the law a secret is because it'll be a huge embarrassment and show widespread abuse."

The DOJ motion comes amidst growing criticisms against the secret court and their issuance of broad rulings in total secrecy.

On Tuesday, James Robertson, a retired FISA court judge, criticized recent legal changes—made public by Snowden's recent disclosure—which now authorize more sweeping collections of US phone records.

"What FISA does is not adjudication, but approval. This works just fine when it deals with individual applications for warrants, but the 2008 amendment has turned the Fisa court into administrative agency making rules for others to follow," he said, testifying in the first public hearings before the Obama-appointed Privacy and Civil Liberties Oversight Board (PCLOB).

"It is not the bailiwick of judges to make policy," he added.

The entire Department of Justice court motion can be viewed below:

US Opposes ACLU at FISA Court


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