Surveillance Court Should Operate More Transparently and Release Key Legal Rulings, Says ACLU

The American Civil Liberties Union today submitted comments on new rules recently proposed by the Foreign Intelligence Surveillance Court (FISC) regarding public disclosure of court records. The ACLU urged the FISC to amend its proposed rules to allow for greater transparency by requiring judges to disclose to the public any significant legal rulings that interpret the scope or constitutionality of controversial surveillance statutes, with properly classified information redacted where necessary.

The FISC, which was created by the Foreign Intelligence Surveillance Act (FISA) of 1978, reviews national security-related surveillance applications under FISA, the 2008 FISA Amendments Act (FAA) and the Patriot Act. It also resolves challenges brought by companies from which the government has demanded access to customers' private communications and records. The court operates in almost complete secrecy and its rulings, including rulings on important legal questions, are automatically withheld from the public.

In the comments submitted today, the ACLU called on the court to amend its proposed rules to ensure the release of certain significant legal rulings, including those that deal with the scope, meaning and constitutionality of the FAA. The ACLU is challenging the constitutionality of the FAA, which gave the National Security Agency virtually limitless power to conduct dragnet, warrantless monitoring of Americans' international communications. The ACLU is awaiting a ruling from the Second Circuit Court of Appeals in that case. The FAA will expire in 2012 unless Congress extends it or makes it permanent.

The following can be attributed to Melissa Goodman, staff attorney with the ACLU National Security Project:

"The public has a right to see judicial rulings that define the scope of the government's most intrusive surveillance powers and affect the rights of all Americans. Secret law is inconsistent with the basic principles of democracy and makes informed public debate about the government's surveillance powers nearly impossible. Americans can't assess whether controversial surveillance laws like the FAA are in need of reform if they don't even know how the law has been interpreted or applied. The FISA court's refusal to release certain legal rulings led to an uninformed debate before the FAA was enacted. Unless the court releases its rulings interpreting the FAA, the debate about repeal or extension of the FAA will be just as uninformed."

The ACLU's comments on new proposed FISC rules are available online at: www.aclu.org/national-security/aclu-fisc-rule-comments