ACLU Files Motion With FISA Court Demanding Release of Court Opinions

By Jeralyn, Section Legislation
Posted on Wed Aug 08, 2007 at 01:27:10 PM EST
Tags: FISA, NSA wiretapping (all tags)

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The ACLU today filed a motion today with the FISA Court (text here, pdf) demanding that the secret court release its opinions that led to the new FISA legislation.

In the first effort of its kind, the American Civil Liberties Union will today file legal papers with the Foreign Intelligence Surveillance Court (FISC) requesting that it disclose recent legal opinions discussing the scope of the government's authority to engage in secret wiretapping of Americans

"Publication of these secret court orders is vitally important to the ongoing debate about government surveillance," said Jameel Jaffer, Director of the ACLU's National Security Project. "Virtually everything we know about these orders we've had to learn from executive branch officials, but executive branch officials are plainly not disinterested parties in a debate about the appropriate reach of executive branch surveillance. The public has a right to first-hand information about what the court permitted and what it disallowed."

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ACLU Files Motion With FISA Court Demanding Release of Court Opinions | 13 comments (13 topical)

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Hurdles (5.00 / 1) (#1)
by Gabriel Malor on Wed Aug 08, 2007 at 02:53:28 PM EST

Not being an expert on FISA, I can't really say what the chances of success are here. I do know that this motion has some very large hurdles:

(1) The 2006 FISC rules require that:

Court records shall be released in conformance with the security measures referenced in Rule 3.

If you flip back to Rule 3, you'll see:

In all matters, the Court and its staff shall comply with the security measures established pursuant to 50 U.S.C. §§ 1803(c) and 1822(e), as well as Executive Order 12958, "Classified National Security Information," as amended by Executive Order 13292 (or its successor).

Those statutes require:

The record of proceedings under this subchapter [both in FISA], including applications made and orders granted, shall be maintained under security measures established by the Chief Justice of the United States in consultation with the Attorney General and the Director of National Intelligence.

(2) There is no guidance in the rules as to which circumstances constitute a proper occasion for disclosure.

(3) Disclosure of the orders may prejudice parties in ongoing litigation concerning the NSA program.

(4) The ACLU motion conflates the FISA court, specially established as a "secret court," with regular federal courts. For example, the motion quotes the Seventh Circuit:

Redacting portions of opinions is one thing, secret disposition quite another.... What happens in the federal courts is presumptively open to public scrutiny. Judges deliberate in private but issue public decisions after public arguments based on public records. The political branches of government claim legitimacy by election, judges by reason. Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat and requires rigorous justification.

But, of course, the FISC was created for such just a reason and has always had "secret dispositions."

: Random musings on possibility of unsealing (none / 0) (#11)
by cboldt on Wed Aug 08, 2007 at 07:41:19 PM EST

As for the general rules about releasing proceedings, keep in mind that criminal defendants may be seeking records to use in their cases, and the rules against release are tied most closely to that circumstance.
The 2002 case that was released was an appeal withing the FISC system. I'm not sure if the 1980 decision to not grant a physical entry warrant (Ames) was appealed. But it is true that at least the one decision, In re: Sealed Case, was unsealed.
The issue with releasing a decision that applied and construed the FISA statute in a way that created "more warrant work" for the court as agents sought foreign intelligence information, is that any given case decision (at the warrant granting level) is going to be quite intertwined with the facts that pertain to that particular request. Pure speculation on may part follows, but information such as which foreign county the target is in, the fact that communications from that country are routed through the US, whether or not the other end of the conversation is in the USA, and so forth.
On the other hand, if the decision was appealed within the FISC system, and it was the appeal that upheld the adverse ruling, then it may be easier for the Court to "sterilize" the appellate proceeding and make it public.
IIRC, the only time these cases get out is with executive agreement to let them out - I don't believe unsealing is within the FISC's prerogative.

War and More, Criminals (none / 0) (#2)
by Sumner on Wed Aug 08, 2007 at 04:44:16 PM EST

Any but a Bush crony can probably see that Arar v. Ashcroft, 414 F. Supp.2d 250, was decided wrongly. We do reserve our irreducible rights. (.pdf)

This irreducible core of human rights, also known as "non-derogable rights", corresponds to the lowest level of protection which can be claimed by anyone at any time. Protocol II contains virtually all the irreducible rights of the Covenant on Civil and Political Rights... These rights are based on rules of universal validity to which States can be held, even in the absence of any treaty obligation or any explicit commitment on their part. It may be accepted that they form part of 'jus cogens.'

A previous ACLU/CCR amicus brief made quite sage remarks on domestic spying. (.pdf)

And of course Bivens needs to be available in this present-day wide-train-of-abuses perpetrated under the color of national security. (Government has even tried to claim along the way, that drugs and sex are National Security issues.)

Despite Judge Trager's decision that implies that courts should not infer a Bivens remedy in cases of serious national security, AUT INVENIAM VIAM AUT FACIAM - (Latin) - Translation: I will either find a way or make one.

Bush yanked us from our protections in the ICC. That is sort of like this article, akin to the Pot calling the Kettle black.

Interestingly, "Ukraine becomes the first country outside Western Europe to offer its prisons to the U.N. court."

BTW, on this day in 1945, President Harry S. Truman signed the United Nations Charter.

BTW - Harry did a lot of good things. (5.00 / 1) (#12)
by jimakaPPJ on Wed Aug 08, 2007 at 07:49:53 PM EST

That wasn't one.


: DA leaves stuff out (none / 0) (#14)
by jimakaPPJ on Thu Aug 09, 2007 at 10:07:54 AM EST

What you are saying is that if the UN had not existed we would not have defended South Korea after the North attacked the South and US troops.
That is not logical.
The UN was able to provide its limited military support only because the Soviets were absent and did not return in time to veto the resolution.
The harm done otherwise far outweighs this act.

The church ... (none / 0) (#3)
by Sailor on Wed Aug 08, 2007 at 04:54:48 PM EST

... should refuse to give him communion, like they did with gore, and if they don't they should have their tax exempt status taken away.

Adultery, pro-choice, multiple marriages, etc.

But I guess IOKIYAR.

Eh? (5.00 / 1) (#4)
by Gabriel Malor on Wed Aug 08, 2007 at 05:21:28 PM EST

Sailor, Al Gore is baptist; the Church wouldn't let him take communion no matter his political stance.


Gabe is correct ... (none / 0) (#5)
by Sailor on Wed Aug 08, 2007 at 05:44:51 PM EST

... it was John Kerry who was excommunicated, my apologies.

The point still stands, if the Catholic Church only condemns dems who sin, why should they have tax exempt status in this country?


If? (none / 0) (#7)
by squeaky on Wed Aug 08, 2007 at 06:07:38 PM EST

Better question is why should they have tax exempt status period?


Religius Tax Exemptions (none / 0) (#8)
by Sumner on Wed Aug 08, 2007 at 06:42:02 PM EST

PRÆMUNIRE(AL) - the creating of Imperium in Imperio by Papal usurpations, or those of a church over the Sovereignty of the State.

"The post of sovereign over an intelligent and political people is the post which a wise man would choose above any other - where he would find the intellectual impulses best stimulated and the worst intellectual impulses best controlled." -- Walter Bagehot

Religion has long variously survived through clipped and semi sovereignty in common law throughout the ages. Have a look at Wikipedia's "Estates of the Realm".

Compare the idea of "mortmain" ("a dead hand"), that property which is dead to the tax rolls; also "ataxia", (not to tax), a want of order.


no argument from me (none / 0) (#9)
by Sailor on Wed Aug 08, 2007 at 06:43:37 PM EST

if there's a separation of church and state they should pay like everyone else.

Oh, except corporations, they are above god and the law.


: Yeah, Houston, we have a problem on that (none / 0) (#10)
by Sumner on Wed Aug 08, 2007 at 07:08:16 PM EST

It's hardly a neologism, but "The 5th Estate" is what I frequently call that seemingly defacto unholy alliance of Corporatism/Government/Intelligence. Of course as reported on Bushwatch:

[It was] Italian philosopher Giovanni Gentile who wrote the entry in the Encyclopedia Italiana that said: "Fascism should more appropriately be called corporatism because it is a merger of state and corporate power." (Mussolini, however, affixed his name to the entry, and claimed credit for it.)
As the 1983 American Heritage Dictionary noted, fascism is: "A system of government that exercises a dictatorship of the extreme right, typically through the merging of state and business leadership, together with belligerent nationalism."

Pia Fraus (none / 0) (#6)
by Sumner on Wed Aug 08, 2007 at 05:48:47 PM EST

The Pia fraus in the Libro de buen amor, by James M. Marchand:

In one of the most common forms of the expressions of the pia fraus, Christ is presented as the bait (Psalm 21.7: "Ego sum vermis et non homo") on the hook of the cross with which Leviathan (the demon of the deep, i.e. the devil) is taken and made to render up the souls he has seized