Secret Court Opinion Warning DOJ of Unconstitutional NSA Surveillance Isn’t Protected by Secret Court Rules

On Wednesday, in a public ruling quite foreign to the Foreign Intelligence Surveillance Court, the court’s chief judge Reggie Walton rejected arguments made by the DOJ for continuing to keep under wraps an FISC opinion, which held some NSA surveillance as unconstitutional.

While the DOJ argued that the 86-page opinion of the secret court, made in 2011, merited the same secrecy as court documents of the FISC, the secret court ruled otherwise.

According to the FISC, its opinion warning the DOJ of unconstitutional surveillance by NSA was now in the possession of the Department of Justice, and therefore subject to release under the Freedom of Information Act.

In the seven-page opinion, FISC chief judge Reggie Walton held that the FISC rule for keeping FISC opinions sealed does not apply to the opinion, which had not been otherwise barred from disclosure and was already in the government’s possession.

The FISC indicated that the ball was no more in its court and referred the matter to the federal court, where the lawsuit was originally filed, for deciding whether the document was eligible for release under the Freedom of Information Act, and to what extent.

The FISC court observed “This court expresses no opinion on the other issues presented … including whether the opinion is ultimately subject to disclosure.”

The original lawsuit under the Freedom of Information Act was filed in a federal court by the Electronic Frontier Foundation (EEF) in 2012 for compelling disclosure of the FISC opinion. Though the Justice Department admitted that there was an 86-page opinion dated Oct. 3, 2011 that could be subject to the FOIA request, it argued that FISC documents were barred from public disclosure. To which, the FISC has now said that the document in question does not merit protection of ordinary FISC opinions.

The EEF brought the lawsuit after it learned of a letter sent in 2012 from an aide to James Clapper to Se. Ron Wyden, mentioning that at least on one occasion the FISC had held some collection of data under NSA surveillance programs as “unreasonable under the Fourth Amendment.” The letter also stated that the concerns had been taken care of and FISC has continued to approve data collection activities.

Wyden, as a member of the Senate Intelligence Committee, is barred from providing further details as long as the documents are not legally declassified.