The Foreign Intelligence Surveillance Court (FISC or FISA Court) hears all government requests to conduct electronic surveillance under the PATRIOT Act and the Foreign Intelligence Surveillance Act (FISA). Transparency advocates within both Congress and civil society have long called for these opinions—or, at least summaries of opinions that contain major legal interpretations—to be released publically.
Following Edward Snowden’s whistleblowing disclosure of a secret court order authorizing mass domestic surveillance, FISC has taken the unprecedented step of making its non-government cases (that is, motions, orders, and opinions regarding requests from non-government actors such as Google, Microsoft, and the Electronic Frontier Foundation) publically accessible. The Project On Government Oversight applauds this step towards transparency, but it is not nearly enough.
Unfortunately, FISC does not appear poised to become sufficiently transparent, at least according a March 2013 letter from the Court’s Presiding Judge Reggie B. Walton (also a sitting judge on the DC District Court). In the letter, the Court makes several arguments against the release of its opinions or summaries to the public.
In mid-February 2013, Senators Dianne Feinstein (D-Calif.), Jeff Merkley (D-Ore.), Ron Wyden (D-Ore.), and Mark Udall (D-Colo.) sent a letter to then-FISC Presiding Judge John D. Bates requesting that the Court consider writing declassified summaries of opinions that significantly interpret the law in order to release them to the public. The Senators approached FISC directly after the Department of Justice and the Office of the Director of National Intelligence failed to declassify any FISC opinions, despite repeated claims since 2010 to have implemented a declassification review. Other attempts by Members of Congress to facilitate the public release of secret court opinions have so far met with little success.
In its response, the Court details what it considers the principle obstacles to releasing legal decisions—even summaries of those decisions—that explain how FISA and the PATRIOT Act are being interpreted and applied to condone domestic surveillance.
First, the letter disputes the possibility of declassifying and releasing full FISC opinions. The Court points out that classified facts and legal analysis “are so inextricably intertwined that excising the classified information from the FISC’s analysis would result in a remnant void of much or any useful meaning.” Although Judge Walton offers to encourage his fellow judges to structure opinions in a way that facilitates declassification, he remains concerned that the “fact-intensive nature of FISC opinions” would not allow many cases to be so segregated.
Considering that judicial opinions typically involve a fact section, a legal framework section, and an application of law to fact section, POGO questions whether reasonable redaction of classified information would render all FISC opinions (nearly 34,000 since 1979) worthless. Moreover, since the Court is now cognizant of a strong public and congressional interest in the public release of FISC opinions, POGO hopes that judges would choose to alter their opinion-writing style moving forward to facilitate greater transparency and accountability.
Second, the letter questions the ease and usefulness of publishing opinion summaries. The Court is concerned that opinion summaries might be considered advisory opinions (interpretations of law that do not decide a specific case or controversy), which federal courts are prohibited from issuing. The Court further points out that federal court summaries are always accompanied by the full court opinion; without the full opinion, “the summary is much more likely to result in misunderstanding or confusion regarding the court’s decision or reasoning.” Preparing summaries, the letter continues, would require one judge to interpret the legal analysis of another, which “may lead to further confusion and distortion in the summaries, and imply a lack of finality to FISC opinions.”
The Court appears concerned that the summaries will be insufficiently detailed or will incorrectly represent the legal nuances of each decision—as if the summaries would be used to decide future cases rather than inform the public. But while no legal summary is ever used to influence future cases (for the very reasons FISC mentions), the public does have a real need to understand our country’s laws. The transparency community is not requesting summaries that specify every step on the road to a legal conclusion. Instead, POGO and its allies simply want summaries detailed enough to understand how FISC has interpreted and applied U.S. law. They are not new advisory opinions, but synopses of law already established.
Releasing FISC opinions or summaries of opinions would make the public aware of the legal principles underlying electronic surveillance, and would dispel the atmosphere of confusion and distortion that now results from a process shrouded in secrecy, not add to it. For example, last month the public learned that when granting surveillance requests under Section 215 of the PATRIOT Act (which allows the collection of business records that are “relevant to an authorized investigation”), FISC defines “business records” to include a telecommunication company’s entire call database. This broad construction of “business records” explains in part how, as Snowden revealed, Section 215 could be used to collect the telephone metadata of all Verizon customers.
The Court also asserts a practical hardship: the judges, attorneys, and staff who serve at FISC are simply too few to perform the work necessary to redact or summarize FISC opinions. Unfortunately, the sequestration has limited the effectiveness of federal courts such as FISC to meet their statutory and constitutional requirements. Considering the public interest at stake, perhaps Congress ought to grant emergency supplemental funding to FISC and other federal courts to allow the system to adequately serve the public.
In the end, however, FISC appears willing to cooperate with declassification efforts if asked: “Of course, the FISC is also prepared to carry out its responsibilities with respect to the review process currently underway by the Executive Branch that has been detailed to you in previous correspondence.” POGO is interested to learn more about this correspondence, and whether the review process the Court supports is the above-mentioned declassification review that has so far failed to declassify a single opinion.
Ultimately, Congress may need to legislate in order to ensure more transparency. POGO supports the “End Secret Law Act,” which would, if passed, force the Justice Department to unseal or release summaries of FISC rulings unless there is a national security reason to withhold.
As constitutional law expert Lou Fisher has written, “No plausible case can be made for withholding legal reasoning. With secret legal memos, government functions by fiat. The dominant force is not law but executive will over democracy and the constitutional system of checks and balances.”
We couldn’t agree more. POGO appreciates that declassifying or summarizing FISC opinions will not be an easy task. But democracy requires a government that serves the will of the people. If the people are prevented from knowing how their government functions, especially when government behavior touches on fundamental principles of privacy and civil liberty, then democracy fails.