Balkinization: Now, This is Interesting

Now, This is Interesting

Marty Lederman

The ACLU filed a motion with the FISA Court asking the court to release its orders from this year about the NSA's surveillance program (the one the court approved in January but apparently rejected thereafter), along with the government's briefs with respect to those orders. The ACLU argues, among other things, that the FISA court and the FISA Court of Appeals have previously released orders, opinions and briefs on questions of similar import, including on whether the FISA court had authority to issue orders for physical searches and on whether the law required the intelligence/law-enforcement "wall."

The FISA Court today ordered DOJ to file a response to the ACLU's motion. Briefing will be complete with the filing of the ACLU's reply on September 14th.

The FISA Court has already stated that its January 10th order "contained" some classified information. The ACLU quite understandably asks the court to release a redacted version of all the documents, revealing at the very least all the nonclassified information in those documents, as well as any other information that the court concludes is not properly classified.

This whole affair is shrouded in secrecy -- to the point where Congress just enacted a landmark amendment to FISA without many representatives in Congress, and with no one in the public, having any clear idea what is now legally authorized, and with almost complete opacity about what the NSA has been doing, and what its legal arguments have been in support of its conduct, for almost six years. No one in Congress seems inclined to provide the public with much information. Nor, of course, does anyone in the Executive branch. And the facts relevant to the civil litigation are all tangled up in claims of state secrets.

The FISA Court is the one entity outside the executive branch that both has a good, thorough understanding of what the NSA has been doing and arguing, and also has some perspective on what information, court orders and legal arguments can, and cannot, be made available to the public.

Obviously, any information that reveals secret technological capabilities of NSA should remain classified -- as should any information revealing how NSA chooses targets, and what particular persons and facilities have been and are being surveilled. Presumably, however, that still leaves a great deal of information and legal analysis, from DOJ and the FISA Court itself, that would not reveal any new and appropriately classified information, and that would be very relevant to the legislature's and public's ability to understand this important policy and legal debate. Of course, I don't know for certain whether I'm right about that. But the FISA court probably does -- at least more so than any other entity outside the Executive branch. This might, therefore, be the best opportunity to get to the bottom of some of these issues without compromising important NSA secrets.

Posted 7:19 PM by Marty Lederman [link]

Comments:

I predict the feds will regretfully advise the court that their response is so secret that the court can't see it, but will assure them sincerely (tho not under oath) that the secret response compels a ruling for the feds.

# posted by

Anderson : 7:48 PM

"Obviously . . . at the very least"? Why not just let all the terrorists have access to ALL classified info -- we are not "at war" right?

# posted by

Charles : 7:52 PM

Interesting order from FISC.
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I left a half-dozen comments over at Volokh, will add (at least one) here. The revisions to FISA have been kicking around for 18 months or so, and been probed and debated in Congress about a year ago. Most of the revisions appeared, in one form or another, in a range of legislative proposals in the 109th Congress, subjected to both House and Senate hearings.
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The House passed Heather Wilson's H.R.5825, for example, which has a redefinition of "electronic surveillance" with the same effect as the redefinition worked by S.1927.
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There is a two-part House Report on that bill (House Report 109-680), and about 20 pages of debate on the floor of the House.
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"It's not all THAT new," as of April-July 2007.

# posted by

cboldt : 8:41 PM

Exactly what is left to release of targets, techniques and anything which can reveal them are redacted? It should look something like Mueller's meeting notes linked to a couple days ago.

# posted by

Bart DePalma : 10:02 PM

I am not at all optimistic that the FISA court will release anything. After the Jan. 10 court orders were announced by Gonzales, Leahy wrote to the chief judge asking for them. Judge Kollar-Kotelly essentially deferred to the executive branch.

# posted by

JaO : 11:40 PM

The judge deferred the Congressional request for complete opinions that would be kept under wraps by Congress (assuming Congress would follow the classification orders), but also ordered the government to publicly reply to the ACLU.
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Who knows what the public will get, but the judge is going to make the administration stiff the public, rather than have the FISC do the stiffing.
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I bet there are more than a few administration officials mighty steamed at the judge right now.

# posted by

cboldt : 11:52 PM

After thinking about this (briefly) I have concluded that the Order is going nowhere.
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Brief comments at this page which has a text version of the order, and a brief summary of why I think the Order is doomed. In short, the FISC is a Court of very limited jurisdiction. Even though its rules contemplate motions by non-government attorneys, all of that anticipation is directed at specific cases and controversies. The TSP is a matter of surveillance policy and practice, and therefore is not a case or controversy in the judicial sense.

# posted by

cboldt : 7:13 AM

Exactly what is left to release of targets, techniques and anything which can reveal them are redacted? It should look something like Mueller's meeting notes linked to a couple days ago.

Perhaps something along the lines of Boehner's commentary.

# posted by

Unknown : 8:47 AM

cboldt -

I think it depends on the litigation posture. If this is a FOIA, then FISA is not acting so much as a court than as a keeper of government records. If they refuse to disclose, they would probably not have jurisdiction over any FOIA litigation to follow given their limited jurisdiction. I believe that would be in the D.C. circuit.

-- TCO

# posted by

Unknown : 9:31 AM

I am cautiously optimistic. Whatever 105A does or doesn't do, the PAA attempted to make the FISA court irrelevant. Congress wanted review of the "new and improved TSP" to take place between 15 and 45 days after enactment. Instead, the PAA tells the court, "See you in four months, and take another two while you're at it while we do our thing."

As I've said, this timeline is facially incoherent. The first 105B certification presupposes all the input the court needs to rule. For this reason, I'm inclined to see the court's response as a comeback to the executive for attempting to bypass the court.

I see no question of judicial power here. In its motion the ACLU noted that court's rules give it authority to release. It cited two prior instances in which sweeping opinions were published, and it noted that the January 10th opinion addresses "legal issues of similarly broad significance."

Nothing in the court's order indicates a desire to defer. The ACLU gave it the option to let the executive make up its own mind. Instead it ordered a response.

I'm always prepared to see the descending curtain. Yet I'd put it to the cynics and the guardians of the Holy of Holies that the threshold issue is joined: Are the contours of state secrecy a state secret?

# posted by

occasional observer : 10:07 AM

I see FISC ordered a response -- my point is that even THIS order may be outside of the power Congress granted to FISC.
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The previous cases where FISC published rulings, it was to either note it lacked jurisdiction (in 1980, it did not have the power to issue an order authorizing physical entry), or to note a change in it's internally-prescribed barrier between foreign intelligence and use of acquisitions in criminal investigations and ultimately, indictment and trial. It had to publish that in order to provide authority for District Courts to rule on individual criminal cases, where evidence came in bootstrapped from foreign intelligence surveillance.
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Something will come of this, no doubt. And my speculation is hanging out there to be knocked down (or vindicated) when the parties continue to do battle in the limited public venue that FISC has so graciously provided.

# posted by

cboldt : 10:28 AM

Are the contours of state secrecy a state secret?
That meta-question cannot be answered, since the meta-answer is also deemed to be a state secret. Care to go for another loop around the spiral?

# posted by

Unknown : 10:50 AM

Although, with a little more thought, I think the rationale for not providing a substantive response is more likely to be found in FISC's lack of power to order a remedy, than in a supposed lack of power of the FISC to entertain non-party movants motions to make a sealed record public.
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Just as the CADC unsealed Fitzgerald's sealed affidavits supporting his argument to compel Miller and Cooper to testify. What was protected there was grand jury secrecy, and the "biased to public" CADC entertained, and ultimately released some of the material.
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The bias of the FISC is to secrecy, but just the same, I suppose it's free to entertain all the non-party (as in "not an applicant for warrant") motions that it wants to.
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So I modified my position -- not that the outcome changes, but the reason for the outcome, and therefore the arguments that support the outcome, change too.

# posted by

cboldt : 11:18 AM

The United States is becoming a police state. Contrary to the those who see this as justifiable self-defense, this, in fact, is the only way the Islamofacists can win: By having us defeat ourselves, by causing us to surrender that which makes us better than them. I hope someone in the government realizes this.

# posted by

wbgonne : 11:18 AM

Mark,

In some cases it's no secret why something's a secret. Take poker. It's obvious why one player can't see another's face-down cards. On the other hand, the thinking behind what's commonly known as a poker face, even the fact that something is a poker face, can't be disclosed without defeating its purpose.

It's an open question to what degree and in what ways national security interests require meta-secrets in a constitutional democracy. A police state by contrast seizes on your alleged circularity. So which are we?

cboldt,

Thanks so much for the links to the House Report. Do you have links to the FISA court's previously published opinions? I'm prepared to lapse into despair but would like a reason.

# posted by

occasional observer : 11:29 AM

A police state by contrast seizes on your alleged circularity. So which are we?

With a Circuit Court making Lewis Carroll references, it is hard to know which side of the looking glass we are on.

# posted by

Unknown : 11:39 AM

The only FISC case that I have seen the full text of is the second one, this one by the Court of Review (FISCR, the appellate level of the FISA Court system).
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In re: Sealed Case No. 02-001 (2002)
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I suspect the other one, circa 1980's, is boring, where the FISCourt (not the Court of Review) entertained and rejected an application for a physical entry warrant. It had to reject the application because, at the time, FISA had no mechanism for the FISC to grant a court order authorizing physical entry for the purpose of acquiring foreign intelligence information.
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"Boring" in the sense of easy ... there is no statutory authority for us (the FISC) to grant the order you have requested. And, since it was easy, no appeal. I bet the surveillance occurred anyway, and was later found reasonable if the case made it to criminal trial in an entirely separate (and public) Court.

# posted by

cboldt : 11:43 AM

Do be sure to click through on that FISCR case, to the FISC case below (that was reversed.
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What you'll see is what I refer to as bootstrapping a finding of criminal probable cause based on a warrantless search for what is probably foreign intelligence information.
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"The Attorney General's memorandum of March 6, 2002 asserts its interpretation of the recent amendments to the FISA to mean that the Act can now 'be used primarily for a law enforcement purpose, so long as a significant foreign intelligence purpose remains.'"
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This interpretation was upheld by the FISCR.

# posted by

cboldt : 11:50 AM

It's an open question to what degree and in what ways national security interests require meta-secrets in a constitutional democracy.

An "open question" perhaps, but not without implications that go to the heart of what being a constitutional democracy means in a threatening world. The presumption, rebuttable but strong, must be for openness. If this presumption of openness is absent -- or reversed -- that is the genesis of a police state. The people leading this country -- in all 3 branches -- must begin to realize this and act accordingly. If one branch, typically the executive (as today), strays from this overarching principle, it is the duty of the other branches to intercede.

# posted by

wbgonne : 12:24 PM

cboldt,

Thanks for the link. The opinion is interesting reading, not least because only a madman would claim its publication makes us less safe. Its discussion -- on how to construe FISA where criminal and intelligence needs overlap -- hardly throws in the towel to al Qaeda. In fact it is more a towel-snap at agents of foreign powers.

And had it come out the other way, I still can't see any tangible gain for real enemies, certainly not in comparison with the comfort it would give the general citizenry. Perhaps the court sees its January 10th decision in a similar light. It's at least a reasonable guess at this stage.

One remaining puzzle: How did the amici -- the ACLU and the other civil liberties organizations -- know enough to file a brief?

# posted by

occasional observer : 1:05 PM

-- One remaining puzzle: How did the amici -- the ACLU and the other civil liberties organizations -- know enough to file a brief? --
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I was wondering the same thing. I've never looked for a FISC docket, but that doesn't mean there isn't one.
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It's a good pair of cases at any rate, to show that the pigeon-holes of "foreign intelligence" and "evidence of criminal conspiracy" might contain exactly the same thing, where the distinction is drawn based on some combination of citizenship and allegiance.

# posted by

cboldt : 1:25 PM

I haven't checked the timing of publication of these FISC/FISCR "wall" opinions or the lead up to the decisions. But they are distinguishable in the "secrecy" sense from the current NSA/TSP matter.

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In particular, I wonder whether or not the existence of procedures loosely referred to as "the wall" was a matter of public debate. Was secrecy involved when discussing the contours of that wall? I recall a bit of a stink when the Gorelick memo showed up in the 9/11 Commission hearings.

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At any rate, a substantial premise of the TSP was that it would be more effective if the statutes were misleading as to the limits of surveillance the government was undertaking. Although my instincts tell me that resistance to publishing history NOW is to avoid political fallout, not to protect national security. The policy is know, and in fact, the statute has been changed to admit the activity that was previously a secret.

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Here's a link to the ACLU petition for cert to get the FISCR Opinion reversed. It has additional history and more detail: ACLU Petition for Cert (2002)

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I'll add more if I find anything that strikes me as useful.

# posted by

cboldt : 1:53 PM

the pigeon-holes of "foreign intelligence" and "evidence of criminal conspiracy" might contain exactly the same thing

Yes, and the government can poke its nose into the foreign intelligence hole without having to renounce an interest in the law enforcement hole. In this regard the decision throws light on the words "significant purpose."

# posted by

occasional observer : 1:57 PM

At any rate, a substantial premise of the TSP was that it would be more effective if the statutes were misleading as to the limits of surveillance the government was undertaking. Although my instincts tell me that resistance to publishing history NOW is to avoid political fallout, not to protect national security.

We can't tell from where we sit. On the other hand the FISA court can, and can ask the government to make a proper case without all the bull. More importantly, it has done so.

# posted by

occasional observer : 3:05 PM