NYTimes Demands Info on Secret Court
MANHATTAN (CN) - New York Times reporter Charlie Savage is trying to wrest documents about the U.S. secret surveillance court in his latest FOIA lawsuit against the Department of Justice.
Savage seeks documents that he described in his recent article, "How a Court Secretly Evolved, Extending U.S. Spies' Reach," which he co-wrote with documentary filmmaker Laura Poitras.
Featuring secret documents leaked by NSA whistleblower Edward Snowden, the story traced how a court designed to prevent U.S. intelligence agencies from trampling on the privacy of U.S. citizens came to approve mass surveillance after the Sept. 11, 2001, attacks.
In 1978, Congress passed the Foreign Intelligence Surveillance Act in the wake of the Nixon administration's abuses of power, which included using the U.S. intelligence apparatus to spy on Martin Luther King and other civil rights leaders.
The legislation tasked the Foreign Intelligence Surveillance Court, or FISC, with granting or denying wiretap orders for national security matters.
"From its inception, the FISC has been cloaked in a high degree of secrecy," New York Times attorney David McCraw wrote in Savage's 8-page complaint. "Consistent with judicial practices in other courts for simple yes-or-no decisions about wiretap and search orders in ongoing investigations, FISC proceedings are not publicly noticed and only government lawyers are permitted to appear in the court, without adversarial process.
"Virtually all of the court papers, including the government's filing and the court's orders and opinions, are designated as classified and withheld from public view. If the court grants a government request for authority, there is no one to file an appeal."
In June 2013, Snowden brought scrutiny to the FISC by leaking a top-secret court order revealing that Verizon turned over customers' telephone metadata.
The document showed that the court's secret opinions were much more sophisticated and consequential than previously thought.
"Rather than merely granting yes-or-no review of whether the standard had been met for wiretap or search orders, it was now also engaged in complex legal analysis interpreting constitutional rights and surveillance statutes, generating legal opinions that were dozens of pages in length and that have had nationwide, programmatic consequence for the privacy rights and civil liberties of Americans," the complaint states.
Savage seeks 15 categories of documents in his FOIA request.
Among them, Savage seeks "all government motions and briefs, judicial orders, and memorandum opinions" involving the "Raw Take order," which he described in his March article as "the first substantial demonstration of the court's willingness after Sept. 11 to reinterpret the law to expand government powers."
He also seeks: "Any other motions, opinions and orders after Sept. 11, 2001, that dealt with programmatic issues rather than individual wiretap requests."
Savage said he filed his FOIA request on March 12, the day after the publication of his story on the FISC.
He said that Justice Department's National Security Division acknowledged the request a month later and granted expedited processing, before cutting off communication about the requests.
In May, Savage sued Justice Department for information on the CIA's destruction of videotapes of terrorism interrogations, the full version of the Joint Inspectors General review of the "President's Surveillance Program," and the medical options Guantanamo provides to sickly and aging detainees that need more care than the prison provides.
Those lawsuits were also filed by McCraw, the paper's in-house counsel.