Feds Urge En Banc FISA Court to Keep Spy Records Sealed

WASHINGTON (CN) - Defending a seal on government-surveillance records, U.S. officials struggled in a brief to distinguish a new challenge from similar actions that were successful.

Justice Department attorney Jeffrey Smith lodged the April 17 filing with the Foreign Intelligence Surveillance Court as it prepares for en banc review of a ruling by Presiding Judge Rosemary Collyer.

The dispute centers on efforts by the American Civil Liberties Union to unseal

certain opinions that addressed the legal basis for the National Security Agency’s bulk data collection.

After Collyer found in January that the ACLU lacks standing to bring such an action, the ACLU struck back, saying that neither of the two opinions cited by the ACLU actually address the question at issue.

For Smith, the question boils down to whether the ACLU has established an injury to a legally protected, applicable interest.

Collyer’s “opinion is the first from this court to address this issue, and it does so thoroughly and correctly,” Smith wrote. “The en banc court should similarly find that there is no Article III jurisdiction here.”

Reacting to the government’s brief in an email, ACLU attorney Patrick Toomey insisted that Collyer did break with “decades of precedent.”

“The ACLU and the public have been denied access to these secret court opinions, which determine how broadly the government is permitted to spy on Americans,” Toomey added. “Americans cannot fully participate in the reform debate unless they know what our surveillance laws mean to the courts and how those laws put our privacy at risk.”

Smith's brief says standing here requires more than identifying some relief a litigant would like.

"In other words, to establish standing, a plaintiff does not have to establish wrongfulness, i.e. that its legal right was unlawfully invaded, but it must establish that there exists an applicable legal right that might have plausibly been invaded," the brief states.  "Thus, a plaintiff invoking FOIA to obtain government agency records will generally have standing even if it ultimately turns out that the documents are properly exempt from disclosure; by contrast, a plaintiff who invokes FOIA to demand original artwork from the National Gallery of Art would lack standing, as the rights conveyed by FOIA plainly do not apply to such art work."

This is why a person can show standing to protest on a public sidewalk near a government building, but a person asserting a First Amendment right to sit inside the Oval Office could not.

"The application of this principle here is pretty straightforward," the brief says. 

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