Government Told to Explain Need for Secrecy

(CN) - The U.S. government must explain why a Feb. 19 order of the Foreign Intelligence Surveillance Court cannot be released to the public, even in a redacted form, a FISC judge ruled.

In September 2013, Judge F. Dennis Saylor IV, one of the 11 federal judges who sits on the U.S. Foreign Intelligence Surveillance Court (FISC), ruled that the U.S. government must consider publicly releasing classified opinions regarding the National Security Agency's domestic spying program.

The ruling was issued in response to a complaint filed by the American Civil Liberties Union two years ago seeking the release of FISC opinions interpreting the government's power to conduct surveillance related to terrorism under Section 215 of the Patriot Act.

Saylor noted the same day in another opinion that the "publication of FISC opinions relating to this provision would contribute to an informed debate."

On this order, the government conducted a declassification review of a February 19, 2013 FISC opinion, and concluded Monday that, "after careful review of the opinion by senior intelligence officials and the U.S. Department of Justice, the Executive Branch has determined that the opinion should be withheld in full and a public version of the opinion cannot be provided."

The government provided no explanation of its decision.

Dissatisfied with this unsupported conclusion, Saylor ordered the government Wednesday to "submit a detailed explanation of its conclusion that the opinion is classified in full and cannot be made public, even in a redacted form."

The two-page order ends with Saylor quoting the full FISC rule that empowers the government to request in camera review of classified evidence.

If it does so, the government must still file and serve on the other party an unclassified or redacted version, which "at a minimum, must clearly articulate the government's legal arguments," the rule states.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit