Justice Department Defends Surveillance Court Secrecy

WASHINGTON (CN) – The American Civil Liberties Union’s latest bid to declassify a host of sensitive rulings by the Foreign Intelligence Surveillance Court spurred a pointed rebuttal from Justice Department officials.

Acting Assistant Attorney General Dana Boente says in an 18-page opposition motion that the FISC correctly denied the ACLU’s motions to unseal a decade of opinions and orders that could uncover information about the National Security Agency’s bulk data collection practices.

The civil rights organization first made the request to the FISC in 2007 and did so again five more times. In January, the surveillance court rejected the ACLU’s fifth motion, which it filed in November 2013.

The group’s sixth and most recent attempt at unsealing the FISC records was filed in October, seeking “opinions and orders containing novel or significant interpretations of law issued between September 11, 2001 and … June 2, 2015.”

In the government’s opposition motion filed Thursday, Boente – joined by Deputy Assistant Attorney General Stuart Evans and U.S. Attorney Jeffrey Smith – cited Presiding Judge Rosemary Collyer’s January ruling, which found that the ACLU failed to claim a legally protected interest, which is a necessary step in proving standing.

The Justice Department claims the ACLU is unable to assert a First Amendment right of access to the documents for two reasons: Surveillance proceedings have not historically been open to the public, and access to the proceedings could harm national security.

AG Boente argued that since the FISC’s inception in 1978, it has never been open to the public and as such, it is not required to submit to First Amendment requests.

Boente also doubled down on Judge Collyer’s conclusions, claiming that exposure of sensitive information in FISC rulings could help adversaries avoid surveillance and chill cooperation with foreign governments.

Over the course of its six filings with the FISC, the ACLU also requested independent review of executive branch classification decisions.

Judge Collyer denied that request and Boente argued against that prospect too, claiming in the June 8 opposition motion that such scrutiny “could lead to errors that would damage national security.”

“It has been a decade since this Court first explained the significant harm that could result from the ACLU’s suggested review, and the ACLU is still unable ‘to explain why [it] believe[s] this conclusion was flawed’ or to ‘otherwise refute the Court’s identification of the detrimental effects that could cause a diminished flow of information as a result of public access,’” the motion states. “That is because there is no way that the non-deferential judicial review of executive branch classification determinations requested by the ACLU can be squared with the need to protect national security.”

The Justice Department also disputed the ACLU’s claim that the USA Freedom Act supported its bid to access the secret rulings.

“The ACLU argues that Section 402 of the USA Freedom Act … supports its claim, but as this court has observed, the opposite is true,” the motion states. “Section 402 directs the executive branch to conduct a declassification review of certain FISC opinions and to release either a redacted version or a summary ‘consistent with national security.’ But neither Section 402 nor any other section of the USA Freedom Act altered the non-public nature of FISC proceedings, which continue, by statutory mandate, to be ex parte and subject to strict security measures.”

But Justice Department noted that the surveillance court’s lack of cooperation isn’t necessarily the end of the road for the ACLU, saying the group can take its fight to a federal judge.

“To the extent that the Department of Justice withholds material on the basis of classification … the plaintiff will have the option of seeking review of that determination by a district court applying a deferential standard of review that, unlike the standard of review advanced here by the ACLU, will not pose undue risk of harm to national security,” Boente wrote.

Patrick Toomey, staff attorney with the ACLU’s National Security Project, did not immediately respond to a request for comment made after hours Monday.

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