Secret Legal Opinions Face Judge’s Scrutiny

     (CN) – A federal judge demanded access to key opinions by the Foreign Intelligence Surveillance Court related to domestic surveillance so she can decide whether they are fit for public release.
     The Electronic Frontier Foundation (EFF) brought the case at hand under the Freedom of Information Act in 2011, seeking access to opinions in which the Foreign Intelligence Surveillance Court found some of the National Security Agency’s surveillance unconstitutional.
     A break in the case occurred 18 months later when NSA whistle-blower Edward Snowden leaked the first batch of documents to media outlets. The Justice Department then declassified and released hundreds of pages of documents related the government’s secret interpretation of Section 215 of the Patriot Act – which it uses to justify spying on millions of Americans’ phone conversations.
     While the Justice Department has periodically released documents since the first Snowden leak, the EFF told U.S. District Judge Yvonne Gonzalez Rogers at a hearing on June 3 that it is still waiting for a response to its entire FOIA request.
     Rogers ordered the department on Friday to hand over 66 pages of five still-secret FISC opinions for her review.
     “The evidence in the record shows that some documents, previously withheld in the course of this litigation and now declassified, had been withheld in their entirety when a disclosure of reasonably segregable portions of those documents would have been required,” Rogers said. “Further, the withholding followed an order from this court expressing concern that the agency had failed to explain sufficiently why the withheld documents ‘would be so replete with descriptions of intelligence activities, sources and methods that no portions thereof would contain’ reasonably segregable and producible, non-exempt information.”
     Rogers may ultimately find that the opinions may not be publicly released for national-security reasons, but she said the public interest in the documents warrants close judicial review. “In light of this public interest, in camera review to assure that the agency is complying with its obligations to disclose non-exempt material is certainly merited,” the three-page order states. ‘Finally, as the parties have narrowed the range of documents for review, the burden on judicial resources is not significant.”

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