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Orders are Vitally Important to Informed Public Debate About Government Wiretapping Powers

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NEW YORK - The American Civil Liberties Union today filed a motion with the Foreign Intelligence Surveillance Court (FISC) asking the full court to reconsider a recent decision by Judge John D. Bates refusing to disclose orders and legal papers pertaining to the scope of the government's authority to engage in the secret wiretapping of Americans and the court's interpretation of the Foreign Intelligence Surveillance Act (FISA).

“Judicial opinions that interpret the scope and meaning of federal statutes should not be kept secret from the public,” said Jameel Jaffer, Director of the ACLU National Security Project. “The debate about government surveillance should not be taking place in an informational vacuum."

Government officials have made repeated public references to the secret FISC rulings to justify seeking expanded surveillance powers. The ACLU originally filed a request for the documents with the FISC in August, following passage of the Protect America Act, a law that vastly expands the Bush administration's authority to conduct warrantless wiretapping of Americans' international phone calls and e-mails. On December 11, Judge Bates ruled that, despite the fact that release of the orders would inform the public about the government's surveillance powers, the court would not conduct an independent review to determine whether the legal rulings were properly determined to be classified.

The motion filed by the ACLU today asks that either Judge Bates reconsider his decision or the entire panel of FISC judges rehear the ACLU’s original request. The brief argues that, contrary to Judge Bates’s ruling, the FISC has the authority to determine whether its own rulings are properly classified and to order the release of any unclassified or improperly classified portions of the important legal rulings. 

"The executive branch should not have the last word on whether judicial documents can be made public,” said Melissa Goodman, staff attorney with the ACLU National Security Project. "Especially where access to judicial documents is at stake, courts have not only the authority but the obligation to ensure that the executive's classification decisions are consistent with the Constitution."

The ACLU is seeking the release of judicial opinions concerning the scope and meaning of FISA, but not the disclosure of intelligence methods, the names of surveillance targets, or any other information relating to individual investigations. According to the ACLU’s motion, the sealed materials are vitally important to the ongoing debate about national surveillance and disclosure of the materials would serve the public interest.

According to the order by Judge Bates, this is the first time in FISC history that anyone other than the government has been a party to a proceeding before the FISC. Judge Bates’ decision was the third FISC court order ever to be released publicly.

The ACLU’s motion for reconsideration is online at:
www.aclu.org/safefree/nsaspying/33331lgl20071221.html

More information about the ACLU’s work to stop unchecked government surveillance and legal papers related to this case are available online at: www.aclu.org/spying

In addition to Jaffer and Goodman, lawyers on the case are Steven R. Shapiro and Nasrina Bargzie of the ACLU and Art Spitzer of the ACLU of the National Capital Area.