Blog of Rights

Secret Opinions and Propaganda

By Gabe Rottman, Legislative Counsel, ACLU Washington Legislative Office at 10:23am
The Washington Post reported on Thursday morning that one of the impetuses (impeti?) behind the push to further revise the Foreign Intelligence Surveillance Act, or FISA, was a classified opinion that reportedly declared part of the NSA surveillance illegal. But, the leak came from Minority Leader John Boehner, R-Ohio, who is clearly the White House water-carrier on this one.

What's worse is that, as a matter of law, there has to be more to the decision than what's disclosed in the Post article. Unfortunately, we may never be able to find out what exactly the scoop is on the classified decision, because we have to trust the selective leaking of individuals with vested interests. In any event, this is further proof that Congress ought not to rush into any expansion of foreign intelligence surveillance authority, especially on the basis of such biased leaking.

Here's what the Post reported:

The judge, whose name could not be learned, concluded early this year that the government had overstepped its authority in attempting to broadly surveil communications between two locations overseas that are passed through routing stations in the United States, according to two other government sources familiar with the decision.

So there's a couple of scenarios that may have led to the FISA judge's ruling. Perhaps the judge found that there's no way to really do this foreign-to-foreign tapping without sweeping Americans up in the dragnet, violating their Fourth Amendment rights in the process. Or maybe the judge found that the government was using this program warrant as a pretext to gather U.S. information. Or maybe it was surveillance that FISA does not even allow. We don't know, and Congress doesn't know - so it shouldn't be writing this into law.

All of which is to say that there's more to the story. Keep it skeptical y'all.

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