WASHINGTON – In an important decision, the Foreign Intelligence Surveillance Court ordered the government to review for release the court's opinions on the meaning, scope, and constitutionality of Section 215 of the Patriot Act. The ruling is on a motion filed by the American Civil Liberties Union, the ACLU of the Nation's Capital, and Yale Law School's Media Freedom and Access Information Clinic. Section 215, which authorizes the government to obtain "any tangible things" relevant to foreign-intelligence or terrorism investigations, is the claimed legal basis for the NSA's mass phone records collection program.
"We are pleased that the surveillance court has recognized the importance of transparency to the ongoing public debate about the NSA's spying," said Alex Abdo, staff attorney with the ACLU National Security Project. "For too long, the NSA's sweeping surveillance of Americans has been shrouded in unjustified secrecy. Today's ruling is an overdue rebuke of that practice. Secret law has no place in our democracy."
In its ruling today, the court gave the government until October 4 to identify FISC opinions on Section 215 and set a timetable for declassification review. The court's order covers all opinions except for those covered by a Freedom of Information Act lawsuit filed by the ACLU in October 2011 that is still being litigated in New York. On Tuesday, in response to that FOIA lawsuit, the government released a number of FISC opinions revealing the NSA repeatedly violated court-imposed limits on its surveillance powers. The government in that case has also agreed to release additional sets of documents by October 10 and October 31.
The ACLU's motion with the FISC asked whether earlier FISC opinions have been revisited in light of more recent rulings by other courts, such as the Supreme Court's 2012 decision in the GPS tracking case U.S. v. Jones. Another answer sought by the motion is whether the FISC has considered the constitutionality of the "gag order" provision that bars companies from revealing that they have been ordered to turn over information under Section 215. (In 2008, a federal appeals court agreed with the ACLU that an analogous gag order provision relating to "national security letters" was unconstitutional.)
In 2007, the FISC rejected an ACLU request for the release of legal opinions relating to the Bush administration's warrantless wiretapping program.
The ACLU has filed a lawsuit challenging the constitutionality of the NSA's mass phone records collection program. Oral argument in the case is scheduled for November 1 in New York.
More information and legal filings on the motion are at: https://www.aclu.org/national-security/fisa-court-motion-requesting-public-access-rulings-nsa-mass-phone-call-tracking