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DOJ Tells Court It's Reconsidering Secrecy Surrounding Patriot Act's Spying Powers

Alex Abdo,
Former Senior Staff Attorney,
ACLU Speech, Privacy, and Technology Project
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June 7, 2013

With a filing due next week in an ACLU Freedom of Information Act lawsuit, the Justice Department today asked a federal judge for time to reconsider its position on whether it will continue seeking to withhold documents related to its secret interpretation of Section 215 of the Patriot Act. That provision, which allows the government to acquire “any tangible thing” relevant to a foreign-intelligence or terrorism investigation, was the basis for the secret FISA Court order revealed this week by The Guardian telling Verizon to turn over troves of phone call data.

Until now, the government has taken the position that what it thinks it’s allowed to do under Section 215 should stay hidden from the public. This is unacceptable, because it’s impossible to debate the wisdom of a law if the public doesn’t know how the government interprets it. But today, following last night’s release of classified aspects of the NSA’s surveillance practices by Director of National Intelligence James Clapper, the government asked the court for 30 days to consider whether to change its position in our FOIA case. Here’s an excerpt from the DOJ letter to the court:

In light of the DNI’s decision to declassify certain previously classified information, the Government requires time to consider what effect, if any, the DNI’s decision has on the classification of information in some of the withheld documents still at issue in this case.

We take this as an encouraging sign that the government is considering handing over at least some of the information it has thus far declined to disclose – most importantly, Justice Department legal opinions and FISA Court rulings about Section 215.

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