ACLU Asks Secret Intelligence Court to Release Orders That Led to "Emergency" Wiretapping Legislation

August 8, 2007 12:00 am

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Group Says Public Debate About Government Surveillance Should Be Fully Informed

WASHINGTON – In the first effort of its kind, the American Civil Liberties Union will today file legal papers with the Foreign Intelligence Surveillance Court (FISC) requesting that it disclose recent legal opinions discussing the scope of the government’s authority to engage in secret wiretapping of Americans.

The ACLU initiated this action following Congress’ passage this past weekend of the so-called “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. In their aggressive push to justify passing this ill-advised legislation, the administration and members of Congress made repeated and veiled references to orders issued by the FISC earlier this year. The legislation is set to expire in six months unless it is renewed.

“Over the next six months, the public and Congress will be debating one of the most important matters of our time: under what circumstances the government should be permitted to use its profoundly intrusive surveillance powers to intercept the communications of people inside the United States,” said Anthony D. Romero, Executive Director of the ACLU. “Unless the FISA court discloses the documents leading up to the recent law and shedding light on the government’s claimed surveillance authority, an informed and meaningful debate – the cornerstone of our democracy – cannot occur. A conversation about a threat to our most precious constitutional rights and liberties should not occur in a factual vacuum.”

The FISC orders have played a critical role in the evolution of the government’s surveillance activities over the past six years. After September 11, President Bush authorized the National Security Agency (NSA) to inaugurate a program of warrantless wiretapping inside the United States. In January 2007, however, just days before an appeals court was to hear the government’s appeal from a judicial ruling that had found the NSA program to be illegal in a case brought by the ACLU, Attorney General Gonzales announced that the NSA program would be discontinued. Gonzales explained that the change was made possible by FISC orders issued on January 10, 2007, which he characterized as “complex” and “innovative.”

Since January 2007, government officials have spoken publicly about the January 10 orders in congressional testimony, to the media and in legal papers – the orders remaining secret all the while. They have also indicated that the FISC issued other orders in the spring that restricted the administration’s surveillance activities. Only last weekend, House Minority Leader John Boehner stated that the FISC had issued a ruling prohibiting intelligence agents from intercepting foreign-to-foreign calls passing through the United States. To a large extent, it was the perception that the FISC had issued an order limiting the administration’s surveillance authority that led Congress to pass new legislation last week. Yet the order itself, like the January 2007 order, has remained secret.

“Publication of these secret court orders is vitally important to the ongoing debate about government surveillance,” said Jameel Jaffer, Director of the ACLU’s National Security Project. “Virtually everything we know about these orders we’ve had to learn from executive branch officials, but executive branch officials are plainly not disinterested parties in a debate about the appropriate reach of executive branch surveillance. The public has a right to first-hand information about what the court permitted and what it disallowed.”

The ACLU’s legal papers acknowledge that the FISC’s docket includes a significant amount of material that is properly classified. The ACLU argues, however, that the release of court orders and opinions would not raise any security concern to the extent that these records address purely legal issues about the scope of the government’s wiretap authority. The FISC has released such orders and opinions before. In the early 1980s, the court published an opinion relating to its authority to issue warrants for physical searches. In 2002, the court published an opinion addressing procedures that the Justice Department proposed after the passage of the USA Patriot Act. The ACLU is seeking release of all information in those judicial orders and legal papers the court determines, after independent review, to be unclassified or improperly classified.

“The views of the judiciary on legal questions of national importance, like the scope of the government’s surveillance power under FISA, or whether the executive branch has overreached in violation of constitutional limits, should be as open and accessible to the public as possible,” said Melissa Goodman, a staff attorney with the ACLU’s National Security Project. “Even if public disclosure of the court records requires redaction of properly classified information, the release of even limited information pertaining to the court’s legal analysis, conclusions, or the government’s arguments will go a long way towards ensuring the public can participate meaningfully in the surveillance debate.”

A copy of the ACLU’s motion to the FISC, as well as information about the ACLU’s lawsuit against the NSA and other related materials are available online at:

In addition to Jaffer and Goodman, lawyers on the case are Steven R. Shapiro and Alexa Kolbi-Molinas of the ACLU and Art Spitzer of the ACLU of the National Capital Area.

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