Battle Over Secret FISA Court Opinion To Move Forward, Judge Orders

A judge on Tuesday instructed the federal government to release a classified opinion of the Foreign Intelligence Surveillance Court by Aug. 12 or prepare to justify why the document must remain classified – moving forward a closely watched case over a secret court opinion about illegal government surveillance.

The judge’s order was a small win for the Electronic Frontier Foundation, the digital rights group suing the Justice Department for the release of the opinion. The DOJ had asked the court to keep the case on hold until September to give it time to decide whether to keep the document classified. Judge Amy Berman Jackson of the District Court for the District of Columbia instead lifted the stay that had been in place on the case and essentially told the government it had until Aug. 12, not September, to make up its mind about how to proceed. If the DOJ wants to keep the opinion secret, it must prepare to continue the normal litigation process in August.

The October 2011 FISC opinion that the EFF is seeking contains details of foreign surveillance activity that was deemed illegal by the court. Though no one knows what exactly is in the opinion, privacy experts suspect it would reveal a foreign surveillance effort that was so broad that the government was collecting an unacceptable amount of communications from Americans.

The EFF's effort to take the case to court has hit several road-bumps in the last year, but the judge’s order on Tuesday essentially gave the government two options: release the opinion or fight it out in court. The EFF is hopeful that the government might opt to just release part of the opinion -- minus portions that both sides agree might still too sensitive to make public.

Recently leaked details about the National Security Agency’s broad surveillance programs, including the collection of domestic phone call metadata and foreign electronic communications, will make it harder for the government to win because classification is not meant to withhold facts that are already public. Now that the a large amount of information is no longer secret, the Obama administration has said it will review what other documents now no longer need to be classified. EFF lawyers feel the NSA leaks provide an urgency to their cause, arguing in a court filing earlier this month that "public debate on the scope and propriety of the government’s surveillance activities vitally depends on the public’s access to the records at issue in this case."

The secret opinion concerns activity under Section 702 of the 2008 FISA Amendments Act, one of the provisions that is now under scrutiny since the NSA leaks. On the other hand, the release of an opinion detailing illegal activity could hurt the administration's efforts to shore up public confidence in its intelligence operations -- a situation the government may try to avoid by keeping the opinion secret.

“There’s some sort of very large classification review going on in the background about FISC materials,” EFF attorney Mark Rumold said. “I remain hopeful that they will actually release part of this opinion.”