NSA Surveillance: FISA Court Says Justice Department Should Publish Secret Court Document

In the latest development of an ongoing legal battle, the Electronic Frontier Foundation finds itself on the frontlines of the battle for transparency on secret spy programs -- like the National Security Administration’s PRISM -- that collect and monitor the communications of U.S. citizens. Last week, a judge of the super-secret Foreign Intelligence Surveillance Court ruled in favor of the EFF, allowing it to pursue a lawsuit aimed at making public a court decision that found Department of Justice surveillance techniques to be unconstitutional.

As IBTimes previously reported, Sen. Ron Wyden, D-Ore., brought attention to a document that details a FISC decision that the government had violated the Fourth Amendment. The FISC operates in secret, so the EFF took action to learn more about this document. After an initial victory that established in the public record the existence of a FISC decision that found Justice Department methods to be unconstitutional, the EFF has pushed have the content of the decision made public.

FISC demanded the Justice Department to respond to the EFF request, and the Justice Department submitted a 15-page response arguing that the FISC’s own rules are preventing it from complying with the EFF’s Freedom of Information Act request.

“It was confusing, to the say the least,” Mark Rumold, a staff attorney at EFF, told IBTimes over the phone. “They had painted themselves into a little bit of a corner and the FISC recognized as much.”

The FISC took a look at its own rules and only took a few days to decide that there was nothing preventing the publication of the decision. Barring an unlikely appeal by the Justice Department, the original FOIA case will move forward. As this now-defeated argument was the Justice Department’s primary object, Rumold is confident that at least part of the decision will be made public.

When asked if the leaks about the NSA’s PRISM program had any influence about the decision, Rumold said the FISC doesn’t exist in a vacuum and has been the target of a lot of criticism about its role in the program.

“[PRISM] confirmed what we long suspected, that the NSA is gathering the communications records on millions and millions of Americans,” Rumold said. “We’ve been litigating these cases since 2006 and the government has done everything in their power to obstruct the court from deciding the legality.”

“Hopefully the government will take a different approach and let us decide the merits of these cases.”

The EFF will now return to a federal District Court in D.C. to re-examine the FOIA case.

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