Secret FISA Court NSA Opinion: How Privacy Activists Might Win The Release Of A Secret Document On Illegal Surveillance

While the Obama administration is in peak damage-control mode over leaked information on its surveillance operations, a digital rights group is suing the government for the release of a secret court opinion that details how the National Security Agency broke the law in the course of its spying operations. The National Security Agency documents leaked over the last month add a political urgency to the battle -- and they could also tip the legal scales in the privacy activists’ favor.

The document in question is an 86-page opinion issued in October 2011 by the Foreign Intelligence Surveillance Court, or FISC, which found that some of the NSA’s surveillance was unconstitutional. The court, which oversees the NSA collection programs, rules in secret. One thing we know about the illegal activity, which the government says it halted according to the court’s order, is that it concerned so-called “minimization” procedures, the guidelines in place that are meant to prevent the NSA, in the course of its collection of electronic or phone data, from accumulating and viewing domestic communications. The revelation would be a blow to the government’s current efforts to reassure Americans that its snooping operations are legal and respect their privacy rights.

Given the new political context of the battle, the group suing for the document, the Electronic Frontier Foundation, or EFF, and the Justice Department are at odds over when to proceed in district court. A judge will ultimately decide when the case can proceed. According to the EFF, Justice Department lawyers informed the group last week that they want to delay court proceedings until around September to give them time to review their decision to keep the document classified. But the EFF doesn’t want to wait.

“The opinion is important to the debate that’s going on right now, and so it’s certainly our preference to be in court as soon as possible,” Mark Rumold, EFF’s lead attorney on the case, said. Given the political climate, Rumold expects the government to “try to put the brakes on this opinion.”

The battle over when to go to court is only the latest event in nearly a year of back-and-forth between the group’s lawyers, the DOJ and the FISC. In fact, even getting to the district court stage is a victory for Rumold and his team.

As a secret opinion, no one would know of its existence if it weren’t for Sen. Ron Wyden, D-Ore., who has spent years trying to alert the public to the government’s surveillance activities. (Because the programs are classified, Wyden has been dropping clues about the programs in public letters and statements that reference the NSA’s activities, without giving away any details.) In July 2012, the Office of the Director of National Intelligence agreed to declassify two brief statements by Wyden, alerting privacy activists to the existence of the opinion. “On at least one occasion, the Foreign Intelligence Surveillance Court held that some collection ... was unreasonable under the Fourth Amendment,” one statement read.

Armed with this information from Wyden, the EFF submitted a Freedom of Information Act, or FOIA, request to the Department of Justice, asking for the content of the opinion, and ultimately sued to force the Department to comply. In court filings, the government laid out two arguments for keeping the document secret: first, that the opinion was classified, and second, that releasing the opinion was the jurisdiction of the FISC, not the DOJ. From here, the legal battle becomes a bit convoluted. EFF had to now ask the FISC whether it or DOJ was actually in charge of revealing the documents. In June of this year, the FISC responded, saying the decision to release the opinion was in fact the DOJ’s to make. Now, EFF is heading back to the district court to argue that classification is not an adequate reason for not releasing the opinion. As the parties return to court, the recently leaked information about the NSA’s programs will make it more difficult for the government to argue that the opinion should remain classified.

“The whole justification for classification is that if the information is released, it will harm national security,” Rumold said. “But if the information has already been released, they won’t be able to show that there will be harm to national security.”

The fact that the opinion contains information on illegal activities is another hurdle for the government’s lawyers, who will have to prove that they are not trying to keep information classified because it details illegal conduct. “The opinion deals with unquestionably illegal government surveillance,” Rumold said. “There’s a specific provision of the classification rules that says the government can’t classify information to hide illegal conduct.

“If we had to go to court tomorrow to litigate this, I would feel substantially more confident about our chances of getting it than I would a month ago,” Rumold said. “I would be shocked if some part of the opinion were not released.”

Despite all this, the government’s odds may be better than they appear, because the courts in general defer to the government when it comes to questions of national security.

The EFF winning in court “seems like an uphill battle,” Julian Sanchez, an expert on privacy issues at the libertarian Cato Institute, said. “The courts are reluctant to risk doing any kind of independent judgment of assertions about national security even when they’re not very plausible.”