We’re Not Getting the FISA Opinions … Which Leaves Just the Lawsuits
The FISA Court announced today that it will not release its opinions to the public.
The nation’s spy court said Tuesday that it will not release its documents regarding the Bush administration’s warrantless wiretapping program.
The Foreign Intelligence Surveillance Court, in a rare on-the-record opinion, said the public has no right right to view the documents because they deal with the clandestine workings of national security agencies.
So um, yo, Senate? If you give the telecoms immunity, we’ll never know how they spied on us.
I’m struck by how similar this opinion–written by John Bates–is to the opinion he wrote in the Wilson lawsuit. He acknowledged that there’s merit to the request, as he suggested that Valerie’s outing was troubling.
Bates acknowledged that the public would benefit from seeing the documents. The decision-making process would be understood, he said, and public oversight could help safeguard against government abuse.
And then, as he did with the Wilson opinion, he said, "um, no."
But the dangers of releasing such sensitive materials far outweigh that public benefit, Bates said.
Public opinions from the court are so rare, it’s not immediately clear what the ACLU’s options are. Because Bates alone signed the ruling, the group might be able ask for a review by the full panel. Or, it might be able to challenge the ruling before a federal appeals court.
Update: Here’s a copy of the opinion.
Hi EW. Does the SJC have access to the opinions?
I would love to read Bates’ rationale on how a government that vests the ultimate decision making power with the public is supposed to function if the public is not allowed to find out how that government actually functions. This is a truly mind bending exercise. Would Bates simply tell us, that this impasse is not his fault and we must force Congress to rewrite the laws forcing him to reveal what our shadow government is doing? Well, I’m all for that. Congress? What say you?
This is peculiar territory. We know that the Congress can subpoena documents from the Executive Branch, and from the public at large; can they also subpoena records of the FISA court? Could they demand access in a closed session?
Normally, of course, this is not an issue, because normally court judgments are a matter of public record. Phred makes an excellent point @2 as well.
I’d like to see this judgment appealed. Can Congress file an amicus brief on behalf of the ACLU?
IANAL, but I’ve got lots of questions! *g*
Bob in HI
Is it me, or is there a link missing in the post up there to the source of these quotes?
early OT, but possibly of interest: representative rush holt (house intelligence committee member who played lead good guy role in the house on fisa) is asking mukasey for the immediate appointment of independent counsel (letter):
p.s. looks like holt is chairing tomorrow’s house intelligence committee hearing with hayden.
Oops. Thanks for the heads up, Peterr. I think it’s there now.
Thanks, EW! It’s from the AP’s Matt “Fitz’s case is closed” Apuzzo, I see . . .
This part at the very end made me wonder:
Yes, and it’s also extremely rare for anyone but the DOJ to request anything from the court in the first place.
If the ACLU’s options mirrors the government’s options, they could go to the full FISA Court, or to the Court of Review, then take it to SCOTUS.
Actually, I think the FISA court is probably on firm footing with this decision. The whole rationale of FISA was that the court’s opions would remain secret until the information in them was no longer classified.
Since Bushco has so abused the classification authority (as MAry has expalined so well), it is liekly that great deal of the material in those opinions deal with classifed info.
Don’t quote me on this (David Kris’s masterwork on FOreign Intelligence surveillance LAw is back at the house and I’m in the office right now, so I can’t look it up easily), but I don’t think the FISA court has the power to declassifiey, on it’s own motion, info that has been classified by and Executive branch agency.
I think the court’s hands are pretty much tied right now
Can’t they ask Cheney for an insta immaculate declassification?
LHP
Actually, check out the opinion. It asserts FISC’s control over its own documents.
Glad to see Marbury v. Madison survived yet another attack from Cheney, Addington, and Associates.
Of course it does, otherwise it could not have even entertained the motion. Which is what the DOJ argued–pinhead arguemnt that.
Nope, this decision was onthe merits. Here is the money quote (I had to retype,so all typos are mine, not the court’s)
SOmething, else. There is a FISA Court of Appeals. The ACLU could go to them.
If it were me, I would consider bringing a new motion, for a Redacted version of the opinion, limited to the part where the standards are listed.
That (redacted versions) was exactly my thought, but I wanted to read the opinion before I went too far in that direction. This harkens back to the problem I have had with FISA since I first studied it in law school in the early 80s; it effectively creates secret law and a hidden “Star Chamber” where it is determined. And you are very right, Mary has been very dogged on this. However, I thought the FISC did have some limited declassification ability and authority as a result of the furor and litigation surrounding the publishing of the decision in the In Re: Sealed Case case. Wasn’t there an attempt to classify that opinion that failed and gave way to the power and discretion of the court (or am I confusing Sealedwith a regular District Court case that impinged on FISA)? Must go read the opinion now that EW has linked it (request for link was to be my next idiotic question)….
The ACLU could for a redacted version that shows what the standards are
Re my 11:
I screwed up the closing blockquote tag. My comment starts with “I’m going to quote you anyway, LHP . . .”
Preview is my friend . . .
Preview is my friend . . .
Btw, I put a link to the opinion itself if anyone wants it.
FYI – Here’s a link to the USCourts.gov Primer on FISA.
Wait. I take that back. After asserting that they own the docts, they say they cannot override Executive decision on classified (pixie) documents.
“But the dangers of releasing such sensitive materials far outweigh that public benefit, Bates said.”
Whoa… he did a cost/benefit analysis?
His argument is a strawman for the Prez…
How many losses can we take?
Pure unadulterated fear-mongering bullshit
Very interesting stuff at footnote 16 (citations omitted):
1) Has the AG been providing this info to Congress?
2) Just as the DOJ needs copies of the FISC orders to do its job (as Bates rightly says), surely he would agree that the House and Senate Intelligence and Judiciary Committees would also need copies in order to do their jobs of oversight of the executive branch.
I’ll bet you a nickle that DOJ haas NOT been turning them over in the quantity or quality it should
See footnote 22 for more on these reports to Congress.
EW, tangentially related, EFF Obtains Government Documents on Congressional Intelligence Briefings:
Part one of the ODNI documents
Part two of the ODNI documents
ODNI declaration explaining withholdings
Oh boy, will marcy be busy now!
And that ODNI declaration has as its first document, a letter from HIC Chair Reyes that says:
So, it would seem that at the least, the HIC has seen the orders that the ACLU got turned down on.
Pardon me, but twas not the ODNI Declaration, but instead the “Part one of the ODNI documents”. My bad. *g*
I feel a timeline coming on
“They can file a FOIA request to the Executive branch.” As if??? The ACLU was screwed… WTF?
What bothers me most about all this is the combination of ex parte argument and the secrecy of decisions. A possible solution might come from another organization well aquainted with arguments, tradition, and secrecy: the Vatican.
The process changed in 1983, but prior to then, when a person was being considered for sainthood, there would be an advocate appointed to gather information on the candidate, and also another person appointed to pick the information apart. Much of this was done quietly, behind closed doors, in classified briefs (or the theological equivalent thereof). The nickname for the person chosen to make the case against sainthood: the devil’s advocate.
Perhaps someone on Capitol Hill might want to consider an amendment to FISA to add a devil’s advocate into the process — though crafting the process to select the devil’s advocate would be a tough one. Perhaps the Gang of 8 could appoint a crew of security-cleared lawyers to a pool, with the specific lawyer for each case chosen at random.
Just an idea.
I don’t necessarily think it will ever happen, but I like that general idea a lot. How you would pick the FISA Devil’s Advocates and regulate them is undoubtedly problematic. Operating constantly in the closed FISC environment would also lend to “Stockholming” problems for the Devils too. An idea very worthy of further discussion though…
It appears that FISC has affirmed Shrub’s insta(de)classification Pixie Dust… Gaaah…
What makes you say that?
In the opinion; (III) The Common Law provides no public right for access to requested records…
Yeah, but how does that=FISA court saying Bush can insta – declassify?
They are saying THEY can’t insta-declassify, which I agree with. I don’t think ANYbody can declassifiy w/o a paper trail.
Logic test: Otherwise how will anybody know what is and is not classified???
Bush’s position is just stupid. Plain old fashioned stupid
But, Bates bought it hook, line, and sinker… As Peterr notes above about the ‘Logic’ and ‘Experience’ tests, He consistently sided with the Govt’s BS…
How else would anyone know what was classified and not?
Silly–you just ask Judy.
Reading the decision reminds me so much of a phrase I hear often in parishes: “We’ve never done it that way before.”
Bates argues that the ACLU fails to meet a two prong “past experience and logic” test for access to the documents. The shorter version of his ruling is “We’ve never done it that way before — so you lose on the past experience test.”
“add a devil’s advocate into the process —
We could recruit Jabez Stone from the Devil and Daniel Webster. He was a damn good bargainer, and hired a fine lawyer, better than Robert Luskin
to keep him out of trouble…
Top of decision page #20 (not pdf page):
Bates argues that if the FISC were to adopt the ACLUs motion, and subject the Executive branch classifications to “a heightened form of judicial review,” it would “chill relations with the executive branch” and also create an “incentive for government officials to avoid judicial review” and conduct searches without a warrant.
Gosh, we wouldn’t want to chill those cozy relations or anything — and BushCo seems to have plenty of self-motivatation for avoiding any kind of review, so I don’t see that any additional incentive created here would affect their behavior much.
It was Orwellian in scope and substance…
Harriet Miers is upstairs in a roundabout kind of way.
Footnote 32: Bates makes it sounds so simple. Why should the FISC conduct a classification review, when all the ACLU needs to do is file a FOIA request for the info with DOJ, and when that gets squashed, take it to a district court?
To borrow from Dana Perino’s husband, “Oh, John.”
From part one of the ODNI documents, a Mikey McConnell – DNI letter to the chair and ranking memmber of the HIC dated June 8th, 2007:
Silver Bells, Silver Bells
It’s Wiretap Time in the Country
Ring a ling, hear them sing
Soon it will be Telco Immunity day.
General Haden, Looks like Hitler
Dressed in Uniform Style
In the air, there’s a feeling
You’re always watched
Email Traffic
Cell Phone Texts
Your bank accounts too
Cameras on every corner you’ll see
Silver Bells, Silver Bells
It’s Surveillance Time
In the Country.
Jelly Fish Spine Dems
Soon it will be All Spy Day
Secret Meetings You Can’t Hear
Bates cutting off your info
As the bureaucracy laughs
Over your emails
Government tapes
All get destroyed
But not yours
Ring a ling
They hear you sing
Soon It Will be Wiretap Day
DOJ cross matrixes your bank accounts
And the no fly list
Hear the numbers crunch
The taped conversations bunch
ATT, Verizon, Sprint
Search Engines too
It’s Wiretap Time
In the Country.
PetePierce — have you heard about the new Google street level eye view of the world? Not to mention the recent Facebook debacle where they were posting people’s purchases without their permission? We need to require businesses to only post-info/pictures/whatever of people who opt in. Otherwise it MUST be minimized.
Spying — it’s not just for the government any more.
Happy No More Secrets Day…
Yes I try to follow Google’s mapping/pic programs and the parallel MSFT MSN Live’s Virtual Earth. I haven’t found the resolution of either of them that good as far as aerial 3d angle and street level views. But the resolution of
Google Street View is pretty good.
The list extends too from the mapping pic apps to policies that are specifically more sinister and singular in purpose–
1) MSFT was turning over MSN searches to the gov and didn’t come clean about it even to their employees for a good while. It’s not clear what they are doing now although they deny saving the searches. Same for Google. There were two secret meetings in D.C. on back to back days DOJ held with the search engine companies including Yahoo Search, MSN, Google and I don’t know how many others back in June 2006. The excuse for DOJ is always that they are trying to catch child predators, but it has a much broader spying purpose than that.
2)The ISPs like Comcast are now archiving all internet traffic and have a clause that says they are doing it buried deep within the fine print of agreements that no one reads. This has been elucidated on EFF, Wired, and other sites but I can’t grab the link on the fly at the moment.
I meant to add that the secret agreements of DOJ and the 16 spook agencies with the search engines are another parallel movement to augment the warantless wiretapping that’s going on now.
It occured to me also, and there are probably several good law reviews out or in progress that while the government’s terrorism case record is terrible, and they have lost several rounds of Gitmo decisions in the appellate courts that as far as Surveillance opnions go, so far the Courts have nearly always sided with the goverment ala Bates’ opinion at the FISC court.
Telco immunity as we all know would foreclose many pending cases that want to shed light on warantless wiretapping.
The Ninth Circuit case against the State Secrets defense is still alive, as is one in the D.C. Circuit. U.S. 9th Circuit Deals Setback to NSA Surveillance Victim
BTW a D.C. Circuit panel issued an order yesterday afternoon for preservation of tapes at Gitmo after J. Wells Dixon and other attorneys for Gitmo detainee, Majid Kahn, filed a motion requesting the order. I see many more motions coming as attorneys realize that it’s the government’s MO to tape the torture and then destroy the tapes or hide them and lie and say they don’t exist. The level of DOJ cooperation in this obstruction is not surprising at all to me. I couldn’t find the order on the D.C. Circuit website, and didn’t feel like logging into Pacer. Why is it that the Circuit Courts of Appeals and many district courts have such crappy haphazard websites when people are paid to make them usable? Many of them are egregiously horrible at even displaying recent opinions and particularly orders issued.
U.S. court orders Guantanamo torture evidence preserved
Sorry it took so long to get back to you. I’m fighting a flu with a dizzying fever and a wicked cough.
Senators Lobby Reid to Keep Telecom Immunity out of Surveillance Bill
Dear Majority Leader Reid:
We understand that the Senate will shortly be considering amendments to the Foreign Intelligence Surveillance Act. As you know, the Senate Select Committee on Intelligence and the Senate Judiciary Committee have reported very different versions of the FISA Amendments Act, S. 2248, and it is up to you, as Majority Leader, to decide how the Senate considers this legislation.
We urge you to make the version of S. 2248 reported by the Senate Judiciary Committee the base bill to be considered by the full Senate. While the structure of Title I of both bills is the same, and both make improvements over the Protect America Act, the reasonable changes to Title I made in the Judiciary Committee ensure that the FISA Court will be able to conduct much-needed oversight of the implementation of these broad new surveillance authorities, and help to better protect the rights of innocent Americans. While we appreciate the hard work that the Intelligence Committee has done on this legislation, the process by which the Judiciary Committee considered, drafted, amended and reported out its bill was an open one, allowing outside experts and the public at large the opportunity to review and comment. With regard to legislation so directly connected to the constitutional rights of Americans, the results of this open process should be accorded great weight, especially in light of the Judiciary Committee’s unique role and expertise in protecting those rights.
We also believe that the Judiciary Committee bill is preferable because it does not provide immunity for telecom companies that allegedly cooperated with the administration’s warrantless wiretapping program. As this is such a controversial issue, we feel it would be appropriate to require the proponents of immunity to make their case on the floor.
Thank you for your consideration.
Sincerely,
Russell D. Feingold (D-WI)
Christopher J. Dodd (D-CT)
Barack Obama (D-IL)
Bernard Sanders (I-VT)
Robert Menendez (D-NJ)
Joseph R. Biden, Jr. (D-DE)
Sherrod Brown (D-OH)
Tom Harkin (D-IA)
Benjamin L. Cardin (D-MD)
Hillary Rodham Clinton (D-NY)
Daniel K. Akaka (D-HI)
Jim Webb (D-VA)
Edward M. Kennedy (D-MA)
Barbara Boxer (D-CA)