Civil Liberties

Secret Court Opinion on Secret Surveillance Needs To Remain Secret, Says Government


President Barack Obama and President Xi Jinping
White House

On Friday, President Obama threw his hands up in dismay over cynical Americans who don't trust him, lawmakers and judges to keep an eye on the surveillance apparatus. The very same day, his Justice Department argued in court that a decision by the secretive Foreign Intelligence Surveillance Court finding legal flaws in the way the federal government conducts its surveillance operations needs to be kept under wraps.

In San Jose on Friday, President Obama said:

That's not to suggest that you just say, trust me; we're doing the right thing; we know who the bad guys are.  And the reason that's not how it works is because we've got congressional oversight and judicial oversight.  And if people can't trust not only the executive branch but also don't trust Congress and don't trust federal judges to make sure that we're abiding by the Constitution, due process and rule of law, then we're going to have some problems here.

But the Electronic Frontier Foundation reveals that, at the same time:

In a rare public filing in the secret Foreign Intelligence Surveillance Court (FISC), the Justice Department today urged continued secrecy for a 2011 FISC opinion that found the National Security Agency's surveillance under the FISA Amendments Act to be unconstitutional.  Significantly, the surveillance at issue was carried out under the same controversial legal authority that underlies the NSA's recently-revealed PRISM program.

EFF filed a suit under the Freedom of Information Act in August 2012, seeking disclosure of the FISC ruling.  Sens. Ron Wyden and Mark Udall revealed the existence of the opinion, which found that collection activities under FISA Section 702  "circumvented the spirit of the law" and violated the Fourth Amendment's prohibition on unreasonable searches and seizures. But, at the time, the Senators were not permitted to discuss the details publicly. Section 702 has taken on new importance this week, as it appears to form the basis for the extensive PRISM surveillance program reported recently in the Guardian and the Washington Post. 

Have the court's rare objections to NSA procedured been addressed? Is the government just ignoring the court? What were those procedures that so troubled a court that approved all but one of the 1,856 surveillance requests it received in 2012, the year after its ruling that some amount of the surveillance it oversees is unconstitutional? The Justice Department doesn't want us to know.

What's not to trust?