The Foreign Intelligence Surveillance Court (FISC) told the Senate Intelligence Committee last March that there are “serious obstacles” that would prevent it from preparing summaries of Court opinions for declassification and public disclosure.
The Court was responding to a February 13, 2013 letter from Senators Dianne Feinstein, Jeff Merkley, Ron Wyden and Mark Udall. They asked the Court to consider “writing summaries of its significant interpretations of the law in a manner that separates the classified facts of the application under review from the legal analysis, so as to enable declassification.” The proposal stemmed from an amendment to the FISA Amendments Act that was introduced by Sen. Merkley but not adopted. Sen. Feinstein offered to write a letter to the Court instead. (Senators Ask Surveillance Court to Summarize Opinions, Secrecy News, February 27, 2013).
FISC Presiding Judge Reggie B. Walton replied in a March 27 letter that the preparation of unclassified (or declassifiable) summaries was not a simple matter.
First, he wrote, any summary would unavoidably involve the loss of legal nuance or technical complexity, creating a likelihood of misunderstanding or confusion. Second, the legal analysis in most opinions is “inextricably intertwined” with classified information, making an unclassified summary difficult or impossible. Third, the request would entail current judges summarizing the opinions of previous judges, which could be awkward or misleading.
Judge Walton did not completely dismiss the proposal. He said that he would encourage the members of the Court “to consider structuring opinions to facilitate declassification, if they believe doing so is warranted in a particular case.”
Still, this shifts the primary declassification burden back to the Justice Department and the intelligence community. If significant Court rulings are going to be declassified, executive branch agencies will have to be the ones to do it.
The Senate Intelligence Committee had refused to publicly release either its February letter or the FISC’s March reply. Secrecy News had asked the FISC to release the correspondence and the Court was weighing the request, but the letters were first obtained and disclosed by the New York Times on June 8.
Senators Merkley, Lee, Leahy and Heller said they were preparing to introduce new legislation “to require the Attorney General to disclose each decision, order, or opinion of a Foreign Intelligence Surveillance Court that includes significant legal interpretation of section 501 or 702 of the Foreign Intelligence Surveillance Act of 1978 unless such disclosure is not in the national security interest of the United States.”