Move to Declassify FISA Court Rulings Yields No Results

An initiative that was started two years ago to declassify significant rulings of the Foreign Intelligence Surveillance Court regarding domestic intelligence surveillance has produced no declassified records, a Justice Department official confirmed last week.

In response to complaints about the rise of “secret law,” the Justice Department and the Office of the Director of National Intelligence established a new process in 2010 to declassify opinions of the FISA Courts (including the Foreign Intelligence Surveillance Court as well as the FIS Court of Review) that contained “important rulings of law.”

Prior to her confirmation hearing in May 2011, DoJ National Security Division (NSD) director Lisa Monaco told the Senate Intelligence Committee that “all of the opinions and orders… issued by the FISA Courts that include significant constructions or interpretations of FISA” would be reviewed for declassification.

“If confirmed,” she told the Senate Committee, “I will work to ensure that the Department continues to work with the ODNI to make this important body of law as accessible as possible, consistent with national security, and in a manner that protects intelligence sources and methods, and other properly classified and sensitive information.”  See her response to question 9 in these pre-confirmation hearing questions.

But despite these assurances, and two years after that declassification review process began, nothing has been declassified.  A Freedom of Information Act request for the newly declassified FISA Court opinions turned up no records.  A Senate Intelligence Committee official said the Committee was still awaiting the declassified release as well.  (Classified versions of “significant” opinions are already provided to the intelligence committees, DoJ says.)

Dean Boyd of the DOJ National Security Division confirmed that the current review process had produced no new declassified opinions since 2010.  He said that there were several factors that complicated the declassification of the FISA Court opinions.  According to Mr. Boyd:

•     The documents at issue do not belong exclusively to the Justice Department, or indeed to the Executive Branch.  These legal opinions are judicial documents subject to the jurisdiction of the courts that issue them.
•     These documents are classified because they meet the criteria for classification set forth in Executive Order 12958 [should be: 13526] and are subject to the statutory responsibility of the Director of National Intelligence (DNI) to protect sources and methods.
•     Further, any contemplated public disclosure of such FISA Court opinions  must take account of legitimate concerns that public availability of FISA Court opinions, even in redacted form, may enable a sophisticated adversary to deduce particular sources and methods or take effective countermeasures that deprive the United States of intelligence.

There have been three cases in the past when FISA Court opinions were made public, including a FISC opinion dated May 17, 2002, a FISCR opinion dated November 18, 2002, and a FISCR opinion dated August 22, 2008.

But Mr. Boyd told Secrecy News that “All three of these opinions represented comparatively rare instances in which a FISA Court produced substantial legal opinions that could be severed from the sensitive facts of the underlying applications.”  So those prior releases are not necessarily precedents for any future releases, in the Department’s view.

Still, the current declassification review process continues, Mr. Boyd said.  But it is unclear how the factors that have prevented declassification for the last two years would change to permit disclosure in the foreseeable future.