Surveillance Court Orders Prove Hard to Declassify

The Foreign Intelligence Surveillance Court (FISC), which authorizes intelligence surveillance activities, acknowledged in 2007 that it has issued “legally significant decisions that remain classified and have not been released to the public.”

In 2010, the Office of the Director of National Intelligence and the Department of Justice undertook to declassify those Court rulings, but since then none has been released. Why not?

“We tried,” a senior intelligence agency official said, but the rulings were hard to declassify. After redacting classified operational information and other sensitive details, no intelligible text of any consequence remained, according to this official.

The Department of Justice made a similar assertion years ago in response to a lawsuit brought by the ACLU, stating that “Any legal discussion that may be contained in these materials would be inextricably intertwined with the operational details of the authorized surveillance.”

Although the 2010 declassification initiative has not been formally cancelled, it is unclear how or why the failure to date to declassify the FISC orders would change.

In the debate over reauthorization of the FISA Amendments Act, Sen. Jeff Merkley offered an amendment that was intended to break the current impasse.  If a surveillance court order could not be declassified, the amendment proposed, then an unclassified summary of the order should be prepared.  (If even that were not possible, the amendment would have required a report on the status of the declassification process.)

The Merkley amendment, like others, was rejected by the full Senate.  But Senator Dianne Feinstein, the Intelligence Committee chair, offered her assistance to Sen. Merkley in advancing public access to FIS Court opinions.

“If the opinion cannot be made public, hopefully a summary of the opinion can,” Sen. Feinstein said on December 27. “And I have agreed with Senator Merkley to work together on this issue.”

But the intelligence agency official said that unclassified summaries of surveillance court decisions were probably not a satisfactory alternative.  A summary written by the Department of Justice would not be a statement of the court’s opinion at all, the official said.  At best, it would represent the Administration’s own understanding of what the court had ruled, paraphrased for public release.

What if the Court itself were to prepare its opinions in a “tearline” format, with a general statement of its findings presented separately from the more highly classified specifics of the case under discussion?  Would that not facilitate declassification and release of the court rulings?

“That might work,” the official said.  However, he said, it would be “awkward” for agencies to presume to tell the court how to format its opinions.

But it would not be awkward for members of Congress to make such a request, perhaps in a forthcoming letter referenced by Sen. Feinstein.

“I have offered to Senator Merkley to write a letter requesting declassification of more FISA Court opinions,” she said. “If the letter does not work, we will do another intelligence authorization bill next year, and we can discuss what can be added to that bill on this issue.”

In the past, a handful of FISA Court opinions have been declassified and made public, including a FISC opinion dated May 17, 2002, a FIS Court of Review (FISCR) opinion dated November 18, 2002, and a FISCR opinion dated August 22, 2008.