Surveillance Court Issues New Rules of Procedure

The Foreign Intelligence Surveillance Court, which reviews government applications for domestic intelligence surveillance, issued new rules (pdf) on Monday to govern its proceedings.  The new rules differ only slightly from the draft rules (pdf) that were issued for public comment in late August (“FISA Court Proposes New Court Rules,” Secrecy News, September 2, 2010).  In general, the rules update past Court procedures to reflect passage of the FISA Amendments Act of 2008, which expanded government surveillance authority.

In one modest editorial change suggested by FAS, the Court altered a line requiring that “classified information” be protected to specify that only “properly classified information” must be protected (Rule 62a). Another new provision in the final rules indicated that not only the government but also the Presiding Judge of the FISA Court “may provide copies of Court orders, opinions, decisions, or other Court records to Congress” (Rule 62c2).

In lengthy comments (pdf) submitted to the Court last month, the ACLU proposed several other substantive changes:  the rules should require public release of Court opinions and order that address significant or novel legal questions, including those that affect personal privacy;  the Court should release legal briefs that address such questions;  and the Court should clarify that it is the final arbiter of what information is to be released and what is to be redacted.

“The public has a right to see judicial rulings that define the scope of the government’s most intrusive surveillance powers and affect the rights of all Americans,” said Melissa Goodman of the ACLU National Security Project. “Secret law is inconsistent with the basic principles of democracy and makes informed public debate about the government’s surveillance powers nearly impossible.”

These specific changes were not adopted in the final rule, but new releases of Court records were not precluded either.  Rule 62a explains that a Court order or opinion may be published at the direction of the Presiding Judge, following a declassification review by the executive branch if necessary:

“Before publication, the Court may, as appropriate, direct the Executive Branch to review the order, opinion, or other decision and redact it as necessary to ensure that properly classified information is appropriately protected pursuant to Executive Order 13526 (or its successor).”

At first glance, the instruction that the Court “may, as appropriate” seek declassification review of opinions and orders prior to release seems to be permissive, not mandatory.  By contrast, the previous version (pdf) of the Court rules stated that opinions (though not orders) “must be reviewed” by the executive branch prior to publication.

Based on this change in language some observers inferred, happily or unhappily, that declassification review of Court opinions by the executive branch was now optional, and that the Court had reserved the right to release classified information on its own authority without such review.

But that appears to be a erroneous reading.  The Court’s Rule 3 states unequivocally that “In all matters, the Court and its staff shall comply with… Executive Order 13526, ‘Classified National Security Information’.”  That Executive Order does not permit unilateral disclosures of classified information or records without the prior review of the agency that classified them.