Wyden Seeks Declassification of FISA Court Opinions

Senator Ron Wyden (D-OR) wrote to the Public Interest Declassification Board (PIDB) last week to request that it review the classified opinions of the Foreign Intelligence Surveillance (FIS) Court from the last ten years and make recommendations regarding their classification or declassification.

The FIS Court not only grants (or, rarely, denies) authorization for domestic intelligence surveillance. It also from time to time reinterprets the requirements of the Foreign Intelligence Surveillance Act, producing a secret body of common law.

In response to a motion filed by the ACLU last year, Judge John D. Bates of the FIS Court acknowledged (pdf) that the Court had issued several “legally significant decisions that remain classified.” The anomaly of secret law, including classified FISA court rulings, was explored in an April 30, 2008 hearing before a Senate Judiciary subcommittee chaired by Sen. Russ Feingold.

“It is impossible for Congress to evaluate the effectiveness of the nation’s surveillance laws without a thorough understanding of how the court is interpreting those laws,” wrote Sen. Wyden. “This is exactly the kind of issue that the Public Interest Declassification Board was created to tackle.”

The PIDB is a congressionally-chartered presidential advisory board that is supposed to provide recommendations on classification policy and to review the classification status of contested documents. It is composed of private sector personnel appointed by the President and the Congress. The current chairman is Martin Faga, a former director of the National Reconnaissance Office.

Although the PIDB statute authorizes the Board to act on congressional requests, such requests are supposed to be “made by the committee of jurisdiction,” not by individual members. Consequently, it is uncertain whether the PIDB will act upon Senator Wyden’s letter. PIDB officials were not immediately available for comment.