Analysis: Secret Intelligence Court Hardly Ever Says No

By Brian Fung

June 13, 2013

The secret court at the center of the National Security Agency surveillance debate has a bit of a reputation. It's supposed to act as a check on the executive, making sure it doesn't overstep its bounds when eavesdropping on terrorism suspects. In reality, the Foreign Intelligence Surveillance Courthardly ever says no to a request. Critics have called the court a "rubber stamp" that obeys the White House at every turn. The presiding judge on FISC, Reggie Walton, flatly denies it.

As if to prove his point, Walton has told the Justice Department that FISC has no authority to block a Freedom of Information Act request filed by privacy advocates.

Lawyers at the Electronic Frontier Foundation wanted to see copies of a government request to collect information on a foreign suspect on national security grounds. (To collect such data from businesses, terrorism investigators have to clear it with FISC first.) The Justice Department, meanwhile, shot back that the rules that govern the court prevent the release of the documents—and even if the rules allowed it, it wouldn't be up to FISC to decide, anyway.

Walton thinks that's bunk. In what's actually a rather amusing explanation if you sort through the legalese, the judge argues that previous cases give FISC every right to decide who gets access to "the Court's very own records and files."

The upshot, wrote Walton, is that unless something in the ordinary FOIA process gets in the way (something that's handled by the U.S. District Court for the District of Columbia, not FISC), transparency ought to win. This time.

Read the opinion in full here.

(Image via Andrey Burmakin/Shutterstock.com)


By Brian Fung

June 13, 2013

http://www.govexec.comhttp://www.nextgov.com/defense/2013/06/analysis-secret-intelligence-court-hardly-ever-says-no/64814/