By Elizabeth Williamson
12 Dec 2007
A secret U.S. intelligence court has issued its third public ruling in 30 years, declaring that while it agrees on the benefits of making its rulings on warrantless wiretapping public, it will keep them secret.
The Foreign Intelligence Surveillance Court (FISC) cited the "vitally important need to protect national security" in rejecting a request by the American Civil Liberties Union to release documents on the Bush administration's warrantless wiretapping program.
The ACLU had asked the court for copies of orders it issued early this year related to the National Security Agency's warrantless surveillance program, which was operated without court oversight from late 2001 until early this year. The ACLU filed its request in August, after Congress passed legislation that overhauled the Foreign Intelligence Surveillance Act (FISA) and expanded the powers of U.S. spy agencies to eavesdrop on foreign terrorism suspects without a court order.
In particular, the ACLU wanted copies of at least one court order issued this year that, according to administration officials and congressional Republicans, concluded that parts of the program are illegal.
The 29-year-old FISC, which handles government requests for warrants in terrorism and espionage cases, is among the most secret institutions in Washington, with sessions held in a secure facility. Every proceeding before the one that led to yesterday's decision has been ex parte; that is, the government was the only party before the court.
The surveillance program that the Bush administration launched shortly after the Sept. 11, 2001, attacks has been the subject of intense battles involving Congress, the president and advocacy groups.
In a 22-page opinion signed by U.S. District Judge John D. Bates, a judge on the intelligence court, the court ruled that releasing the documents would pose a "real risk of harm to national security interests and ultimately to the FISA process itself."
"The ACLU is correct in asserting that certain benefits could be expected from public access," Bates wrote. "There might be greater understanding of the FISC's decision-making. Enhanced public scrutiny could provide an additional safeguard against mistakes, overreaching or abuse. And the public could participate in a better-informed manner in debates over legislative proposals relating to FISA."
Nonetheless, he continued, "detrimental consequences of broad public access to FISC proceedings or records would greatly outweigh any such benefits. The identification of targets and methods of surveillance would permit adversaries to evade surveillance, conceal their activities, and possibly mislead investigators through false information."
And so, the court concluded, "these possible harms are real and significant, and, quite frankly, beyond debate."
The ACLU had been encouraged by the court's initial response to its request this summer, when it ordered the Bush administration to register its views about the records request. While rejecting portions of the administration's arguments, the court supported its position on continued secrecy.
"The decision is disappointing, both in its reasoning and its result. A federal court's interpretation of federal law should not be kept secret from the American public," Jameel Jaffer, director of the ACLU National Security Project, said in a statement.
"The Bush administration is seeking expanded surveillance powers from Congress because of the rulings issued by the Foreign Intelligence Surveillance Court earlier this year. Under this decision, those rulings may remain secret forever."
The administration expressed satisfaction with the ruling.
"We agree with the court that the public release of these documents would pose 'a real risk of harm to national security interests and ultimately to the FISA process itself' and that these 'harms are real and significant, and . . . beyond debate,' " Justice Department spokesman Dean Boyd said.
Staff writer Dan Eggen contributed to this report.
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