FISA Court Says DOJ's Claim That It Can't Reveal Secret Interpretation Of The Law Is Wrong
from the onward dept
We’ve written a few times about the EFF’s lawsuit against the government, trying to reveal the FISA Court’s secret interpretation of the FISA Amendments Act (which is at the core of the NSA surveillance dragnet of all phone record data). The DOJ has warned how this would be the end of the world and, more recently, said that it can’t reveal the ruling because the FISA court has said that it must be secret, while an earlier ruling from the FISA court said that the FISA court can’t reveal such rulings — only the DOJ can. The EFF sought clarification, and now the FISA court has more or less said that the DOJ’s argument is full of it, and yes, the DOJ can reveal such things without violating the laws protecting FISA court rulings.
The Court disagrees with the Government that FISC Rule 62 prohibits the disclosure of the copies of the FISC Opinion to EFF under FOIA…. The Government contends that Rule 62 has the effect of placing copies of the Opinion in its possession “under this Court’s seal.”… The term “seal,” however, does not appear in Rule 62, and contrary to the Government’s contention, Rule 62 neither explicitly nor implicitly places the Government’s copies of the Opinion “under seal.”
Rule 62 contains four subsections, all of which generally concern the “Release of Court Records,” but each address a distinct situation… None of these provisions is applicable here.
This doesn’t mean the case is over, but it does mean that the DOJ can no longer use the excuse that even if it’s required to disclose the FISC ruling under the FOIA that it can’t because FISC rulings are secret under that FISC Rule 62.