Judge Orders DOJ To Hand Over FISA Court's Justification For Bulk Data Collection On Americans In FOIA Lawsuit
from the this-could-get-interesting dept
Late Friday, a judge in California ordered the DOJ to hand over key rulings from the FISA Court concerning the legality of the bulk records collection under Section 215 of the PATRIOT Act. As you probably know by now, Section 215 is the “business records” provision, that the government claims allows the NSA to collect phone and other records on all communications in the US (despite the fact that the law itself is limited to the FBI and is only supposed to be about records related to terrorism). The FISA Court, however, has broadly (mis)interpreted the law, but done so in secret, such that the NSA now believes it can get basically any phone record (and lots of other kinds of records as well). The EFF filed a lawsuit after its attempt to get access to the relevant FISA Court interpretations (five of ’em) was denied, and the judge is now ordering the DOJ to let them see the rulings in question, after a heavily redacted deposition wasn’t satisfying enough. The ruling is worth reading. The judge basically says that the DOJ has very little credibility on these things, having withheld info it should have released in the past.
Here, the Court finds that an in camera inspection of the subject documents is warranted. The evidence in the record shows that some documents, previously withheld in the course of this litigation and now declassified, had been withheld in their entirety when a disclosure of reasonably segregable portions of those documents would have been required. Further, the withholding followed an Order from this Court expressing concern that the agency had failed to explain sufficiently why the withheld documents “would be so replete with descriptions of intelligence activities, sources and methods that no portions thereof would contain” reasonably segregable and producible, non-exempt information….
Further, the Court finds that the public’s interest in the documents withheld is significant. The scope and legality of the government’s current surveillance practices of broad swaths of its citizenry is a topic of intense public interest and concern…. In light of this public interest, in camera review to assure that the agency is complying with its obligations to disclose non-exempt material is certainly merited. Finally, as the parties have narrowed the range of documents for review, the burden on judicial resources is not significant.
Of course, there’s no guarantee that the judge will release the actual rulings, but this is clearly a step in the right direction.