Secret FISA court won't release wiretap rulings

The Foreign Intelligence Surveillance Court rejects ACLU's request for portions of rulings relating to wiretapping, saying there's no "right of access."

A shadowy federal court that meets behind closed doors to hear wiretapping requests says it won't publicly release even portions of its rulings.

In response to a formal request from the ACLU, the Foreign Intelligence Surveillance Court said on Tuesday that it won't divulge the abridged text of the orders dealing with the Bush administration's eavesdropping scheme on grounds that it could endanger national security.

The 24-page opinion (PDF) disagreed with the Bush administration's suggestion that the ACLU's request be necessarily dismissed out of hand. But after considering the request, the court rejected it on grounds that the public enjoys no general (or First Amendment-based) right of access to its proceedings under the Foreign Intelligence Surveillance Act.

The opinion is noteworthy for two other reasons: It is the first time that anyone except the U.S. Department of Justice has argued, even in writing, before the court. Second, it's only the third time in the history of the court that an opinion has been released publicly.

Here's an excerpt from Tuesday's opinion:

The ACLU acknowledges that there is no tradition of public access to FISC orders. The ACLU argues, nonetheless, that the orders at issue here are distinguishable because they are "of broader significance and include legal analysis and legal rulings concerning the meaning of FISA."

Even assuming that it is proper to apply the "experience" test to a narrow subset of FISC decisions of broad legal significance, however, the FISC has, in fact, issued other legally significant decisions that remain classified and have not been released to the public (although, in fairness to the ACLU, it has no way of knowing this).

Thus, the FISC is not a court whose place or process has historically been open to the public, and the ACLU Motion does not satisfy the experience test for a First Amendment right of access.

 

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