FISA Court Has Created Secret Body Of U.S. Law

The court re-interprets the Foreign Intelligence Surveillance Act, while keeping its re-interpretations strictly classified. FISA Court Has Created Secret Body Of U.S. LawBy Cliff Montgomery – Aug. 22nd, 2008Senator Ron Wyden (D-OR) on July 25th sent a letter to the Public Interest Declassification Board (PIDB), asking it to study the classified judgments of the Foreign Intelligence Surveillance (FIS) Court through the last decade, and to offer advisements on the possible declassification of these verdicts.The FIS Court almost always authorizes any government request for domestic spying. But it performs an even more wonderful service: It on occasion also re-interprets the conditions of the Foreign Intelligence Surveillance Act, thus altering the application of this most sensitive and potentially dangerous surveillance authority, while keeping its re-interpretations strictly classified.Over time, this practice has essentially produced a secret section of U.S. common law.While the PIDB’s ordinance empowers the Board to move on requests “made by the committee of jurisdiction,” it technically does not grant that authority when the query is made by an individual member of Congress. We therefore can only wait and see if the PIDB decides to follow up on Senator Wyden’s request. has printed Wyden’s entire letter to the PIDB below:July 25, 2008Martin FagaChairmanPublic Interest Declassification BoardNational Archives and Records Administration700 Pennsylvania Avenue, NW, Room 500Washington, DC 20408Dear Mr. Faga:The recent debate regarding revisions to the Foreign Intelligence Surveillance Act highlights a difficult dilemma. In order to have an informed, constructive debate regarding legislation and public policy, it is important that policymakers and the public have a clear understanding of what current law is, and how it is being interpreted.In most areas of law, this understanding can be gained through simple research. With regard to the Foreign Intelligence Surveillance Act in particular, however, it can be very difficult for the public – and even many members of Congress – to understand how key provisions of the law are being interpreted, because the opinions of the Foreign Intelligence Surveillance Court are almost invariably classified.As a member of the Senate Select Committee on Intelligence, I have access to these opinions; the public and most of my colleagues in Congress do not. Clearly it is necessary to classify substantial portions of the Court’s opinions, since these opinions almost inevitably involve discussions of sensitive intelligence information. However, these opinions also contain the Judicial Branch’s authoritative view on the meaning of federal intelligence surveillance law.It is simply not possible for members of Congress and the public to determine whether current law adequately protects both national security and civil liberties if they do not know how the law is being interpreted in court. While I naturally recognize the need to keep the details of sensitive warrant applications classified, I see no national security reason why most of the Court’s general legal interpretations could not be redacted and publicly released.While this year’s surveillance debate may have concluded, another will undoubtedly begin next year as the expiration date for certain controversial provisions of the Patriot Act approaches.Access to the substance of the Court’s opinions would greatly help to inform this debate.I therefore request that the Board review the Court’s key opinions of the past ten years involving interpretation of the Foreign Intelligence Surveillance Act, and make recommendations regarding their classification. If you need assistance identifying the most relevant opinions, please do not hesitate to contact Mr. John Dickas of my staff at (202) 224-1700. I appreciate your consideration of this request, and look forward to your response.On a related issue, I read the Board’s first major report on improving declassification a few months ago, and I was very impressed by the thoroughness and professionalism with which you and your fellow Board members and staff have approached your work. I look forward to reading further reports of similarly high quality in the future.Sincerely,Ron WydenU.S. SenatorLike what you’re reading so far? Then why not order a full year (52 issues) of thee-newsletter for only $15? A major article covering an story not being told in the Corporate Press will be delivered to your email every Monday morning for a full year, for less than 30 cents an issue. Order Now!