Three years ago, U.S. officials launched a review of significant classified rulings by a federal intelligence court to see which could be redacted sufficiently for public release. To date, none have.
The challenge, said Robert S. Litt, general counsel at the Office of the Director of National Intelligence, is that “in many cases, classified information is so intertwined with the legal analysis that removing the classified information would leave a document that lacks any meaningful substance.”
Some lawmakers have pressed the government for years to declassify significant opinions by the Foreign Intelligence Surveillance Court, arguing that the public has a right to know how the secretive court is interpreting laws that affect Americans’ privacy.
“We have been attempting to prepare redacted opinions and are hopeful we can reach a point where it might be possible to release them in a manner that protects national security,” Litt said in an e-mail exchange last week.
The Foreign Intelligence Surveillance Act, amended several times since the September 2001 terrorist attacks, authorizes the gathering of foreign intelligence on U.S. soil in a myriad of ways — including monitoring phone calls and e-mail — with restrictions to protect Americans’ privacy.
The FISA court determines whether the government’s intelligence-gathering tactics are legal under the surveillance act. It also evaluates the efforts to protect the privacy of U.S. citizens.
The court consists of a federal judge who hears government requests to conduct surveillance. Appeals are heard by a panel of judges called the FISA Court of Review.
Steven Aftergood, a secrecy expert at the Federation of American Scientists, has argued that the government can share some of the court’s decisions by removing operational details. He says that approach would enable the government to provide summaries of cases that would define the types of activities, without jeopardizing national security. He noted that the government has declassified and released several FISA court decisions in the past.
When FISA provisions came up for reauthorization in the Senate last month, Sen. Jeff Merkley (D-Ore.) raised concerns that court rulings allow the FBI to obtain records and other information about Americans caught up unwittingly in a foreign terrorism investigation.
“Is this a gateway that is thrown wide open to any level of spying on Americans, or is it not?” he asked.
His amendment to require that the government declassify or summarize significant court opinions failed. But Sen. Dianne Feinstein (D-Calif.), the Senate Intelligence Committee chairman, said she supports his effort, and aides said a letter is being drafted to government officials.