By Dan Eggen
Washington Post Staff Writer
Saturday, August 18, 2007
A secret U.S. intelligence court has ordered the Bush administration to register its views about a records request by the American Civil Liberties Union, which wants the court to release a series of pivotal orders issued earlier this year about the National Security Agency's wiretapping program.
The move is highly unusual, because the court -- which approves warrants for electronic surveillance within the United States by intelligence and counterterrorism agencies -- operates in almost total secrecy and has made only one ruling public in its 29-year history.
In a scheduling order issued Thursday and released yesterday by the ACLU, the chief judge of the Foreign Intelligence Surveillance Court instructed the government to respond to the ACLU's request by Aug. 31. The civil liberties group has until Sept. 14 to file its own response.
"This is an unprecedented request that warrants further briefing," wrote U.S. District Judge Colleen Kollar-Kotelly, who serves as the intelligence court's presiding judge.
ACLU Executive Director Anthony D. Romero said in a statement that "we're extremely encouraged by today's development because it means that, at long last, the government will be required to defend its contention that the orders should not be released."
Justice Department spokesman Brian Roehrkasse said the administration is reviewing the judge's order.
The ACLU has asked the court for copies of orders it issued in January related to the NSA's warrantless surveillance program, which had been operated without court oversight since late 2001 and which has been the focus of fierce congressional debate.
The group is also seeking a copy of one or more court orders issued in the spring that, according to administration officials and congressional Republicans, concluded that parts of the program are illegal. The orders helped provoke Congress to overhaul the Foreign Intelligence Surveillance Act this month, giving U.S. spy agencies expanded powers to eavesdrop on foreign suspects without a court order.
David B. Rivkin Jr., a partner at Baker Hostetler and a Justice Department official in the Reagan administration, said he is skeptical that the ACLU can pry loose the orders. Rivkin also argued that it is unclear whether the secret court, which meets inside the Justice Department building, has the authority to release such documents over objections from the executive branch.
"The order is unusual, and the request is also unusual," Rivkin said. "But I would be amazed if that request were granted in the end."
The only previous ruling to be made public from the secret court came in 2002, when the panel rejected new surveillance guidelines proposed by the Justice Department. A special appeals court overturned the ruling later that year.