POLITICS
06/07/2013 06:33 pm ET | Updated Jun 07, 2013

Justice Department Fights Release Of Secret Court Opinion On Law That Underpins PRISM Program

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WASHINGTON -- Mere hours after President Barack Obama said Friday morning that he welcomes a debate on the federal government's highly classified surveillance programs, his Department of Justice tried to squash the release of a secret court opinion concerning surveillance law.

A 2011 Foreign Intelligence Surveillance Court ruling found the U.S. government had unconstitutionally overreached in its use of a section of the Foreign Intelligence Surveillance Act. The National Security Agency uses the same section to justify its PRISM online data collection program. But that court opinion must remain secret, the Justice Department says, to avoid being "misleading to the public."

The DOJ was responding to a lawsuit filed last year by the Electronic Frontier Foundation seeking the release of a 2011 court opinion that found the government had violated the Constitution and circumvented FISA, the law that is supposed to protect Americans from surveillance aimed at foreigners.

The DOJ had been given a Friday deadline to submit the filing, well before the revelation of the PRISM program's existence in The Washington Post and The Guardian on Thursday.

The part of the FISA law addressed in the opinion in question, Section 702, is the same one the NSA is now using to scoop up email and social media records through its PRISM program.

But the court that released the opinion under dispute is no ordinary legal body. Made up of federal judges on loan from other courts, FISC conducts its highly classified business in secret. Its rulings, too, are classified -- which means Americans don't know how the law governing surveillance is being interpreted.

The Justice Department would like to keep things that way. Its filing asked the court to keep its ruling smacking down unconstitutional surveillance under seal, and to prevent disclosure of even part of its contents.

"Any such release would be incomplete and quite possibly misleading to the public about the role of this Court and the issues discussed in the opinion," the Justice Department wrote.

The existence of the 86-page order, though not its contents, was revealed by Sen. Ron Wyden (D-Ore.) last year. Wyden has repeatedly asked the surveillance court to release its rulings, even in summary form. The EFF launched a lawsuit in district court under the Freedom of Information Act to secure the release of at least part of the ruling's contents.

But then the organization ran into a perplexing legal thicket: The Justice Department argued that only FISC could unseal the opinion. The same court had ruled in a response to an American Civil Liberties Lawsuit in 2007, however, that groups seeking access to its opinions would have to proceed in a regular federal district court.

The secret court thought it could not release its own ruling. The Justice Department thinks other federal district courts cannot compel the release of such rulings, either.

"It's this shell game that they're trying to play," said David Sobel, a lawyer for the EFF. "Basically their argument is that there is no court that anyone can go to to challenge the secrecy of [FISA] material."

The Department of Justice strenuously disputed that characterization in its filing on Friday. Yes, the DOJ said, the public is supposed to go to an ordinary district court to get rulings released. But that doesn't mean that anything has to follow.

In its 2007 ruling telling the ACLU to go through regular courts, the Justice Department said Friday, "FISC did not state that such records would necessarily be released or could be released in the absence of a FISC order unsealing the materials." And, DOJ added, neither the secret intelligence court "nor the Executive Branch is obliged under FOIA to release the opinion."

Sobel said the DOJ's motion is another expression of Obama's "lip service" to welcoming a conversation.

"He basically falls back on saying that, well, all three branches of government have weighed in on this," Sobel said. "And that's all well and good -- except for the fact that you can't really have a public debate when those three branches are all operating in a secrey regime."

Disclosure: The Huffington Post is owned by AOL, which has denied knowledge of the PRISM program.

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