Secret Court Document Finds Spy Techniques Unconstitutional

Justice Department Fights To Keep It Hidden

By Ryan W. Neal

The Justice Department may soon be forced to reveal a classified document that details unconstitutional surveillance of American citizens. The Justice Department has fought to keep the document secret for about a year, but a recent court order demands that they respond to a formal request filed by the Electronic Frontier Foundation by next week, June 7, 2013.

This document was first revealed last July by Sen. Ron Wyden, D-Ore., to call attention to an expansion of the Foreign Intelligence Surveillance Act in 2008 -- which then-Sen. Barack Obama voted for . According to Wyden, the Foreign Intelligence Surveillance Court ruled that the government violated the Fourth Amendment. The FISC mostly operates in secret, so the actual court decision remained classified. Wyden was only able to say the FISC decision existed; he was unable to disclose any details about the actual surveillance techniques that were deemed unconstitutional or how many Americans they affected.

The EFF took legal action to learn more about the FISC decision. An initial victory in a district court established in the public record that the Justice Department does possess an 86-page FISC decision on unconstitutional surveillance methods that was published Oct. 3, 2011. The decision found that some techniques were “unreasonable under the Fourth Amendment,” and that the court concluded that “on at least one occasion,” the Justice Department “circumvented the spirit of the law.”

The EFF’s next goal is to make the actual FISC decision public. The EFF had submitted a Freedom of Information Act request for the document to be declassified, but the Justice Department objected to the FOIA request on the grounds that making the FISC decision public would damage national security. It also argued that it didn’t even have the proper legal authority to release the FISC decision. A district court ruled in favor of the Justice Department and upheld the decision to keep the FISC document a secret.

The EFF decided to take its case directly to the FISC last week, and filed a motion to disclose the court records. On Friday, FISC Judge Reggie B. Walton ordered the Justice Department to submit any argument against the motion no later than 5 p.m. on June 7.

Of course, the Justice Department is likely to return with many of the same arguments as before. The difference, as Slate points out, is that this time the FISC, which has been under fire for its lack of transparency, will be deciding on the arguments. Sen. Dianne Feinstein, D-Calif., is working on a law that requires declassified versions of FISC decisions be made available to the public.

This could be an opportunity for the FISC to show that it is willing to be transparent. After all, it’s a decision it made nearly 20 months ago that was designed to protect the American people from unconstitutional intrusion by their government.

New technologies have made it easier for the Justice Department to spy on Americans, but others have fought back recently. Google has publicly fought against National Security Letters requesting user data, and more recently, a judge rejected and exposed an FBI proposal to use malware to turn a personal computer into a surveillance device.