Secret Court Opens the Door (But Just a Teeny-Tiny Crack)

Today we received an order from the Foreign Intelligence Surveillance Court (FISC). Sometimes, brevity can be really beautiful. The court wrote:

The American Civil Liberties Union has filed a third party motion seeking the release of what it identifies as Court records. This is an unprecedented request that warrants further briefing.

The order was in response to a motion we filed ten days ago, which as far as we know was the first of its kind. We asked the FISC to release several important legal rulings issued secretly over the last year. These secret orders have been in the spotlight lately: One led to the disastrous FISA revision Congress passed last week, and another, issued January 10, reportedly brought the government’s illegal spying program under the supervision of the secret FISA court.

While they didn’t just fax over the orders we requested — they gave the government until August 31 to object to the disclosure –it is an important indicator that the FISC is taking our request seriously. If the public could see those orders, it would clarify how the NSA program was adapted to comply with FISA’s requirement that the government seek individual warrants, since Rep. Heather Wilson (R-NM) has described the orders as "programmatic" warrants.

Here’s what we already know about the orders: After contending since 2005 that NSA wiretapping did not require warrants, the White House reversed itself on January 17, 2007, when Alberto Gonzales announced that “any surveillance that was occurring as part of the [NSA Program would] now be conducted subject to the approval of the Foreign Intelligence Surveillance Court.” Gonzales described the orders as “complex” and “innovative” and later testified that the court issued them after Bush “pushed the envelope.” He told Congress that it took “some time for a judge to get comfortable” with the government’s proposal.

Since then, everyone and their mother — from the House Minority Leader, to the AG, to the President - have cited the orders in their attempts to strong arm FISA "reform" through Congress. Of course they did so knowing full well that it’s impossible for anyone to contradict them when they can’t see what they’re talking about.

Today's orders were a good sign. Hopefully the court will release the sealed materials and the debate won’t have to take place in a vacuum any longer.