In August, the ACLU made an unorthodox request
to the FISA Court. It wanted the Court to declassify the early 2007 rulings on President Bush's warrantless wiretapping program that led the administration to seek broad new authority from Congress to conduct surveillance.
And while the ACLU petition was a long shot, a few days later, the Court went back
to the government and asked what the harm in declassification would be. After all, as the ACLU wrote, the facts behind the rulings had direct bearing on an ongoing legislative debate over the scope of surveillance powers. As far-fetched as it still seemed, perhaps the Court would buck its long tradition of secrecy.
Today the Court gave an answer: Nah
The nation's spy court said Tuesday that it will not make public its documents regarding the Bush administration's warrantless wiretapping program.
The Foreign Intelligence Surveillance Court, in a rare public opinion, said the public has no right to view the documents because they deal with the clandestine workings of national security agencies....
Writing for the court, U.S. District Judge John D. Bates refused. Releasing the documents would reveal closely guarded secrets that enemies could used to evade detection or disrupt intelligence activities, he said.
"All these possible harms are real and significant and, quite frankly, beyond debate," Bates wrote.
And yet the debate continues. The Protect America Act expires in under two months. President Bush opposes all its Democratic alternatives. And the facts of the rulings that prompted this new round of legislative overhauls to the Foreign Intelligence Surveillance Act won't be up for discussion.
"The decision is deeply disappointing," says Melissa Goodman, a staff attorney with the ACLU's National Security Project. "Basically, the Court is saying it will keep its interpretation of an important federal law secret, and we don't think in a democracy there should be any secret body of law." But the real harm, she says, comes to the public, since the "orders are at the center of the legislative debate" over surveillance. Disclosure "would have helped the public be a meaningful participant in that debate." Now, not so much.