FISA Court to Gov’t: Why Shouldn’t We Disclose Surveillance Rulings?

Don’t get your hopes up yet. But the Foreign Intelligence Surveillance Court has told the government that it needs to submit an argument for why the court shouldn’t disclose rulings from earlier this year on the warrantless surveillance program that prompted the Bush administration to gut the Foreign Intelligence Surveillance Act.

Ten days ago, the ACLU filed a motion with the secret court seeking the release of two contentious rulings in particular: a January 10 ruling that Alberto Gonzales described as “innovative” enough as to allow the surveillance program to be placed under FISA; and the ruling from the spring that led to the wholesale FISA revision. In a conference call today, Jameel Jaffer of the ACLU disclosed that around lunchtime, the court, in response to the ACLU’s “unprecedented request,” asked the government to file any objections it has to a disclosure by August 31. Jaffer cautioned the court action doesn’t herald actual disclosure, but it shows that the court is taking the ACLU’s request seriously.

The workings of the FISA Court have been a black box in the entire affair. It remains hard to understand how the court could be so “innovative” in January with regard to the Terrorist Surveillance Program but so restrictive in the spring. The court’s notice today brings us a step closer to finding out how much revision to FISA was really warranted.