No Need to Review Classified FISC Surveillance Orders, Judge Rules
Judicial review of orders for the National Security Agency’s warrantless wiretapping program isn’t needed, a U.S. district judge in the District of Columbia said in a bench ruling Thursday. After a heated oral argument between the Electronic Frontier Foundation and the Justice Department, Judge Thomas Hogan called sufficient the Justice Department’s in camera affidavit, which said the Foreign Intelligence Surveillance Court orders were “highly classified” and couldn’t be made public without risking national security. In camera affidavits are “generally not favored” by the court, but are acceptable in national security matters, he said.
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The ruling throws a wrench in the EFF’s effort to make surveillance-court orders public using the Freedom of Information Act. EFF filed suit against the Justice Department after it failed to comply with an FOIA request from the group. With Thursday’s decision, Hogan affirmed that the classified orders are exempted from FOIA. EFF Senior Counsel David Sobel said he was disappointed that Hogan had taken Justice’s word that the orders needed to be kept secret, rather than take a look for himself. The EFF will wait for the written decision before deciding whether to appeal, he said.
Possible severability of the surveillance orders was a major point of debate at a hearing on the matter. The orders may contain information not harmful to national security that could be separated for public review, Sobel said, citing a letter by surveillance court Judge Colleen Kollar-Kotelly in which she had no objection to making public the orders, which just “contained” classified information. Sobel misinterpreted that letter, a Justice Department attorney said. Though Kollar-Kotelly may not have had an objection, the court’s practice is to refer FOIA requests to Justice, she said. And though the Justice affidavit didn’t take up directly the orders’ severability, it does say that the orders’ “contents in entirety” were classified. That phrase is a sufficient, Hogan said.
Activity now swings back to the Senate Judiciary Committee subpoena of the NSA surveillance documents, Sobel said after the ruling. Thursday’s decision will have no effect on that case, and any movement on the Senate front will not effect the EFF’s FOIA case, he said.