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FISA court orders government to review for declassification opinions on NSA spying

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The U.S. Foreign Intelligence Surveillance Court (FISA) ordered the government today to take specific steps to declassify opinions regarding the…

The U.S. Foreign Intelligence Surveillance Court (FISA) ordered the government today to take specific steps to declassify opinions regarding the constitutionality of a PATRIOT Act provision used to obtain evidence in foreign-intelligence investigations.

The American Civil Liberties Union, joined by two other groups, asked FISA in June to declassify opinions relating to Section 215 of the PATRIOT Act, which allows the government to apply for a court order to obtain “any tangible things” necessary in certain surveillance investigations. The ACLU filed its motion four days after The Guardian — ­ using information provided by former NSA contractor Edward Snowden — reported that FISA had granted the government the authority to collect the telephone records of millions of Verizon customers.

FISA Judge F. Dennis Saylor IV, who wrote the order released Friday, cited this summer’s events in finding that publication of the rulings “would contribute to an informed debate.”

“The unauthorized disclosure in June 2013 of a Section 215 order, and government statements in response to that disclosure, have engendered considerable public interest and debate about Section 215,” Saylor wrote.

Publication of the opinions also would “assure citizens of the integrity” of FISA, Saylor wrote. The opinion did not reach the merits of the ACLU’s First Amendment right-of-access argument, but Saylor wrote that the court reached its conclusion “given the extent of the government’s recent public disclosures about how Section 215 is implemented” and “as an exercise of discretion.”

The ruling gives the government until Oct. 4 to identify Section 215 opinions, propose a timetable to complete a declassification review, and submit to FISA any proposed redactions. After that, the opinions’ authors will use FISA court rules to decide whether to propose publication.

The decision exempts any orders that are the subject of a separate ACLU case brought under the Freedom of Information Act until that litigation is complete.

The Reporters Committee for Freedom of the Press, joined by 14 media organizations, filed a friend-of-the-court brief in support of the ACLU in July, stressing that opinions are the chief way that the public learns about any court’s activities.

“The issues here are vitally important to both national security and civil liberties, they inevitably and rightfully are going to be the subject of public reporting and debate, and secrecy is preventing the public and the press from having even the rudimentary information needed for the kind of informed discussion that the country deserves,” the Reporters Committee wrote in its brief.

The American Civil Liberties Union of the Nation’s Capital and the Media Freedom and Information Access Clinic at the Yale Law School were the other groups that joined the ACLU's motion to declassify the opinions.

Related Reporters Committee resources:

· Brief: FISA Court cases

· Brief: FISA Court cases