Surveillance Court’s Opinions Must Remain Secret, Feds Say

David Kravets reports:

The President Barack Obama administration is informing a federal judge that if it’s forced to disclose a secret court opinion about the government illegally spying on Americans, the likely result could be “exceptionally grave and serious damage to the national security.”

The statement came in response to a lawsuit demanding the administration disclose a Foreign Intelligence Surveillance Court opinion issued as early as last year. Sen. Ron Wyden (D-Oregon) was briefed on the opinion as a member of the Intelligence Committee and was authorized last year to reveal that the surveillance had “circumvented the spirit of the law” and was “unreasonable under the Fourth Amendment.”

Read more on Threat Level.

Reading the government’s memorandum of law, I’m immediately struck by its tone, which seems to try to paint EFF as ungrateful children who should have just accepted whatever crumbs of information the government decided to disclose:

Last summer, in an effort to strike the right balance between government transparency and the protection of critical intelligence activities, the government declassified four statements concerning its activities pursuant to Section 702 of the Foreign Intelligence Surveillance Act (“FISA”) Amendments Act of 2008. Not content with that disclosure, Electronic Frontier Foundation (“EFF” or “Plaintiff”) submitted a Freedom of Information Act (“FOIA”) request seeking additional information related to two of the declassified statements, specifically, that on at least one occasion the Foreign Intelligence Surveillance Court (“FISC”) “held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment” and that “on at least one occasion the FISA Court has reached th[e ] conclusion” that “the government’s implementation of Section 702 of FISA has sometimes circumvented the spirit of the law.” Notwithstanding that the “government has remedied these concerns and the FISC has continued to approve [] collection [pursuant to Section 702] as consistent with the statute and reasonable under the Fourth Amendment,” EFF complains that further information about those statements has not been disclosed.

Government assertions that it has “remedied” problems are not persuasive. When those charged with Congressional oversight, like Senator Wyden, repeatedly express concerns, we need more information, not less.