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FISC Orders DOJ to Turn Over Documents; DOJ Refuses

By William Peacock, Esq. on November 21, 2013 | Last updated on March 21, 2019

The Foreign Intelligence Surveillance Court is a secretive place, but earlier this year, likely because of that whole government-is-spying-on-everyone scandal that still, somehow, hasn't blown over, they decided to be more transparent. They ordered the Department of Justice to turn over their prior rulings which interpreted Section 215 of the PATRIOT Act.

Yesterday, the DOC politely declined. What was the court's response?

The Initial Order

Way back in September, the FISC issued the following order:

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. Publication of FISC opinions relating to this provision would contribute to an informed debate. Congressional amici emphasize the value of public information and debate in representing their constituents and discharging their legislative responsibilities. Publication would also assure citizens of the integrity of this Court's proceedings.


In view of these circumstances, and as an exercise of discretion, the Court has determined that it is appropriate to take steps toward publication of any Section 215 Opinions that are not subject to the ongoing FOIA litigation, without reaching the merits of the asserted right of public access under the First Amendment.

That's pretty clear, right? Section 215, by the way, is the section that was interpreted to allow collection of metadata from domestic cell phone users. And the court, feeling the pressure from Congress, wants their interpretations made public.

DOJ: 'Nah, We're Good.'

Yesterday, according to TechDirt, the court got their response:

After careful review of the Opinion by senior intelligence officials and the U.S. Department of Justice, the Executive Branch has determined that the Opinion should be withheld in full and a public version of the Opinion cannot be provided.

That's the most polite [expletive] you ever, right? The court ordered the DOJ to turn over the court's opinions regarding Section 215, giving them the ability to stash away any that might pop up in litigation.

But they didn't provide litigation, or national security, as an excuse. They provided no excuse at all.

Court: Oh, But You Will

The FISC, after noting that the "government has provided no explanation of this conclusion," issued its response:

"[I]t is hereby ORDERED that, no later than December 20, 2013, the government shall submit a detailed explanation of its conclusion that the Opinion is classified in full and cannot be made public, even in a redacted form."

The court also notes that if the DOJ wants to keep the information classified, it must submit it to a judge, who will review the information ex parte and in camera. Hopefully, at some point after that (expect 2053 or so), we'll all finally find out what legal justification there was, under Section 215, for spying on the entirety of America.

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