[Infowarrior] - FISA Court: Admin must respond to ACLU

[Richard Forno]

In Unprecedented Order, FISA Court Requires Bush Administration to Respond
to ACLU's Request That Secret Court Orders Be Released to the Public
(8/17/2007)

Government Must Respond by August 31

FOR IMMEDIATE RELEASE
CONTACT: media at aclu.org

http://www.aclu.org/safefree/spying/31356prs20070817.html

WASHINGTON - In an unprecedented order, the Foreign Intelligence
Surveillance Court (FISC) has required the U.S. government to respond to a
request it received last week by the American Civil Liberties Union for
orders and legal papers discussing the scope of the government's authority
to engage in the secret wiretapping of Americans. According to the FISC's
order, the ACLU's request "warrants further briefing," and the government
must respond to it by August 31. The court has said that any reply by the
ACLU must be filed by September 14.

"Disclosure of these court orders and legal papers is essential to the
ongoing debate about government surveillance," said Anthony D. Romero,
Executive Director of the ACLU. "We desperately need greater transparency
and public scrutiny.We're extremely encouraged by today's development
because it means that, at long last, the government will be required to
defend its contention that the orders should not be released."

The ACLU filed the request with the FISC following Congress' recent passage
of the so-called "Protect America Act," a law that vastly expands the Bush
administration's authority to conduct warrantless wiretapping of Americans'
international phone calls and e-mails. In their aggressive push to justify
passing this ill-advised legislation, the administration and members of
Congress made repeated and veiled references to orders issued by the FISC
earlier this year. The legislation is set to expire in six months unless it
is renewed.

"These court orders relate to the circumstances in which the government
should be permitted to use its profoundly intrusive surveillance powers to
intercept the communications of U.S. citizens and residents," said Jameel
Jaffer, Director of the ACLU's National Security Project. "The debate about
this issue should not take place in a vacuum.It's imperative that the public
have access to basic information about what the administration has proposed
and what the intelligence court has authorized."

FISC orders have played a critical role in the evolution of the government's
surveillance activities over the past six years. After September 11,
President Bush authorized the National Security Agency (NSA) to inaugurate a
program of warrantless wiretapping inside the United States. In January
2007, however, just days before an appeals court was to hear the
government's appeal from a judicial ruling that had found the NSA program to
be illegal in a case brought by the ACLU, Attorney General Gonzales
announced that the NSA program would be discontinued. Gonzales explained
that the change was made possible by FISC orders issued on January 10, 2007,
which he characterized as "complex" and "innovative." Those orders are among
the documents requested by the ACLU.

Since January 2007, government officials have spoken publicly about the
January 10 orders in congressional testimony, to the media and in legal
papers - the orders remaining secret all the while. They have also indicated
that the FISC issued other orders in the spring that restricted the
administration's surveillance activities. House Minority Leader John Boehner
stated that the FISC had issued a ruling prohibiting intelligence agents
from intercepting foreign-to-foreign calls passing through the United
States. To a large extent, it was the perception that the FISC had issued an
order limiting the administration's surveillance authority that led Congress
to pass the new legislation expanding the government's surveillance powers.
Yet the order itself, like the January 2007 order, has remained secret.

The ACLU's request to the FISC acknowledges that the FISC's docket includes
a significant amount of material that is properly classified. The ACLU
argues, however, that the release of court orders and opinions would not
raise any security concern to the extent that these records address purely
legal issues about the scope of the government's wiretap authority, and
points out that the FISC has released such orders and opinions before. The
ACLU is seeking release of all information in those judicial orders and
legal papers the court determines, after independent review, to be
unclassified or improperly classified.

A copy of the FISA court order, the ACLU's motion to the FISC, as well as
information about the ACLU's lawsuit against the NSA and other related
materials are available online at: www.aclu.org/spying

In addition to Jaffer, lawyers on the case are Steven R. Shapiro, Melissa
Goodman, and Alexa Kolbi-Molinas of the ACLU and Art Spitzer of the ACLU of
the National Capital Area.