The FISA Court Sends a Message to the Executive Branch

More
The Foreign Intelligence Surveillance Court, which oversees the National Security Agency's domestic wiretapping programs and approves all Foreign Intelligence Surveillance Act warrants, has subtly challenged the idea that the executive branch, and only the executive branch, can control the release of classified information. 

Greg McNeal summarizes:


Previously, Rule 5 required that the FISC send all opinions to the Executive branch for redaction of classified information, specifically Rule 5(c) stated:

"On request by a Judge, the Presiding Judge, after consulting with other Judges of the Court, may direct that an Opinion be published.  Before publication, the Opinion must be reviewed by the Executive Branch and redacted, as necessary, to ensure that properly classified information is appropriately protected pursuant to Executive Order 12958 as amended by Executive Order 13292 (or its successor)."

Under proposed Rule 62, the Executive Branch review requirement is now optional:

"The Judge who authored an order, opinion, or other decision may sua sponte or on motion by a party request that it be published.  Upon such request, the Presiding Judge, after consulting with other Judges of the Court, may direct that an order, opinion or other decision be published.  Before publication, the Court may, as appropriate, direct the Executive Branch to review the order, opinion, or other decision and redact it as necessary to ensure that classified information is appropriately protected pursuant to Executive Order 13526 (or its successor)."  


Just yesterday, the 9th circuit court of appeals preserved the executive branch's ability to assert the State Secrets Privilege in cases where national security could be jeopardized by even the discovery phase of a trial. The only consideration that mattered to the court is whether the information's release could actually damage national security. The court gave lip service to the idea that the executive and judicial branches were jointly and independently capable of making that decision, but it acknowledged that, for all intents and purposes, the executive branch would be very rarely second guessed. That makes the SSP absolute.

But the FISC, which regularly deals with highly classified information involving sources and methods, now wants to positively assert that it has the authority, in determining when and whether to release information about cases, to order the executive branch to figure out the appropriate redactions. Before, the executive branch could redact whatever it wanted. Now, the court wants to decide whether the executive branch can redact whatever it wants. 

It is not clear to me whether the court will get its way. I expect the intelligence community, the Justice Department and even Congress to weigh in. FISC judges don't talk to the press, so it's not clear why they've decided to change their rules in this way. 
Jump to comments
Presented by

Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

Get Today's Top Stories in Your Inbox (preview)

A Technicolor Time-Lapse of Alaska's Northern Lights

The beauty of aurora borealis, as seen from America's last frontier


Join the Discussion

After you comment, click Post. If you’re not already logged in you will be asked to log in or register. blog comments powered by Disqus

Video

A Time-Lapse of Alaska's Northern Lights

The beauty of aurora borealis, as seen from America's last frontier

Video

What Do You Wish You Learned in College?

Ivy League academics reveal their undergrad regrets

Video

Famous Movies, Reimagined

From Apocalypse Now to The Lord of the Rings, this clever video puts a new spin on Hollywood's greatest hits.

Video

What Is a City?

Cities are like nothing else on Earth.

Video

CrossFit Versus Yoga: Choose a Side

How a workout becomes a social identity

Video

In Online Dating, Everyone's a Little Bit Racist

The co-founder of OKCupid shares findings from his analysis of millions of users' data.

Writers

Up
Down

More in Politics

Just In