Meanwhile, the ACLU and MFIAC were also objecting to the same redactions, on the grounds that the FISC should ask the government to justify them—not to necessarily reveal what was behind each and every smudge of black marker, but at least to have to describe what type of information was being withheld, and why.
“If the court embraces our position that the First Amendment applies generally to the public’s access to these records, then it has to go through a more meticulous process of asking the government to justify, kind of on a page by page basis…to say, ‘this is a security interest,’” says Patrick Toomey, one of the attorneys working on this issue for the ACLU. “And then we would have the opportunity to say on the other side, these are the public interests, and the reasons why the government’s explanations, at least as we understand them, do not live up to those standards.”
Just how redacted were the documents the government released? Toomey describes the documents as having a wide range of legibility and coherence. Some of them appear to have been almost entirely crossed out line by line, while others are relatively clean.
“But the redactions are not trivial,” says Toomey. “We wouldn’t be challenging them, obviously, if it were just a date or a name here and there. We believe they really go beyond what the government is entitled to withhold, and really continue to conceal some important pieces of how the government believes its surveillance authorities should work.”
While the ACLU and MFIAC continue to fight to clear those redactions (their reply brief available here: PDF), they also teamed up to file yet another, separate FOIA lawsuit at the end of December (PDF). With this most recent suit, the two groups are hoping to get to the bottom of Executive Order 12,333, signed by Ronald Reagan back in 1981, otherwise known as the directive that governs the NSA’s surveillance of Americans’ phone calls and emails overseas, and otherwise known as “The Most Important Surveillance Order We Know Almost Nothing About.” While the other legal tugs-of-war over NSA court opinions continue, gaining incremental victories and setbacks, that one is just beginning.