This past November, ProPublica attempted to open up “the smallest nesting doll” of the Foreign Intelligence Surveillance Court’s legal opinions that justify mass collection of telephone metadata by the National Security Agency. Many NSA-related court opinions were already public, but many of those opinions cited other redacted ones, making the original judicial rationale impossible to discern. Without access to those opinions, ProPublica says, the American public would never understand the origins of the “unprecedented government secrecy” that they and other news organizations have uncovered.
Prior to ProPublica’s filing, the ACLU and the Yale Law School’s Media Freedom and Information Access Clinic (MFIAC) had also filed several similar motions in the same court. Since then, the government has answered some, but not all, of these requests, and the larger legal battle still continues. The fight has centered around two vital questions: Who has the right to access this information? And who has the right to cover it up?
The government challenged the MFIAC last fall, saying that it lacked the standing to demand access to the documents, and since then, more privacy advocates, media rights groups, and news organizations have joined in the fight. The Reporters Committee for Freedom of the Press filed an amicus brief in support of the organization (PDF). The Reporters Committee was joined by a large coalition of 25 organizations, including Bloomberg, Gannett, Hearst, McClatchy, The National Press Club, NPR, The New York Times Company, The New Yorker, Politico, and the Washington Post.
Their brief argued on First Amendment grounds that the MFIAC provided the same service that news media organizations did in representing the public’s right to certain information. “While the news media have a long tradition of fighting for public access to court proceedings and records, it is important for this Court to recognize that this right is possessed by the public at large, and the interests at stake can be vindicated by anyone,” their argument read.
Max Mishkin, a student co-director of the MFIAC who has been working on the case, stresses the significance of that brief: “We think the amicus brief underscores the importance of the standing issue to journalists everywhere,” he says. This type of argument “can seem like a legal technicality of limited interest, but the brief makes clear that the FISC’s cramped view of standing is a major error that threatens to substantially restrict the public right of access.”
The media-company coalition also argued that a denial of the MFIAC’s right of access would in turn threaten their own ability to access this type of information. As the brief puts it, “Potential harm to the public debate and erosion in confidence to the judicial system is an injury that everyone shares when access rights are denied.” Later in that same brief, the group also directly argued in support of the various FOIA requests themselves. It cites both the public’s basic right to know, and the harmful chilling effect that “uncertainty about the scope of surveillance efforts” has had on their reporting relationships with confidential sources.
As for ProPublica’s motion, the government stated in early December that the opinions ProPublica sought were among the hundreds it had recently released in a document dump in response to several other FOIA lawsuits, a few weeks earlier. But many concerned parties were left unsatisfied by what they found. According to ProPublica’s attorney, David Greene of the Electronic Frontier Foundation, ProPublica did find two of the opinions it was after; “However, both of the opinions had significant portions redacted,” he wrote in a recent email. (Both opinions are available as downloadable PDFs from ProPublica, at the bottom of this page.)
Having released these partially legible documents, the government seemed to hope that that was the end of the story. It asked ProPublica to withdraw its motion. ProPublica declined.
“We explained that ProPublica would not [withdraw] because the FISC and not the government needed to approve of any redactions,” Greene writes. The government replied that the FISC did not have the jurisdiction to question or oversee the redactions, but ProPublica argued that it was in fact that court’s “duty to review and scrutinize all redaction claims,” and “urged the FISC to do just that.”
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.