DOJ may have to release U.S. secret court docs on domestic spying capability

The U.S. Justice Dept. may have to release a secret court opinion that determines when a U.S. resident is spied upon by the federal government.

A secret U.S. government court determines whether or not a U.S. resident, protected by Fourth Amendment rights from unwarranted and "unreasonable" searches, can be snooped on by U.S. law enforcement and intelligence agencies.

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The trouble is, nobody outside a very small number of federal government officials, the intelligence community, and a bevy of politicians, knows what the court warrants and sanctions. Despite it being a federal court, it's conducted entirely in secret.

But that may change if one privacy group gets its way, blowing the lid on tens of thousands of cases that amounts to, in the words of Sen. Ron Wyden (D-OR), "dragnet surveillance."

Last year, Wyden and Sen. Mark Udall (D-CO) submitted an amendment to Congress that would have forced the U.S. Attorney General to disclose the government's interpretation of the Foreign Intelligence Surveillance Act (FISA).

While the amendment was withdrawn, the Electronic Frontier Foundation (EFF) was eventually successful in having the opinion document of the secret FISA court (FISC), which authorizes in secret the snooping of U.S. and non-U.S. residents, released to the public.

The entire document , bar one line, was redacted:

(U) The Government has provided copies of the opinions and the filings by the Government to this Committee, and the Government will continue to inform the Committee about developments in this matter.

The EFF, at least from this point, had somewhere to take its case further. The document said that the U.S. government and the U.S. Senate Intelligence Committee has "copies" of this opinion.

Now the EFF is seeking to find out what the 86-page opinion holds, which would disclose for the first time in years exactly what warrants a secret government search. But the U.S. Justice Department is fighting back and doesn't want the opinion released in any way, shape or form, on the grounds of — you guessed it — national security.

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The Justice Dept. said in a memo asking for a summary judgment on the EFF case, that the "disclosure of the information withheld from [the EFF] could result in exceptionally grave and serious damage to the national security."

It also argues that should the opinion be released, the U.S.'s domestic and foreign enemies would then know how to circumvent its procedures in seeking a secret warrant. 

"Our adversaries and foreign intelligence targets with insight into the United States Government's foreign intelligence collection capabilities, which in turn could be used to develop the means to degrade and evade those collection capabilities," the memo reads.

Not content with the direction in which the Justice Dept. is heading, the EFF took up the case with the FISC directly, according to Slate. Now, FISC Judge Reggie Walton has ordered the Justice Dept. to respond by end of business on June 7 at the latest to an EFF motion requesting the release of the opinion.

This gives the Justice Dept. yet another chance to strike down the motion, but we'll see in a week's time whether or not this opinion is released or not.

(via Slate)