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Secret Court Decides It's a Secret

An attempt by the ACLU to shed some light on the work of the super-secret Foreign Intelligence Surveillance Court has failed, with the court ruling that national security concerns prohibit it from publishing even unclassified versions of court documents or allowing non-government lawyers to argue in the court, reports Ryan Singel at Wired's Threat Level blog. The ACLU had asked the court to provide it with information about wiretapping cases brought under the recent FISA Amendments Act of 2008 and to allow it to participate in any cases that question the act's constitutionality.

In an Aug. 27 decision written by Judge Mary A. McLaughlin, the court rejected the ACLU's request, finding that the First Amendment provides no public right of access to the court's records and that the statute provides private parties no right to participate in the proceedings. Referring to the Supreme Court's 1986 decision involving access to judicial records, Press-Enterprise Co. v. Superior Court, McLaughlin concludes:

Although it is possible to identify some benefits which might flow from public access to Government briefs and FISC orders related to Section 702(j) proceedings, the "logic" test is not satisfied because any such benefits would be outweighed by the risks to national security created by the potential exposure of the Government's targeting and minimization procedures. In short, the proceedings in Section 702(i) seem to be of the type "that would be totally frustrated if conducted openly."

Threat Level reports that an ACLU attorney involved in the case, Jameel Jaffer, expressed frustration at the outcome. "The Bush administration says that the new law is necessary to protect the country against terrorism, but there's nothing in the law that prevents the government from monitoring the communications of innocent Americans," Jaffer said. "The intelligence court should not be deciding important constitutional issues in secret judicial opinions issued after secret hearings at which only the government is permitted to appear."

Posted by Robert J. Ambrogi on September 4, 2008 at 01:00 PM | Permalink | Comments (1)


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