Highlighting National Security Agency contractor Edward Snowden’s first published leak, the court created to regulate U.S. surveillance activities on Friday issued a ruling that the Obama administration must declassify further legal opinions on “the unauthorized disclosure of in June 2013 of a [Patriot Act] Section 215 [surveillance] order.”
Such opinions, however, would be those generated by the Foreign Intelligence Surveillance Court itself: Judge F. Dennis Saylor, who wrote the order, was in effect demanding more transparency from his own institution.
Section 215 is an element of the Patriot Act which required Verizon to share customer metadata with the government—when that order and similar demands came to public light, a lot of litigation was set in motion. Saylor’s order is an explicit response to legal action from the American Civil Liberties Union and Media Freedom and Information Access Clinic, which were pressing for the exposure of more FISC positions.
The deadline for these new disclosures is October 4, though there is one small catch: The ACLU has been pursuing a similar Freedom of Information Act (or FOIA) argument in a different court. Saylor noted that his order would not cover the documents related to that ongoing case—so if the ACLU loses there, they may have to come back to the FISC a second time. The government will have to offer a “written submission identifying which Section 215 Opinions are subject to FOIA litigation.”
The print gets even finer than that: Once the administration selects which documents can be published and proposes its redactions along with a timetable for declassification, the final judgment rests with ... well, other judges. The “author of each such opinion, with the benefit of any proposed redactions, may decide whether to propose publication.”
Nevertheless, it’s a promising call for the government to accept the public national security debate that, at least in Saylor’s account, was brought about by Snowden’s decisions. Even Director of National Intelligence James Clapper has found a silver lining to the NSA leaks. "I think it's clear that some of the conversations this has generated, some of the debate, actually needed to happen," he said last week. "If there's a good side to this, maybe that's it."
That may be cold comfort to a man in exile and charged with espionage, though we shouldn’t underestimate the satisfaction of hearing the other side admit you have a point.
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