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The secret court opinion the government won't let you read

Tom Jackson • Jun 10, 2013 at 10:38 AM

There's lots of news coverage of the NSA spying imbroglio, and I won't try to duplicate the work of others by trying to keep up with it here. Reason Magazine's Hit and Run blog is keeping up nicely with all of the developments, and so is Slate. 

But one of my editors spotted an interesting article that doesn't seem to be getting much attention: A federal court issued an opinion back in October 2011 that the government hasn't been completely following the law in the way it implements FISA, the Foreign Intelligence Surveillance Act. 

I hope I've summarized the opinion correctly, but there's no way to tell. You can't read the opinion and see what the court said. It's secret! 

As this article by David Corn of Mother Jones magazine explains, the Electronic Frontier Foundation filed a Freedom of Information Act request at the Justice Department to obtain the opinion. That went nowhere, so the EFF filed a lawsuit to try to obtain it.

That's when the EFF ran into a new roadblock: The Justice Department says the EFF needs to obtain the opinion from the FISA court, while the FISA court says the EFF should try to obtain it from the Justice Department. So before it can try to obtain the opinion, the EFF has to get a ruling first on where it should go.

Corn observes, "As news reports emerge about the massive phone records and internet surveillance programs—each of which began during the Bush administration and were carried out under congressional oversight and FISA court review—critics on the left and right have accused the government of going too far in sweeping up data, including information related to Americans not suspected of any wrongdoing. There's no telling if the 86-page FISA court opinion EFF seeks is directly related to either of these two programs, but EFF's pursuit of this document shows just how difficult it is—perhaps impossible—for the public to pry from the government information about domestic surveillance gone wrong."

Has anyone in the Obama administration heard of the Star Chamber?

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