In June 2013 we filed a motion asking the Foreign Intelligence Surveillance Court to unseal its opinion interpreting a provision of the PATRIOT Act to allow the NSA to collect the “metadata” of hundreds of millions of domestic telephone calls.
The government responded that the ACLU had no standing to seek such relief, as it was not a party to the order. (As is customary in proceedings before the secretive Foreign Intelligence Surveillance Court, the government was the only party.) In September 2013, the court rejected that argument and ordered the government to respond on the merits. In November, the government stated that “After careful review of the Opinion by senior intelligence officials and the U.S. Department of Justice, the Executive Branch has determined that the Opinion should be withheld in full and a public version of the Opinion cannot be provided.”
But after the court ordered the government to submit “a detailed explanation of its conclusion,” the government stated in December that “upon review and as a discretionary matter, the Government has now determined that it does not object if this Court determines . . . that those portions of the Opinion that are not classified and the release of which would not jeopardize the ongoing investigation should be published.” And in February 2014 the government made a surprise filing, stating, “In response to questions from the Court’s staff, and upon further review of the Opinion, the Government has determined that certain additional information in the Opinion is not classified and the release of that additional information would not jeopardize the ongoing investigation.”
We filed a response reminding the court that executive branch classifications do not bind the courts, and that the First Amendment right of access permits redactions only if the Court independently determines that such redactions are narrowly tailored to avoid a substantial probability of harm to important public interests. In August 2014, the court ordered the government to “prepare and declassify a redacted version of the opinion,” and later that month a public version was posted on the court’s website.