The government's primary strategy, in responding to the ACLU's request for release of the FISC rulings disallowing parts of the Administration's domestic wiretapping program, is to argue that the ACLU doesn't have standing to ask for the documents. Only an aggrieved person can ask for such rulings, and even then, the aggrieved person cannot see the orders themselves that authorize domestic spying.
But there are two problems with that, it seems. First, the administration simply ignores that opinions are presumptively public, and therefore doesn't address the historic role courts have played in whether they can publish their own orders. Further, the examples the Administration cites for refusing to release the FISC orders are cases in which the FISC approved wiretapping--not where it ruled wiretaps illegal.
Congress, which recognized the necessity for strict secrecy in matters handled by the FISC, specifically provided that the FISC operates under special security measures, and that FISA orders and applications are not to be disclosed absent specific judicial findings. See 50 U.S.C. 5 1803(c) ("application made and orders grantedlI] shall be maintained under security measures"); id. § 1806(f) (FISA orders, applications and related materials may be disclosed by a reviewing court in a criminal case "only where such disclosure is necessary to make an accurate determination of the legality of the surveillance"); FISC R. Pro. 3 (FISC must comply with 9 1803(c), 5 1822(e), and Executive Order 12,958 governing classification of national security information).
The government cites examples where the government's application was granted, not, as in this case, where it was denied. There's no question--the order in question was deemed illegal.
The other problem is that, if the materials requested are as classified as the government claims, then John Boehner should be prosecuted for leaking classified information. The government argues that Alberto Gonzales' revelations about the FISC orders were authorized, but it does not say whether Tony Snow's, Mike McConnell's, and John Boehner's revelations were. And it bases its discussion of the limited release solely on that Gonzales reference.
The Attorney General was authorized to disclose the existence of the January 10, 2007, orders based on a balancing of the public interest in making that limited public disclosure and the need to maintain the secrecy of the orders' highly classified details in order to protect national security. CJ: Exec. Order No. 12,958 5 3.1 (b) (concerning declassification by Presidential subordinates who head executive agencies).
Moreover, such limited disclosures do not change the fact that the orders themselves, and their incorporated procedures, remain highly classified, as clearly contemplated by Congress when it enacted FISA, and as required by Executive Order 12,958, as amended.
Note the language here closely. The government is arguing that Gonzales was authorized to disclose the existence of the orders, even while it argues that the orders remain highly classified. This comes remarkably close to saying the disclosure was authorized but the document was not declassified. Which would be handy for the government, because it would allow them to talk about things without having to release them. And which is remarkably close to the logic Libby used when he argued Cheney could order him to leak
Plame's identity the NIE but that it was not declassified by that order. But it is not, as far as I understand it, how declassification works.
Interestingly, it then suggests that a Presidential subordinate who heads an executive agency authorized this declassification, even while it doesn't say who that subordinate was. This was, after all, a FISC order, not an NSA report or a DOJ opinion. So it's unclear who--short of the President--would have authority to declassify this, since that agency head would not be the superior of the person (the FISC judge, presumably) who owns this document. There seems to be a separation of powers issue here, and the government seems to recognize this issue, because it claims the only proper way to get the document would be a FOIA request, while it doesn't recognize these are not executive branch documents.
In any case, if only that January 10 order was authorized for disclosure, as the government's response claims, then John Boehner's disclosure of the later adverse ruling remains unauthorized.
It seems there are several logical responses to this. The government relies heavily on Congressional intent in its response. So I will renew my suggestion that the pro-Constitution wing in Congress file a friend of the court brief supporting the release of these documents.
But I also think it worthwhile to demand an accounting of the declassification history of these documents. Did Bush really authorize Gonzales to leak information about the order? Show me the paperwork. Was Boehner's disclosure authorized? If not, what is the Administration going to do about it?
As to the court filing itself, I look forward to the ACLU response. I'm not sure if the ACLU's arguments are enough to overcome the traditions surrounding national security claims. But it's clear the FISC is intrigued by the ACLU's argument. And one thing is clear--the government has not proved that the documents in question--and therefore the classification decisions about them--are executive branch documents.