Government Opposition to ACLU Motion to Unseal.

From SCOTUSblog:

The Justice Department has urged the special secret court that oversees global electronic eavesdropping to refuse a request that it open to the public any version of its orders authorizing the current wiretapping program. In a 23-page brief, filed Friday with the U.S. Foreign Intelligence Surveillance Court, the Department contended that any release of even censored versions of such orders would threaten national security. The ACLU has provided a link to the document at its website, here.

The materials being sought by the American Civil Liberties Union, the brief argued, "are properly classified in their entirety. The public disclosure of the documents that ACLU requests would seriously compromise sensitive sources and methods relating to the collection of intelligence necessary for the Government to conduct counterterrorism activities." Even if the FIS Court were to release unclassified summaries of its orders, the most that they could say, the brief said, was that the orders "authorize the United States to conduct foreign surveillance, and specifically, to target for collection international communications where there is probable cause to believe that one of the communicants is a member or agent of Al Qaeda or an associated terrorist organization." That general information, of course, has been stated publicly numerous times by public officials, including President Bush.

Moreover, the Department said, the law creating this Court does not allow any outsider to file a "free-standing motion" about that Court's business, and the First Amendment does not compel release of any of the orders or of government legal briefs filed with the Court seeking approval for its global wiretapping program.

The brief also noted that the ACLU tried, without success, to get access to the FIS Court orders in a lawsuit it is now pursuing in regular federal courts. Since its request have been turned down in litigation where it is a party, the brief said, "it is even more clear that the ACLU's free-standing non-party motion should be denied here."

If the ACLU should now try to get access to the documents from the government by moving under the Freedom of Information Act, the Department said, it would oppose that, too.


The brief also reiterated the government argument that the Executive Branch, alone, has the authority to classify and control access to information bearing on national security. Here is the court document.