In a major victory in one of EFF’s Freedom of Information Act (FOIA) lawsuits, the Justice Department conceded yesterday that it will release hundreds of pages of documents, including FISA court opinions, related to the government’s secret interpretation of Section 215 of the Patriot Act, the law the NSA has relied upon for years to mass collect the phone records of millions of innocent Americans.
In a court filing, the Justice Department, responding to a judge’s order, said that they would make public a host of material that will “total hundreds of pages” by next week, including:
[O]rders and opinions of the FISC issued from January 1, 2004, to June 6, 2011, that contain a significant legal interpretation of the government’s authority or use of its authority under Section 215; and responsive “significant documents, procedures, or legal analyses incorporated into FISC opinions or orders and treated as binding by the Department of Justice or the National Security Agency.”
While the government finally released a white paper detailing its expansive (and unconstitutional) interpretation of Section 215 last month, more important FISA court opinions adopting at least part of that interpretation have remained secret. The results of EFF’s FOIA lawsuit will finally lift the veil on the dubious legal underpinnings of NSA’s domestic phone surveillance program.
This victory for EFF comes on the heels of another FOIA success two weeks ago, when the Justice Department was also forced to release a 2011 FISA court opinion ruling some NSA surveillance unconstitutional.
Like our lawsuit over that 2011 FISA opinion—where the government posted the results on Director of National Intelligence’s new Tumblr account—the Justice Department may attempt to portray this release as being done out of the goodness of its heart and as a testament to its commitment to transparency. While we applaud the government for finally releasing the opinions, it is not simply a case of magnanimity. The Justice Department is releasing this information because a court has ordered it to do so in response to EFF’s FOIA lawsuit, which was filed on the tenth anniversary of the enactment of the Patriot Act—nearly two years ago.
For most of the duration of the lawsuit, the government fought tooth and nail to keep every page of its interpretations secret, even once arguing it should not even be compelled to release the number of pages that their opinions consisted of. It was not until the start of the release of documents leaked by NSA whistleblower Edward Snowden that the government’s position became untenable and the court ordered the government to begin the declassification review process.
It also should be noted, that on the same day the government agreed to release this information, GOP Rep. Jim Sensenbrenner, the author of the Patriot Act, submitted an amicus brief authored by EFF supporting ACLU’s constitutional challenge of the NSA phone collection program that relies on Section 215. In other words, even the author of Section 215 thinks the government has twisted and distorted its language to justify something that the law was never supposed to allow. Now, we will finally see that tortured interpretation.