Background
Not all Freedom of Information Act litigation is created equal. Some litigation is simply better and more exciting. Part of the reason I have created this substack is so that I can bring forward to my readers interesting cases. Today’s FOIA case is about the intersection of FOIA and America’s national security. Since 2021 the American Civil Liberties Union has attempted to chase down specific FISA court opinions. Eventually, the ACLU turned to the Southern District of New York. In their complaint, the ACLU alleged all the typical FOIA problems: national security agencies had delayed, deflected and demurred answering the ACLU’s request for identifiable records.
I do not want to go too far down the FISA (Foreign Intelligence Surveillance Act) rabbit hole, but in brief FISA is a smorgasbord law that lays out the legal structure for international surveillance in the post-9/11 world. Inside the Act is Section 702, which authorizes the collection of international communications. Sager heads than mine have discussed the benefits and issues with the law, but because the U.S. Constitution does not apply to foreign shores there is a built-in tension. Surveillance can be legal and warrantless, illegal and warrantless, and of course legal with a warrant.
Naturally, critics says that the warrantless aspect has inverted the Act’s purpose. While the warrantless surveillance is ostensibly “targeted” at foreigners located overseas, in reality the government uses the Act’s authority to acquire the internet communications and phone calls of Americans.1 Conversely, proponents argue that while the NSA, CIA, and FBI have used 702’s authority to seize and search the personal communications of Americans the information has saved lives. Additionally, Section 702’s warrant requirement preserves Americans’ constitutional interests.
Either way, since communication is not always distinctly “international” v. “domestic” there was, and is, a need to provide some way to protect Americans’ communications from warrantless searches. The process happens in what is called the FISA Court, which attempts to distinguish legal and illegal warrantless searches under Section 702’s authorization; and where necessary issue special warrants (called “FISA warrants”) for domestic interception of American communications.
Since Section 702 is about highly sensitive national security matters, the legal wrangling happens almost exclusively behind closed doors. The FISA Court has dockets, issues orders, and delivers opinions. However, those documents are typically not released. Instead, Congress has directed the court to only make public the court’s most important opinions. To illustrate just how secretive this court is, members of Congress have joined FOIA litigation as amici in the past because FISA decisions are only released to a few enumerated Members of Congress. Most members of Congress are not privy to the substance of FISC proceedings and know just as little as the rest of us.
To bring it back to the ACLU’s FOIA request, the FISA Court has been examining novel or significant issues related to the government’s Section 702 applications since 2020. Some people, including the ACLU, believe that this goes back to the FBI’s “mishandling” of certain FISA warrant requests identified by the Department of Justice’s Office of Inspector General. Not to put words in their mouth, but I assume they want further proof that Section 702 has been overapplied.
As a final interesting note to the background, the law was set to expire at the end of 2023. Congress decided early this month to reauthorize Section 702 for only a few more months, which caught some people (like myself) by surprise because historically Congress has extended Section 702 by greater lengths.
The Litigation So Far
The ACLU has gotten some results. In July, 2023, they received an FISC opinion dated September 27, 2021, and another FISC opinion dated September 27, 2021. In August, they published a FISC opinion dated from 2022.
Interestingly, these opinions were identified shortly after the ACLU filed their complaint in January. In a status report filed in February, both parties (the Director of National Intelligence and the ACLU) both agreed that the two opinions released in July were at least partially disclosable. Simultaneously, with regard to the third opinion later released in August, the government notified the court that their employees had preliminarily identified the opinion and the Director had no objection to processing the opinion.
So then why wasn’t the case closed months ago?
One reason, the National Intelligence Agency found another opinion that it had already released. Unfortunately, I can’t find the opinion but apparently it was released outside the typical FOIA process. They needed time to bring the opinion into compliance with FOIA’s disclose requirements. Fair enough.
Two, the National Intelligence Agency agreed to another search of its records and preliminarily identified even more opinions, which have evidently been turned over to the ACLU in November.
Unfortunately, I couldn’t find them. If any of my readers can find them, please reach out!
More importantly, it seems that the ACLU is not amenable to the proposed redactions in the documents.
The United States District Judge has apparently read enough about the horse-trading, and for the first time the Hon. Arun Subramanian added their own language (in blue) to the proposed status hearing order. The language points to more substantive work ahead. If we are very lucky, we will get a scheduling order on Judge Subramanian’s Jan. 31, 2024 date.
Speculating will only take us so far, but my read is that if the ACLU and the Director of National Intelligence were seeing eye to eye then they would not hide the ball in either November’s proposed status hearing order or in December’s. There’s a failure of alignment somewhere here, and the evolving position of the Director of National Intelligence leads me to believe the ACLU is not willing to consent to dismiss their complaint.
Now of course the case might ultimately resolve now that both sides have been put on notice by the judge that the case needs to move forward, but either way exciting!
A Few Takeaway Points
Here’s a fun drum to bang: FISA Court Opinions intersect the authority claimed by the congressional intelligence committees to publicly disclose classified information without executive branch approval. (See Section 8 of Senate Resolution 400 of the 94th Congress, 1976.) Though this authority has never yet been exercised, it remains available in principle and I cannot help but speculate that Congress might eventually get tired of getting FISA Opinions secondhand from the ACLU.
In 2015, Congress enacted the USA FREEDOM Act, which required the Director of National Intelligence to continue to conduct a declassification review of new opinions or orders of the FISC and FISC-R that contain “a significant construction or interpretation of any provision of law,” and “make publicly available to the greatest extent practicable” such opinions or orders (50 U.S.C. § 1872(a)). However, Congress never addressed whether releasing an opinion under 50 U.S.C. § 1872(a) interacts with FOIA’s free standing obligation to respond to requests. Typically, the distinction is hair splitting. However, as this case illustrated, the Director of National Intelligence made available the opinion under its 50 U.S.C. § 1872(a)) authority without indicating why certain information was being withheld. FOIA, on the other hand, requires that exemptions be specifically designed to tell the requestor by what authority the black box exists.
If we turn out attention to the actual meat of the FISA Court decision unveiled in July, Docket 702, unredacted portions demonstrate why ACLU wanted the opinion and why they very well might be pursuing underacting some of the asserted redactions.
On one hand, the order concludes that the remedial measures made by the FBI adequately addressed the FBI’s query compliance issues. “[T]here is reason to believe that the FBI has been doing a better job in applying the querying standard.” In support, the order calculates FBI’s rate of noncompliance with the FISA querying standard at approximately 1.7%, and the Court ultimately approves FBI’s querying procedures, “[g]iven recent indications that FBI is improving its implementation of Section 702 querying requirements.”
On the other hand, the Order’s redactions lay heavily on the specific failures in the querying standard. For example, please review the notices referenced in the Order’s footnote 51.
Likewise, the Order makes some very broad sounding conclusions about how and why the agencies overinterpreted Section 702’s grant of authority to conduct surveillance on Americans. However, a full conclusion is impossible because many of the specific reasons are unfortunately redacted.
And that’s today’s newsletter, happy reading!
I don’t get to cite it enough, but in one of my favorite law review articles of FISA the author begins their paper with the following.
OMG what an amazing rabbit hole, the secrecy is akin to a spy thriller (it’s almost unbelievable) and you’re not kidding re: breakdowns in communications! Thanks!