The American Civil Liberties Union (ACLU) of Washington and Yale Law School’s Media Freedom and Information Clinic filed a motion on Monday with the secret court that oversees government surveillance in national security cases, requesting that it publish its opinions on the meaning, scope, and constitutionality of Section 215 of the Patriot Act.
That section, which authorizes the government to obtain “any tangible thing” relevant to foreign-intelligence or terrorism investigations, was the legal basis for the Foreign Intelligence Surveillance Court order requiring Verizon to turn over months’ worth of phone-call data.
“The ultimate check on governmental overreach is the American public,” said Alex Abdo, staff attorney with the ACLU National Security Project. “For years, the government has secretly relied on sweeping interpretations of its surveillance powers, preventing the very debate it has now belatedly invited on the wisdom and legality of those powers.”
In addition to the initial rulings by the court on Section 215, the filed motion also asks whether earlier opinions have been revisited in light of more recent rulings by other courts, such as the Supreme Court’s 2012 decision in the GPS tracking case U.S. v. Jones.
Another answer sought by the motion is whether the FISA Court has considered the constitutionality of the “gag order” that bars companies from revealing that they have been ordered to turn over information under Section 215. (In 2008, a federal appeals court agreed with the ACLU that an analogous gag order provision relating to “national security letters” was unconstitutional.)
“In a democracy, there should be no room for secret law,” said Jameel Jaffer, ACLU deputy legal director. “The public has a right to know what limits apply to the government’s surveillance authority, and what safeguards are in place to protect individual privacy.”
The ACLU is currently litigating a Freedom of Information Act lawsuit, filed in October 2011, demanding that the Justice Department release information about the government’s use and interpretation of Section 215. The documents released so far have provided very little information, and the Justice Department has said in court filings that legal opinions from the FISA Court can only be released by that court.
In 2007, the secret court rejected an ACLU request for the release of legal opinions relating to the Bush administration’s warrantless wiretapping program. The motion filed today is different because it takes into account the past week’s revelations about the NSA’s surveillance activities.