The Obama administration has dropped its objection to the publication of a secret court opinion on the law that authorizes the National Security Agency’s bulk collection of millions of Americans’ telephone records.
The Justice Department told the Foreign Intelligence Surveillance Court in a filing Friday that the department won’t object if the court decides to publish nonclassified portions of its opinion that don’t harm an ongoing law enforcement investigation.
The American Civil Liberties Union and the Media Freedom and Information Access Clinic at Yale Law School had asked the court to release opinions on the meaning, scope and/or constitutionality of a legal provision under which the records are collected — Section 215 of the USA Patriot Act.
The government located such an opinion, dated Feb. 19, and a judge on the FISA Court, F. Dennis Saylor, ordered the department to conduct a declassification review of it, with proposed redactions, to “inform the court’s decision whether to publish it.” Last month, the Justice Department told the court that the administration determined the opinion should be withheld in full and a public version cannot be provided, without providing any explanation.
In response, Saylor directed the government to provide a “detailed explanation” of that conclusion. The deadline for that government filing was Friday.
In its latest filing, the Justice Department explained the reason for its initial reluctance to have the opinion published: It relates to the subject of an FBI counterterrorism investigation. Some information in the opinion could tip off the subject or his associates, the Justice Department said.
“However, upon review and as a discretionary matter,” the government said, it decided to drop its objection to the court publishing parts of the opinion, as long as they’re not classified and don’t jeopardize the investigation.
Alex Abdo, a staff attorney at the ACLU National Security Project, said in an email: “We welcome the government’s decision to agree to release portions of the court’s opinion. But we are troubled that the government agreed to release this information only when required to justify itself to a court. At the very least, this demonstrates the importance of judicial scrutiny in the face of government claims of secrecy.”
Friday’s filing comes a few days after a federal judge ruled that the phone collection program is likely unconstitutional.
Also Friday, President Barack Obama suggested that he may be ready to make changes to the program to ease the public’s concern about privacy.
“There are ways we can do it, potentially, that gives people greater assurance that there are checks and balances — that there’s sufficient oversight and sufficient transparency,” Obama said at a news conference. Programs like the bulk collection of phone records “could be redesigned in ways that give you the same information when you need it without creating these potentials for abuse.”
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