WASHINGTON – The nation's spy court said Tuesday that it will not release its documents regarding the Bush administration's warrantless wiretapping program.
The Foreign Intelligence Surveillance Court, in a rare on-the-record opinion, said the public has no right right to view the documents because they deal with the clandestine workings of national security agencies.
The American Civil Liberties Union asked the court to release the records in August. Specifically, the organization asked for the government's legal briefs and the court's opinions on the wiretapping program.
U.S. District Judge John D. Bates, who sits on the national security court, refused. Releasing the documents would reveal closely guarded secrets that enemies could used to evade detection or disrupt intelligence activities, he said. Sources could be outed, targets could be tipped off and diplomatic relations could be damaged.
"All these possible harms are real and significant and, quite frankly, beyond debate," Bates wrote.
Among the key documents being sought were court orders that allowed the Bush administration to bring the wiretapping program under the court's purview in January. Previously, the Terrorist Surveillance Program allowed investigators to monitor international phone calls and e-mails to or from the U.S. without court oversight.
The White House said in January that it no longer needed the program because the spy court had established standards that satisfied the administration. The ACLU said it wanted to know what those standards are, how they were set up and how they were justified.
The ACLU also wanted to know about a later court ruling that barred the government from eavesdropping on foreign suspects whose messages were being routed through U.S. communications carriers, including Internet sites. That ruling helped President Bush persuade Congress to pass an overhaul of the Foreign Intelligence Surveillance Act, which governs such wiretapping.
Exactly what the court said, and why, is not publicly known. But Congress agreed to a plan in which the director of national intelligence and the attorney general can approve wiretaps without having to go before the court. The court gets involved whenever a U.S. citizen is the primary target of the surveillance.
"Without access to those judicial rulings, the public has no idea what government's surveillance powers are," ACLU lawyer Jameel Jaffer said. "It shouldn't be a controversial proposition that the public has a right to know what the court believes the scope of FISA is."
Bates acknowledged that the public would benefit from seeing the documents. The decision-making process would be understood, he said, and public oversight could help safeguard against government abuse. But the dangers of releasing such sensitive materials far outweigh that public benefit, Bates said.
Public opinions from the court are so rare, it's not immediately clear what the ACLU's options are. Because Bates alone signed the ruling, the group might be able ask for a review by the full panel. Or, it might be able to challenge the ruling before a federal appeals court.