Obama may release edited opinions of surveillance court

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WASHINGTON — In response to congressional demands, the Obama administration is considering disclosing portions of classified opinions by the secret court that oversees the National Security Agency’s surveillance programs.

“We would like to release into the public domain as much of this as we can without compromising national security,” Robert Litt, the top lawyer for Director of National Intelligence James Clapper, told Congress last week.

Liberals in Congress have been pressing the administration for years — without success — to release the classified orders by the Foreign Intelligence Surveillance Court, which rules in secret on surveillance requests from the Justice Department and the intelligence community.


The disclosures by former NSA contractor Edward Snowden — including an order from the court that showed the Patriot Act was being used to justify the collection of virtually all Americans’ calling records — have emboldened congressional critics and sent Obama officials scrambling to show that the FISA court’s role in regulating surveillance is meaningful.

The court, made up of 11 judges appointed by the chief justice of the U.S. Supreme Court, convenes in a secure portion of the federal courthouse in Washington, D.C. Its oversight takes place without public scrutiny and documents show that the court rarely denies a request from the government. Yet officials who have been briefed on the process say the court often demands changes in the scope of surveillance orders before approving them.

“I think they will end up declassifying at least portions of the opinions,” said Rep. Adam Schiff (D-Burbank), who introduced a bill last week requiring it. “I think they recognize it’s in their interest now.”

Schiff’s bill and a similar one in the Senate call for declassifying all FISA court opinions involving Section 215 of the Patriot Act, which allows the government to obtain, in bulk, business records relevant to an investigation.

The bills also call for declassifying opinions interpreting Section 702 of the FISA Amendments Act, a law that authorizes surveillance of foreigners by tapping U.S. Internet and telecommunications traffic.

The leak of an NSA collection program under Section 702 called PRISM, which siphons email, video, chats and other consumer content from Google, Facebook, Apple and other tech companies, raised the specter of widespread surveillance of Americans.


But over the last week, top intelligence officials have testified before Congress about the limits on the spying. New NSA documents disclosed Thursday by the Washington Post and Britain’s Guardian newspaper appeared to affirm their accounts.

Under PRISM and other Internet and communications surveillance, the NSA targets only foreigners, and can keep information inadvertently obtained on Americans only if there are connections to foreign intelligence, terrorism or criminal activity, the documents showed.

The database is queried solely with known terrorist phone numbers, officials said, and there were 300 such numbers last year. Just 22 people at the NSA, which employs tens of thousands, have access to the data, and it is not used for any purpose other than counter-terrorism, officials said.

The NSA files regular reports to the FISA court about the surveillance, but documents leaked to the Guardian show that the court often does not know who is being targeted.

Civil liberties activists worry that the NSA, a spying arm of the Pentagon, may be improperly snooping into private lives.

In examining what can be declassified, intelligence and Justice Department officials are grappling with the nature of the FISA orders themselves, which mix legal interpretations with specific secret intelligence.


“It’s been a very difficult task.” Litt told the House Intelligence Committee last week. “The facts frequently involve classified information, sensitive sources and methods. And what we’ve been discovering is that when you remove all the information that needs to be classified, you’re left with something that looks like Swiss cheese and is not really very comprehensible.”

In another example of the Obama administration seeking to counter concerns about domestic surveillance, the president held his first meeting Friday with members of a newly constituted Privacy and Civil Liberties Oversight Board, which is authorized to review proposed administration policies to ensure that they respect privacy and civil rights.

The board was largely vacant and moribund for most of Obama’s first term.

Times staff writer Kathleen Hennessey contributed to this report.