In a rare public filing in the secret Foreign Intelligence Surveillance Court (FISC), the Justice Department today urged continued secrecy for a 2011 FISC opinion that found the National Security Agency's surveillance under the FISA Amendments Act to be unconstitutional. Significantly, the surveillance at issue [then] was carried out under the same controversial legal authority that underlies the NSA’s recently-revealed PRISM program.It gets worse:
The government’s argument is guaranteed to make heads spin. DOJ earlier argued that it lacks discretion to release the FISC opinion without the FISC's consent, but DOJ now argues that if the FISC were to agree with EFF, “the consequence would be that the Government could release the opinion or any portion of it in its discretion.” But FISC material is classified solely because the Executive Branch demands that it be, so release of the opinion has always been a matter of Executive discretion.In other words, the FISC should rule against the EFF because to do otherwise would require the release of this secret ruling. But the ruling is only secret because the administration insisted that it be kept secret! I can hardly conceive of a more twisted and cynical manipulation of the law.
This is not what the American people signed up for.