Today, the FISC granted the government’s motion to delay a declassification review of prior FISC opinions regarding the legality of Section 215 of the Patriot Act. Contrary to some traffic over social media outlets this afternoon, today’s order does not compel declassification of any additional FISC opinions, but rather only delays a declassification review that was previously ordered by the court on September 13.
As you may already know, in mid-September, the FISC ordered the government to perform and report to the court on the results of declassification review of any prior FISC opinions that “evaluat[e] the meaning, scope, and constitutionality of Section 215 [of the Patriot Act],” which neither (i) are already subject to FOIA litigation in the Southern District of New York by the ACLU or (ii) have already been released to the public.
On Friday, the government filed its response to the September 13 order, stating it had determined that eight FISC opinions contained analysis by the FISC evaluating the “meaning, scope and/or constitutionality of Section 215.” Nevertheless, of those eight, six were subject to the ACLU’s earlier FOIA litigation and one, an opinion from August 2013, had been publically released by the FISC on September 17. The government noted there was one remaining document, a FISC opinion from February 19, 2013, that contained analysis of Section 215; however, the government said:
Because of the current lapse of appropriations authority, the Government cannot presently estimate the date by which it will be able to complete a declassification review of this opinion. The Government anticipates, however, that it will complete its review within approximately 21 days of the resumption of appropriations at the relevant agencies.
The government then asked the FISC to stay its September 13 order due to the government shutdown, arguing that:
The Department of Justice does not know when funding will be restored by Congress . . . Absent an appropriation, the Department of Justice attorneys and employees are prohibited from working, even on a voluntary basis, except in very limited circumstances, including “emergencies involving the safety of human life or the protection of property.”
Evidently, then, it appears the lawyers and staff at the DOJ responsible for the declassification review of FISC opinions are not “essential” employees for the purposes of the government shutdown.
In today’s order from Judge Saylor of the FISC, the court granted the motion but ordered that within seven days after the shutdown ends, the government must submit to the FISC a proposed timetable for completing the declassification review.
Not surprisingly, the government shutdown also threatens to delay other FISC proceedings aimed at greater transparency of the NSA programs. As reported by Huffington Post, the big tech companies—including Google, Microsoft, and Facebook—who are requesting permission to disclose the nature and scope of any FISA surveillance of the companies’ data are now asking for a delay in their proceedings as a result of the shutdown. In the joint motion by each of the tech companies and the government, the parties are requesting the proceedings be delayed until Congress has passed legislation funding the DOJ.