On Friday, the Center for National Security Studies (CNSS) filed its latest pleading in its efforts to have the FISC enable third-party persons or organizations to submit amici curiae to the FISC to argue why Section 501 of FISA (more commonly known as Section 215 of the PATRIOT Act) does not allow for the bulk collection of telephony metadata. As part of its request for amici curiae participation in the Section 215 proceedings, CNSS also seeks to have made public the Government’s brief setting forth its legal rationale for the program.
To set the necessary background for Friday’s filings, on October 17th, CNSS filed a motion for public briefing in the latest application for bulk collection under Section 215. In its motion, CNSS asked the FISC for three things: (i) the Government publicly file, or declassify if submitted on the closed record, “its current argument on the legality of the bulk telephony collection”; (ii) the FISC establish a briefing schedule that allows for the submission of amici curiae responding to the Government’s submission; and (iii) that motion be considered by the FISC sitting en banc.
Earlier this month on November 8th, the Government filed its response. As Ben Wittes covered over on Lawfare at the time, the Government did not object to the Court’s allowing CNSS to file amicus arguing the illegality of the bulk collection under Section 215. Indeed, the Government said the FISC “has the inherent power to authorize amicus curiae to submit a brief on an issue of law, if the Court determines that this would assist the Court.” However, the Government argued that if the FISC “elects to do so, any proceedings must still be conducted in a manner consistent with FISA. As such, any application by the Government . . . must remain non-public see 50 U.S.C. §1861(d)(1) and the proceedings before the Court be ex parte, see 50 U.S.C. §1861(c).” As a result, the Government argued, that requiring it to file publicly or declassify its legal rationale for the bulk collection would be “legally impossible” under the terms of the FISA statute.
In its reply filed Friday, CNSS argues that FISC’s ability “to receive an amicus brief that comprehensively addresses the legal arguments of the Government will be greatly enhanced if the Government is directed to file its own public memorandum of law defending the program.” Directly responding to the Government’s argument that FISA prohibits the disclosure sought, CNSS agrees that the statute requires the proceedings be ex parte and that Section 215 application and orders remain secret. However, CNSS argues that “requiring the Government to publicly file its legal memorandum would not violate either of those requirements” and accuses the Government of “conflat[ing] ‘ex parte’ with ‘in camera.'”
“To say that a proceeding must be held ex parte does not necessarily mean that that it must be held in secret; rather, it simply means that it must be held without providing notice to the other party . . . [The FISA statute] requires only that the proceedings be ex parte, and thus as a statutory matter does not prelude an open part of the proceeding when no classified matter would be disclosed.”
Noting that much of the information that would be in the proposed memorandum has already been declassified by the Government and that further redactions could be made if necessary, CNSS’s reply concludes “[t]hat some or all of the Government’s brief is made public does not mean that sensitive information in the application or order must also be revealed.”
Turning to Sections 1861(c) and (d)(1), cited by the Government in its response, the statute’s nondisclosure requirements–although fulsome in their reach–are specific in their scope. For example, Subsection (c)(2)(E), requires only that an order “not disclose that such order is issued for purposes of a [Section 215] investigation.” And Subsection (d)(1) only prohibits disclosure
“to any other person that the Federal Bureau of Investigation has sought or obtained tangible things pursuant to an order under this section, other than to: (A) those persons to whom disclosure is necessary to comply with such order; (B) an attorney to obtain legal advice or assistance with respect to the production of things in response to the order; or (C) other persons as permitted by the Director of the Federal Bureau of Investigation or the designee of the Director.”
Therefore, it would appear that CNSS has the stronger reading of the statute. Although, how the FISC will ultimately rule obviously remains to be seen. Needless to say, we’ll be tracking these proceedings as they continue. For more on these filings (and for truly interesting reads), see the entire CNSS reply brief, the CNSS original motion, and the Government response.